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Legislative Council,
General Assembly
State of Delaware
Title 7
Conservation
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Title 7 - Conservation
Part I
Game, Wildlife and Dogs
Chapter 1
Protected Wildlife
§ 101. Definitions.
For the purposes of Parts I and II of this title, unless otherwise specifically defined, or another intention clearly appears, or the context
requires a different meaning:
(1) “Department” means the Department of Natural Resources and Environmental Control.
(2) “Fish and Wildlife Agent” means a law enforcement officer employed by the Department of Natural Resources and Environmental
Control pursuant to this title and § 8003(13) of Title 29.
(3) “Hunt” means to chase, pursue, kill, trap or take or attempt to chase, pursue, kill, trap or take any form of wild bird or wild animal.
(4) “Protected wildlife” means all forms of game and wildlife except such as are not protected by Parts I and II of this title.
(5) “Resident” means any person not an alien who has resided a year or more within this State.
(6) “Secretary” means the Secretary of the Department of Natural Resources and Environmental Control or the Secretary’s duly
authorized designee, provided any such delegation of authority is consistent with Chapter 80 of Title 29.
(27 Del. Laws, c. 152, § 5; Code 1915, §§ 2358A, 2415; 40 Del. Laws, c. 191, §§ 2, 28; Code 1935, §§ 2803, 2887; 7 Del. C.
1953, § 101; 57 Del. Laws, c. 739, §§ 1, 2; 63 Del. Laws, c. 389, § 4; 70 Del. Laws, c. 105, § 1; 70 Del. Laws, c. 186, § 1.)
§ 102. Powers and duties.
(a) The Department shall protect, manage and conserve all forms of protected wildlife of this State, and enforce by proper actions and
proceedings the law relating thereto. The Department shall authorize such studies as are necessary to the work of the Department, and
shall collect, classify and preserve such statistics, data and information as in its discretion will tend to promote the objectives of Parts
I and II of this title.
(b) The Secretary shall employ Fish and Wildlife Agents and other necessary employees and shall fix the salaries of all such employees,
who shall have the power to arrest in the same manner provided in subsection (c) of this section, and for the same purpose therein described,
and be subject to and serve during the pleasure of the Secretary.
(c) The Department shall prescribe the form of licenses issued by it; shall collect all fees for licenses issued by it and all fines and
forfeitures imposed for violations of the game and fish laws of this State; shall have authority to arrest without warrant for all violations
of the game and fish laws of this State in order to carry out the provisions thereof. The Fish and Wildlife Agents shall also have the power
to make arrests of persons violating § 518 of Title 17 in their presence or view or otherwise upon the issuance of an arrest warrant based
on a showing of probable cause that the individual named in the warrant committed the violation.
(d) The Department may issue a permit to any recognized sportsmen’s club having its principal location in the State to hold field trials
at any time on liberated game legally possessed or on liberated artificially propagated game legally possessed and take such game by
shooting. Such game taken shall be immediately tagged for identification with seals or tags supplied by the Department, for which it shall
receive 5 cents each. Game so tagged may be possessed, transported, bought and sold at any time and seals shall not be removed until
game is finally prepared for consumption.
(26 Del. Laws, c. 162, §§ 3, 6; 26 Del. Laws, c. 164, § 15; 27 Del. Laws, c. 154; 27 Del. Laws, c. 155, § 3; Code 1915, §§ 2358B,
2360, 2363; 40 Del. Laws, c. 191, §§ 2, 3; Code 1935, §§ 2804, 2806; 47 Del. Laws, c. 148, § 1; 7 Del. C. 1953, § 106; 49 Del.
Laws, c. 98, § 1; 56 Del. Laws, c. 224; 57 Del. Laws, c. 450, § 1; 57 Del. Laws, c. 739, §§ 7-12; 70 Del. Laws, c. 105, §§ 2, 3; 70
Del. Laws, c. 275, § 1.)
§ 103. Rules and regulations; expenditures; violations and penalty.
(a) The Department may promulgate such rules and regulations and may make expenditures necessary to:
(1) Fix and regulate seasons by shortening, extending or closing seasons, and to fix and regulate the bag limit on any species of
protected wildlife or freshwater fish except muskrat in any specified localities whenever it finds, after investigation, and a public hearing
is had as provided in subsection (b) of this section, that such action is necessary to assure the conservation of such wildlife or freshwater
fish, and the maintenance of an adequate supply thereof or to limit the supply thereof when conditions warrant the same;
(2) Establish and close to hunting, trapping and/or fishing such wildlife refuges, or any lake, stream or pond, as in its judgment may
be deemed best to conserve any species of wildlife or fish;
(3) Acquire by purchase, lease or agreement, gift or devise, lands, marshes or waters suitable for the purposes hereinafter enumerated,
and maintain the same for said purposes:
a. To provide fish nursery ponds and game farms;
b. To provide lands or waters suitable for upland game, waterfowl, fish or fur-bearing animal propagation and protection;
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c. To provide public hunting, fishing or other recreational grounds or waters to be used as areas in which the public may hunt, fish
or camp in accordance with the provisions of law and the regulations of the Department;
d. To extend and consolidate lands, marshes or waters suitable for the above purposes by exchange of other lands or waters;
e. To capture, propagate, transport, buy or exchange any species of protected wildlife needed for stocking any lands, marshes or
waters of this State.
(b) The Department may establish such other rules and regulations concerning any species of protected wildlife or freshwater fish except
muskrat in any specified localities as it deems necessary or advisable for the protection and conservation of wildlife or freshwater fish.
(c) This section shall not be construed as authorizing the Department to change any penalty for violating any game or fish law, or to
change the amount of any license fee established under Part I of this title, or to issue any license not lawfully authorized, or to extend any
open season or bag limit beyond the limits prescribed by federal law or regulations.
(d) Whoever violates any rule or regulation of the Department except those pertaining to deer or wild turkeys shall be guilty of a class
D environmental violation for each offense. Whoever violates any rule or regulation of the Department pertaining to antlerless deer shall
be guilty of a class C environmental violation for each offense. Whoever violates any rule or regulation of the Department pertaining to
antlered deer shall be guilty of a class A environmental misdemeanor for each offense. Whoever violates any rule or regulation of the
Department pertaining to wild turkeys shall be guilty of a class B environmental misdemeanor for each offense.
(Code 1915, § 2358C; 40 Del. Laws, c. 191, § 2; Code 1935, § 2805; 7 Del. C. 1953, § 108; 49 Del. Laws, c. 153, §§ 1-4; 51 Del.
Laws, c. 123, §§ 1, 2; 53 Del. Laws, c. 435; 57 Del. Laws, c. 739, § 14; 59 Del. Laws, c. 210, §§ 1, 2; 60 Del. Laws, c. 674, §§
1-3; 61 Del. Laws, c. 354, § 1; 63 Del. Laws, c. 197, §§ 1-4; 70 Del. Laws, c. 275, §§ 2-7; 73 Del. Laws, c. 375, § 6[5]; 77 Del.
Laws, c. 44, §§ 1, 2; 79 Del. Laws, c. 421, § 1.)
§ 104. Restrictions on expenditures and indebtedness.
The Department shall not contract any indebtedness or obligations which cannot be met by funds immediately available to its use, as
provided in Part I of this title.
(Code 1915, § 2358B; 40 Del. Laws, c. 191, § 2; Code 1935, § 2804; 7 Del. C. 1953, § 109; 57 Del. Laws, c. 739, § 15.)
§ 105. Assent to federal statutes — Cooperative wildlife-restoration projects.
The State assents to the act of Congress entitled, “An Act to Provide that the United States Shall Aid the States in Wildlife-Restoration
Projects, and for Other Purposes,” approved September 2, 1937 [16 U.S.C. § 669 et seq.] as amended and the Department shall perform
such acts as are necessary to the conduct and establishment of cooperative wildlife-restoration projects, as defined in that act of Congress,
in compliance with the act and with rules and regulations promulgated by the Secretary of the Interior thereunder. The Department may
receive and disburse any and all funds allocated to this State under said act of Congress and any amendment or amendments thereto.
(42 Del. Laws, c. 129, § 1; 7 Del. C. 1953, § 110; 57 Del. Laws, c. 739, § 16; 70 Del. Laws, c. 275, § 8.)
§ 106. Assent to federal statutes — Cooperative fish-restoration projects.
The State assents to the act of Congress entitled “An Act to Provide that the United States Shall Aid the States in Fish-Restoration and
Management Projects, and for Other Purposes,” approved August 9, 1950 [16 U.S.C. § 777 et seq.] as amended and the Department shall
perform such acts as are necessary to the conduct and establishment of cooperative fish-restoration and management projects, as defined
in that act of Congress, in compliance with that act and with rules and regulations promulgated by the Secretary of the Interior thereunder.
The Department may receive and disburse any and all funds allocated to this State under said act of Congress and any amendment or
amendments thereto.
(48 Del. Laws, c. 205, § 1; 7 Del. C. 1953, § 111; 57 Del. Laws, c. 739, § 17; 70 Del. Laws, c. 275, § 9.)
§ 107. Use of funds derived from sale of hunting and trapping licenses.
All funds derived from the issuance of licenses issued by the Department for hunting and trapping shall be deposited by the Department
with the State Treasurer, retained by the State Treasurer, and specifically set aside and earmarked until expended upon by proper vouchers
for the purpose of matching and securing money allotted to Delaware under the acts of Congress approved September 2, 1937 (16 U.S.C.
§ 669 et seq. (Wildlife Restoration)) as amended, and August 9, 1950 (16 U.S.C. § 777 et seq. (Fish Restoration and Management)) as
amended, to provide federal aid to the states in wildlife and fish restoration. Any balance remaining in such fund after full provision is
effected to insure matching in full of federal aid to this State for wildlife and fish restoration shall be expended by the Department with
approval from the Office of Management and Budget, the Controller General’s Office and the co-chairs of the Joint Finance Committee
upon the fish and wildlife resources of this State in accordance with the federal guidelines to manage such fish and wildlife resources.
(42 Del. Laws, c. 77, § 1; 42 Del. Laws, c. 129, § 2; 43 Del. Laws, c. 12, § 1; 47 Del. Laws, c. 78, § 1; 7 Del. C. 1953, § 112; 51
Del. Laws, c. 47; 57 Del. Laws, c. 739, § 18; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 275, § 10; 76 Del. Laws, c. 80, § 260.)
§ 108. Use of funds derived from sale of fishing licenses.
All funds derived from the issuance of licenses issued by the Department for fishing shall be deposited by the Department with the
State Treasurer, retained by the State Treasurer, and specifically set aside and earmarked until expended upon by proper vouchers for
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the purpose of matching and securing money allotted to Delaware under the acts of Congress approved September 2, 1937 (16 U.S.C. §
669 et seq. (Wildlife Restoration)) as amended, and August 9, 1950 (16 U.S.C. § 777 et seq. (Fish Restoration and Management)) as
amended, to provide federal aid to the states in fish and wildlife restoration. Any balance remaining in such fund after full provision is
effected to insure matching in full of federal aid to this State for wildlife and fish restoration shall be expended by the Department with
approval from the Office of Management and Budget, the Controller General’s Office and the co-chairs of the Joint Finance Committee
upon the fish and wildlife resources of this State in accordance with the federal guidelines to manage such fish and wildlife resources.
(42 Del. Laws, c. 77, § 1; 48 Del. Laws, c. 207, § 1; 7 Del. C. 1953, § 113; 50 Del. Laws, c. 258, § 1; 57 Del. Laws, c. 739, §§ 19,
20; 70 Del. Laws, c. 275, § 11; 76 Del. Laws, c. 80, § 261.)
§ 109. Deposit of receipts.
All funds received by the Department, except those which may be exempt from Chapter 61 of Title 29, and except funds derived
from the issuance of yearly licenses for hunting and trapping and fishing, shall be deposited by the Department to the credit of the State
Treasurer in the General Fund of the State and shall be reported in accordance with Chapter 61 of Title 29. The funds derived from the
issuance of licenses for hunting, trapping or fishing shall be deposited in accordance with §§ 107 and 108 of this title.
(7 Del. C. 1953, § 114; 57 Del. Laws, c. 739, § 21; 70 Del. Laws, c. 275, § 12.)
§ 110. Disbursements.
All disbursements made by the Department for salaries, expenses and other purposes, as are by law permitted, shall be paid by the State
Treasurer, to the extent there is money legally available to the Department, upon vouchers issued by the proper officers, designated by
the Department, and approved by the Auditor of Accounts.
(37 Del. Laws, c. 48, § 1; 38 Del. Laws, c. 147, § 1; Code 1935, § 2807; 42 Del. Laws, c. 77, § 1; 7 Del. C. 1953, § 115; 57 Del.
Laws, c. 739, § 22; 70 Del. Laws, c. 275, § 13.)
§ 111. Search and seizure powers of the Secretary and Fish and Wildlife Agents.
The Secretary and the Fish and Wildlife Agents may search and examine without warrant any person, conveyance, vehicle, game bag,
game coat or other receptacle for protected wildlife, and in the presence of an occupant of any camp or tent, may search and examine
without warrant such camp or tent for protected wildlife, when the Secretary or the Fish and Wildlife Agent has reason to believe and has
stated to the suspected person or occupant the reason for believing that any of the laws relating to protected wildlife have been violated,
and may seize and possess (take) any protected wildlife illegally in possession. This section shall not authorize the entering of a dwelling
house without first procuring a search warrant.
Provisions of this section shall be subject to Chapter 23 of Title 11. If there is any conflict or inconsistency between this section and
such chapter, the latter shall prevail.
(Code 1935, § 2806A; 41 Del. Laws, c. 177, § 1; 7 Del. C. 1953, § 117; 57 Del. Laws, c. 739, § 24; 70 Del. Laws, c. 105, § 4; 70
Del. Laws, c. 186, § 1.)
§ 112. Prohibition against acceptance of fees by employees of Department.
No employee of the Department shall receive or accept any fee from the sale of licenses issued by the Department.
(Code 1915, § 2358B; 40 Del. Laws, c. 191, § 2; Code 1935, § 2804; 7 Del. C. 1953, § 118; 57 Del. Laws, c. 739, § 25.)
§ 113. Protected wildlife injuring agriculture or other community interests.
When information is furnished to the Department that any species of protected wildlife has become, under extraordinary conditions,
seriously injurious to agriculture or other interests in any particular community, an investigation shall be made by the Department
to determine the nature and extent of the injury, whether the protected wildlife alleged to be doing the damage should be killed or
captured and, if so, by whom, during what times and by what means. The Department shall issue an appropriate order giving effect to
its determination.
(Code 1935, § 2821A; 41 Del. Laws, c. 177, § 4; 7 Del. C. 1953, § 119; 57 Del. Laws, c. 739, § 26; 70 Del. Laws, c. 275, § 14.)
§ 114. Protected wildlife injuring private property.
Upon receipt by the Department of information from the owner, tenant or sharecropper that any 1 or more species of protected wildlife
are detrimental to his or her crops, property or other interests on the land on which he or she resides or controls, together with a statement
of the location of the land, the nature of the crops, property or other interests being damaged or destroyed, the extent of the injury and the
particular species of protected wildlife committing the injury, an investigation shall be made by the Department, and, if it is determined
from such investigation that the injury complained of is substantial and can be abated only by killing or capturing the protected wildlife,
or so many thereof as in the opinion of the Department is necessary, a permit to kill or capture any number or all of such protected wildlife
on such premises shall be issued by the Department, in which permit shall be specified the time during which, the means and methods by
which, and the person or persons by whom the protected wildlife may be killed or captured, and the disposition to be made of all protected
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wildlife so killed or captured, and such other restrictions as the Department deems necessary and appropriate in the circumstances of
the particular case.
(Code 1935, § 2821B; 41 Del. Laws, c. 177, § 4; 7 Del. C. 1953, § 120; 57 Del. Laws, c. 739, § 27; 70 Del. Laws, c. 186, § 1.)
§ 115. Power of Department to take game or fish for propagating and restocking purposes.
The Department may take any game birds, animals or fish in or out of season in any way for strictly propagating and restocking purposes.
(Code 1915, § 2538; 30 Del. Laws, c. 176, § 6; Code 1935, § 3025; 7 Del. C. 1953, § 121; 57 Del. Laws, c. 739, § 28.)
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Title 7 - Conservation
Part I
Game, Wildlife and Dogs
Chapter 2
Nongame Wildlife and Habitat Preservation Programs
§ 201. Findings.
The General Assembly finds and declares:
(1) It is in the best interest of the State to preserve and enhance the diversity and abundance of nongame fish and wildlife, and
to protect the habitat and natural areas harboring rare and vanishing species of fish, wildlife, plants and areas of unusual scientific
significance or having unusual importance to the survival of Delaware’s native fish, wildlife and plants in their natural environments.
(2) Rare and endangered species are a public trust in need of active, protective management, and that it is in the broad public interest
to preserve and enhance such species.
(3) Historically fish and wildlife conservation programs have focused on the more recreationally and commercially important species
and consequently, such programs have been financed largely by hunting and fishing license revenues and by the federal assistance
based on excise taxes on certain hunting and fishing equipment. These traditional financing mechanisms are neither adequate nor fully
appropriate to meet the needs of all fish and wildlife.
(4) It is the policy of the State to enable and encourage taxpayers voluntarily to support nongame fish and wildlife, nongame habitat
and natural areas preservation programs, including rare plants protection, through contributions designated on state income tax forms.
(64 Del. Laws, c. 151, § 1.)
§ 202. Definitions.
(a) “Department” means the Department of Natural Resources and Environmental Control.
(b) “Nongame” is that fauna, including rare and endangered species, which are not commonly trapped, killed, captured or consumed,
either for sport or profit.
(64 Del. Laws, c. 151, § 1.)
§ 203. Procedure for contribution; disposition thereof.
Repealed by 73 Del. Laws, c. 179, § 2, effective July 12, 2001.
§ 204. Preservation Fund.
(a) In order to carry out the purpose of this chapter, there is hereby created a special fund, which shall be known as the Nongame Fish
and Wildlife, Nongame Habitat and Natural Areas Preservation Fund of the Treasury of the State.
(b) All moneys received from the voluntary contribution system established in § 1181 of Title 30 shall be deposited in said Fund.
(c) The General Assembly shall make no appropriation into said Fund, but individuals may, from time to time, make contributions
or bequests to the Fund.
(d) The moneys contained in said Fund shall be continuously transferred to the Department of Natural Resources and Environmental
Control for the exclusive purpose of carrying out the objectives of this chapter.
(e) The distribution of moneys among the subdivisions of the Department shall be determined by the Secretary of Natural Resources
and Environmental Control.
(f) The Department shall make an annual report to the General Assembly, which shall include the amount of funding derived from the
contributions and a summary of projects undertaken in furtherance of this chapter.
(g) From time to time as determined by the Delaware State Clearinghouse Committee, the Department shall submit a detailed report
to members of the Committee of revenues, expenditures and program measures for the fiscal period in question. Such report shall also
be sufficiently descriptive in nature so as to be concise and informative. The Committee may cause the Department to appear before the
Committee and to answer such questions as the Committee may require.
(64 Del. Laws, c. 151, § 1.)
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Title 7 - Conservation
Part I
Game, Wildlife and Dogs
Chapter 3
[Reserved].
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Title 7 - Conservation
Part I
Game, Wildlife and Dogs
Chapter 5
Licenses
Subchapter I
Hunting, Trapping and Fishing Licenses, Tags, and Stamps; Public Lands Use Fees
§ 501. Licenses.
(a) Every resident of this State, except as otherwise provided in this chapter, shall obtain a general license before hunting, trapping and/
or fishing in this State; and every resident required to obtain a hunting license who was born after January 1, 1967, shall have satisfactorily
completed not less than 10 hours of approved instruction, which includes but is not limited to, the safe and proficient use of hunting
equipment, hunter responsibility, principles of wildlife management, wildlife identification and a hands-on live firing experience by a
trained firearms instructor before such person makes application for a hunting license. Proof of completion of authorized hunter education
courses of other states or Canadian provinces shall be accepted and deemed having met the instruction requirement.
(b) Commencing July 1, 1986, every resident, except as otherwise provided, shall obtain a trapping license before trapping any animals
regulated by this title. Every resident required to obtain a trapping license who was born after January 1, 1978, shall have satisfactorily
completed a course in trapping education approved by the Department before such person makes application for a trapping license.
(27 Del. Laws, c. 152, § 3; Code 1915, § 2413; 40 Del. Laws, c. 191, § 26; Code 1935, § 2885; 47 Del. Laws, c. 77, § 1; 7 Del. C.
1953, § 501; 57 Del. Laws, c. 347; 58 Del. Laws, c. 32; 58 Del. Laws, c. 511, § 9; 65 Del. Laws, c. 217, § 1; 69 Del. Laws, c. 56, §
1; 77 Del. Laws, c. 129, § 1.)
§ 502. Exceptions to requirements for license.
(a) Residents and nonresidents may fish if they are the operator of a vehicle with a surf fishing vehicle permit as long as the vehicle is
located on a designated Delaware state park surf fishing beach without being licensed hereunder.
(b) Residents who own or live upon farms in this State containing 20 or more acres, and the members of their immediate families who
reside on the farm, may hunt, fish and trap on the farm without being licensed hereunder.
(c) Residents under 13 years of age may hunt without a license in this State when accompanied by a person who is the lawful holder
of a hunting license or has a lawful right to hunt.
(d) Any child under the age of 16 years may fish or take fish or crabs or clam from any of the waters under the jurisdiction of this
State without being licensed hereunder. Residents 16 and older but not over 65 years of age must purchase a fishing license to fish or
take fish, crabs or clams.
(e) Residents, 65 years of age or older, are exempted from the licensing requirements of this chapter.
(f) A member of the armed forces of the United States who is a patient in a military hospital may be issued a license exemption to hunt,
trap and fish in this State without charge, upon receipt by the Department of a written statement signed by the applicant’s commanding
officer certifying the nature of the applicant’s disability and place of station.
(g) Persons who are patients in any Veterans Administration facility in this State, or in any public hospital or sanitarium for the treatment
of tuberculosis, or a patient in a rehabilitation hospital under the State Department of Health, provided such person carries identification
which verifies his or her status as such a patient, shall not be required to purchase a fishing license. Forms shall be supplied to such
persons when they apply for their licenses to be used for the identification purposes described in this subsection.
(h) Persons who have been honorably discharged from the armed forces of the United States and certified by the Veterans Administration
as having at least a 60% service-connected disability may be issued a license exemption to hunt, trap, and fish in this State without charge,
upon receipt by the Department of a written statement from the Veterans Administration certifying the person’s honorable discharge and
service-connected disability.
(i) Persons who are blind are exempted from the licensing requirements of this chapter.
(j) Any unarmed residents participating in an organized fox hunt are exempt from the licensing requirements of this chapter.
(k) Any resident is exempt from the fishing license requirements of this chapter while fishing in a fee fishing operation that is registered
as same with the Department of Agriculture according to Chapter 4 of Title 3.
(l) Any resident who has served honorably for 90 or more consecutive days on active duty in the Armed Forces of the United States,
including service as member of the Delaware National Guard, in military actions in Southwest Asia associated with Operation Iraqi
Freedom or Operation Enduring Freedom may, for the first 12 months following the date the resident was honorably discharged or
removed from active status, be issued a license to hunt and/or fish in this State without charge.
(27 Del. Laws, c. 152, § 3; Code 1915, §§ 2371, 2413; 40 Del. Laws, c. 191, §§ 8, 26; 40 Del. Laws, c. 199, §§ 1-3; Code 1935, §§
2817, 2852, 2885; 7 Del. C. 1953, § 502; 55 Del. Laws, c. 444; 57 Del. Laws, c. 77; 57 Del. Laws, c. 399, §§ 1-4; 57 Del. Laws, c.
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Title 7 - Conservation
422; 60 Del. Laws, c. 411, § 1; 63 Del. Laws, c. 389, § 9; 69 Del. Laws, c. 103, § 10; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c.
291, § 1; 76 Del. Laws, c. 71, §§ 1-3; 76 Del. Laws, c. 72, § 1; 78 Del. Laws, c. 179, § 18; 82 Del. Laws, c. 183, § 1.)
§ 503. Application for resident’s license; proof of residence; use of license information.
(a) Each applicant for a resident’s license shall present reasonable proof to the Department or its duly authorized agent that the applicant
is a bona fide resident of this State. The Social Security number of the applicant shall be included on the application for any resident’s
license. The information contained within hunting, fishing, and trapping licenses and related databases may not be made available to the
public. Government agencies may use license information for law-enforcement purposes involving fish and wildlife investigations, for
research purposes involving hunting, trapping, or fishing harvest surveys conducted by Department scientists, excluding Social Security
information, or as otherwise authorized by law.
(b) The Department may use or provide a contractor with license information, excluding Social Security information, for the following
limited purposes:
(1) Retaining or recruiting hunters, trappers, and anglers.
(2) Sustaining and increasing associated license sales.
(c) Any contractor selected by the Department pursuant to subsection (b) of this section shall be subject to a confidentiality agreement
that prevents the contractor from releasing, transferring, or using license information for any other purposes.
(27 Del. Laws, c. 152, § 3; Code 1915, § 2413; 40 Del. Laws, c. 191, § 26; Code 1935, § 2885; 7 Del. C. 1953, § 503; 57 Del.
Laws, c. 739, § 32; 59 Del. Laws, c. 96, § 5; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 6, § 2; 74 Del. Laws, c. 337, § 1; 77 Del.
Laws, c. 425, § 1; 78 Del. Laws, c. 39, § 1; 80 Del. Laws, c. 106, § 1.)
§ 504. License fees for residents; additional tags.
(a) Residents shall pay to the Department or its duly authorized agents the following license fees:
(1) $39.50 for a general hunting license.
(2) $10 for a trapping license.
(3) $8.50 for a general fishing license.
(4) $40 for a boat fishing license for a boat 20 feet or less, $50 for a boat fishing license for a boat greater than 20 feet.
(5) $5.00 for a junior hunting license for a resident age 13 through 15 with the criteria for issuing the license established by the
Department pursuant to § 103 of this title.
(6) $100 for a fishing guide license and $159.50 for a hunting guide license.
(b) The Department may issue an additional tag or tags to kill deer. The criteria for issuing a tag or tags shall be established by the
Department pursuant to § 103 of this title. The amount charged for each tag or set of tags shall be $20.
(c) Vessels for hire shall pay to the Department or its duly authorized agents the following license fees:
(1) $150 for a charter boat, as defined in § 906(9) of this title, license; and
(2) $300 for a head boat, as defined in § 906(36) of this title, license.
(27 Del. Laws, c. 152, § 3; Code 1915, § 2413; 40 Del. Laws, c. 191, § 26; Code 1935, § 2885; 45 Del. Laws, c. 215, § 1; 47 Del.
Laws, c. 77, § 1; 7 Del. C. 1953, § 504; 53 Del. Laws, c. 421, §§ 1, 2; 57 Del. Laws, c. 41, §§ 1, 2; 57 Del. Laws, c. 739, § 33;
65 Del. Laws, c. 217, § 2; 67 Del. Laws, c. 451, §§ 1, 2; 68 Del. Laws, c. 75; 76 Del. Laws, c. 71, §§ 4, 5; 76 Del. Laws, c. 72, §§
2-4; 80 Del. Laws, c. 333, § 2.)
§ 505. License requirements for members of the armed forces.
Any member of the armed forces of the United States of America, including any Reserve component thereof, serving on full-time active
duty in the State of Delaware while not deployed or on temporary duty, and any member of Delaware’s National Guard, shall be deemed
a resident of this State for the purpose of obtaining a license to hunt, trap, and fish in this State. Each such application shall be supported
by a written statement signed by the applicant’s commanding officer certifying to the applicant’s place of station and duty status.
(27 Del. Laws, c. 152, § 3; Code 1915, § 2413; 40 Del. Laws, c. 191, § 26; Code 1935, § 2885; 48 Del. Laws, c. 155, § 1; 7 Del.
C. 1953, § 505; 49 Del. Laws, c. 397; 77 Del. Laws, c. 440, § 1; 78 Del. Laws, c. 34, §§ 1, 2.)
§ 506. License requirements for nonresidents; use of license information.
(a) Every nonresident, except as otherwise provided in this chapter, shall obtain a general license before hunting, trapping, fishing,
clamming, or crabbing in this State. Every nonresident required to obtain a hunting license who was born after January 1, 1967, shall have
satisfactorily completed not less than 10 hours of instruction, which includes the safe and proficient use of hunting equipment, hunter
responsibility, principles of wildlife management, wildlife identification, and, to the degree practical, a live firing experience before such
person makes application for a hunting license. This instruction is to be provided by personnel of the Department or its authorized agents.
Proof of completion of authorized hunter education courses of other states or Canadian provinces shall be accepted and deemed having
met the instruction requirement.
(b) Every nonresident required to obtain a trapping license who was born after January 1, 1978, shall have satisfactorily completed a
course in trapping education approved by the Department before such person makes application for a trapping license.
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(c) The Social Security number of the applicant shall be included on the application for any nonresident’s license. The information
contained within hunting, fishing, and trapping licenses and related databases may not be made available to the public. Government
agencies may use license information for law-enforcement purposes involving fish and wildlife investigations, for research purposes
involving hunting, trapping, or fishing harvest surveys conducted by Department scientists, excluding Social Security information, or as
otherwise authorized by law.
(d) The Department may use or provide a contractor with license information, excluding Social Security information, for the following
limited purposes:
(1) Retaining or recruiting hunters, trappers, and anglers.
(2) Sustaining and increasing associated license sales.
(e) Any contractor selected by the Department pursuant to subsection (d) of this section shall be subject to a confidentiality agreement
that prevents the contractor from releasing, transferring, or using license information for any other purposes.
(27 Del. Laws, c. 152, § 1; Code 1915, § 2411; 40 Del. Laws, c. 191, § 24; Code 1935, § 2882; 7 Del. C. 1953, § 506; 65 Del.
Laws, c. 217, § 3; 69 Del. Laws, c. 56, § 2; 70 Del. Laws, c. 275, § 17; 74 Del. Laws, c. 6, § 3; 74 Del. Laws, c. 337, § 2; 76 Del.
Laws, c. 71, § 6; 77 Del. Laws, c. 425, § 2; 78 Del. Laws, c. 39, § 2; 80 Del. Laws, c. 106, § 2.)
§ 507. Exceptions to requirement of license for nonresidents.
(a) (1) Nonresidents or aliens who are occupants of farms in this State containing 20 acres or more who are engaged in the science of
husbandry, who actually reside thereon, and the immediate members of the family of such occupants who also reside on said farm, may
hunt, fish or trap on said farms without being licensed hereunder.
(2) A nonresident, who owns but is not an occupant of a farm in this State containing 20 acres or more and where the science of
husbandry is practiced, and the immediate members of the family of the nonresident farm owner may hunt, trap, and/or fish on the farm
if the farm occupant or resident, if any, gives the owner written permission or if hunting, trapping, and/or fishing is permitted pursuant
to a written lease, if any, between the farm owner and the occupant or resident of the farm.
(b) Nonresidents other than aliens who are under 13 years of age may hunt without a license in this State when accompanied by a
person who is the lawful holder of a hunting license or has a lawful right to hunt.
(c) Any nonresidents participating in an organized fox hunt are exempt from the licensing requirement of this chapter.
(d) Any nonresident is exempt from the fishing license requirements of this chapter while fishing in a fee fishing operation that is
registered as same with the Department of Agriculture according to Chapter 4 of Title 3. Nonresidents 16 years of age or older must
purchase a nonresident fishing license to fish or take fish, crabs or clams.
(e) A nonresident shall be exempt from the licensing requirement of this chapter while hunting snow geese, provided:
(1) The nonresident resides in another state or Canadian province which extends the same exemption to Delaware residents;
(2) The nonresident is properly licensed, or exempt from the licensing requirement, to hunt snow geese in the state or Canadian
province in which he or she resides;
(3) The nonresident purchases a migratory waterfowl stamp as provided for by § 517 of this title; and
(4) The nonresident complies with the hunter education requirements of § 506(a) of this title.
(27 Del. Laws, c. 152, § 1; Code 1915, § 2411; 40 Del. Laws, c. 191, § 24; Code 1935, § 2882; 7 Del. C. 1953, § 507; 50 Del.
Laws, c. 640, § 1; 51 Del. Laws, c. 338; 60 Del. Laws, c. 411, § 2; 63 Del. Laws, c. 389, § 10; 69 Del. Laws, c. 103, § 11; 70 Del.
Laws, c. 186, § 1; 71 Del. Laws, c. 270, § 1; 76 Del. Laws, c. 71, §§ 7, 8; 76 Del. Laws, c. 72, § 5; 79 Del. Laws, c. 155, § 1.)
§ 508. License and tag fees for nonresidents.
(a) Nonresidents shall pay to the Department or its duly authorized agents the following license fees:
(1) $199.50 for a general hunting license.
(2) $75 for a trapping license.
(3) $20 for a general fishing license.
(4) $12.50 for a 7-day fishing license good for 7 consecutive days.
(5) $75 for a 3-day small game hunting license good for 3 consecutive days and not valid for hunting deer or turkeys.
(6) $20 for each additional tag to kill a single antlerless deer.
(7) $50 for a tag to kill a single antlered deer.
(8) $50 for a tag to kill a single quality buck.
(9) Vessels for hire shall pay to the Department or its duly authorized agents the following license fees:
a. $300 for a charter boat, as defined in § 906(9) of this title, license; and
b. $600 for a head boat, as defined in § 906(36) of this title, license.
(10) $40 for a boat fishing license for a boat 20 feet or less, $50 for a boat fishing license for a boat greater than 20 feet.
(11) $50 for a junior hunting license for a nonresident age 13 through 15.
(12) $300 for a fishing guide license and $475 for a hunting guide license.
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(b) The criteria for issuing a tag pursuant to this section shall be established by the Department pursuant to § 103 of this title.
(27 Del. Laws, c. 152, § 1; Code 1915, § 2411; 40 Del. Laws, c. 191, § 24; Code 1935, § 2883; 47 Del. Laws, c. 152, § 1; 48 Del.
Laws, c. 217, § 1; 7 Del. C. 1953, § 509; 50 Del. Laws, c. 250, § 1; 50 Del. Laws, c. 259, § 1; 57 Del. Laws, c. 42; 57 Del. Laws,
c. 97; 57 Del. Laws, c. 739, § 35; 59 Del. Laws, c. 96, §§ 2, 3; 59 Del. Laws, c. 230, § 1; 61 Del. Laws, c. 120, § 1; 65 Del. Laws,
c. 217, § 4; 66 Del. Laws, c. 355, § 1; 70 Del. Laws, c. 27, § 1; 71 Del. Laws, c. 270, § 2; 73 Del. Laws, c. 375, §§ 2-4[1-3]; 76
Del. Laws, c. 71, §§ 9-12; 76 Del. Laws, c. 72, §§ 6-9; 80 Del. Laws, c. 333, § 3.)
§ 509. Complimentary licenses.
(a) The Department may issue annually, complimentary hunting and fishing licenses to any of the following:
(1) The President of the United States;
(2) The governor of any state;
(3) Authorized officials of the game and fish departments of other states; and
(4) Authorized officials of the United States Department of the Interior, United States Fish and Wildlife Service, who are nonresidents
of the State.
(b) The complimentary licenses shall not be transferable, shall be issued on such form as the Department designates, and without the
payment of any fee therefor and when so issued shall be valid authority for the holder or holders thereof to hunt and fish in the State in
accordance with the laws of the State. Not more than 50 such complimentary licenses shall be issued in any 1 calendar year.
(c) The Secretary may also issue letter permits, valid for up to 3 days, to visiting state and federal dignitaries. The number of outstanding
permits shall not exceed 10 at any time.
(Code 1935, § 2804A; 45 Del. Laws, c. 216, § 1; 7 Del. C. 1953, § 511; 57 Del. Laws, c. 739, § 36; 59 Del. Laws, c. 110, §§ 1-3;
70 Del. Laws, c. 275, § 18.)
§ 510. Term of license.
(a) All licenses issued by the Division of Fish and Wildlife shall be in lieu of all other charges for such privileges and shall authorize
their legal holder the privilege prescribed thereon only during the fiscal year, and, with the exception of fishing licenses, such licenses
shall be valid only during the periods prescribed on the license.
(b) Fishing licenses shall authorize their legal holder the privilege prescribed thereon only during the calendar year beginning the 1st
day of January and such licenses shall expire on December 31 of the year they are issued.
(27 Del. Laws, c. 152, § 4; Code 1915, § 2414; 40 Del. Laws, c. 191, § 27; Code 1935, § 2886; 7 Del. C. 1953, § 512; 50 Del.
Laws, c. 235, § 1; 57 Del. Laws, c. 739, § 37; 58 Del. Laws, c. 41, § 1; 73 Del. Laws, c. 375, § 7[6])
§ 511. Licensing agents; bond requirement; service charge; regulations.
(a) The Department may authorize as many qualified persons as licensing agents as it deems necessary to effectuate the efficient
distribution of the licenses, permits, tags, passes, and stamps authorized by subchapter I of this chapter.
(b) Licensing agents shall be required by the Department to give security by means of a bond in the penal sum of $5,000, conditioned
for the faithful performance of their duties and for the prompt and correct remittance to the Department of the moneys received from the
sale of licenses, permits, tags, passes, and stamps.
(c) Licensing agents may add a service charge to the required fee for a license, permit, tag, pass, or stamp, provided the service charge
does not exceed $1.50 for a license, $1.50 for a permit, $1.50 for a tag, $1.50 for a pass, or $1.00 for a stamp. Such service charges, if
imposed, shall be posted by the licensing agent and shall be clearly visible to prospective purchasers.
(d) Notwithstanding subsection (c) of this section, a licensing agent offering automated licensing may be authorized by the Department
to add a service charge of up to $4.00 to the required fee for a license. License applicants, prior to their purchase of licenses through an
automated system, shall be notified of the applicable service charge.
(e) The Secretary may adopt, amend, modify or repeal rules and regulations to effectuate the policy and purpose of this section.
(f) (1) Except as otherwise provided by the Constitutions or laws of the United States or of the State, as the same may expressly require
or be interpreted as requiring by a court of competent jurisdiction, no claim or cause of action shall arise, and no judgment, damages,
penalties, costs or other money entitlement shall be awarded or assessed against any person authorized by the Department as a licensing
agent in any civil suit or proceeding at law or in equity, or before any administrative tribunal, where the following elements are present:
a. The act or omission complained of arose out of and in connection with the performance of the licensing agent’s official duties
set forth in this title or the rules or regulations of the Department;
b. The act or omission complained of was done in good faith and in the belief that the licensing agent was acting in accordance
with its official duties set forth in this title or the rules or regulations of the Department; and
c. The act or omission complained of was done without gross or wanton negligence.
(2) The plaintiff shall have the burden of proving the absence of 1 or more of the elements of immunity as set forth in this subsection.
(3) Nothing in this subsection shall be construed to require the State, the Department, or any agency, office, or instrumentality of the
State to indemnify or to reimburse any licensing agent for costs of defending any civil suit or proceeding brought against the licensing
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Title 7 - Conservation
agent. Nothing in this subsection shall be construed to require the State, the Department, or any agency, office, or instrumentality of
the State to provide legal representation to any licensing agent in any civil suit or proceeding brought against the licensing agent.
(26 Del. Laws, c. 162, § 3; 26 Del. Laws, c. 164, § 15; 27 Del. Laws, c. 154; 27 Del. Laws, c. 155, § 3; Code 1915, § 2360; 40
Del. Laws, c. 191, § 3; Code 1935, § 2806; 42 Del. Laws, c. 130, § 1; 7 Del. C. 1953, § 513; 57 Del. Laws, c. 739, § 38; 58 Del.
Laws, c. 104; 62 Del. Laws, c. 212, § 1; 71 Del. Laws, c. 443, § 1; 73 Del. Laws, c. 375, § 8[7]; 74 Del. Laws, c. 320, § 1; 80 Del.
Laws, c. 333, § 4.)
§ 512. Refusal to sell and revocation of license; grounds; notice.
(a) The Department may, except as otherwise provided, revoke any hunting, fishing or trapping license, or any license issued by it,
and deny any person the right to secure such license or to hunt, fish or trap anywhere in this State for a period within its discretion, but
in no case longer than 1 year, if:
(1) The licensee or person has been convicted of violating any game or fish law; or
(2) The licensee or person has been convicted in any court of record of having defaced, mutilated, destroyed or carried away notices
posted by a freeholder, leaseholder or the Department, or personal property or crops of any kind on lands or waters in which such
licensee or person may have been hunting, trapping or fishing; or
(3) The licensee or person has been convicted of an offense involving carelessness in the use of firearms while hunting and thereby
caused injury to any person or to poultry or livestock; or
(4) The licensee or person has been convicted of an offense involving the unlawful setting of forest, marsh or grass fires; or
(5) It is established to the satisfaction of the Department that the licensee, while hunting with firearms, has been in an intoxicated
condition.
(b) To revoke a license then in force or to deny any person the right to secure a license or to hunt, trap or fish in this State for any
period, the Department shall send a written notice to that effect to the person at his or her address either by registered mail or by delivery
personally by a representative of the Department. The Department shall furnish in writing to all persons authorized to issue licenses, the
names and addresses of all persons whose licenses have been revoked and the terms for which such licensees or persons have been denied
the right to secure licenses or to hunt, trap or fish in this State, together with any other data the Department deems necessary.
(c) The Department may revoke any hunting or trapping license or any similar licenses issued by it or deny any person the right to
secure such license or to hunt or trap anywhere in this State for a period within its discretion of not less than 3 years nor more than 5 years
if the licensee has been convicted of illegally possessing, tending or setting or attempting to set or tend a killer, body-gripping trap.
(d) The provisions of § 516(g) and § 2216 of Title 13 shall supersede any provisions of this chapter to the contrary with respect to any
matter involving any applicant or licensee under § 516(g) or § 2216 of Title 13. Any provisions hereof to the contrary notwithstanding,
upon receipt of notification from the Family Court pursuant to § 516(g) of Title 13 or notice from the Director of the Division of Child
Support Services pursuant to § 2216 of Title 13 regarding an applicant or licensee, the Department shall:
(1) Forthwith deny the issuance or renewal of any license under this chapter, or suspend the same, and
(2) Furnish in writing the name and address of such applicant or licensee to all persons authorized to issue licenses under this chapter.
(Code 1915, § 2371; 40 Del. Laws, c. 191, § 8; Code 1935, § 2817; 7 Del. C. 1953, § 514; 57 Del. Laws, c. 739, § 39; 62 Del.
Laws, c. 326, § 2; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 216, § 80; 80 Del. Laws, c. 234, § 1.)
§ 513. License possession.
Each holder of a license issued by the Department shall always possess on their person said license, either in paper or digital form
encoded in a manner that validates the license holder, while hunting, fishing or trapping, or while serving as a guide, and shall present
such license upon request to any person empowered to arrest for violations of the game and fish laws of this State.
(26 Del. Laws, c. 162, § 3; 26 Del. Laws, c. 164, §§ 3, 15; 27 Del. Laws, c. 154; 27 Del. Laws, c. 155, § 3; Code 1915, §§ 2360,
2392; 40 Del. Laws, c. 191, §§ 3, 17; Code 1935, §§ 2806, 2852; 46 Del. Laws, c. 73, § 1; 7 Del. C. 1953, § 515; 57 Del. Laws, c.
739, § 40; 77 Del. Laws, c. 237, § 1; 83 Del. Laws, c. 218, § 1.)
§ 514. Tagging metal traps; obtaining tags; violation and penalty.
(a) No person shall set or make use of any kind of a metal trap whatsoever, except for the purpose of taking muskrats, without having
first placed a metallic plate or tag on each trap, bearing in plain English the words “Trapping License, Delaware,” and in addition thereto
the number of the trapping license issued to the owner of the traps and the year of issuance thereof.
(b) The Department shall furnish upon application to any person who has secured a license in this State, or to any person who is entitled
to trap without a license, not more than 25 suitable tags free of charge, and shall furnish upon application, additional tags at cost. Such
tags shall be used only by the person to whom issued and shall not be transferable.
(c) Whoever sets or makes use of a metal trap, except for the purpose of taking muskrats, without having first placed a metallic plate
or tag on each metal trap in accordance with this section, shall be guilty of a class D environmental misdemeanor for each offense, and in
addition thereto shall forfeit to the Department each trap so set or made use of, and such traps shall be disposed of as the Department directs.
(Code 1915, § 2392A; 40 Del. Laws, c. 191, § 18; Code 1935, § 2852; 7 Del. C. 1953, § 516; 57 Del. Laws, c. 739, § 41; 70 Del.
Laws, c. 275, § 19.)
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Title 7 - Conservation
§ 515. Possession of protected game or fish by unlicensed nonresident; penalty.
(a) No nonresident or alien shall have any protected game or wildlife in his or her possession who does not hold a hunting, trapping or
fishing license, for game and fish, respectively, for the time during which he or she has protected game or wildlife in his or her possession
unless such game or wildlife has been lawfully killed or caught out of the State and may be lawfully possessed in this State.
(b) Whoever violates this section shall be guilty of a class B environmental misdemeanor for each offense.
(c) Nothing in this section shall apply:
(1) To a nonresident or alien who is a bona fide freeholder or a bona fide leaseholder and actually resides on a farm in this State
containing at least 20 acres of land and is engaged in the science of husbandry on said farm; or
(2) To the lawful interstate transportation of protected wildlife.
(26 Del. Laws, c. 164, § 5; Code 1915, § 2394; 40 Del. Laws, c. 191, § 19; Code 1935, § 2854; 7 Del. C. 1953, § 517; 70 Del.
Laws, c. 275, § 20; 70 Del. Laws, c. 186, § 1.)
§ 516. Forgery or alteration of license; obtaining license by misrepresentation; use of license by another;
penalties.
Whoever forges or alters any license or misrepresents the facts in order to obtain any license issued by the Department or use the license
of another, or permits such license to be used by another, shall forfeit such license and be guilty of a class B environmental misdemeanor
for each offense. In addition thereto, for altering a license in any way, the person is guilty of forgery and shall be punished accordingly.
(26 Del. Laws, c. 164, § 6; Code 1915, § 2395; 40 Del. Laws, c. 191, § 20; Code 1935, § 2855; 7 Del. C. 1953, § 518; 57 Del.
Laws, c. 739, § 42; 70 Del. Laws, c. 275, § 21.)
§ 517. Migratory waterfowl stamp.
(a) As used in this section:
(1) “Division” means the Division of Fish and Wildlife of the Department of Natural Resources and Environmental Control.
(2) “Migratory waterfowl” means birds in the Family Anatidae, including wild goose, brant, or wild duck.
(3) “Stamp” means the migratory waterfowl stamp provided for by this section.
(b) Except as otherwise provided herein, no person may hunt or take any migratory waterfowl within this State without first procuring a
migratory waterfowl stamp as provided for by this section. Such stamp must be in the possession of every person when hunting or taking
any migratory waterfowl, either as a gummed paper stamp validated by the signature of the licensee written across the face of such stamp,
or in paper or digital form encoded in a manner that validates the stamp holder. Such stamp shall be designed and produced in accordance
with Division regulations and shall expire annually on the same date each year that all hunting licenses expire. Unless otherwise provided
in this chapter, any person who is exempt from payment or charge for a hunting license shall also be exempt from the fee imposed by this
section. Any person who is under the age of 16 years shall be exempt from the requirements of this subsection.
(c) A stamp shall be issued to each hunting license applicant upon application for said stamp in a manner specified by the Department
and payment of a fee of $15, together with any licensing agent fees charged in accordance with this chapter.
(d) All funds derived from the issuance of migratory waterfowl stamps shall be deposited by the Division with the State Treasurer and
shall be specifically set aside and earmarked as state duck stamp account to permit separate accountability for the receipt and expenditure
of funds derived from the sale of state duck stamps.
(1) The Division shall contract annually 50 percent of the revenue collected and deposited in the state duck stamp account with
an appropriate nonprofit organization to utilize 50 percent of the revenue collected pursuant to this section for the development of
waterfowl propagation areas in Canada from which come substantial numbers of waterfowl migrating to and through Delaware. Before
paying such revenue to any nonprofit organization developing waterfowl areas, the Division shall obtain evidence that the project is
acceptable to the appropriate agency having a jurisdiction over the lands and waters affected by the project.
(2) The remaining 50 percent of the funds in the state duck stamp account shall be used for the purpose of protection, preserving,
restoring, enhancing and developing waterfowl habitat in Delaware.
(e) The Division is hereby granted the authority to establish, by regulation, the method for selecting appropriate designs for the migratory
waterfowl stamp.
(62 Del. Laws, c. 62, § 1; 70 Del. Laws, c. 27, § 2; 70 Del. Laws, c. 275, §§ 22, 24; 71 Del. Laws, c. 270, § 3; 71 Del. Laws, c.
443, § 2; 73 Del. Laws, c. 375, § 5[4]; 80 Del. Laws, c. 333, § 5; 83 Del. Laws, c. 218, § 2.)
§ 518. Hunting or trapping during license revocation.
Whoever hunts or traps during a period when the Department has revoked or denied that person the right to secure a license to hunt
or trap within the State shall be guilty of a class A environmental misdemeanor, and upon conviction, shall be denied the privilege of
hunting or trapping, with or without a license, in the State for a period of 5 years, commencing with the date of conviction.
(62 Del. Laws, c. 326, § 3; 70 Del. Laws, c. 275, §§ 23, 24.)
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Title 7 - Conservation
§ 519. [Reserved.]
§ 520. Free sport fishing days.
The Secretary of the Department of Natural Resources and Environmental Control may designate up to 2 days within National Fishing
Week, which may or may not be consecutive, during each calendar year as “free sport fishing days.” On the designated “free sport fishing
days,” residents and nonresidents are exempt from the fishing requirements of §§ 501, 505 and 506 of this title, but are subject to all
other statutory and regulatory provisions that pertain to fishing.
(69 Del. Laws, c. 26, § 1.)
§ 521. Public lands use fees; blind site permit; conservation access pass [Effective until July 1, 2022].
(a) Whoever utilizes a blind site on public lands managed by the Division of Fish and Wildlife and included in the Division’s lottery
program for the purposes of hunting waterfowl or deer shall pay an annual blind site permit fee of $20. This fee is hereby waived for
hunters participating in Division of Fish and Wildlife designated youth hunting days.
(b) Notwithstanding paragraph (b)(1) of this section, a conservation access pass that serves as a permit is required for any registered
motor vehicle as defined in Title 21 used to access public lands owned or managed by the Division of Fish and Wildlife for any, as
determined by the Department, allowable activity. Such pass shall be displayed by the motor vehicle operator on or within said vehicle
in a manner as specified by the Department. Such pass shall be assigned and limited to a single, specified registered motor vehicle, and
may be transferred to another registered motor vehicle of same ownership for a fee of $10 paid to the Department.
(1) A conservation access pass shall not be required to access:
a. The Michael Castle Trail and those associated direct access roads and parking areas designated by the Department within the
C&D Canal Conservation Area.
b. Those fishing or boating access areas, educational facilities, or shooting range facilities designated by the Department.
c. Applicable lands leased from the Department, provided access is for the purpose for which such lands are leased.
d. Other areas designated by the Department.
(2) An annual conservation access pass shall be issued free of charge with resident and nonresident general hunting licenses, resident
and nonresident hunting guide licenses, and nonresident 3-day small game hunting licenses.
(3) The following conservation access pass fees shall be paid to the Department or its duly authorized agents:
a. $32.50 for a resident annual pass.
b. $10 for a resident 3-day pass valid for 3 consecutive days.
c. $65 for a nonresident annual pass.
d. $20 for a nonresident 3-day pass valid for 3 consecutive days.
(c) All funds received from the purchase of conservation access passes shall be deposited and administered in accordance with §§ 105
and 107 of this title solely for wildlife-associated user access facilities and projects on and the management and maintenance of subject
public lands.
(76 Del. Laws, c. 72, § 10; 76 Del. Laws, c. 188, § 1; 78 Del. Laws, c. 83, § 1; 80 Del. Laws, c. 333, § 6.)
§ 521. Public lands use fees; blind site permit; conservation access pass [Effective July 1, 2022].
(a) Whoever utilizes a blind site on public lands managed by the Division of Fish and Wildlife and included in the Division’s lottery
program for the purposes of hunting waterfowl or deer shall pay an annual blind site permit fee of $20. This fee is hereby waived for
hunters participating in Division of Fish and Wildlife designated youth hunting days.
(b) Notwithstanding paragraph (b)(1) of this section, a conservation access pass that serves as a permit is required for any registered
motor vehicle as defined in Title 21 used to access public lands owned or managed by the Division of Fish and Wildlife for any, as
determined by the Department, allowable activity. Such pass shall be displayed by the motor vehicle operator on or within said vehicle
in a manner as specified by the Department. Such pass shall be assigned and limited to a single, specified registered motor vehicle, and
may be transferred to another registered motor vehicle of same ownership for a fee of $10 paid to the Department.
(1) A conservation access pass shall not be required to access:
a. The Michael Castle Trail and those associated direct access roads and parking areas designated by the Department within the
C&D Canal Conservation Area.
b. Those fishing or boating access areas, educational facilities, or shooting range facilities designated by the Department.
c. Applicable lands leased from the Department, provided access is for the purpose for which such lands are leased.
d. Other areas designated by the Department.
(2) An annual conservation access pass shall be issued free of charge with resident and nonresident general hunting licenses, resident
and nonresident hunting guide licenses, and nonresident 3-day small game hunting licenses.
(3) The following conservation access pass fees shall be paid to the Department or its duly authorized agents:
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Title 7 - Conservation
a. $32.50 for a resident annual pass.
b. $10 for a resident 3-day pass valid for 3 consecutive days.
c. $65 for a nonresident annual pass.
d. $20 for a nonresident 3-day pass valid for 3 consecutive days.
e. A Delaware resident who is 65 years of age or older may pay a 1-time fee of $65, which will permit the resident access to any
public lands permitted under this section for the lifetime of the resident provided the applicant provides proof of age at the time
such application is made.
(c) All funds received from the purchase of conservation access passes shall be deposited and administered in accordance with §§ 105
and 107 of this title solely for wildlife-associated user access facilities and projects on and the management and maintenance of subject
public lands.
(76 Del. Laws, c. 72, § 10; 76 Del. Laws, c. 188, § 1; 78 Del. Laws, c. 83, § 1; 80 Del. Laws, c. 333, § 6; 83 Del. Laws, c. 191, §
1.)
Subchapter II
Raw Fur Dealers
§ 528. License requirement for commercial raw fur dealer.
A person must obtain an annual license before engaging in the business of purchasing or receiving raw furs or pelts for commercial
purposes within this State, except muskrat furs or pelts.
(Code 1915, § 2415A; 40 Del. Laws, c. 191, § 30; Code 1935, § 2888; 7 Del. C. 1953, § 551; 70 Del. Laws, c. 275, § 29.)
§ 529. License fees.
A resident of Delaware shall pay to the Department a fee of $50 for a license under § 528 of this title. A nonresident of Delaware
shall pay a fee of $475 for such a license.
(Code 1915, § 2415A; 40 Del. Laws, c. 191, § 30; Code 1935, § 2888; 7 Del. C. 1953, § 552; 57 Del. Laws, c. 739, § 44; 62 Del.
Laws, c. 138, § 1; 67 Del. Laws, c. 260, § 1; 70 Del. Laws, c. 275, §§ 26, 29; 80 Del. Laws, c. 333, § 7.)
§ 530. Qualification of licensee; nontransferability of license.
Licenses under this subchapter shall be sold only to citizens of the United States and shall not be transferable.
(26 Del. Laws, c. 162, § 3; 26 Del. Laws, c. 164, § 15; 27 Del. Laws, c. 154; 27 Del. Laws, c. 155, § 3; Code 1915, § 2360; 40
Del. Laws, c. 191, § 3; Code 1935, § 2806; 7 Del. C. 1953, § 553; 70 Del. Laws, c. 275, § 29.)
§ 531. Penalties; failure to obtain license.
Whoever engages in the business of purchasing or receiving raw furs or pelts for commercial purposes within this State, except muskrat
furs or pelts, without obtaining a license as required by § 528 of this title, shall be guilty of a class B environmental misdemeanor for
each offense.
(Code 1915, § 2415A; 40 Del. Laws, c. 191, § 30; Code 1935, § 2888; 7 Del. C. 1953, § 554; 62 Del. Laws, c. 138, §§ 2, 3; 70
Del. Laws, c. 275, §§ 27, 29.)
§ 532. Records to be kept by licensed fur dealers; inspection; violations and penalties.
(a) The holder of a fur dealer’s license shall keep an accurate ledger of all transactions relating to the purchase or receipt of raw furs or
pelts. The ledger shall contain the names and addresses of all persons from whom raw furs or pelts were purchased or received and date
of receipt, and to whom raw furs or pelts were sold or delivered and date of delivery, together with the number and kind of raw furs or
pelts bought or received from each of said persons and the date of receipt, the number and kind of raw furs or pelts sold or delivered to
each of said persons and date of delivery, and the price paid for or received for each raw fur or pelt.
(b) The records provided for in subsection (a) of this section shall be open for inspection at all reasonable times to any person empowered
to arrest for violation of the game and fish laws of this State.
(c) Whoever violates this section shall be guilty of a class C environmental violation.
(d) This section shall not apply to the pelts or furs of muskrats.
(Code 1915, § 2415B; 40 Del. Laws, c. 191, § 30; Code 1935, § 2889; 7 Del. C. 1953, § 555; 62 Del. Laws, c. 138, §§ 4, 5; 70
Del. Laws, c. 275, §§ 28, 29; 79 Del. Laws, c. 421, § 2.)
Subchapter III
Breeders of Game Animals or Birds for Commercial Purposes
§ 542. License requirement.
(a) A person must obtain an annual license before engaging in the business or industry of breeding game animals or game birds.
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Title 7 - Conservation
(b) This section shall not apply to birds or animals raised by or for the Department, or to any person engaged in the breeding of game
animals or game birds the total of which shall not exceed 25 in number.
(37 Del. Laws, c. 221, §§ 1-4; Code 1935, § 2878; 7 Del. C. 1953, § 561; 57 Del. Laws, c. 739, § 45; 70 Del. Laws, c. 275, § 31.)
§ 543. License fee; qualification of licensee; nontransferability.
A fee of $17.50 shall be paid to the Department for a license under this subchapter which shall be issued only to citizens of the United
States and which shall not be transferable.
(26 Del. Laws, c. 162, § 3; 26 Del. Laws, c. 164, § 15; 27 Del. Laws, c. 154; 27 Del. Laws, c. 155, § 3; Code 1915, § 2360; 37
Del. Laws, c. 221, §§ 1-4; 40 Del. Laws, c. 191, § 3; Code 1935, §§ 2806, 2878; 7 Del. C. 1953, § 562; 57 Del. Laws, c. 739, §
46; 67 Del. Laws, c. 260, § 1; 70 Del. Laws, c. 275, § 31; 80 Del. Laws, c. 333, § 8.)
§ 544. Permit to ship game animals or birds out of State.
A permit to sell any game animals or game birds shall be required of a breeder to ship game animals or game birds out of this State.
The permit shall be obtained from the Department. When game birds or game animals are shipped out of the State a tag permitting such
shipping must be fastened to the crate or carrier carrying them.
(37 Del. Laws, c. 221, §§ 1-4; Code 1935, § 2878; 7 Del. C. 1953, § 563; 57 Del. Laws, c. 739, § 47; 70 Del. Laws, c. 275, § 31.)
§ 545. Penalty.
Whoever violates this subchapter shall be fined guilty of a class D environmental violation for each offense.
(37 Del. Laws, c. 221, §§ 1-4; Code 1935, § 2878; 7 Del. C. 1953, § 564; 70 Del. Laws, c. 275, §§ 30, 31; 79 Del. Laws, c. 421, §
2.)
Subchapter IV
Taking Protected Wildlife, Finfish and Shellfish for Scientific, Education or Propagating Purposes
§ 555. Permit to collect protected wildlife, finfish, shellfish or their nests or eggs for scientific, education or
propagating purposes.
(a) No person or persons shall take, capture, have in possession or transport protected wildlife, finfish, shellfish, or their nests or eggs
for scientific, education or propagating purposes except as authorized by a permit from the Director of the Division of Fish and Wildlife
in accordance with existing laws and regulations.
(b) Permits issued under this section may establish any conditions and/or restrictions deemed appropriate by the Division of Fish and
Wildlife.
(c) No protected wildlife, finfish, shellfish or their eggs held in captivity under said permit shall be confined under inhumane or
unsanitary conditions.
(d) Each permit issued under this section shall expire on the date set forth in the permit, or on the last day of the calendar year in which
it is issued if no date is set forth in the permit. Permits are revocable at the discretion of the Director of the Division of Fish and Wildlife.
(e) Each person receiving a permit under this section must file with the Division of Fish and Wildlife a report within 30 days after
the expiration date of said permit.
(f) Whoever violates this section or any rule and regulation adopted pursuant to this section shall be guilty of a class C environmental
violation for each offense.
(26 Del. Laws, c. 162, § 8; Code 1915, § 2365; Code 1935, § 2810; 7 Del. C. 1953, § 571; 57 Del. Laws, c. 739, § 48; 59 Del.
Laws, c. 116, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 275, § 33; 79 Del. Laws, c. 143, § 2; 79 Del. Laws, c. 421, § 2.)
§ 556. Use of fertility control on game birds and game animals.
(a) No person or persons shall administer fertility control agents or immunocontraceptives to game birds or game animals except as
authorized by a permit from the Director of the Division of Fish and Wildlife in accordance with existing laws and regulations.
(b) Whoever violates this section shall be guilty of a class B environmental misdemeanor for each offense.
(77 Del. Laws, c. 425, § 3.)
Subchapter V
Restricted Propagating and Shooting Preserves
§ 565. Territorial scope of subchapter.
This subchapter shall apply throughout the State.
(Code 1935, § 2811A; 47 Del. Laws, c. 295, § 1; 7 Del. C. 1953, § 581; 53 Del. Laws, c. 434; 70 Del. Laws, c. 275, § 40.)
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Title 7 - Conservation
§ 566. License to operate preserve; fee; term; renewal; regulations of Department.
The Department, upon payment to it of a fee of $39.50, may issue annual licenses, good for 1 calendar year, renewable annually in the
discretion of the Department for a like period, upon payment of a like fee, to persons, clubs or associations, authorizing the holders thereof
to carry on, pursuant to regulations issued by the Department in furtherance of the purposes of this subchapter, propagating, holding,
raising, releasing and shooting of rabbits and game birds, such as but not limited to pheasant, grouse, quail and partridge, hereinafter
sometimes referred to individually or collectively as game.
(Code 1935, § 2811A; 47 Del. Laws, c. 295, § 1; 7 Del. C. 1953, § 582; 57 Del. Laws, c. 739, § 50; 70 Del. Laws, c. 275, § 40; 77
Del. Laws, c. 366, § 1; 80 Del. Laws, c. 333, § 9.)
§ 567. Prerequisites to issuance of license.
Licenses under this subchapter shall be issued only when the applicant has produced evidence satisfactory to the Department that the
proposed restricted game preserve will not conflict with any reasonable prior public interest and will, in the opinion of the Department,
result in a general improvement in the quantity and quality of game in other areas of the State outside of the proposed restricted area, due
to the travel and movement of game caused by the heavy stocking of the restricted area. In addition, in order to be eligible for a license,
the proposed restricted area must contain contiguous lands under the same ownership, lease or management, aggregating not less than
300 acres, and no license shall be granted for reservations containing an aggregate of more than 1,000 acres, nor shall more than 5,000
acres in New Castle County be covered by such licenses at any one time. Moreover, the applicant must produce evidence satisfactory to
the Department that there exists, or that the applicant will forthwith supply, sufficient cover and feed upon the property embraced by the
application to adequately support game in numbers which, in the opinion of the Department, will be beneficial generally to other areas
of the State outside of the reservation.
(Code 1935, § 2811A; 47 Del. Laws, c. 295, § 1; 57 Del. Laws, c. 739, § 51; 67 Del. Laws, c. 44, § 1; 70 Del. Laws, c. 275, §§
34, 40; 77 Del. Laws, c. 366, § 1.)
§ 568. Liberation of game and the killing thereof.
For the purpose of stimulating an increase in the quantity of game released upon such reservations, the licensee, the licensee’s invitees
or guests, when properly licensed to hunt in accordance with the laws of this State, may liberate upon the reservation, game which has
been propagated, raised and held upon the premises, or which has been purchased by the licensee and taken upon the premises pursuant
to the license and may kill, without regard to sex, any number of such game so liberated, even if the number exceeds the limits otherwise
prescribed by law.
(Code 1935, § 2811A; 47 Del. Laws, c. 295, § 1; 7 Del. C. 1953, § 585; 57 Del. Laws, c. 739, § 53; 70 Del. Laws, c. 186, § 1; 70
Del. Laws, c. 275, §§ 36, 37, 40.)
§ 569. Licensee’s duties to cooperate with and assist Department; records; marking or tagging game.
All activities pursuant to a license under this subchapter shall be carried on in cooperation with the Department, and, to the extent
practicable, the licensee shall assist the Department in conducting breeding, propagating, feeding and care of game, and shall keep and
preserve such records pertaining thereto as the Department may from time to time prescribe. All game which is released shall be marked,
banded or tagged as may be prescribed by the Department and, when so identified, game killed may be transported from the preserve to
the domicile of the licensee, the licensee’s invitee or guest. All of the activities of the licensee shall be carried on at the expense of the
licensee and shall be without cost or obligation to the Department.
(Code 1935, § 2811A; 47 Del. Laws, c. 295, § 1; 7 Del. C. 1953, § 586; 57 Del. Laws, c. 739, § 54; 70 Del. Laws, c. 186, § 1; 70
Del. Laws, c. 275, § 40; 77 Del. Laws, c. 366, § 1.)
§ 570. Dogs; training and field trials on preserve.
Dogs may be trained and field trials conducted, when properly licensed, upon restricted preserves on any day, including Sundays,
except during the months of March through August, inclusive.
(Code 1935, § 2811A; 47 Del. Laws, c. 295, § 1; 7 Del. C. 1953, § 588; 70 Del. Laws, c. 275, § 40.)
§ 571. Game laws on restricted preserves; violations and penalties; arrest by owners.
All activities conducted pursuant to this subchapter shall be subject to the game laws and regulations of this State, except as the same
may be in conflict with this chapter. Persons who trespass upon any restricted preserve authorized by this subchapter for the purpose of
shooting or harassing any kind of wildlife without first obtaining permission to do so from the owner or occupant thereof, shall be guilty
of class B environmental misdemeanor. The owner of a restricted preserve and the owner’s duly authorized agents may be authorized
by the Department to make arrests under this section.
(Code 1935, § 2811A; 47 Del. Laws, c. 295, § 1; 7 Del. C. 1953, § 589; 57 Del. Laws, c. 104; 70 Del. Laws, c. 186, § 1; 70 Del.
Laws, c. 275, §§ 25, 39, 40.)
§ 572. Sunday operations on commercial shooting preserves; definition.
(a) Those entities licensed under this subchapter which operate as commercial game preserves may operate in accordance with this
subchapter on any day, including Sundays, subject to the seasonal limitations established by the Department.
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Title 7 - Conservation
(b) For purposes of this subchapter, “commercial game preserve” shall mean any partnership, sole proprietorship, corporation, or other
business entity licensed under this subchapter and operating on a for-profit basis. “Commercial game preserve” shall not include clubs,
associations or private individuals engaged in similar put-and-take hunting operations licensed under this subchapter.
(78 Del. Laws, c. 27, § 1.)
Subchapter VI
[Reserved].
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Title 7 - Conservation
Part I
Game, Wildlife and Dogs
Chapter 6
Endangered Species
§ 601. Importation of endangered species or hides, parts or articles made therefrom.
Notwithstanding any other provision of this title, the importation, transportation, possession or sale of any endangered species of fish
or wildlife, or hides or other parts thereof, or the sale or possession with intent to sell any article made in whole or in part from the skin,
hide or other parts of any endangered species of fish or wildlife is prohibited, except under license or permit from the Division of Fish and
Wildlife. For the purposes of this section, endangered species shall mean those species of fish and wildlife designated by the Division of
Fish and Wildlife as seriously threatened with extinction. Such a list shall in any event include, but not be limited to, endangered species
as so designated by the Secretary of the Interior.
(7 Del. C. 1953, § 601; 58 Del. Laws, c. 65.)
§ 602. Sale of skins, bodies or animals of certain species prohibited.
No part of the skin or body, whether raw or manufactured, of the following species of wild animals or the animal itself may be sold or
offered for sale by any individual, firm, corporation, association or partnership within the State: All endangered species as designated by
the United States Department of the Interior; leopard (panthera pardus); snow leopard (uncia uncia); clouded leopard (neofelis nebulosa);
tiger (panthera tigris); cheetah (acinonyx jubatus); alligators, crocodiles or caiman; vicuna (vicugna vicugna); red wolf (canis niger); polar
bear (thalarctos maritimus); and harp seals (phoca groenlandica).
(7 Del. C. 1953, § 602; 58 Del. Laws, c. 65; 58 Del. Laws, c. 252, § 1.)
§ 603. Enforcement.
Any officer or agent authorized by the Secretary of the Department of Natural Resources and Environmental Control or any officer
or agent authorized by the Director of the Division of Fish and Wildlife, or any police officer of the State, or any police officer of any
municipality within the State, has authority to execute any warrant in search for and seizure of any goods, merchandise or wildlife sold
or offered for sale in violation of this chapter, or any property or item used in connection with a violation of this chapter; such goods,
merchandise, wildlife or property shall be held pending proceedings in any court of proper jurisdiction. Upon conviction, such seized
goods, merchandise or wildlife shall be forfeited and, upon forfeiture, either offered to a recognized institution for scientific or educational
purposes, or destroyed.
(7 Del. C. 1953, § 603; 58 Del. Laws, c. 65.)
§ 604. Permits for importation of certain fish or wildlife.
The Director of the Division of Fish and Wildlife may permit, under such terms and conditions as he or she may prescribe, the
importation of any species or subspecies of fish or wildlife listed in this chapter for zoological, educational, and scientific purposes and
for the propagation of such fish or wildlife in captivity for the preservation of a species, unless such importation is prohibited by any
federal law or regulation.
(7 Del. C. 1953, § 604; 58 Del. Laws, c. 65; 70 Del. Laws, c. 186, § 1.)
§ 605. Penalty.
Whoever violates this chapter shall be guilty of a class A environmental misdemeanor for each offense.
(70 Del. Laws, c. 275, § 42.)
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Title 7 - Conservation
Part I
Game, Wildlife and Dogs
Chapter 7
Regulations and Prohibitions Concerning Game and Fish
Subchapter I
General Provisions
§ 701. Game animals.
The following shall be considered game animals: Mink, snapping turtle, raccoon, opossum, gray squirrel, otter, muskrat, red fox, hare,
rabbit, frog, deer and beaver. The Bryant fox-squirrel, otherwise known as the “sciurus niger branti,” shall be protected wildlife.
(Code 1915, § 2374A; 40 Del. Laws, c. 191, § 9; Code 1935, § 2819; 41 Del. Laws, c. 177, § 2; 7 Del. C. 1953, § 701; 57 Del.
Laws, c. 457; 60 Del. Laws, c. 493, § 1.)
§ 702. Game birds.
The following shall be considered game birds: The Anatidae, commonly known as geese, brant and river and sea ducks; the Rallidae,
commonly known as rails, coots, mudhens and gallinules; the Limicolae, commonly known as shore birds, plovers, surf birds, snipe,
woodcock, sandpipers, tattlers and curlews; the Gallinae, commonly known as wild turkeys, grouse, prairie chickens, pheasants, chukar
partridges, partridges and quail; also the reed bird of the Icteridae; and the dove.
(26 Del. Laws, c. 165, § 2; Code 1915, § 2374; Code 1935, § 2820; 7 Del. C. 1953, § 702; 49 Del. Laws, c. 19.)
§ 703. Open season for game.
The open season during which it shall be lawful to catch, kill or pursue or attempt to catch, kill or pursue muskrat, or to hunt red fox
by chase only shall, respectively, be as follows, including, in each instance, the days defining the open season:
(1) Muskrat. In New Castle County, December 1 to March 10, next following, but in embanked meadows or marshes in New Castle
County, the open season shall be from December 1 to March 20, next following; in Kent and Sussex Counties, December 15 to March
15, next following.
(2) Red fox. October 1 to April 30, next following, red fox hunting whenever so permitted and whether occurring on public or private
lands as provided herein, shall be permitted by chase only from 1/2 hour before sunrise until 1/2 hour after sunset. Red fox hunting shall
be permitted only on a Tuesday, Wednesday or Thursday during such time when it is lawful to take deer with a firearm or archery.
However, red fox shall not be hunted by chase at all during deer hunting season that takes place in October, November or December.
Notwithstanding the foregoing, red fox may be killed in accordance with § 788 of this title. The Division of Fish and Wildlife shall
determine those public lands that are available for fox hunting by chase during any deer hunting season. From January through April,
fox hunting by chase during deer hunting season shall be permissible on private lands only on Tuesday, Wednesday and Thursday if
the owner of the private land has authorized such hunting to occur thereon.
(26 Del. Laws, c. 165, § 3; 27 Del. Laws, c. 158, § 2; 27 Del. Laws, c. 159; Code 1915, § 2375; 37 Del. Laws, c. 220, § 1; 38 Del.
Laws, c. 145, § 1; Code 1935, § 2821; 41 Del. Laws, c. 177, § 3; 44 Del. Laws, c. 147, § 1; 45 Del. Laws, c. 202, § 1; 45 Del.
Laws, c. 206, § 1; 47 Del. Laws, c. 175, § 1; 47 Del. Laws, c. 394, § 2; 48 Del. Laws, c. 172, §§ 1, 2; 48 Del. Laws, c. 272, § 1; 7
Del. C. 1953, § 703; 51 Del. Laws, c. 123, § 3; 55 Del. Laws, c. 25; 68 Del. Laws, c. 15, § 2; 70 Del. Laws, c. 275, § 43; 72 Del.
Laws, c. 332, § 1; 76 Del. Laws, c. 148, §§ 1, 2.)
§ 704. Prohibited hunting and trapping devices and methods; confiscation of devices; primitive weapon
season.
(a) No person shall make use of any pitfall, deadfall, scaffold, cage, snare, trap, net, pen, baited hook, lure, urine or baited field or any
other similar device for the purpose of injuring, capturing or killing birds or animals protected by the laws of this State, except red foxes,
muskrats, raccoon, opossum, minks, otters, beavers and rabbits may be trapped and snapping turtles may be trapped or taken with a net in
accordance with the regulations of the Department of Natural Resources and Environmental Control, and except as otherwise expressly
provided. Landlords and tenants and their respective children may take rabbits in traps and snares during the open season for same on
their freeholds and leaseholds respectively. For purposes of this section, the term “lure” means any mixture of ingredients intended to be
placed at the trap location for the purpose of masking human odor or attracting wildlife. The term “lure” does not include any tangible
objects such as duck or goose decoys or similar tangible devices used while hunting nor does the term include any mixture of ingredients
intended for the purpose of masking human odor or attracting deer while deer hunting.
(b) No person shall make use of any drug, poison, chemical or explosive for the purpose of injuring, capturing or killing birds or animals
protected by the laws of this State.
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Title 7 - Conservation
(c) The unlawful setting or placing of any of the devices or contrivances named in subsection (a) or (b) of this section is an offense
against this section, and such devices and contrivances, when found unlawfully set or placed, shall be confiscated by the Department and
disposed of as the Department sees fit.
(d) No person shall shoot at, or kill any bird or animal protected by the laws of this State with any device, swivel or punt gun, or with
any gun other than such as is habitually raised at arm’s length and fired from the shoulder. Possession of such illegal device or gun while
hunting shall be prima facie evidence of an offense under this subsection.
(e) No person shall use for hunting or have in their possession while hunting any shotgun shells loaded with lead or lead alloy missiles
larger than No. 2 shot, except ammunition permitted for hunting deer during the lawful open season for deer.
(f) A muzzle-loading rifle, meaning a single-barrel gun which is loaded with black powder and projectile through the muzzle, having
distinct rifling the full length of the bore, shooting a spherical or conical projectile, ignited by a flint striking a frizzen or by a percussion
cap, having a minimum bore of 0.42 inches (10.67 mm), minimum powder charge of 62 grains (4 grams), may be used in the pursuit,
taking or attempted taking (“hunting”) of protected wildlife, provided:
(1) Such hunting takes place during the primitive weapon season established by the Department of Natural Resources and
Environmental Control and is done pursuant to the requirements of law applicable to other means of hunting protected wildlife.
(2) No person engaged in such hunting shall possess or use any multi-projected loads (buck and ball), explosive bullets or any balls
smaller than .42 caliber.
No weapon may be used for hunting deer during the primitive weapon season other than a muzzle-loading rifle or bow. The Department
may permit the use of a single shot muzzle-loading pistol being a minimum .42 caliber with a minimum powder charge of 40 grains during
the primitive weapons season for deer, when using a muzzle-loading rifle to provide the coup-de-grace, if required.
(g) Except as set forth herein, no person may use a handgun or rifle in the pursuit, taking or attempted taking (hunting) of protected
wildlife. A handgun or rifle as described herein may be used for the pursuit, taking and attempted taking (hunting) of deer on privately
owned lands situated south of the Chesapeake and Delaware Canal and those lands within the State owned by the State of Delaware so
designated for this purpose by the Department of Natural Resources and Environmental Control, and farms permitted by the Department
through its deer depredation programs, at its discretion, under the following conditions:
(1) The handgun shall be limited to revolvers and single shot pistols with a minimum barrel length of 5.75 inches and not exceeding
12.5 inches and chambered for and using straight-wall handgun ammunition in .357 to .38 caliber with a cartridge case length of no
less than 1.25 inches and a maximum case length of 1.82 inches, or in .41 caliber to a maximum of .50 caliber and a maximum case
length of 1.82 inches;
(2) The handgun must be carried openly on a sling or in a holster and not concealed;
(3) The rifle shall be limited to rifles:
a. Using open, metallic/mechanical, optical, or telescopic sights;
b. Chambered for and using straight-walled ammunition as defined in (g)(1) above; and
c. Loaded with no more than 3 cartridges in the chamber and magazine combined.
(4) To be used as follows:
a. A handgun or rifle may be used during a separate 7-day season to begin on the first Saturday in January through the second
Saturday in January; and
b. A handgun or rifle may be used in place of a shotgun during the shotgun deer season(s); and
c. When harvesting deer under a Department deer depredation program.
(h) No person shall operate, provide, sell, use, or offer to operate, provide, sell, or use any computer software or service that allows
a person not physically present at a hunt site to remotely control a weapon that could be used to take a live animal or bird by remote
operation, including, but not limited to, weapons or devices set up to fire through the use of the Internet or through a remote control device.
(26 Del. Laws, c. 165, §§ 5, 8; 27 Del. Laws, c. 158, § 3; Code 1915, §§ 2378, 2381; Code 1935, §§ 2826, 2829; 41 Del. Laws,
c. 177, § 5; 7 Del. C. 1953, § 704; 50 Del. Laws, c. 450, § 1; 53 Del. Laws, c. 198; 55 Del. Laws, c. 344; 57 Del. Laws, c. 606; 57
Del. Laws, c. 739, § 55; 58 Del. Laws, c. 331, § 1; 60 Del. Laws, c. 169, § 1; 60 Del. Laws, c. 459, § 1; 60 Del. Laws, c. 463, § 1;
60 Del. Laws, c. 493, § 2; 61 Del. Laws, c. 125, § 1; 62 Del. Laws, c. 107, § 1; 62 Del. Laws, c. 326, § 7; 63 Del. Laws, c. 51, §§
1, 2; 63 Del. Laws, c. 389, §§ 5, 8; 68 Del. Laws, c. 28; 68 Del. Laws, c. 381, §§ 1, 2; 70 Del. Laws, c. 275, § 44; 70 Del. Laws,
c. 436, §§ 1-4; 74 Del. Laws, c. 287, § 1; 75 Del. Laws, c. 38, § 1; 76 Del. Laws, c. 40, § 1; 76 Del. Laws, c. 58, §§ 1, 2; 76 Del.
Laws, c. 308, § 1; 81 Del. Laws, c. 222, § 1; 81 Del. Laws, c. 377, § 1.)
§ 705. Visiting traps within 24-hour periods; killing of trapped animals.
(a) No person who sets or makes use of any trap, except for muskrats, shall permit more than 24 hours to elapse between visits to
such trap.
(b) Notwithstanding § 704(d) of this title, a .22 caliber rimfire pistol may be used to kill animals lawfully confined or restrained by
a trap or snare.
(Code 1915, § 2392A; 40 Del. Laws, c. 191, § 18; Code 1935, § 2852; 7 Del. C. 1953, § 706; 70 Del. Laws, c. 275, §§ 46, 71; 71
Del. Laws, c. 366, §§ 1, 2.)
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Title 7 - Conservation
§ 706. Damaging nest, den or lair of protected wildlife or trees, stumps or logs on another’s property.
No person shall needlessly destroy, break or interfere with any nest, den or lair of any bird or animal protected by the laws of this
State, or set fire to, burn, bark or in any way mutilate any tree, living or dead, stump or log, on lands of another, without the express
consent of the owner or person in charge.
(26 Del. Laws, c. 165, § 6; 27 Del. Laws, c. 158, § 4; Code 1915, § 2379; Code 1935, § 2827; 7 Del. C. 1953, § 707; 70 Del.
Laws, c. 275, § 71.)
§ 707. Hunting or shooting from motor vehicle, boats or farm machinery prohibited; penalty.
(a) No person shall shoot at or kill any bird or animal protected by the laws of this State by means of any firearms at any time or place
while such person is the occupant of any motor vehicle, motor or sail boat or is riding in or upon any piece of farm machinery, unless
said person is legally hunting crippled migratory birds from a motorboat as permitted by federal law. The presence of any person in or
on any conveyance used in violation of this section shall be deemed to be a violation of this section.
(b) Whoever violates this section in the daytime, between sunrise and sunset, shall be guilty of a class C environmental violation for
each offense. Whoever violates this section between sunset and sunrise of any day, shall be guilty of a class B environmental misdemeanor
for each offense.
(26 Del. Laws, c. 165, § 7; 27 Del. Laws, c. 158, § 5; Code 1915, § 2380; 35 Del. Laws, c. 173, § 1; Code 1935, § 2828; 46 Del.
Laws, c. 147, § 1; 7 Del. C. 1953, § 708; 51 Del. Laws, c. 339, § 2; 59 Del. Laws, c. 81; 70 Del. Laws, c. 275, §§ 47, 48, 71; 79
Del. Laws, c. 421, § 3.)
§ 708. Loaded firearms prohibited in or on motor vehicles, motorboats or farm machinery.
No person shall have a loaded shotgun or rifle in that person’s possession in, against or on any automobile, other vehicle, any piece of
farm machinery, motorboat while under power, sailboat while under power, or have any ammunition in the magazine or chamber of such
shotgun or rifle except when it is otherwise lawful to hunt crippled migratory birds from a motorboat as permitted by federal law.
(26 Del. Laws, c. 165, § 8; Code 1915, § 2381; Code 1935, § 2829; 47 Del. Laws, c. 322, § 1; 7 Del. C. 1953, § 709; 59 Del.
Laws, c. 144; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 275, § 71.)
§ 709. Hours for hunting; federal laws and regulations; prohibitions and exceptions.
No person shall pursue, catch, take or kill any migratory bird or fowl except within the hours permitted by federal laws and regulations.
No person shall pursue, catch, take or kill any animal protected by the laws of this State except frogs, muskrats, raccoons, opossums,
skunks, minks, otter and foxes between a half an hour after sunset of 1 day and a 1/2 before sunrise the following day. No person shall
shoot muskrats within the hours named in this section.
(26 Del. Laws, c. 165, § 7; 27 Del. Laws, c. 158, § 5; Code 1915, § 2380; 35 Del. Laws, c. 173, § 1; Code 1935, § 2828; 46 Del.
Laws, c. 147, § 1; 7 Del. C. 1953, § 710; 49 Del. Laws, c. 150; 70 Del. Laws, c. 275, §§ 49, 71.)
§ 710. Use of silencer on gun; penalty.
Whoever uses a silencer or noise-reducing contrivance on any gun, rifle or firearm when hunting for game or fowl, shall be guilty of
a class C environmental violation.
(Code 1915, § 2381A; 35 Del. Laws, c. 169, § 1; Code 1935, § 2830; 7 Del. C. 1953, § 711; 70 Del. Laws, c. 275, §§ 50, 71; 79
Del. Laws, c. 421, § 3.)
§ 711. Hunting with automatic-loading gun prohibited; penalty.
(a) No person shall hunt for game birds or game animals in this State, except as authorized by state-sanctioned federal depredation/
conservation orders for selected waterfowl species, with or by means of any automatic-loading or hand-operated repeating shotgun capable
of holding more than 3 shells, the magazine of which has not been cut off or plugged with a filler incapable of removal through the loading
end thereof, so as to reduce the capacity of said gun to not more than 3 shells at 1 time, in the magazine and chamber combined.
(b) Whoever violates this section shall be guilty of a class C environmental violation.
(c) Having in one’s possession, while in the act of hunting game birds or game animals, a gun that will hold more than 3 shells at
1 time in the magazine and chamber combined, except as authorized in subsection (a) of this section, shall be prima facie evidence of
violation of this section.
(Code 1935, § 2830A; 45 Del. Laws, c. 204, § 1; 7 Del. C. 1953, § 712; 70 Del. Laws, c. 275, §§ 51, 71; 76 Del. Laws, c. 302, §§
1-3; 79 Del. Laws, c. 421, § 3.)
§ 712. Prohibition against Sunday hunting.
(a) On Sundays, no person shall hunt or pursue any game birds or game animals with any dog or any kind of implement which is
capable of killing said game birds or game animals, except as provided in subsections (b), (c), (d) and (e) of this section.
(b) This section shall not be applicable to trapping, training dogs, hunting red foxes with dogs, or participating in commercial game
preserve operations in accordance with the provisions of § 572 of this title.
(c) This section shall not be applicable to deer hunting seasons established by the Department.
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(d) Such Sunday deer hunting may occur on private lands at landowner discretion and on those public lands as may be so designated
by and at the discretion of the applicable government agency, which shall inform the public of the location and times Sunday hunting is
allowed on their respective public lands. Any government agency designating or changing the designation of such Sunday deer hunting
on its public lands shall provide adequate opportunity for public comment prior to designating the location or times of such Sunday deer
hunting. For the purposes of this section, “public lands” includes federal, state, county, municipal, or other government-owned lands.
(e) This section shall not be applicable to the harvesting of deer as permitted by the Department through its deer depredation programs.
(26 Del. Laws, c. 165, § 10; Code 1915, § 2383; Code 1935, § 2833; 45 Del. Laws, c. 258, § 1; 7 Del. C. 1953, § 714; 63 Del.
Laws, c. 389, § 3; 70 Del. Laws, c. 275, § 71; 78 Del. Laws, c. 27, § 2; 80 Del. Laws, c. 320, § 1; 81 Del. Laws, c. 318, § 1.)
§ 713. Fire regulations; penalty.
(a) No person shall:
(1) Fire or cause to be fired, any woodlot, forest or other wild land or property, material or vegetation being or growing thereon,
other than brush in clearing land, either by dropping lighted matches, tobacco or other substance, or in any manner whatsoever without
the consent of the owner or owners; or
(2) Start a fire or fires anywhere and permit same to spread to woodlots, forests or other wild lands, causing damage to or destruction
of such property; or
(3) Except as provided in subsection (b) of this section, fire or cause to be fired any marshland in this State after March 1 in any year.
(b) The Department, upon application from any landowner or freeholder and after due investigation, may extend beyond March 1 the
time during which marshland in this State may be fired, by the issuance of a permit thereto for such purpose, if it is found after such
investigation that the landowner or freeholder has been prevented from firing landowner’s or freeholder’s marshland before March 1 by
circumstances beyond landowner’s or freeholder’s control.
(c) Whoever violates this section shall be guilty of a class C environmental violation for each offense in addition to any other penalty
that may be imposed for any damage caused by the setting of unlawful fires of any kind whatsoever.
(Code 1915, § 2379A; 35 Del. Laws, c. 206, § 1; 40 Del. Laws, c. 191, § 11; Code 1935, § 2832; 7 Del. C. 1953, § 715; 57 Del.
Laws, c. 739, § 56; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 275, §§ 52, 53, 71; 79 Del. Laws, c. 421, § 3.)
§ 714. Trespassing; penalty.
Whoever enters upon the lands or waters of another within this State, without first obtaining permission to do so from the owner or
lessee, for the purpose of hunting, trapping or fishing, shall be guilty of a class C environmental violation.
(Code 1852, § 976; 14 Del. Laws, c. 421, § 16; Code 1915, § 2409; Code 1935, § 2880; 7 Del. C. 1953, § 720; 49 Del. Laws, c.
82; 59 Del. Laws, c. 71, § 1; 70 Del. Laws, c. 275, §§ 55, 71; 79 Del. Laws, c. 421, § 3.)
§ 715. Possession of protected wildlife; prohibitions.
(a) No person shall have more than 2 times the daily bag limit or creel limit of any game bird, game animal or game fish in that person’s
possession at any 1 time when it is lawful to possess such wildlife, except that possession limits for game birds protected under the
Migratory Bird Treaty Act [16 U.S.C. § 703 et seq.] shall be defined by federal regulations. Any game bird, game animal, or game fish
that has been processed and stored for consumption at a person’s permanent residence shall not count against the person’s possession
limit. Nothing in this section shall apply to terrapin lawfully taken and of lawful size, when it is lawful to have said animals, their meat
and skins in possession.
(b) No person shall have in possession any game fish during the closed season for said fish, whether the same shall have been taken
within or without the State, and no person shall at any time of the year barter, sell, offer for sale or buy any game birds, game animals
or game fish protected by the laws of this State, and killed or caught either lawfully or unlawfully within or without this State, except
always the muskrat, the snapping turtle and the diamond back terrapin trade during the seasons when it is lawful to have said animals
and their meat in possession, and trading at any and all times in muskrat skins and other skins and in terrapin of lawful size which have
been lawfully taken; and further except always hotels, restaurants, clubs and other food dispensers which may offer pheasants and quail
for food consumption, provided, however, that every such food dispenser having pheasants and quail in its possession has an invoice
covering the same showing purchase thereof from a licensed game breeder within or without this State, said invoice to have the game
breeder’s license number on it.
(c) No person shall knowingly have in possession any game birds, animals or fish which have been unlawfully killed or taken, except
when confiscated by the Department and when in the possession of the Department or when in the possession of those to whom the
Department has given them.
(d) Whoever violates this section shall be guilty of a class C environmental violation for each offense. In addition to being fined and/or
imprisoned, the violator shall be fined $25 for each game bird, game fish and game animal caught or killed illegally, purchased or offered
to purchase, sold, offered for sale, bartered or exchanged, or taken or killed or found in possession in excess of the bag or creel limit.
(Code 1915, § 2390; 31 Del. Laws, c. 51, § 2; 40 Del. Laws, c. 191, §§ 13, 14; Code 1935, § 2849; 7 Del. C. 1953, § 721; 49 Del.
Laws, c. 29; 50 Del. Laws, c. 437, §§ 1, 2; 57 Del. Laws, c. 739, § 57; 60 Del. Laws, c. 493, § 3; 70 Del. Laws, c. 186, § 1; 70 Del.
Laws, c. 275, §§ 56, 57, 71; 79 Del. Laws, c. 363, § 1; 79 Del. Laws, c. 421, § 3.)
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§ 716. Hunting, fishing or trapping without a license; penalties.
Any person required by this title to obtain a license before hunting, trapping or fishing in this State and who hunts, traps or fishes
without having obtained such license shall be guilty of a class C environmental violation.
(26 Del. Laws, c. 164, § 2; Code 1915, § 2391; 40 Del. Laws, c. 191, § 15; Code 1935, § 2850; 7 Del. C. 1953, § 722; 57 Del.
Laws, c. 739, § 58; 70 Del. Laws, c. 275, §§ 58, 71; 79 Del. Laws, c. 421, § 3.)
§ 717. Frightening or harassing migratory birds; penalties.
Any person who shall frighten or harass migratory birds while at rest on the property of another by use of a rifle, shotgun or any other
weapon, shall be guilty of a class C environmental violation.
(7 Del. C. 1953, § 724; 57 Del. Laws, c. 96; 70 Del. Laws, c. 275, §§ 59, 71; 79 Del. Laws, c. 421, § 3.)
§ 718. Requiring wearing of hunter orange in the hunting of deer; violation and penalty.
(a) “Hunter orange” means a daylight fluorescent orange color with a dominant wave length between 595 and 605 nanometers, and
exotation purity of not less than 85 percent and illuminous factor of not less than 40 percent.
(b) During a time when it is lawful to take deer with a firearm, any person hunting any wildlife except migratory game birds in this
State shall display on that person’s head, chest and back a total of not less than 400 square inches of hunter orange material.
(c) If a hunter utilizes a ground blind to hunt deer during a time when it is lawful to take deer with a firearm and the hunter is completely
concealed within a blind, then 400 square inches of hunter orange material shall be placed within 10 feet outside of the blind and at least
3 feet off of the ground.
(d) Whoever violates this section shall be guilty of a class D environmental violation.
(7 Del. C. 1953, § 705; 59 Del. Laws, c. 97, § 1; 60 Del. Laws, c. 302, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 275, §§ 61,
62, 71; 70 Del. Laws, c. 502, § 1; 76 Del. Laws, c. 301, §§ 1, 2; 79 Del. Laws, c. 421, § 3.)
§ 719. Discharge of firearms on or near public roads and public rights-of-way; penalty.
(a) No person, except in lawful self-defense, shall discharge any firearm while on or within 15 yards of a public road or right-of-way
unless it is a road or right-of-way within an area controlled by the Department of Natural Resources and Environmental Control, the
Department of Agriculture of the State or the United States Department of the Interior and is designated by the respective department
as an area open to hunting or trapping.
(b) No person shall shoot at any wild bird or wild animal while it is on a public road, nor shall any person shoot across a public road
or right-of-way at any wild bird or wild animal.
(c) Whoever violates this section shall be guilty of a class C environmental violation.
(61 Del. Laws, c. 372, § 1; 64 Del. Laws, c. 373, § 1; 70 Del. Laws, c. 275, §§ 63, 71; 79 Del. Laws, c. 421, § 3.)
§ 720. Conditional permits for disabled persons.
Notwithstanding §§ 707, 708 and 719 of this title, the Director of the Division of Fish and Wildlife, Department of Natural Resources
and Environmental Control, upon written application and presentation of a medical doctor’s written statement that the applicant is unable
to walk or is otherwise physically disabled to the extent that the applicant cannot safely hunt except from a vehicle, may issue a conditional
permit to shoot wild birds and wild animals from a stationary vehicle during established hunting seasons and in accordance with other
existing laws and regulations.
(62 Del. Laws, c. 59, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 275, §§ 64, 71.)
§ 721. Killer, body-gripping traps.
Anyone who sets, tends or attempts to set or tend a killer, body-gripping trap with a jaw spread in excess of 5 inches shall be guilty
of a class B environmental misdemeanor for each offense.
(62 Del. Laws, c. 326, § 1; 70 Del. Laws, c. 275, §§ 65, 71; 81 Del. Laws, c. 370, § 1.)
§ 722. Prohibition against use of lights; penalties.
(a) No person or persons shall hunt or attempt to hunt at nighttime any species of wild bird or wild animal with any artificial light
including the headlights of any vehicle or with any device that amplifies light using a power source including but not limited to night
vision and infrared devices. Possession in a motor vehicle or conveyance of any firearms or other implements with which wild birds or
wild animals may be killed, exposed within immediate reach, either loaded or unloaded, while using any artificial lights or any device
that amplifies light, shall be prima facie evidence of the use of such firearms or other implements for hunting. Raccoons or opossums
may be hunted on foot or while riding on a horse or mule at nighttime during open season with the use of a dog or artificial light or both.
Frogs may be hunted on foot or from a boat at nighttime during open season with an artificial light.
(b) No person or persons shall make use of any artificial light emanating from a vehicle and directing toward woods, fields, orchards,
livestock, wild animals or birds, dwellings or buildings. The provisions of this subsection do not apply to the normal use of headlights of
a vehicle traveling on any public or private road in a normal manner, to any police, emergency or utility company vehicle using spotlights
to perform their duties, or to any farmer or landowner on the farmer’s or landowner’s own or leased land using artificial lights to check on
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Title 7 - Conservation
equipment, crops, livestock or poultry. Nor shall this subsection apply to the normal use of headlights of a vehicle traveling in a normal
manner 2 hours prior to sunrise or 2 hours after sunset.
(c) Whoever violates this section shall be guilty of a class B environmental misdemeanor.
(63 Del. Laws, c. 389, § 6; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 275, §§ 66, 71; 78 Del. Laws, c. 373, § 1.)
§ 723. Hunting or trapping in safety zones; penalty.
(a) (1) No person, except the owner or occupant, shall discharge a firearm within 100 yards of an occupied dwelling, house or residence
or any barn, stable or any other building used in connection therewith, while hunting or trapping for wild birds or wild animals of any
kind. The area within said distance shall be a “safety zone,” and it shall be unlawful to shoot at any wild bird or wild animal while it is
within such safety zone without the specific advance permission of the owner or tenant.
(2) Notwithstanding any other law or regulation to the contrary, the safety zone for hunting deer by archery device during established
archery seasons shall be 50 yards.
(b) During any open hunting or trapping season, it shall be unlawful for any person, other than the owner or occupant, to hunt or to
trap, pursue, disturb or otherwise chase any wild animal or bird within a safety zone without the specific, advance permission of the
owner or occupant.
(c) No person, except the owner or occupant, or a person with the permission of said owner or occupant, shall discharge a firearm so
that a shot, slug or bullet lands upon any occupied dwelling, house, or residence, or any barn, stable or other building used in connection
therewith.
(d) Whoever violates this section shall be guilty of a class C environmental violation.
(64 Del. Laws, c. 369, § 1; 69 Del. Laws, c. 281, § 1; 70 Del. Laws, c. 275, §§ 67, 71; 77 Del. Laws, c. 425, § 4; 79 Del. Laws, c.
421, § 3.)
§ 724. Wilful obstruction or impeding of lawful hunting, fishing or trapping activities.
(a) No person shall wilfully obstruct or impede the participation of any individual in:
(1) The lawful taking of fish, crabs, oysters, clams or frogs; or
(2) The lawful hunting of any game birds or animals; or
(3) The lawful trapping of any game animals.
(b) Whoever violates this section shall be guilty of a class B environmental misdemeanor.
(c) Hunting, trapping or fishing activities while trespassing upon the private lands of another person, persons or corporation shall not
be considered lawful hunting, trapping or fishing activities for purposes of this section.
(d) The conduct declared unlawful in this section shall not include any incidental interference arising from lawful activities normally
conducted within the general area.
(e) This section shall not apply to law-enforcement personnel acting in the lawful performance of their duties.
(65 Del. Laws, c. 303, § 1; 70 Del. Laws, c. 275, §§ 68-71.)
§ 725. Falconry; permit; regulations; hunting.
(a) No person may take, transport or possess any raptor for falconry purposes in this State without first procuring a falconry permit
from the Department. The Department shall not charge a fee for a falconry permit.
(b) The State hereby adopts Title 50 of the Code of Federal Regulations pertaining to falconry, and the Department may promulgate
such other regulations as may be necessary to govern the practice of falconry.
(c) The falconry permit, when accompanied by a current hunting license, authorizes the hunting of game birds and game animals in
compliance with the State’s seasons and bag limits.
(71 Del. Laws, c. 362, § 1.)
§ 726. Interstate Wildlife Violator Compact.
(1) The Interstate Wildlife Violator Compact is an interstate agreement between member states to enhance the compliance with the
hunting, fishing, and other wildlife laws of member states, and provides for the fair and impartial treatment of wildlife and fisheries
violators.
(2) The Board of Compact Administrators has set forth prescribed requirements and procedures for any state to become a member of
the Interstate Wildlife Violator Compact within the established Bylaws and Interstate Wildlife Violator Compact Operations Manual.
(3) Through this statute, the State of Delaware directs and empowers the Delaware Department of Natural Resources and Environmental
Control (DNREC), Division of Fish and Wildlife to enact all provisions of the Interstate Wildlife Violator Compact.
(4) DNREC is charged to adopt and begin implementation of the Interstate Wildlife Violator Compact set forth in the Compact, Bylaws
and Operations Manual, and to further recognize all current and future member states legally empowered as members of the Compact
on or before July 1, 2016. DNREC shall notify the General Assembly if an extension is necessary for a maximum of 3 years due to
technological capacity challenges that preclude timely implementation of the Compact.
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Title 7 - Conservation
(5) The State of Delaware by representation through DNREC’s Division of Fish and Wildlife will make a formal application to the
Chairman and Board of Administrators of the Interstate Wildlife Violation Compact to receive full admission, authority, and representation
as an official member of the Interstate Wildlife Violator Compact.
(79 Del. Laws, c. 113, § 1.)
Subchapter II
Wild Birds Other Than Game Birds, Migratory Wild Fowl
§ 734. Prohibitions respecting wild birds other than game birds; birds not protected.
No person shall catch, kill, have in possession (living or dead), purchase, sell or expose for sale, transport or ship any wild bird other
than a game bird, or any part of the plumage, skin or body of any such bird, or any game bird, except as expressly permitted by law; but
house sparrows, and starlings may be killed, sold or shipped by any person in any manner and at any time.
(26 Del. Laws, c. 165, §§ 1, 4; Code 1915, §§ 2373, 2377; 28 Del. Laws, c. 197, § 1; 30 Del. Laws, c. 176, § 1; Code 1935, §§
2818, 2825, 2890; 7 Del. C. 1953, § 741; 57 Del. Laws, c. 85; 57 Del. Laws, c. 739, § 59; 59 Del. Laws, c. 148, § 2; 70 Del.
Laws, c. 275, § 77.)
§ 735. Nests and eggs protected.
No person shall take or needlessly destroy the nests or eggs of any wild bird, nor have such nests or eggs in that person’s possession.
(22 Del. Laws, c. 216, § 2; Code 1915, § 2417; Code 1935, § 2891; 7 Del. C. 1953, § 742; 70 Del. Laws, c. 186, § 1; 70 Del.
Laws, c. 275, § 77.)
§ 736. State game refuges; wildlife refuges.
(a) All state lands, except as otherwise provided, and state, county and municipal parks in Delaware shall be state game refuges and no
person shall hunt upon said lands and parks or kill or injure any game therein at any time of the year.
(b) Any person may shoot and kill during the open season for same, wild duck, wild geese, brant and snipe on all state lands bordering
on the Delaware Bay, Atlantic Ocean, Indian River and Assawoman Bay.
(c) Notwithstanding this section, all wildlife refuges created under this title shall be under the jurisdiction of the Department and subject
to all the rules and regulations thereof including rules and regulations covering the right to hunt and fish therein.
(Code 1915, § 2417A; 30 Del. Laws, c. 176, § 5; 36 Del. Laws, c. 233, § 1; 40 Del. Laws, c. 191, § 31; Code 1935, § 2892; 7 Del.
C. 1953, § 743; 57 Del. Laws, c. 739, § 60; 70 Del. Laws, c. 275, § 77.)
§ 737. Exception to application of §§ 734, 735 and 736 for holder of license for scientific purposes.
Sections 734, 735 and 736 of this title shall not apply to any person holding a license giving the right to take birds and their nests
and eggs for scientific purposes.
(22 Del. Laws, c. 216, §§ 4, 6; Code 1915, § 2419; Code 1935, § 2894; 7 Del. C. 1953, § 745; 70 Del. Laws, c. 275, §§ 72, 77.)
§ 738. Erection and removal of booby, brush or stake blinds.
No booby, brush or stake blinds shall be erected sooner than 30 days prior to the open season for the hunting of wild water fowl and
all such blinds shall be removed within 30 days after the close of said season.
Whoever violates this section shall be guilty of a class D environmental violation for each offense.
(Code 1935, § 2821C; 45 Del. Laws, c. 203, § 1; 7 Del. C. 1953, § 747; 49 Del. Laws, c. 338; 50 Del. Laws, c. 9, § 1; 70 Del.
Laws, c. 275, §§ 73, 77; 79 Del. Laws, c. 421, § 3.)
§ 739. Prohibitions respecting bald eagles; disturbing, damaging or destroying nests; eggs; penalties.
(a) Any person who disturbs, destroys or in any manner damages a bald eagle’s nest or aerie shall be guilty of a class A environmental
misdemeanor.
(b) Any person shooting, killing or attempting to kill a bald eagle or any person who removes, or attempts to remove eggs or eaglets
from their nest or aerie shall be guilty of a class A environmental misdemeanor.
(c) Any person who barters, offers to barter, trades, offers to trade or possesses any bald eagle, bald eagle eggs or eaglets shall be guilty
of a class A environmental misdemeanor.
(7 Del. C. 1953, § 748; 57 Del. Laws, c. 88; 70 Del. Laws, c. 275, §§ 74-77.)
§ 740. Crows.
The crow may be hunted in accordance with federal regulations.
(7 Del. C. 1953, § 749; 59 Del. Laws, c. 158, § 1; 70 Del. Laws, c. 275, § 77.)
§ 741. Snow geese.
Notwithstanding any other provision of this title, a person may hunt snow geese by any method, provided the individual complies with
federal laws and regulations.
(72 Del. Laws, c. 52, § 1.)
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Title 7 - Conservation
Subchapter III
Muskrats
§ 750. Placement of traps for muskrats.
The habitat of a muskrat shall be a marsh of any size, ordinarily subject to rise and fall of tide, a ditch, a stream, or land not suited to
cultivation of crops due to a normally marshy condition. A trap set or found at any place other than such habitat shall be considered as
having been set for game animals other than muskrats.
(27 Del. Laws, c. 157, §§ 1, 2; Code 1915, §§ 2388, 2392B; 40 Del. Laws, c. 191, § 18; Code 1935, § 2839; 7 Del. C. 1953, §
761; 70 Del. Laws, c. 275, § 86.)
§ 751. Muskrats driven from shelter by flood or freshet.
No person shall take, kill or capture, by any means whatever, any muskrat during the time of any flood or freshet, when such flood or
freshet may cause any muskrat to leave its usual and accustomed place of shelter and protection.
Whoever violates this section shall be guilty of a class D environmental violation for each offense.
(26 Del. Laws, c. 165, § 14; Code 1915, § 2387; Code 1935, § 2838; 7 Del. C. 1953, § 762; 70 Del. Laws, c. 275, §§ 78, 86; 79
Del. Laws, c. 421, § 3.)
§ 752. Hunting muskrats with dog; penalty.
(a) No person shall hunt, take, catch or kill any muskrat with dog or dogs.
(b) Whoever violates this section shall be guilty of a class D environmental violation for each offense.
(27 Del. Laws, c. 157, §§ 1, 2; Code 1915, §§ 2388, 2392B; 40 Del. Laws, c. 191, § 18; Code 1935, § 2839; 7 Del. C. 1953, §
763; 70 Del. Laws, c. 275, §§ 79, 86; 79 Del. Laws, c. 421, § 3.)
§ 753. Muskrat nailing; destroying or damaging muskrat house, den; penalties.
(a) No person shall take, capture or kill, at any time, within this State, any muskrat by the method commonly known as nailing; or dig
into, tear down, remove, interfere with, destroy or damage in any way any muskrat house, nest, den, lair or refuge.
(b) Whoever violates this section shall be guilty of a class C environmental violation for each muskrat house, nest, den, lair or refuge,
dug into, torn down, removed, interfered with, destroyed or damaged in any way.
(Code 1915, § 2388A; 32 Del. Laws, c. 172, § 1; Code 1935, § 2840; 7 Del. C. 1953, § 764; 70 Del. Laws, c. 275, §§ 80, 86; 9
Del. Laws, c. 421, § 3.)
§ 754. Trespassing on property of another to kill muskrats; violations and penalties.
(a) Whoever enters into or upon, or trespasses upon the ways, marshes, lands or premises of another within this State, without first
obtaining the consent of the owner or lessee thereof, for the purpose of taking, trapping, capturing or killing any muskrat in any manner
whatsoever, shall be guilty of a class C environmental violation.
(b) Nothing in this section shall affect the right of the party injured, to that party’s civil action for damages, as in cases of trespass.
(Code 1915, § 2388B; 32 Del. Laws, c. 172, § 1; Code 1935, § 2841; 7 Del. C. 1953, § 765; 70 Del. Laws, c. 186, § 1; 70 Del.
Laws, c. 275, §§ 81, 86; 79 Del. Laws, c. 421, § 3.)
§ 755. Taking muskrat on public road or highway; penalties.
(a) No person shall take, capture or kill, in any manner, at any time, within this State, any muskrat on any public road or highway.
(b) Whoever violates this section shall be guilty of a class D environmental violation for each offense.
(Code 1915, § 2388C; 34 Del. Laws, c. 183, §§ 1, 2; Code 1935, § 2842; 43 Del. Laws, c. 195, § 1; 7 Del. C. 1953, § 767; 70 Del.
Laws, c. 275, §§ 83, 86; 79 Del. Laws, c. 421, § 3.)
§ 756. Diving or box trap; penalty.
(a) No person shall take, capture or kill, at any time, within the State, any muskrat with a trap commonly known as a diving or box
trap. The setting of any such trap in any muskrat den, lead, or runway shall be prima facie evidence of an offense against this section.
(b) Whoever violates this section shall be guilty of a class D environmental violation for each offense.
(Code 1915, § 2388C; 34 Del. Laws, c. 183, §§ 1, 2; Code 1935, § 2842; 43 Del. Laws, c. 195, § 1; 7 Del. C. 1953, § 768; 70 Del.
Laws, c. 275, §§ 84, 86; 79 Del. Laws, c. 421, § 3.)
§ 757. Trapping muskrats or other fur-bearing animals adjacent to Broadkiln Creek without consent of
landowner; penalty.
(a) No person shall trap or take muskrats or other fur-bearing animals from any lands adjacent to Broadkiln Creek, from the corporate
limits of the Town of Milton to the Delaware Bay, or from the banks of Broadkiln Creek, from the corporate limits of the Town of Milton
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Title 7 - Conservation
to the Delaware Bay, without first obtaining the consent of the owner of the lands or banks of the Creek. The failure of any person trapping
or taking muskrats or other fur-bearing animals, as aforesaid, to produce the consent in writing of the landowner or the owner of the bank
on which traps are set for muskrats, or other fur-bearing animals are taken shall be prima facie evidence of the violation of this section.
(b) Whoever violates this section shall be guilty of a class C environmental violation for each offense.
(44 Del. Laws, c. 148, §§ 1, 2; 7 Del. C. 1953, § 769; 70 Del. Laws, c. 275, §§ 85, 86; 79 Del. Laws, c. 421, § 3.)
§ 758. Extension of muskrat open season.
Notwithstanding § 703(1) of this title, the open season during which it shall be lawful to catch, kill or pursue or attempt to catch, kill
or pursue muskrat may be extended. The Department shall establish both the conditions under which an extension shall occur and the
extension framework through regulations promulgated pursuant to Chapter 101 of Title 29, Administrative Procedures Act.
(77 Del. Laws, c. 437, § 1.)
Subchapter IV
Rabbits
§ 767. Rabbit or hare hunting with ferret.
No person shall hunt, take, kill or destroy any rabbit or hare with a ferret, or have a ferret in possession while hunting.
(26 Del. Laws, c. 165, § 13; Code 1915, § 2386; Code 1935, § 2837; 7 Del. C. 1953, § 771; 70 Del. Laws, c. 275, § 90.)
§ 768. Receipt of rabbits from without the State; penalties.
(a) No person shall receive from without the State any European or San Juan rabbit or any rabbit from an endemic state or area listed
as such by the United States Public Health Service.
(b) No person shall receive from without the State any rabbit which is not prohibited by subsection (a) of this section unless it is
accompanied by the certificate of the Secretary of the Department of Health and Social Services or the Secretary’s designee or of an
equivalent agency of the place of origin recognized and approved by the Secretary of the Department of Health and Social Services or
the Secretary’s designee to the effect that such rabbit is free from disease.
(c) Whoever violates this section shall be guilty of a class B environmental misdemeanor for each offense.
(28 Del. Laws, c. 195; Code 1935, § 2844; 7 Del. C. 1953, § 772; 50 Del. Laws, c. 141, § 1; 70 Del. Laws, c. 149, § 1; 70 Del.
Laws, c. 186, § 1; 70 Del. Laws, c. 275, §§ 87, 90.)
§ 769. License to sell rabbits received from another state.
A special license shall not be required for the purpose of selling rabbits received from without the State in accordance with § 768
of this title.
(28 Del. Laws, c. 195; Code 1935, § 2845; 7 Del. C. 1953, § 773; 70 Del. Laws, c. 275, §§ 88, 90.)
§ 770. Identifying rabbits received from another state.
All persons exposing rabbits for sale, which were received from without the State, shall mark on a card not less than 12 inches by 8
inches, in readable letters, the words “Shipped Rabbits,” the name of the state from where the rabbits were shipped, and the name of
the shipper.
(28 Del. Laws, c. 195; Code 1935, § 2846; 7 Del. C. 1953, § 774; 70 Del. Laws, c. 275, § 90.)
§ 771. Bill of lading to be shown on demand.
All persons having rabbits in their possession and offering them for sale shall show, on demand from any constable, police officer or
Fish and Wildlife Agent, the bill of lading and all other memoranda of the shipment, so as to satisfy such officer that the rabbits were
not killed or shipped from any place within this State.
(28 Del. Laws, c. 195; Code 1935, § 2847; 7 Del. C. 1953, § 775; 70 Del. Laws, c. 105, § 5; 70 Del. Laws, c. 275, § 90.)
Subchapter V
Terrapin
§ 781. Taking or destroying terrapin eggs; penalty.
Whoever takes or destroys any terrapin eggs found, or collected, on or near the shore of any bay, river or stream in this State, where
the water is salt, or upon any salt marsh, or beach, shall be guilty of a class D environmental violation. Anyone having possession of such
eggs shall be deemed to have taken them there, unless that person proves the contrary.
(Code 1852, § 969; 12 Del. Laws, c. 329, § 9; 14 Del. Laws, c. 422, § 9; Code 1915, § 2490; Code 1935, § 2970; 7 Del. C. 1953,
§ 781; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 275, § 91; 79 Del. Laws, c. 421, § 3.)
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Title 7 - Conservation
§ 782. [Reserved.]
§ 783. Terrapin taken or caught in Indian River or Rehoboth Bay — Use of dredges to take terrapin;
penalty.
Whoever uses any dredge for the purpose of catching or taking terrapin in the Indian River or Rehoboth Bay, or waters adjacent thereto,
shall be guilty of a class D environmental violation for each offense.
(13 Del. Laws, c. 435, § 1; 14 Del. Laws, c. 420, § 1; 16 Del. Laws, c. 310, § 1; Code 1915, § 2491; Code 1935, § 2971; 7 Del. C.
1953, § 783; 70 Del. Laws, c. 275, § 93; 79 Del. Laws, c. 421, § 3.)
§ 784. Terrapin raised in private ponds.
Nothing contained in this subchapter shall prevent any person from raising terrapin in a private pond.
(24 Del. Laws, c. 151, § 1; 27 Del. Laws, c. 150; Code 1915, § 2492; Code 1935, § 2972; 7 Del. C. 1953, § 784; 70 Del. Laws, c.
275, §§ 95, 96.)
Subchapter VI
Other Game and Fish
§ 786. Raccoon and opossum.
(a) No person shall kill any raccoon or opossum, or needlessly destroy, break or interfere with any den or lair of any raccoon or opossum,
or set fire to, burn or otherwise mutilate any tree, living or dead, stump or log for the purpose of killing or destroying in any way any
raccoon or opossum at any time of the year, between 1 hour before sunrise and 1 hour after sunset.
(b) Any person may trap, hunt with dogs or otherwise take raccoons from any lands during the period as defined by Departmental
regulations.
(c) Raccoon and opossum may be legally trapped, statewide, in a box type trap operated in such a way as to confine but not otherwise
harm the entrapped raccoon or opossum with a maximum opening dimension not to exceed 195 square inches.
(d) Any person may trap or hunt, with dogs, raccoons with permission of the landowner from any lands in New Castle County or Kent
County from the southerly boundary of New Castle County Route 380 and east and southeast of the center line of U.S. Route No. 13,
thence following said center line of U.S. Route No. 13 to the point where U.S. Route No. 13 forms a junction with U.S. Route No. 113
and thence along the center line of U.S. Route No. 113 to a line dividing Kent County from Sussex County during any time of the year
excepting on Sundays; provided, however, that this subsection shall not apply to lands in Kent County lying east of the center line of Rt.
113, north of the Sussex County line and south of the St. Jones River.
(e) Notwithstanding § 704(d) of this title, a .22 caliber rimfire pistol may be used to hunt raccoons and opossums.
(26 Del. Laws, c. 165, § 3; 27 Del. Laws, c. 158, § 2; 27 Del. Laws, c. 159; Code 1915, § 2375; 37 Del. Laws, c. 220, § 1; 38
Del. Laws, c. 145, § 1; Code 1935, § 2821; 41 Del. Laws, c. 177, § 3; 45 Del. Laws, c. 202, § 1; 47 Del. Laws, c. 164, § 1; 7 Del.
C. 1953, § 791; 52 Del. Laws, c. 245; 62 Del. Laws, c. 326, §§ 5, 6; 63 Del. Laws, c. 374, § 1; 66 Del. Laws, c. 43, § 1; 70 Del.
Laws, c. 275, § 103; 71 Del. Laws, c. 366, § 3.)
§ 787. Protection of deer; penalties.
(a) No person shall hunt, chase or pursue with the intent to kill, trap, take or have in possession any deer (living or dead), except those
deer legally taken during the open season and during lawful hours in each county.
(b) All evidence including weapons, ammunition, lights, communication systems and/or instrumentalities including motor vehicles
used in violation of subsection (a) of this section may be seized and retained as evidence, and forfeited according to procedures set forth in
the Superior Court Criminal Rules. Wherever the State seeks to have property allegedly used in violation of subsection (a) of this section
forfeited, the Superior Court shall have jurisdiction over both the violation of subsection (a) of this section and the issue of forfeiture.
(c) No person shall make use of dogs for the hunting or pursuing of deer with intent to kill said deer in this State at any time.
(d) No person shall purchase, sell or expose for sale, or transport, ship or possess with the intent to sell, any deer or any part of such
deer, except for the hides of lawfully killed deer, at any time. Nothing in this paragraph shall preclude the importation and consumption
of venison, approved for sale by the United States Department of Agriculture, into this State.
(e) Any person may possess a deer lawfully killed in another state if the person in possession of such deer has proof of such lawful
killing and possession, and presents the proof upon demand to any officer or official of this State. It shall also be lawful to possess deer
within an enclosure in a public zoo or park, or if a permit for such deer has been issued by the Department.
(f) Whoever violates this section shall be guilty of a class B environmental misdemeanor for each offense. In addition to being fined
and/or imprisoned, anyone found guilty of a first offense for violating subsection (a) of this section shall be required to turn in any valid
hunting license and shall be denied the privilege of hunting, with or without a license, in the State for a period of 2 years, commencing
with the date of conviction; for any subsequent offense, anyone found guilty shall be required to turn in any valid hunting license and shall
be denied the privilege of hunting, with or without a license, in the State for a period of 5 years, commencing with the date of conviction.
(Code 1935, § 2824A; 47 Del. Laws, c. 302, § 1; 7 Del. C. 1953, § 792; 70 Del. Laws, c. 275, §§ 97, 103; 70 Del. Laws, c. 436, §
5.)
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Title 7 - Conservation
§ 788. Exceptions to the prohibition against the killing of red fox.
(a) Notwithstanding § 703(2) of this title, red foxes may be harvested statewide. The Department shall establish the season structure
and framework through regulations promulgated pursuant to Chapter 101, Administrative Procedures Act, of Title 29.
(b) Notwithstanding § 703(2) of this title, the Department may issue a permit to a private landowner authorizing the landowner to
manage red foxes on his or her property, provided there is a wildlife management plan for the property, the wildlife management plan
has been approved by the Department, and a reduction in the number of foxes was recommended by such plan. The permit shall specify
the time during which, the means and methods by which, and the person or persons by whom the red foxes may be killed or captured.
The Department shall not charge a fee for the issuance of a permit under this section.
(c) Nothing in this chapter shall be construed to prevent the killing of a red fox by the owner of poultry if such fox is in the act of
attacking such poultry. Such person may kill such foxes within a reasonable time after the pursuit, killing or carrying away of the poultry.
(d) Notwithstanding anything to the contrary contained in this chapter, it shall be lawful to possess, buy and sell the hides of red foxes
which are legally taken in Delaware or in another state.
(26 Del. Laws, c. 165, § 12; Code 1915, §§ 2385, 2385A; 40 Del. Laws, c. 194, § 1; 40 Del. Laws, c. 195, § 1; Code 1935, §
2836; 41 Del. Laws, c. 177, § 7; 7 Del. C. 1953, § 793; 60 Del. Laws, c. 587, §§ 1, 2; 62 Del. Laws, c. 138, §§ 6, 7; 68 Del.
Laws, c. 15, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 275, §§ 98, 103; 72 Del. Laws, c. 332, § 2; 76 Del. Laws, c. 173, § 1;
76 Del. Laws, c. 308, § 2.)
§ 789. Sale or shipment of red fox or red fox hides; penalty.
(a) No live red fox shall be sold, purchased, possessed or exposed for sale in this State, or shipped by freight or express, or otherwise, or
taken from any place within this State to any place outside this State. Nothing in this section shall be construed to prevent the possession
or transfer of red fox hides legally taken in Delaware or in another state. It shall be legal to sell the hides of red foxes legally taken in
Delaware within the State or in another state.
(b) The provisions of the preceding paragraph insofar as they relate to the possession of live red foxes shall not apply to animal
exhibitions owned or operated by the State or any political subdivision thereof.
(c) Whoever violates this section shall be guilty of a class B environmental misdemeanor for each offense.
(26 Del. Laws, c. 166; Code 1915, § 2408; Code 1935, § 2879; 41 Del. Laws, c. 177, § 8; 7 Del. C. 1953, § 794; 62 Del. Laws, c.
138, § 8; 63 Del. Laws, c. 52, §§ 1, 2; 70 Del. Laws, c. 275, §§ 99, 103; 72 Del. Laws, c. 332, § 3; 76 Del. Laws, c. 308, §§ 3-6.)
§ 790. Digging out or killing female fox or her young whelps; penalty.
(a) No person shall dig out or in any manner take from any den a female fox, or her young whelps, or kill or in any manner cause the
death of such female fox, or her young whelps, during the period of time in which she is suckling them.
(b) Whoever violates this section shall be guilty of a class C environmental violation for every female fox or whelp so dug or taken
out of any den, or killed or caused to be killed.
(26 Del. Laws, c. 166; Code 1915, § 2408; Code 1935, § 2879; 7 Del. C. 1953, § 795; 60 Del. Laws, c. 587, § 3; 70 Del. Laws, c.
186, § 1; 70 Del. Laws, c. 275, §§ 100, 103; 72 Del. Laws, c. 332, § 4; 79 Del. Laws, c. 421, § 3.)
§ 791. Possession of red fox whelps.
Notwithstanding any other provision of this subchapter to the contrary, the taking and possession of red fox whelps between April 1
and August 15 of each year by persons possessing no less than 5 foxhounds kept for chasing mature red foxes and having a permit issued
by the Department shall be permitted for the purpose of raising the whelps for fox chasing. Any whelps possessed by virtue of this section
shall have been taken only with permission of the landowner. Any whelp possessed by virtue of this section must be released each year
prior to August 15. Only red fox whelps found within this State shall be subject to this section.
(64 Del. Laws, c. 36, § 1; 70 Del. Laws, c. 275, § 103.)
§ 792. Legal limit on bullfrogs; penalty.
No person shall take or kill more than 24 bullfrogs in any 1 day or night, or have the same in that person’s possession for more than 5
days after the close of the season for killing excepting when they are had in possession alive for scientific or propagating purposes.
Whoever violates this section shall be guilty of a class D environmental violation.
(Code 1915, § 2384A; 37 Del. Laws, c. 215, § 1; Code 1935, § 2835; 41 Del. Laws, c. 178, § 1; 7 Del. C. 1953, § 796; 70 Del.
Laws, c. 186, § 1; 70 Del. Laws, c. 275, §§ 101-103; 79 Del. Laws, c. 421, § 3.)
§ 793. Sale of bullfrogs.
Notwithstanding any other provisions of Part I of this title, bullfrogs, lawfully taken or killed, may be sold, bought and possessed in
any quantity.
(Code 1935, § 2835(a); 44 Del. Laws, c. 149, § 1; 7 Del. C. 1953, § 797; 70 Del. Laws, c. 275, § 103.)
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Title 7 - Conservation
§ 794. Deer accidentally killed by motor vehicle.
Any person, who, while operating a motor vehicle upon any public highway in this State, accidentally strikes and kills a deer upon said
public highway shall, upon producing visible evidence of collision with said deer to any State Police or Fish and Wildlife Agent of this
State, be entitled to possession of said deer. This section shall apply to deer killed by collision with a motor vehicle at any time, whether
during the open season for killing deer or during the legally closed season.
(7 Del. C. 1953, § 798; 52 Del. Laws, c. 171; 70 Del. Laws, c. 105, § 6; 70 Del. Laws, c. 275, § 103.)
§ 795. Prohibition of sale or transportation of live skunks or raccoons.
No live skunks or raccoons shall be sold or possessed in this State or transported into this State for any purpose without a permit from
the Division.
(63 Del. Laws, c. 389, § 7; 70 Del. Laws, c. 275, § 103.)
§ 796. Limitations on harvesting gray fox.
(a) It shall be unlawful to harvest gray fox except as otherwise provided in this chapter and directed gray fox harvest seasons shall
not be established.
(b) Notwithstanding subsection (a) of this section, the collateral take of gray fox shall not be unlawful south of the Chesapeake and
Delaware Canal during red fox harvest seasons that are established by the Department through regulation promulgated pursuant to the
Administrative Procedures Act, Chapter 101 of Title 29,
(c) The Department may at its discretion require tagging and reporting requirements through regulation promulgated pursuant to the
Administrative Procedures Act, Chapter 101 of Title 29.
(d) Notwithstanding any other provision of this title, the Department may issue a permit to a private landowner authorizing the
landowner to manage gray foxes on his or her property, provided there is a wildlife management plan for the property, the wildlife
management plan has been approved by the Department, and a reduction in the number of foxes was recommended by such plan. The
permit shall specify the time during which, the means and methods by which, and the person or persons by whom the gray foxes may be
killed or captured. The Department shall not charge a fee for the issuance of a permit under this section.
(e) Nothing in this chapter shall be construed to prevent the killing of a gray fox by the owner of poultry if such fox is in the act of
attacking such poultry. Such person may kill such foxes within a reasonable time after the pursuit, killing, or carrying away of the poultry.
(f) Notwithstanding anything to the contrary contained in this chapter, it shall be lawful to possess, buy, and sell the hides of gray foxes
which are legally taken in Delaware or in another state.
(80 Del. Laws, c. 92, § 1; 70 Del. Laws, c. 186, § 1.)
Subchapter VII
Woodchuck or Groundhog
§ 797. Woodchuck or groundhog not protected wildlife.
The animal known as woodchuck or groundhog shall not be a form of protected wildlife in this State.
(7 Del. C. 1953, § 811; 52 Del. Laws, c. 68; 70 Del. Laws, c. 275, § 104.)
§ 798. Taking of woodchuck or groundhog.
The woodchuck or groundhog may be hunted, trapped, caught, shot, killed, sold, shipped or otherwise disposed of, by any person and
at any time.
(7 Del. C. 1953, § 812; 52 Del. Laws, c. 68; 70 Del. Laws, c. 275, § 104.)
Subchapter VIII
Non-native Wildlife
§ 800. Definitions.
For the purposes of Part I of this title, unless otherwise specifically defined, or another intention clearly appears, or the context requires
a different meaning, the following definitions shall apply:
(1) “Invasive wildlife species” means non-native wildlife species, including but not limited to nutria, whose presence, establishment,
or proliferation causes or is likely to cause, as determined by the Department, biological or environmental harm to native wildlife
species or their habitats or associated economic harm.
(2) “Non-native wildlife species” means those wildlife species exclusive of finfish, that, as determined by the Department, have not
historically and naturally occurred in Delaware. Non-native wildlife species include but are not limited to those wildlife species, such as
coyotes, that are or become present through natural range expansion or through human actions to include but not limited to unintentional
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Title 7 - Conservation
or intentional introduction or release. Non-native wildlife species may include genetically modified native species. Non-native wildlife
species do not include wildlife otherwise identified under this title as a game animal, game bird, or form of unprotected wildlife, and
do not include feral cats and animals otherwise identified by statute as an agricultural commodity or livestock or determined to be an
agriculture commodity or livestock by and in coordination with the Delaware Department of Agriculture.
(78 Del. Laws, c. 352, § 1.)
§ 801. Non-native wildlife; rules and regulations.
The Department, with the advice and recommendations of the Freshwater Fish and Wildlife Advisory Council, may establish such
rules and regulations concerning the importation, possession, transportation, disposition, introduction, release, elimination, harvest, or
management of any non-native wildlife species to include but not limited to invasive wildlife species in any specified localities as it deems
necessary or advisable for the protection or conservation of native wildlife species or their habitats or for the protection of agriculture,
domestic animals, property, or human health or safety.
(78 Del. Laws, c. 352, § 1.)
§ 802. Non-native wildlife injurious to native wildlife, agriculture, and other interests.
The Department may issue an appropriate order authorizing and specifying the times and means for an agency, organization, business,
industry, person, or group of persons to take, harvest, or capture any species of non-native wildlife that is or has the potential to become,
as determined by the Department upon appropriate evaluation or investigation, seriously injurious to native wildlife or their habitat or to
agriculture, domestic animals, property, or human health or safety.
(78 Del. Laws, c. 352, § 1.)
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Title 7 - Conservation
Part I
Game, Wildlife and Dogs
Chapter 9
Finfishing in Tidal Waters
§ 901. Purpose of chapter; policy of State; interstate fishery management plan; advisory committee.
(a) The purpose of this chapter is to effectuate the State’s policy toward the management and conservation of coastal finfishery resources
in cooperation with the federal government, local governments of this State and the governments of other states. This chapter provides
the legal framework by which the users of this State’s finfishery resource can participate in the State’s responsibility of governing fishing
for, and the taking of, finfish in a manner that is both biologically and socioeconomically sound.
(b) It shall be the policy of the State to manage tidal water finfisheries in accordance with the development and maintenance of a
management strategy that perpetuates the historic significance of recreational and commercial fisheries with priority for development
of interstate management plans given to those species that are of foremost interest to recreational fishers. These species shall include
the weakfish, Cynoscion regalis, striped bass, Morone saxatilis, summer flounder, Paralichthys dentatus, bluefish, Pomatomus saltatrix,
Atlantic croaker, Micropogan undulatus, porgy, Stenotomus chrysops, kingfish, Menticirrhus saxatilis, codfish, Gadus morrhua, seabass,
Centroprists striata, and Atlantic mackerel, Scomber scombrus.
(c) It shall also be the policy of the State to manage tidal water finfisheries in accordance with management objectives that maintain
optimum yields of fish, that provide a viable experience for recreational fishers and that provide sound business opportunities for
commercial fishers and for those providing services to fishers. Management shall be accomplished in cooperation with the federal
government, the governments of other states and local fishing interests. Management shall be biologically and socioeconomically sound.
(d) In recognition of these fishes as migratory species which routinely spend some part of their life in the territorial seas and interior
waters of different coastal states and the fishery conservation zone (3-200 nautical miles), interstate fishery management plans for each
species or group of closely related species may be developed by the Department in cooperation with other interested Atlantic coast states
and the appropriate federal agencies in the U.S. Department of the Interior and the U.S. Department of Commerce. The development of
each interstate fishery management plan shall include an appropriate Delaware Citizens Advisory Committee whose membership shall
consist of individuals who are residents of this State and shall represent the commercial and recreational interest for that fishery. Both
the Citizens Advisory Committees and the Department shall abide by the following management principles in the development of an
interstate fishery management plan:
(1) Fisheries management shall prevent overfishing while achieving on a continuing basis the optimum yield from each fishery;
(2) Fisheries management shall be based upon the best available scientific and socioeconomic information;
(3) Fisheries management shall, to the extent practical, manage individual stocks of fish as a unit in cooperation with other states
and federal authorities throughout the range of fish;
(4) Fisheries management shall, to the extent practical, allocate or assign fishing privileges among fishers to conform to historic
fisheries landing statistics and be reasonably calculated to promote conservation;
(5) If it becomes necessary to allocate or assign fishing privileges among the citizens of this State, such allocation shall, to the extent
practical, promote efficiency in the utilization of fishery resources, except that no such measure shall have economic allocation as the
sole purpose; and
(6) Fisheries management, to the extent practical, shall minimize costs and avoid unnecessary duplications.
(64 Del. Laws, c. 251, § 1; 70 Del. Laws, c. 186, § 1.)
§ 902. Application of chapter.
This chapter and any regulations promulgated pursuant to this chapter shall apply to fishing for, and the taking of, finfish, in the tidal
waters of the State, except for eels, which is provided for under Chapter 18 of this title. This chapter and any regulations promulgated
pursuant to this chapter shall not apply to cultured aquatic stock in transit to, or in or removed from, registered aquaculture facilities
pursuant to Chapter 4 of Title 3.
(Code 1915, § 2500; 28 Del. Laws, c. 203; Code 1935, § 2982; 7 Del. C. 1953, § 901; 64 Del. Laws, c. 251, § 1; 69 Del. Laws, c.
103, § 8.)
§ 903. Department of Natural Resources and Environmental Control; authority; permits; regulations.
(a) The Department shall administer and enforce the laws and regulations of the State relating to finfishing in the tidal waters of the State.
(b) The Department shall have the authority to cooperate and assist departments, agencies and offices of the State and other states, local
governments and the federal government in the management and conservation of finfishery resources.
(c) The Department may issue permits to scientific and/or educational institutions, or employees thereof, allowing said party or parties
to be at a specific location, at a specific time, and to use equipment to fish for, or use methods to take finfish, where said equipment,
method, location or time would otherwise be illegal under this chapter or any regulation promulgated pursuant to this chapter.
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Title 7 - Conservation
(d) [Repealed.]
(e) The Department, in accordance with the procedures under subchapters I and II of the Administrative Procedures Act (Chapter 101
of Title 29), has the authority to promulgate regulations, which shall have the force and effect of law, to enhance the conservation and
management of coastal finfisheries, including the biological and socioeconomic aspects of coastal finfisheries. Any regulation pertaining to
fishing for food fish shall require a statement addressing whether or not said regulation will have a significant impact upon the conservation
of the fishery in question. Except where otherwise provided in this section, such regulations shall be consistent with this chapter, and
may only include, and encompass, the following areas:
(1) a. Add legal fishing equipment or methods to fish for bait fish in addition to the provisions of § 908 of this title.
b. Closed and/or open areas to fish for bait fish according to the provisions of § 909 of this title.
c. Add legal fishing equipment or methods to fish for food fish in addition to § 910 of this title.
d. Restrict fishing within areas designated as striped bass spawning areas according to § 930 of this title; provided that any
restriction on fishing is consistent with fishing restrictions imposed by other states adjoining designated striped bass spawning areas
located in Delaware.
e. Closed or open areas within Rehoboth Bay and its tributaries, Indian River and Indian River Bay and their tributaries, Little
Assawoman Bay and its tributaries, Big Assawoman Bay and its tributaries, Nanticoke River and its tributaries and all tributaries
entering the Delaware River and Delaware Bay to fishing with gill nets for food fish.
f. Restrict the mesh size of recreational drift gill nets that may be fished for American shad in the Delaware River.
g. Regulate and/or restrict the type of fishing gear or methods which may be used within the geographical boundaries of permitted
artificial reef sites within the Delaware Bay and within Delaware’s territorial sea (defined as 0 to 3 miles seaward of Delaware’s
ocean coastline).
(2) a. The Department may promulgate such other regulations concerning a species of finfish that spend part or all of their life cycle
within the tidal waters of the State; provided that such regulations are consistent with a fisheries management plan or rule promulgated
pursuant to or adopted by the Atlantic States Marine Fisheries Commission, the Atlantic Coastal Fisheries Cooperative Management
Act [16 U.S.C. § 5101 et seq.], the Mid-Atlantic Fishery Management Council, or the National Marine Fisheries Service for the
protection and conservation of said species of finfish. Such regulations may include management measures, as described herein, that
are necessary to implement the fisheries management plan or rule.
1. Notwithstanding this subsection and Chapter 101 of Title 29, the Department may promulgate regulations to adopt a specified
management measure for finfish subject to this chapter by issuance of an order signed by the Secretary of the Department where
the management measure is specified in 1 or more of the following, and adopting the specific management measure ensures
compliance or maintains consistency with 1 or more of the following:
A. A fisheries management plan or rule established pursuant to or by the Atlantic States Marine Fisheries Commission, as set
forth in §§ 1501 through 1504 of this title and the Atlantic Coastal Fisheries Cooperative Management Act, 16 U.S.C. § 5104(b).
B. A fisheries management plan or rule established pursuant to or by the Mid-Atlantic Fishery Management Council.
C. A fisheries management plan or rule established pursuant to or by the National Marine Fisheries Service.
2. Whenever the Department promulgates a regulation to adopt a specified management measure pursuant to paragraph (e)
(2)a.1. of this section, the Department shall do all of the following:
A. Publish on its website a public notice with a copy of the Secretary’s order and regulation that implement the specified
management measure. The regulation will become effective 48 hours after the Department publishes on its website the public
notice required by this paragraph.
B. File the Secretary’s order and regulation that implement the specified management measure in the next issue of the
Delaware Register of Regulations.
3. Any regulations or management measures promulgated under paragraph (e)(2)a.1. of this section must be consistent with the
original specified management measure promulgated pursuant to or adopted by the Atlantic States Marine Fisheries Commission,
the Atlantic Coastal Fisheries Cooperative Management Act [16 U.S.C. § 5101 et seq.], the Mid-Atlantic Fishery Management
Council, or the National Marine Fisheries Service.
4. Restrictions on the areas from which a species may be taken; and
5. Restrictions on the mesh sizes of nets from which a species may be taken.
b. Management measures may include the following:
1. Minimum and/or maximum size limits of a species according to § 929 of this title.
2. Restrictions on the quantities of a species that may be taken.
3. Restrictions on the periods of time that a species may be taken.
4. Restrictions on the areas from which a species may be taken.
5. Restrictions on the mesh sizes of nets from which a species may be taken.
6. Restrictions on the fishing equipment or methods to fish for a species.
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Title 7 - Conservation
c. In lieu of a fisheries management plan for any species of finfish, the Department, in conjunction with the State of New
Jersey’s Department of Environmental Protection, may develop a fisheries management plan for said species and promulgate interim
regulations concerning said species of finfish within the Delaware River and Delaware Bay; provided that the State of New Jersey’s
Department of Environmental Protection adopts substantially similar interim regulations. Said interim regulations, in Delaware, shall
become effective on the date substantially similar regulations become effective in the State of New Jersey.
1. These interim regulations may include the following management measures:
A. Minimum and/or maximum size limits of a species that may be taken and possessed.
B. Restrictions on the quantities of a species that may be taken.
C. Restrictions on the periods of time that a species may be taken.
D. Restrictions on the areas from which a species may be taken.
E. Restrictions on the mesh sizes of nets from which a species may be taken.
F. Restrictions on the fishing equipment or methods to fish for a species.
2. Upon the acceptance by the Department of a fisheries management plan for a species of finfish adopted pursuant to paragraph
(e)(2)a. of this section, all interim regulations adopted pursuant to this paragraph (e)(2)c. pertaining to the management of said
species shall become void once the Department promulgates new regulations implementing the applicable fisheries management
plan.
d. Any regulation adopted pursuant to paragraphs (e)(2)a. and (e)(2)c. of this section shall be consistent with the management
principles for development of fisheries management plans or rules as set forth under § 901 of this title.
(3) The Department may promulgate such other regulations concerning any species of finfish or marine mammal that spend part or
all of their life cycle within the tidal waters of the State; provided, that such regulations are consistent with management plans approved
by the U.S. Secretary of Commerce for the protection and conservation of said finfish or marine mammal.
(f) The Department shall have the authority to issue permits or carry out any other administrative procedure provided for under this
chapter, including but not limited to, permits, licenses and applications.
(g) The passage and approval of this subsection shall repeal those provisions contained in § 929 of this title that conflict with any
Department regulation only if and when the Department promulgates any regulation contrary to said section of this chapter.
(h) The Department shall have the authority to adopt emergency regulations involving finfish subject to this chapter in accordance with
the procedures set forth in the Administrative Procedures Act § 10119 of Title 29.
(i) The Department is authorized to collect pertinent data with respect to fisheries, including, but not limited to, information regarding
the type and quantity of fish or weight thereof, areas in which fishing was conducted and time of fishing. The information collected by or
reported to the Department shall be confidential and shall not be disclosed in a manner or form that permits identification of any person
or vessel, except when required by court order.
(j) The Department shall have the authority to issue a permit to a person for the artificial propagation, aquaculture and possession of
finfish which otherwise would be illegal in this State provided that all finfish removed from the tidal waters under the jurisdiction of this
State for obtaining eggs or sperm are to be released immediately or disposed of in a manner specified in the permit.
(64 Del. Laws, c. 251, § 1; 64 Del. Laws, c. 279, § 1; 65 Del. Laws, c. 192, § 1; 65 Del. Laws, c. 408, § 1; 68 Del. Laws, c. 199, §
2; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 72, § 1; 76 Del. Laws, c. 71, § 13; 77 Del. Laws, c. 239, § 1; 82 Del. Laws, c. 125,
§ 1; 83 Del. Laws, c. 37, § 3.)
§ 903A. Striped bass quotas and tags.
(a) If a commercial fisherman holds both a valid commercial hook and line and a commercial gill net permit, such fisherman may catch
the combined gill net and hook and line quota for striped bass using gill net, hook and line, or both.
(b) If a commercial fisherman holds a valid commercial hook and line permit and not a gill net permit, such fisherman may accept the
transfer of another commercial fisherman’s hook and line or gill net quota for striped bass. Such fisherman may only catch the combined
quota using hook and line.
(c) If a commercial fisherman holds a valid gill net permit and not a hook and line permit, such fisherman may accept the transfer
of another commercial fisherman’s hook and line or gill net quota for striped bass. Such fisherman may only catch the combined quota
using gill net.
(d) A commercial fisherman with a hook and line and/or a gill net permit may use gill net tags during hook and line activities and
hook and line tags during gill net activities.
(e) For purposes of this section, the use of transferred quotas or permits in accordance with Chapter 29 of this title is permitted.
(81 Del. Laws, c. 130, § 1.)
§ 904. Advisory Council on Tidal Finfisheries; establishment; organization; authority.
(a) There is created an Advisory Council on Tidal Finfisheries to advise the Director on all matters relating to tidal finfisheries
management.
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(b) The Council shall have 7 members, all of whom shall be appointed by the Governor. Council members shall consist of the following:
(1) Two members who are residents of New Castle County.
(2) Two members who are residents of Kent County.
(3) Two members who are residents of Sussex County.
(4) One member who is a resident of this state to serve as Chair.
(c) In addition to the residency requirements of subsection (b) of this section, council members shall meet the following criteria:
(1) Three council members shall represent recreational finfishing interests, such as the bait and tackle industry, fishing from shore,
fishing from a privately owned vessel, or the charter or head boat industry. None of the members representing the recreational finfishing
interests shall be a licensed commercial food fisher.
(2) Three council members shall represent commercial finfishing interests, such as the wholesale of seafood, fishing with fixed
fishing equipment, and fishing with drifting or hauling fishing equipment.
(3) The Council Chair shall be knowledgeable about finfishing, but impartial to recreational and commercial fishing interests.
(d) No council member shall be employed by the Department.
(e) Appointments to Council shall be for terms of up to 4 years to ensure that no more than 2 members’ terms shall expire in any year.
(f) A majority of members appointed to Council shall constitute a quorum to conduct official business.
(g) The Council shall meet and conduct official business after the Chair gives notice to all members of any meeting to be held by the
Council, and the Council shall meet no less than once during each quarter of the State’s fiscal year.
(h) Members of the Council shall serve without compensation. Each member shall be entitled to reimbursement by the Department
from the Finfisheries Development Fund for actual and necessary expenses incurred traveling to and from meetings of the Council.
(i) The Council shall submit a report to the Delaware General Assembly prior to January 1 of each calendar year and said report shall
consist of the following:
(1) Council’s recommended revisions, additions, or deletions to this chapter, if any.
(2) A summary of Council’s activities of the previous year.
(j) A council member may be removed at any time for gross inefficiency, neglect of duty, malfeasance, misfeasance, or nonfeasance
in office.
(1) A member who is absent from 3 consecutive Council meetings without good cause or who attends less than 50% of Council
meetings in a calendar year shall be deemed in neglect of duty.
(2) Any member who is deemed in neglect of duty shall be considered to have resigned.
(64 Del. Laws, c. 251, § 1; 70 Del. Laws, c. 186, § 1; 80 Del. Laws, c. 99, § 1.)
§ 905. Procedures for promulgation of regulations; public hearing notice; submission to Council; approval
[Repealed].
(64 Del. Laws, c. 251, § 1; repealed by 82 Del. Laws, c. 125, § 2, effective July 17, 2019.)
§ 906. Definitions.
Unless otherwise provided in this chapter:
(1) “Active commercial fisher” shall mean an individual licensed by the Department to fish for commercial purposes for finfish or
shellfish who has filed landing reports with the Department that account for no less than 0.1% of the landings in a specific commercial
fishery identified by gear type during any 1 of the previous 3 calendar years.
(2) “Anchor gill net” shall mean a gill net held in place by anchors on the bottom.
(3) “Bag net or channel net” shall mean a bag-shaped net placed in flowing water that is fastened to poles or anchors so as to strain
out finfish.
(4) “Bait fish” shall mean the following species of finfish: Minnows or shiners (Cyprinidae (family)); killifish (Fundulus spp.);
anchovy (Anchova spp.); sand lance (Ammodytes spp.); mullet (Mugilidae (family)); and other species of food fish measuring less
than or equal to 7 inches in length, unless otherwise protected by statute or regulation.
(5) “Bait seine or drag net” shall mean a type of net with mesh webbing not exceeding 100 yards in length with a top line having
floats to keep it at the surface and a weighted bottom line. Each end may be attached to poles which 2 or more persons may use to
pull the seine through shallow water.
(6) “Bar net” shall mean a single wall of gill netting with ropes or rigid bars attached at right angles between the float and lead lines
so that the webbing hangs slack.
(7) “Beam trawl” shall mean a bag, cone or funnel-shaped net without wings that is dragged or towed on the bottom by a vessel or
motor power. The mouth of the net is held open by a rigid beam of wood or metal.
(8) “Cast net” shall mean a circular cone-shaped net thrown by hand that has an outer line with attached weights. Once thrown,
the weighted line sinks rapidly to the bottom and the weighted line is drawn together by ropes which are attached to a recovery line,
closing the net.
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(9) “Charter boat” shall mean any vessel-for-hire engaged in recreational fishing that is hired on a per trip basis.
(10) “Commercial finfisher” shall mean any person who takes, catches, kills or reduces to possession any species of finfish taken
from the tidal waters of this State by said person and sells, trades, barters or attempts to trade, barter or sell said finfish.
(11) “Common haul seine” shall mean an encircling type of net that is 100 yards or more in length and consisting of 2 wings and a
bunt or bag. The top line has floats to keep it at the surface while the bottom line or foot line is weighted. The bunt or bag is flanked
by wings to which are attached auxiliary lines. It may be set by a vessel and hauled to shore by hand or power winch.
(12) “Council” shall mean the Advisory Council on Tidal Finfisheries.
(13) “Danish seine” shall mean a trawl net that is rigged for a type of fishing that involves herding finfish with ropes prior to netting.
The ropes and trawl net are played out by a vessel. The 2 ropes and trawl net are retrieved by the vessel while anchored with motorized
winches. The ropes while being retrieved herd the finfish into the mouth of the trawl net.
(14) “Delaware Bay” shall mean all those tidal waters under the jurisdiction of the State located within an area bordered on the north
by a straight line drawn between Liston Point, Delaware and Hope Creek, New Jersey and bordered on the south by a straight line
drawn between Cape May Point, New Jersey and Cape Henlopen Point, Delaware, but not including any tributaries thereto.
(15) “Delaware’s internal waters” shall mean all of those tidal waters under the jurisdiction of the State, except the Atlantic Ocean, as
separated from the Delaware Bay by a straight line drawn between Cape May Point, New Jersey and Cape Henlopen Point, Delaware.
(16) “Delaware River” shall mean all those tidal waters under the jurisdiction of the State located within an area to the north of a
straight line connecting Liston Point, Delaware and Hope Creek, New Jersey, but not including any tributaries thereto.
(17) “Delaware’s territorial sea” shall mean all of those tidal waters in the Atlantic Ocean separated from Delaware Bay under the
jurisdiction of the State, the outer boundary of which is a line 3 nautical miles coterminous with the shoreline of the State.
(18) “Department” shall mean the Department of Natural Resources and Environmental Control.
(19) “Dip net” shall mean a mesh bag of netting or wire which is suspended from a circular, oval or a rectangular frame attached
to a handle.
(20) “Director” shall mean the Director of the Division.
(21) “Division” means the Division of Fish and Wildlife of the Department.
(22) “Dredge” shall mean any device used to gather, scrape, scoop, fish for or otherwise take bottom dwelling finfish.
(23) “Drift gill net” shall mean a gill net that is free-floating and fished at the surface or at intermediate depths.
(24) “Finfish” shall mean any aquatic vertebrate which has fins.
(25) “Fisheries conservation zone” shall mean that portion of the Atlantic Ocean contiguous to coastal states’ territorial seas with
an inner boundary as a line coterminous with the seaward boundary of Atlantic coastal states’ territorial seas and an outer boundary
as a line drawn in such a manner that each point unit is 200 nautical miles from the baseline from which coastal states’ territorial
seas are measured.
(26) “Fishing,” “fished” or “to fish” shall mean to take, catch, kill or reduce to possession or to attempt to take, catch, kill or reduce
to possession any finfish by any means whatsoever.
(27) “Fishing equipment” shall mean any dredge, tool, net, line, instrument, device, gear, harpoon, spear, hook or hook and line used
or attempted to be used to fish for finfish.
(28) “Fish pot” or “fish trap” or “minnow trap” shall mean a rigid device of various designs and dimensions used to trap finfish with
the catching principle based on 1 or more conical funnels to prevent finfish from escaping after they enter the pot or trap. A fish pot
or fish trap may be circular, rectangular, cylindrical, cubical or of any other shape. It may be constructed with wire mesh, fish netting
over a ridged frame of wood, steel, any other material or any combination of materials. A minnow trap shall have a conical funnel
opening of no more than 2 inches.
(29) “Fixed gill net” shall mean any gill net that is not a drifting gill net.
(30) “Food fish” shall mean all species of finfish not specified as bait fish or game fish in this chapter except for eels which are
governed by Chapter 18 of this title.
(31) “Food fish dealer” shall mean:
a. Any person licensed under § 2902, § 2903, § 2904, § 2905 or § 2908 of Title 30 who receives food fish from a commercial
finfisher;
b. Any commercial finfisher who trades, barters and/or sells food fish to any person licensed under § 2906 of Title 30; or
c. Any commercial finfisher who trades, barters and/or sells food fish to any person whose principle place of business is located
outside this State.
(32) “Fyke net” shall mean a hoop net with 1 or more wings or a leader attached and held in place with anchors or stakes to help
guide finfish into the hoop net.
(33) “Game fish” shall mean the following species of finfish: smallmouth bass (Micropterus dolomieu); largemouth bass (Micropterus
salmoides); black crappie (Pomoxis nigromaculatus); white crappie (Pomoxis annularis); rock bass (Ambloplites rupestris); white
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bass (Morone chrysops); walleye (Stizostedion vitreum); northern pike (Esox lucius); chain pickerel (Esox niger); muskellunge (Esox
masquinongy); muskellunge hybrid (Esox masquinongy x lucius); salmon and trout (Salmonidae (family)); sunfishes (Lepomis spp.);
white bass-striped bass hybrid (Morone saxatilis x crysops).
(34) “Gill net” shall mean an upright net or fence of fiber or monofilament netting with a float line also known as a cork line, on
top, and a weighted line, also known as a lead line, on the bottom in which finfish are caught in the meshes of the net. Finfish, of a size
for which the net is designed, swim into the net and can pass only part way through a single mesh. The finfish becomes “gilled” and
can neither go forward through the net nor backward out of the net. Gill nets may be suspended at the surface, in mid-water or close
to the bottom by controlling the number of floats on the float line and the size and number of weights on the weighted line. The net
may be operated in either a stationary or movable manner.
(35) “Harpoon” shall mean an instrument with pointed barbed blade or blades that is detachable from the pole, shaft or handle of the
instrument. It may be thrown by hand or discharged from a gun or a mechanical device.
(36) “Headboat” shall mean any vessel-for-hire engaged in recreational fishing that is hired on a per person basis.
(37) “Hook” shall mean a curved piece of wire, or other material, with or without a barbed end that is used to fish for finfish. A
hook may consist of 1 hook, or 2 or 3 hooks that have been united together, and these may be known as a single, double or treble
hook, respectively.
(38) “Hook and line” shall mean a single fishing line with 1 or more hooks held by, or attended by, or under the immediate control
of, 1 or more persons. The hook and line may be attached to a pole, reel, float or stake or may be held by a person.
(39) “Hoop net” shall mean a conical or cylindrical net distended by a series of hoops or frames covered by web netting or wire mesh
and may have 1 or more internal funnel-shaped throats that have tapered ends that are directed away from the mouth of the net.
(40) “Individual” shall mean a human being.
(41) “Interstate fisheries management plan” shall mean a document prepared in cooperation with at least 2 other Atlantic coastal
states that ascertains factual circumstances, establishes objectives and proposes management measures that will achieve the objective
for single species of finfish or a group of closely related finfishes.
(42) “Lampara net” shall mean an encompassing type of net that has a large central bunt and relatively short wings. The wings have
a larger mesh than the bunt. This net is set from a moving vessel so as to surround a school of finfish, and then the 2 wings are pulled
simultaneously. There is no pursing devices other than the closing of the lines as the net is drawn through the water by the vessel.
(43) “Lift net” shall mean a shallow bag of netting or wire which is attached to a frame that may have a round, rectangular or other
shape, and is suspended by a line or bridle. It is lowered beneath the surface and raised rapidly to the surface.
(44) “Long haul seine” shall mean a type of haul seine that may be over 1,000 yards in length and is towed by 2 motorized vessels.
It may be towed and/or hauled to a shoal area where the finfish catch is concentrated in the net and brailed from the bunt or bag.
(45) “Longline” shall mean a fishing line with a series of hooks on separate but attached short lines. It can be anchored or drifted.
It may also be known as a trotline or setline.
(46) “Long seine” shall mean a modification of the common haul seine with 1 end of the net fastened to an anchor, stake or another
vessel while the other end is pulled by a vessel. The pulled end is swept in a circle so that it will pass by the fastened end.
(47) “Mouth” of a tributary, stream, canal, creek or ditch shall mean any point on a line drawn between the outermost 2 points of
land or jetties on each bank of the tributary, stream, canal, creek or ditch.
(48) “Nonresident” shall mean any person who has not continuously resided for 1 year within this State prior to the date in question.
(49) “Otter trawl” shall mean a funnel-shaped net with wings, a throat section and cod or bag end that is dragged or towed on the
bottom or off of the bottom by 1 or more vessels. Floats and weights are utilized to keep the mouth of the net open. To spread the
net, each wing is fastened to an “otter” board or trawl door. Each door is fitted with chains that can be attached to a towing cable
from the trawling vessel. The resistance of the door at different angles forces them to pull in opposite directions and keeps the mouth
of the net opened.
(50) “Pair trawl” shall mean any net including a trawl net, gill net or any type of seine net that is rigged for a type of fishing that
involves towing the net with 2 or more vessels.
(51) “Parallel net” shall mean a gill net which is set across the mouth of a bay, arc of a beach or other restricted body of water.
Finfish are gilled when the tide ebbs or flows.
(52) “Person” shall mean any individual, organization, group, business, partnership, corporation or any other type of entity.
(53) “Pound net” or “trap net” shall mean a type of entrapment gear that consists of an arrangement of netting or wire supported
upon stakes or piles and has the head ropes or lines above the water or in a frame that is supported by floats and anchors. A pound net
or trap net may consist of an enclosure known as the pound proper, crib or pocket which has a netting floor and section known as a
heart, from the entrance of which a straight wall known as the leader or runner extends outward. There may be several combinations
of hearts, pounds or pockets. Finfish are voluntarily directed by the leader towards and into the heart and/or pound, and then into the
crib or pocket where they are removed periodically by various devices and methods, such as dip nets.
(54) “Power” shall mean any mechanical device operated by an engine, motor or other source of energy other than human muscle.
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(55) “Purse seine” or “long net” shall mean an encircling type of net that consists of a long wall of webbing without a prominent
bunt or bag. The top edge is floated with a series of floats and the bottom edge is weighted and has a drawstring which is threaded
through a series of rings along the bottom of the net below the lead line. A purse seine may be set around a school of finfish by 1 or
more vessels. Once the school of finfish has been completely encircled, the bottom of the net is pursed with the drawstring so that the
weighted line is bunched or puckered.
(56) “Push net” shall mean a modification of the dip net. It is a shallow wire or netting mesh bag attached to a wooden or metal
frame which has a handle. It is pushed over the bottom.
(57) “Recreational finfisher” shall mean any person who takes, catches, kills or reduces to possession any species of finfish taken
from the tidal waters of this State by said person and who does not sell, trade or barter or attempt to sell, trade or barter said finfish.
(58) “Resident” shall mean any person who has continuously resided within this State for 1 year prior to the date in question.
(59) “Run around gill net” or “ring net” shall mean a gill net that is set around a school of finfish by 1 or more vessels. Finfish are
gilled while seeking to escape the net.
(60) “Scottish seine” shall mean a trawl net that is rigged for a type of finfishing that involves herding the finfish with ropes prior to
netting. It is similar to Danish seining but the vessel is moving when it retrieves the trawl net and is not anchored.
(61) “Secretary” shall mean the Secretary of the Department.
(62) “Semidrift gill net” shall mean a drift gill net that has 1 end attached to a stake or a vessel.
(63) “Spear” shall mean an instrument with 1 or more pointed barbed or barless prongs or blades that are not detachable from the
handle or shaft of the instrument. It may be thrown by hand or propelled by a gun or mechanical device.
(64) “Staked gill net” shall mean a gill net held in place by stakes or poles which have been pushed or driven into the bottom.
(65) “Stop seine” or “stop net” shall mean any type of net, generally a haul seine, which is set across the mouth of a bay, arc of a
beach or other restricted body of water that may cause finfish to be stranded behind the net when the tide ebbs.
(66) “Tidal water” shall mean those waters where the lunar tide regularly ebbs and flows.
(67) “Trammel net” shall mean a type of fishing gear that has 3 panels of netting which are suspended from a common float line
and attached to a single bottom or weighted line. The 2 outside webs or walls of netting are of a larger mesh than the inside webbing.
The inside net has a greater depth and hangs loosely between the outer panels of webbing. A finfish swimming from either side of the
fishing gear passes through the larger mesh outer panel and strikes the smaller mesh middle panel and the finfish is carried through
1 of the openings of the other larger mesh panel, forming a sack or pocket in which the finfish is entrapped. A trammel net can be
used to fish in ways that are similar to gill nets.
(68) “Trawl net” or “seine trawl” shall mean a bag, cone or funnel-shaped net with or without wings towed through the water or
dragged over the bottom by 1 or more vessels or by motor power.
(69) “Troll line” or “troll lines” shall mean a fishing line or lines with 1 or more hooks at the free end of each line that is drawn
or towed with a boat.
(70) “Vessel” shall mean any boat of any length or width.
(71) “Weir” shall mean any fixed type of fishing equipment that consists of fences made of wooden stakes or out of other materials
constructed in such a manner so as to intercept or attempt to intercept finfish. The fences form successive enclosures called the heart,
pound and pocket into which the finfish are directed by a prolonged fence known as a leader.
(28 Del. Laws, c. 203; Code 1935, § 2985; 7 Del. C. 1953, § 904; 61 Del. Laws, c. 256, § 3; 64 Del. Laws, c. 251, § 1; 70 Del.
Laws, c. 186, § 1; 71 Del. Laws, c. 214, § 1; 72 Del. Laws, c. 362, § 1; 73 Del. Laws, c. 29, § 1.)
§ 907. Equipment and methods used for fishing for game fish.
Unless otherwise authorized by the adoption of Department regulation or issuance of Division permits, it shall be illegal for any person
to fish for any game fish in the tidal waters of the State with any fishing equipment, or by any method, unless it is provided for in the
following subdivisions:
(1) A hook and line may be used, and each hook and line shall have no more than 3 hooks or 3 separate lures with hooks;
(2) At any 1 time the number of hooks and lines any 1 person shall be permitted to use to fish for any game fish in the tidal waters
of the State shall be no more than 2.
(Code 1915, § 2503; 28 Del. Laws, cc. 203, 204; Code 1935, §§ 2986, 2987; 44 Del. Laws, c. 154, § 1; 7 Del. C. 1953, §§ 905,
906; 57 Del. Laws, c. 146, §§ 1, 2; 64 Del. Laws, c. 251, § 1.)
§ 908. Equipment and methods used for fishing for bait fish.
Unless otherwise authorized by the adoption of any Department regulation or issuance of Division permits subsequent to April 27,
1984, it shall be illegal for any person to fish for bait fish in the tidal waters of the State with any fishing equipment or by any method,
except a hook and line, a fish pot or a fish trap, including a minnow trap, a dip net, a lift net that is operated without the use of power,
a push net, a cast net that is operated without the use of power, a spear, a common haul seine that is operated without the use of power,
a gill net being fished in more or less a straight line, and a bait seine or a bag net.
(28 Del. Laws, c. 203; Code 1935, § 2988; 7 Del. C. 1953, § 907; 64 Del. Laws, c. 251, § 1; 64 Del. Laws, c. 279, § 2.)
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§ 909. Fishing for bait fish in tidal waters.
Unless otherwise provided by adoption of Department regulation subsequent to April 27, 1984, it shall be legal to fish for bait fish
in all tidal waters of this State.
(64 Del. Laws, c. 251, § 1.)
§ 910. Types of fishing equipment and methods used for fishing for food fish.
(a) Unless otherwise authorized by this chapter or the adoption of any Department regulation or issuance of Division permits subsequent
to April 27, 1984, it is illegal for any person to fish for food fish in the tidal waters of the State with any fishing equipment or by any
method, except:
(1) A hook and line;
(2) A troll line;
(3) A dip net;
(4) A lift net operated without the use of power;
(5) A push net;
(6) A cast net operated without the use of power;
(7) A spear or harpoon;
(8) A common haul seine operated without the use of power;
(9) A bait seine;
(10) A bag net;
(11) A hoop net not exceeding 72 inches in diameter;
(12) A fyke net not exceeding 72 inches in diameter and with wings or leaders not exceeding 180 feet in length;
(13) A fish pot or fish trap not exceeding 125 cubic feet and with an escape panel constructed of biodegradable netting and measuring
at least 8 inches x 8 inches; and
(14) A gill net being fished in more or less a straight line.
(b) A person may land food fish caught with equipment or using a method not permitted under subsection (a) of this section if all of
the following exist:
(1) The food fish was caught in the fishery conservation zone under § 901(d) of this title.
(2) The person has all necessary federal and state permits.
(3) The food fish is in compliance with an established state quota.
(4) The food fish was caught using equipment or a method that is legal in the fishery conservation zone.
(Code 1915, § 2510A; 28 Del. Laws, c. 203; 30 Del. Laws, c. 180, § 1; Code 1935, §§ 2989, 2996; 7 Del. C. 1953, §§ 908, 909; 57
Del. Laws, c. 146, § 3; 61 Del. Laws, c. 256, § 4; 64 Del. Laws, c. 251, § 1; 81 Del. Laws, c. 219, § 1.)
§ 911. Scientific permit; issuance; information; expiration; report; equipment marking and identification
requirements.
(a) For purposes that are scientific or for the propagation of finfish, the Director may issue a scientific permit to any scientific or
educational institution, consultant, organization and/or person enabling them to fish, possess and/or transport finfish into or from the
tidal waters of this State by the use of fishing equipment and/or methods, during times, and at certain locations, that would normally be
considered illegal according to this chapter or any Department regulations.
(b) Prior to the issuance of a scientific permit the applicant shall provide the Director with all the information that is requested by any
application supplied by the Division to said applicant.
(c) Each scientific permit shall expire on the date set forth in the permit, or on the last day of the calendar year during which the permit
was issued, whichever date is earliest.
(d) Each applicant that is issued a scientific permit shall file an information report with the Director within 30 days after the expiration
date of said permit. The content of said report shall be determined by the Director at the time the scientific permit is issued.
(e) Each applicant that is issued a scientific permit shall comply with the marking requirements that are set forth in § 920 of this title.
(f) Each applicant that is issued a scientific permit shall be assigned an identification number by the Division and this number shall be
attached and maintained in a legible manner on the fishing equipment in the same manner that is required of fisher under § 921 of this title.
(g) Each applicant that is issued a scientific permit shall not be classified a commercial finfisherman for purposes of this chapter, or any
Department regulation, provided that the applicant submits all reports to the Director that are required by this chapter and any Department
regulation promulgated pursuant to this chapter or any permit condition.
(64 Del. Laws, c. 251, § 1; 70 Del. Laws, c. 186, § 1.)
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§ 912. Sale, trade and/or barter of game fish.
(a) No person who catches or takes any species of game fish from or out of the tidal waters of this State shall sell, trade and/or barter
said game fish, unless the Director has authorized such sale, trade or barter by issuing the person a permit.
(b) No person who catches or takes any species of game fish from or out of the tidal waters of this State shall attempt to sell, trade and/
or barter said game fish, unless the Director has authorized such attempted sale, trade or barter by issuing the person a permit.
(64 Del. Laws, c. 251, § 1.)
§ 913. Sale, trade and/or barter of food fish.
(a) No individual who catches or takes any species of food fish, from or out of the tidal waters of this State shall sell, trade and/or barter
said food fish, unless said individual has been issued a valid commercial food fishing license by the Department.
(b) No individual who catches or takes any species of food fish from or out of the tidal waters of this State shall attempt to sell, trade
and/or barter said food fish, unless said individual has been issued a valid commercial food fishing license by the Department.
(c) No individual shall purchase, trade for or barter for any food fish, from another individual who catches or takes food fish from or
out of the tidal waters of this State unless said other individual who catches or takes food fish from or out of the tidal waters of this State
possesses a valid commercial food fishing license.
(d) No individual shall fish with a drifting gill net unless said individual has been issued a valid commercial food fisher’s license and
appropriate fishing equipment permits by the Department.
(e) No individual who catches or takes any species of food fish from or out of the tidal waters of this State shall give or transfer said
food fish without compensation to another individual for subsequent sale, trade or barter unless the individual giving or transferring said
food fish has been issued a valid commercial food fishing license by the Department.
(f) No individual shall sell, trade and/or barter or attempt to sell, trade and/or barter any food fish taken with food fishing equipment
for which a food fishing equipment permit has been issued to a recreational finfisher.
(g) Any person who violates subsection (a), (b), (c), (d) or (f) of this section shall be guilty of a Class C environmental violation.
(h) Any person who violates subsection (e) of this section shall be guilty of a Class D environmental violation. Each food fish purchased,
traded or bartered for shall constitute a separate violation.
(64 Del. Laws, c. 251, § 1; 65 Del. Laws, c. 193, §§ 1-4; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 579, §§ 1, 2; 79 Del. Laws, c.
421, § 4.)
§ 914. Commercial food fishing license; requirements and fees.
A commercial food fishing license shall be issued to an individual in accordance with the requirements and procedure set forth below
in this section:
(1) The fee for a commercial food fishing license for an individual who is a resident of this State shall be $150.
(2) The fee for a commercial food fishing license for an individual who is a nonresident of this State shall be $1,500, except that
for a resident of the State of New Jersey, who qualifies as a commercial fisher to obtain a food fishing equipment permit for gill net
to fish in only that portion of the Delaware River, east of the center line of the shipping channel, and north of 39 degrees 30# north
latitude the fee shall be $150.
(3) When by or pursuant to the laws or regulations of any other state should said state impose any tax, other fee or restrictions on
nonresidents for the privilege of commercial fishing for food fish within its boundaries, which tax, or other fee is in the aggregate
greater or restriction is greater to include but not be limited to the nonavailability of a license for nonresidents, the similar or identical
taxes, other fees, license requirements and restrictions shall be imposed by the Department upon the residents of that state who seek to
apply for a commercial food fishing license from the Department to fish within the boundaries of this State.
(4) A commercial food fishing license shall expire on the last day of the calendar year in which said license is issued by the
Department.
(5) The Department shall not issue any commercial food fishing license after December 31 in any calendar year.
(6) All commercial food fishing license holders shall file monthly reports of their catch by effort, species and weight on forms
provided by the Department.
(64 Del. Laws, c. 251, § 1; 67 Del. Laws, c. 184, § 1; 70 Del. Laws, c. 56, §§ 1, 2; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 496,
§ 1; 73 Del. Laws, c. 124, § 1.)
§ 915. Food fishing equipment permit; requirements, fees and restrictions.
(a) A valid food fishing equipment permit issued by the Department is required before any individual shall: fish for food fish in the
tidal waters of this State with the fishing equipment specified in subsection (b) of this section or sell, trade and/or barter food fish caught
or taken with hook and line. Exceptions to the foregoing may be made as authorized by this chapter or by scientific permit issued by the
Director. The Department shall not charge a fee for a food fishing equipment permit for hook and line.
(b) The following food fishing equipment permits and fees shall apply to individuals who fish for food fish in the tidal waters under
the jurisdiction of this State. Any resident of this State, 65 years of age or older, who is not a commercial foodfishing licensee, is exempt
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from the foodfishing equipment permit fees but must comply with all other foodfishing equipment permit procedures and requirements.
Food fishing equipment permit fees apply to the appropriate amount of equipment being fished in the water of any point in time:
(1) A common haul seine (more than 300 ft.) — residents $25 per net; nonresidents $250 per net;
(2) A bag-net — residents $10 per net; nonresidents $100 per net;
(3) A hoop net not exceeding 72 inches in diameter — residents $10 per net; nonresidents $100 per net;
(4) A fyke net not exceeding 72 inches in diameter and with wings or leaders not exceeding 30 fathoms (180 ft.) in length — residents
$5.00 per fyke; nonresidents $50 per fyke;
(5) A fish pot or fish trap with a funnel opening of more than 4 inches in diameter and not exceeding 125 cubic feet and with an escape
panel constructed of a biodegradable netting measuring at least 8 inches x 8 inches — residents $1.00 per pot or trap; nonresidents
$10 per pot or trap;
(6) A gill net — residents $5.00 per 50 fathoms (300 ft.) or any part thereof; nonresidents $50 per 50 fathoms (300 ft.) or any part
thereof;
(7) A gill net — New Jersey resident — $5.00 per 50 fathoms (300 ft.) or any part thereof.
(c) When by or pursuant to the laws or regulations of any other state should said state impose any tax, other fee or restrictions on
nonresidents for the privilege of fishing with similar equipment as set forth in subsection (b) of this section within its boundaries, which
tax, or other fee, is in the aggregate greater or restriction is greater to include but not be limited to the nonavailability of a permit for
nonresidents, the similar or identical taxes, other fees, permit requirements and restrictions shall be imposed by the Department upon
the residents of that state who seek to apply for a fishing equipment permit from the Department to fish with equipment as set forth in
subsection (b) of this section within the tidal waters of this State.
(d) A food fishing equipment permit shall expire on the last day of the calendar year in which said permit is issued by the Department.
(e) The Department shall not issue any food fishing equipment permits for gill nets to any commercial fisher unless a commercial fisher
can, on the basis of credible evidence provided to the Department, establish that he or she has previously engaged in commercial gill net
fishing involving the sale of his or her catch during any 4 of the 5 calendar years preceding 1984. Food fishing equipment permits for
gill nets when issued hereunder shall be renewed on an annual basis, subject to the payment of license and permit fees. No food fishing
equipment permits for gill nets shall be issued to new commercial fishers after calendar year 1984 unless the total number of existing
food fishing equipment permits for gill nets issued to commercial fishers is less than 111, the number issued in 1999. The Department
shall issue additional food fishing equipment permits for gill nets to individuals who have completed a commercial fishing apprenticeship
program of at least 150 days in no less than a 1-year period with an active commercial fisher licensed by the Department, not to exceed
a total of 111 in number, under and pursuant to a lottery conducted by the Department. Food fishing equipment permits for gill nets may
be transferred to a spouse or a child of the permit holder or to an individual who has completed the apprenticeship program of at least 150
days in no less than a 1-year period with an active commercial fisher licensed by the Department.
(f) Any person who fishes in the tidal waters of this State and uses at any time more than 200 feet of any fixed net or more than 2 fish
pots exceeding the dimensions prescribed by paragraph (b)(5) of this section shall be presumed to be a commercial fisher for purposes
of this chapter and any regulations promulgated by the Department.
(g) Notwithstanding subsection (e) of this section, the Department may issue a food fishing equipment permit for a gill net to a resident
commercial fisher who provides credible evidence to the Department that he or she has:
(1) Served full-time in the armed forces of the United States outside the geographic boundaries of this State during any of the 5 years
preceding 1984 or during the 30-day period in 1984 (April 27-May 27) when gill nets permits were available to commercial fishers,
provided that in the 5-year period preceding 1984 the resident commercial fisher met the qualifications for such a permit in the years
he or she was not in the armed forces;
(2) Maintained his or her Delaware domicile while serving full time in the armed forces of the United States; and
(3) Prior to serving in the armed forces of the United States was engaged in commercial gill net fishing in the tidal waters under the
jurisdiction of this State that involved the sale of his or her catch.
(h) Notwithstanding subsection (e) of this section, the Department is authorized between January 1, 1990, and April 1, 1990, to issue
up to 7 food fishing equipment permits for gill nets to residents of the State of New Jersey to fish no more than 600 ft. of gill net in only
that portion of the Delaware River east of the center line of the shipping channel and north of 39 degrees 30# north latitude and who
provides credible evidence to the Department that he or she has previously engaged in commercial gill net fishing involving the sale of
his or her catch during any 4 of the 5 calendar years preceding 1984.
(i) (1) It shall be lawful for any person who has appropriate food fishing equipment permits for gill nets and a recreational drift gill net
permit issued by the Department to fish any drifting gill net, subject to the provisions of this subsection.
(2) It shall be unlawful for any recreational finfisher who has been issued a recreational drift gill net permit by the Department to
fish a drift gill net in any waters of the State except in a section of the Delaware River, not including any tributaries thereto, located
to the south of a line beginning at the tip of the southernmost jetty at the mouth of the C & D Canal and extending due east and to
the north of a line beginning at Liston Point and continuing due east during a period of time beginning at 12:01 a.m. on March 15 and
ending at 12:00 p.m. on May 10 next ensuing each year.
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(3) It shall be lawful for any recreational finfisher who has been issued a recreational drift gill net permit for gill nets and appropriate
food fishing equipment permit for gill nets by the Department to fish a single drift net provided it does not exceed 300 feet in length.
(4) An application for a recreational drift gill net permit may be submitted annually to the Department on a form supplied by the
Department. Each application shall provide credible evidence that the person applying for the recreational drift gill net permit fished
a drift gill net prior to 1984 in the Delaware River for American shad. Applications shall be submitted to the Department prior to
4:30 p.m. on the last Friday in February. The Department shall hold a public drawing of the applicants no later than 4:30 p.m. on the
first Friday in March. The first 10 applications drawn will be issued a recreational drift net permit to be valid until midnight on May
10 next ensuing. If any of the 10 selected applicants fail to obtain his or her recreational drift gill net permit from the Department
by 4:30 p.m. on the second Friday in March, applicants drawn in numerical order after the first 10 shall be authorized to be issued a
recreational drift gill net permit.
(j) The Department shall only issue food fishing equipment permits for hook and line to persons who make application for such permits
in calendar year 1996, and who, prior to April 2, 1995, had been issued a commercial food fishing license. Food fishing equipment permits
for hook and line shall be renewed annually thereafter, subject to the payment of license fees, and if not so renewed, such permits shall
not thereafter be eligible for renewal. To qualify for the annual renewal, the permit holder shall have filed monthly reports as required
by § 914(6) of this title for the previous year.
(k) Notwithstanding subsection (j) of this section, when the total number of food fishing equipment permits for hook and line drops
below 172, the number issued in 1999, the Department shall issue additional food fishing equipment permits for hook and line, not to
exceed 172 in number, under and pursuant to a lottery conducted by the Department. An individual is eligible to participate in the lottery
if the individual has met either of the following requirements:
(1) The individual has completed an apprenticeship program of at least 150 days in no less than a 1-year period with an active
commercial fisher licensed by the Department.
(2) The individual has completed the requirements to receive a Merchant Mariner Credential issued by the United States Coast Guard
National Maritime Center with the capacity of Master. The credential must be in good standing with the United States Coast Guard
National Maritime Center at the time the application for the license is made. The individual must also present a letter of recommendation
to the Department from an active commercial fisher licensed by the Department. The letter would include the name, address, and contact
information of the active commercial fisher who is making the recommendation as well as an assessment of the individuals fishing
skills and an explanation of the length of time and capacity in which the licensed fisher has known the individual. Upon verification of
authenticity of the letter of recommendation by the Department, the individual shall be entered in the lottery.
(l) It shall be unlawful for food fishing equipment other than hook and line and dip nets to be on board a vessel when a person is
commercially fishing with hook and line from said vessel.
(m) A food fishing equipment permit for hook and line shall be deemed invalid when the holder thereof is on board a vessel with more
than 1 other person who does not possess a food fishing equipment permit for hook and line.
(n) An individual at least 15 years of age may enter into an agreement with an active commercial fisher licensed by the Department
to serve as a commercial fishing apprentice to said commercial fisher. This agreement shall be in writing on a form provided by the
Department and filed with the Department. An apprentice shall not enter into an agreement with more than 1 active commercial fisher at
any one time and an active commercial fisher shall not enter into an agreement with more than 1 apprentice at any 1 time. In the event
an agreement is cancelled by either party, the Department shall credit an apprentice with time served and said time shall be retained if
the apprentice signs an agreement with another active commercial fisher. A commercial fishing apprentice must complete no less than
150 days of commercial fishing activities over no less than a 1-year period. Eight hours of commercial fishing activities shall equal 1
day. Commercial fishing activities shall include fishing, operating a vessel, maintaining fishing equipment or a vessel, handling and/or
transporting fish for sale, or other activities directly associated with a commercial fishery. Fishing activities shall be documented on a
daily log provided by the Department. Logs shall be submitted to the Department on a monthly basis on or before the 10th of the following
month. An apprentice who completes no less than 150 days of commercial fishing activities over no less than a 1-year period shall be
eligible for the following:
(1) Commercial food fishing equipment permit for gill nets transferred by another active commercial fisher;
(2) Authorization to commercially fish with a hook and line transferred by another active commercial fisher;
(3) Participation in lotteries conducted by the Department for commercial food fishing equipment permits for gill nets or authorization
to commercially fish with a hook and line; and
(4) Commercial crab dredge license, commercial conch pot license and commercial conch dredge license according to the provisions
of § 1920 of this title.
If, during the previous calendar year, fewer commercial gill net permits or commercial hook and line permits are issued than in 1999,
the Department shall conduct a lottery for the number of said permits different from the number issued in 1999. In 1999, the Department
issued 111 commercial gill net permits and 172 commercial hook and line permits.
(28 Del. Laws, c. 203; Code 1935, § 2989; 7 Del. C. 1953, § 908; 57 Del. Laws, c. 146, § 3; 61 Del. Laws, c. 256, § 4; 64 Del.
Laws, c. 251, § 1; 65 Del. Laws, c. 67, § 1; 65 Del. Laws, c. 193, § 5; 65 Del. Laws, c. 495, § 1; 65 Del. Laws, c. 496, § 1; 67 Del.
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Laws, c. 184, §§ 2, 3; 68 Del. Laws, c. 199, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 496, §§ 2, 3; 73 Del. Laws, c. 29, §§
2-4; 73 Del. Laws, c. 124, § 2; 80 Del. Laws, c. 348, § 1; 81 Del. Laws, c. 130, § 2.)
§ 916. Finfisheries Development Fund.
(a) There is hereby established a Finfisheries Development Fund, which shall be funded by the following sources:
(1) Moneys received by the Department for commercial food fishing license fees and food fishing equipment permits;
(2) Moneys received from the payment of fines for committing a violation of this chapter or regulations or permits promulgated or
issued pursuant to this chapter; and
(3) Moneys received from the sale of the following confiscated or unclaimed items: fishing equipment or any perishable item that
has been taken into possession or custody by the Department and could have been used as evidence.
(b) Finfisheries development funds shall be used only for the following purposes:
(1) The development and maintenance of finfishing facilities in the State that are used to aid and assist finfishers;
(2) Actual and necessary traveling expenses incurred by members of the Council in connection with their attendance at Council
meetings;
(3) Actual and necessary travel, lodging and food expenses incurred by members of the Council or the designee of the Council in
connection with attendance at interstate fish management meetings whenever federal funds are not available;
(4) Postage for mailing notices of public hearings, fishery reports and other materials related to finfisheries management;
(5) Printing materials pertaining to the promulgation of regulations, printing notices of public hearings and other meetings, printing
announcements and printing information pertinent to finfisheries management;
(6) Conducting research on, and taking inventories of, finfish of significance to Delaware’s commercial and recreational fishers,
such research and inventorying to be contracted out or performed by Department personnel.
(c) For the purposes of implementing subsection (b) of this section, all moneys received from the sources set forth in subsection (a) of
this section shall be deposited at least monthly with the State Treasurer. The State Treasurer shall retain said moneys in a special fund
until expended upon proper vouchers of the Department to carry out the purposes of subsection (b) of this section.
(64 Del. Laws, c. 251, § 1; 65 Del. Laws, c. 192, § 2; 70 Del. Laws, c. 186, § 1.)
§ 917. Areas restricted for using certain fishing equipment.
(a) No person shall fish with any fixed fishing equipment in tidal waters located outside the mouths of tributaries known as the Salem
River, Christina River, Delaware City Canal and Chesapeake and Delaware Canal, and more specifically described as circular areas, each
with a 1/2 nautical mile radius from a point of origin at the midpoint of the mouth of each said tributary.
(b) No person shall fish with any fixed fishing equipment in tidal waters located outside the mouths of tributaries known as the Smyrna
River, Leipsic River, Mahon River, Little River, Mispillion River and Roosevelt Inlet, and more specifically described as sectors, each
with a 1/2 nautical mile radius from a point of origin at the midpoint of the mouth of each said tributary and between a northern angle of
45 degrees northeast and a southern angle of 45 degrees southeast.
(c) No person shall fish with any fixed fishing equipment in tidal water located outside the entrance channel to the Murderkill River and
more specifically described as a sector with a 1/2 nautical mile radius from a point located at the established day marker approximately 1
mile east of the mouth of the Murderkill River, and between a northern angle of 45 degrees northeast and a southern angle of 45 degrees
southeast.
(d) No person shall fish with any type of net that obstructs navigation or fish with any net that extends more than 1/3 the distance,
measured perpendicular, from shore to opposite shore in any river, channel, stream, canal, ditch or any tributary located in this State.
(e) No person shall fish with any type of net, within 300 feet of any constructed dam or spillway on a tidal water river, stream, canal,
ditch or tributary located in this State.
(f) No person shall fish with any type of fixed, anchored or stake nets within 150 feet of any other person’s legally fixed, anchored
or staked net.
(g) No person shall fish with any type of net except a bait seine, a cast net, a dip net, a lift net, a minnow trap or a push net in Delaware’s
territorial sea within a 1 nautical mile radius from a point of origin at the midpoint of the mouth of the Indian River Inlet or in Delaware’s
internal waters within a 1/2 nautical mile radius from a point of origin at the midpoint of the mouth of the Indian River Inlet.
(h) No person shall fish with any type of fishing equipment except a hook and line over another person’s leased shellfish grounds
as provided in Chapter 19 of this title unless said person has permission from the lease holder to fish with other types of legal fishing
equipment.
(i) No person shall fish with any type of net except a bait seine, a cast net, a dip net, a lift net, a minnow trap or push net within 1/2
nautical mile of the mean high-water line of the shore of Delaware’s territorial sea or within 1/2 nautical mile of the mean high-water line
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Title 7 - Conservation
of the shore of Delaware Bay from Cape Henlopen Point to the northern boundary of the Beach Plum Island Nature Preserve, where it
intersects with the shoreline of the Delaware Bay, between May 1 and November 30, inclusive, of each year.
(j) No person shall fish with any gill net equal to or less than 200 feet which is anchored, staked or fixed in any way within 1/2 nautical
mile of the mean high-water line of the shore of Delaware’s territorial sea or within 1/2 nautical mile of the mean high-water line of the
shore of Delaware Bay from the northern boundary of the Beach Plum Island Nature Preserve, where it intersects with the shoreline of
the Delaware Bay, to the Murderkill River between May 1 and June 30, inclusive, of each year unless said person has been issued a valid
commercial food fishing license by the Department.
(k) Notwithstanding subsection (d) of this section, a person may fish in the Nanticoke River with a drift net that extends more than 1/3
the distance measured perpendicular from shore to opposite shore provided the drift net does not obstruct navigation.
(64 Del. Laws, c. 251, § 1; 65 Del. Laws, c. 106, § 1; 65 Del. Laws, c. 193, § 6; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 437,
§§ 1, 2; 72 Del. Laws, c. 363, §§ 1, 2; 76 Del. Laws, c. 255, § 1.)
§ 918. Interfering with fishing equipment.
No person shall, except in an emergency, interfere with, break, damage or destroy any fishing equipment that is being used in the tidal
waters of this State for the taking of any finfish in a manner provided for by this chapter or any regulation promulgated or permit issued
by the Department pursuant to this chapter.
(Code 1915, § 2510; 28 Del. Laws, c. 203; Code 1935, § 2998; 7 Del. C. 1953, § 911; 64 Del. Laws, c. 251, § 1; 65 Del. Laws, c.
193, §§ 7, 8.)
§ 919. Menhaden fishing; penalties.
(a) It shall be unlawful for any person to fish, use, employ or attempt to fish, use or employ any purse seine to take or attempt to take
menhaden in the tidal waters of this State.
(b)-(h) [Repealed.]
(i) Whoever violates this section shall be guilty of a Class A environmental misdemeanor.
(59 Del. Laws, c. 418, § 1; 64 Del. Laws, c. 115, §§ 1-3; 68 Del. Laws, c. 320, § 1; 79 Del. Laws, c. 421, § 4.)
§ 920. Marking requirement for fishing equipment; exception for minnow traps; removal of stakes, anchors
and lines.
(a) No person shall fish with any fixed net in the tidal waters of this State unless said net, pot or trap is marked in accordance with
the following criteria:
(1) In the Delaware River and Bay, Atlantic Ocean out to 3 nautical miles, Indian River and Bay, Rehoboth Bay, and Little and Big
Assawoman Bays, during the period beginning at 12:01 a.m., April 1 of each year, and ending at 12:00 p.m., November 30 of each year
all fixed fishing equipment shall be marked on each end with a minimum marking of a red or international orange flag that measures
at least 12 inches x 12 inches on a staff 4 feet, measured from the surface of the water to the bottom of the flag. In addition to the red
or international orange flags, there shall be attached to each net between each red or international orange flag white floats visible on
the surface of the water at all times that shall measure at least 4 inches in diameter, and 1 such white float shall be located at least 20
feet inside of each required red or international orange flag. During the period beginning at 12:01 a.m., December 1 of each year, and
ending at 12:00 p.m., March 31 in the ensuing year, in the Delaware River and Bay, Atlantic Ocean out of 3 nautical miles, Indian
River and Bay, Rehoboth Bay, and Little and Big Assawoman Bays, red or international orange floats at least 8 inches in diameter
may be substituted for the required end flags on fixed nets. In the tributaries to the Delaware River and Bay, Indian River and Bay,
Rehoboth Bay, Little and Big Assawoman Bays and the Chesapeake Bay, a red or international orange float that measures at least 8
inches in diameter or a red or international orange flag that measures at least 12 inches x 12 inches on a staff 4 feet, measured from
the surface of the water to the bottom of the flag, is required at any time.
(2) In the internal waters of this State, if more than 1 net is set in a series with fixed rigging, said series of nets and associated rigging
shall not exceed 500 yards and shall be required to be marked on each end with the required red or international orange flag and white
floats as described in paragraph (a)(1) of this section.
(3) In the internal waters of this State all drifting fishing nets shall be marked on each end with a minimum marking of either a red
or international orange float that measures at least 8 inches in diameter or by a red or international orange flag that measures at least
12 inches by 12 inches on a staff at least 3 feet, measured from the surface of the water to the bottom of the flag.
(4) In the territorial sea, all nets or series of nets shall be marked in accordance with this subsection.
(5) For the purpose of measuring the length of any net, the top line or float line attached to the net shall be the measurement.
(6) No less than 24 square inches of any reflective material shall be attached and maintained to each red or international orange float
or flag staff that is used to mark said nets in all tidal waters of the State.
(7) All fish pots and/or traps shall be marked with white floats that shall be at least 8 inches in diameter.
(8) This subsection shall not apply to minnow traps.
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(9) All the flags, floats and reflective material referred to in this subsection shall be maintained in a visible manner at all times during
their use in the tidal waters of this State.
(b) No person shall intentionally leave any stake, anchor, line or float in any tidal water for a period of time longer than 14 days after
said person or other cause has removed fishing equipment from said stake, anchor, line or float.
(64 Del. Laws, c. 251, § 1; 65 Del. Laws, c. 194, §§ 1-4; 67 Del. Laws, c. 309, § 1; 79 Del. Laws, c. 405, § 1.)
§ 921. Identification requirements for equipment.
No fisher shall fish with any food fishing equipment in the tidal waters of this State that is permitted under the provisions of § 915 of
this title that does not have attached to it a fisher’s food fishing equipment permit number that is assigned by the Department. The permit
number shall be attached to all required end red or international orange flags or floats and shall also be attached to all white markers
required for fish pots and/or traps. The permit number attached to the aforementioned items shall be maintained so that the permit number
is legible and readable at all times during its use. The permit number once attached to the aforementioned items shall be at least 2 inches
high, and in block style numerals, and attached in such a manner that it is visible above the surface of the water. Reflective tape may be
used to form the license number to be attached to the aforementioned items.
(64 Del. Laws, c. 251, § 1; 70 Del. Laws, c. 186, § 1.)
§ 922. Length restrictions on certain nets.
No person shall fish in Delaware’s internal waters with any 1 gill net that exceeds 200 yards in length, or fish in said waters with
more than 1 gill net in a continuous series when the series of gill nets exceeds 500 yards in total length, unless each 200 yard-long net is
separated from another single gill net by a distance of at least 150 feet between the required end red or international orange flags or each
500 yard-long series of nets is separated by a distance of at least 150 feet between the required end red or international orange flags.
(64 Del. Laws, c. 251, § 1.)
§ 923. Gill nets; restrictions on use; seasons.
(a) Unless otherwise authorized by a scientific permit issued by the Division, no person shall fish more than an aggregate of 200 feet of
gill net, that is anchored, staked or fixed in any way in the tidal waters of this State at any time during a period beginning at midnight on
May 10 and ending at midnight September 30 next ensuing during any calendar year, except where otherwise prohibited in this chapter.
(b) The use of any gill net equal to or less than 200 feet which is anchored, staked or fixed in any way shall be further restricted to the
area within 1/2 nautical mile of the mean high-water line of the shore of the Delaware River and Bay and to the area within 1,000 feet
of the mean high-water line of the shore of the Rehoboth Bay and its tributaries, Indian River and Indian River Bay and their tributaries,
Little Assawoman Bay and its tributaries, Big Assawoman Bay and its tributaries, Nanticoke River and its tributaries and all tributaries
entering the Delaware River and Bay during a period beginning at midnight on May 10 and ending at midnight on September 30 next
ensuing, except where otherwise prohibited in this chapter or by Department regulation.
(c) Unless otherwise authorized by a scientific permit issued by the Division, no person shall fish any drifting gill net in the tidal waters
of this State during the period 12:01 a.m. Saturday through to 4:00 p.m. Sunday or on a legal state holiday during a period beginning at
midnight May 10 and ending at midnight on September 30 next ensuing during any calendar year.
(d) During the period beginning at 12:01 a.m. April 1 through midnight May 10, no person shall fish more than an aggregate of 1,000
yards of anchored, staked, fixed or drifting gill nets and, furthermore, no more than an aggregate of 1,000 yards of anchored, staked, fixed
or drifting gill net shall be fished from any vessel regardless of the number of commercially licensed food fishers on said vessel.
(e) During the period beginning midnight May 10 and ending at midnight September 30 next ensuing during any calendar year, no
person shall fish more than an aggregate of 1,000 yards of drifting gill nets, and, furthermore, no more than an aggregate of 1,000 yards
of drifting gill nets shall be fished from any vessel regardless of the number of commercially licensed food fishers on said vessel.
(f) Except for gill nets equal to or less than 200 feet which are anchored, staked or fixed in any way, no person shall fish a gill net of
any type without obtaining a commercial food fishing license pursuant to § 914 of this title and a food fishing equipment permit pursuant
to § 915 of this title.
(g) Residents of the State of New Jersey who possess valid commercial food fishing equipment permits for gill nets shall be authorized
to fish up to, but not to exceed, 600 feet of drifting gill net in the Delaware River on the east side of the shipping channel north of 39
degrees 39# north latitude only during a period of the year beginning at 12:01 a.m. on March 15 and ending at 12:00 p.m. on May 10.
(h) In the event a person with a commercial food fishing license and a food fishing equipment permit for gill nets is disabled and unable
to deploy or set his or her gill nets, the person shall be issued a written permit by the Department authorizing his or her spouse, child or
grandchild to deploy or set said person’s gill nets for a period to be specified by the physician who certifies the disability. Such persons
shall be limited during their lifetime to a total of 2 years during which their gill nets may be set or deployed by a spouse, child and/or
grandchild. For purposes of this subsection, the term “disabled” shall mean a person certified in writing by a licensed medical physician
in Delaware to be temporarily unable to perform the substantial and material duties associated with the setting or deploying of gill nets
based upon medical evidence.
(64 Del. Laws, c. 251, § 1; 64 Del. Laws, c. 279, §§ 3, 4; 65 Del. Laws, c. 193, § 9; 67 Del. Laws, c. 184, § 4; 70 Del. Laws, c.
186, § 1; 73 Del. Laws, c. 28, § 2.)
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Title 7 - Conservation
§ 924. Unattended fishing equipment.
(a) No person shall leave fixed fishing equipment that is being fished in the tidal waters of this State unattended for any longer than
48 hours unless inclement weather provides for unsafe navigation.
(b) No person shall leave drifting fishing equipment that is being fished in the tidal waters of this State unattended at any time; insofar
that the person fishing said drifting fishing equipment shall remain on his or her vessel and within sighting distance of said equipment.
(64 Del. Laws, c. 251, § 1; 70 Del. Laws, c. 186, § 1.)
§ 925. Fishing with explosives, chemicals, poisons and other devices; exception for Department and agents.
(a) No person shall fish for finfish in the tidal waters of the State with any explosives, chemicals, poisons and/or poisoned baits or other
substances or devices employing explosives, electricity, chemicals or poisons, unless it is otherwise specified as a legal means to fish for
and/or take finfish in this chapter or any regulation promulgated by the Department or permit issued by the Division.
(b) The use of electric lights shall be illegal for commercial fishing, except lights required by the U.S. Coast Guard and lights used
for illumination for visual purposes.
(c) The Department and its authorized agents may use fish suffocants, shockers and/or similar devices and materials for fish management
and/or scientific purposes, provided that written permission to do so is obtained from the Director beforehand.
(Code 1915, § 2511; 28 Del. Laws, c. 203; Code 1935, § 2999; 7 Del. C. 1953, § 912; 64 Del. Laws, c. 251, § 1; 65 Del. Laws, c.
193, § 10; 79 Del. Laws, c. 263, § 1.)
§ 926. Extracting oil or making fertilizer from food and game fish; penalty.
(a) No person shall have in his or her possession and/or bring into this State any finfish, other than menhaden, legally taken in this State
or other waters, for the purpose of extracting oil therefrom, and/or for the purpose of converting such finfish into fertilizer. The parts of
a processed legally taken finfish not to be used for human consumption, including the entrails, bones, fins and other waste parts thereof,
may be further reduced or rendered for use as fertilizer and/or animal feed products.
(b) Any person who violates this section shall be guilty of a class B environmental misdemeanor.
(Code 1915, § 2520; 28 Del. Laws, c. 203; Code 1935, § 3008; 7 Del. C. 1953, § 914; 64 Del. Laws, c. 251, § 1; 70 Del. Laws, c.
186, § 1; 79 Del. Laws, c. 421, § 4.)
§ 927. Fishing with trawl nets, purse seines, run around gill nets; penalty; exceptions.
(a) No person shall fish with or use in the tidal waters of this State any type of trawl net that is operated in any manner by wind or sail
power, motor power, hydraulics, pulleys, by being pulled by a power vessel or other mechanical advantage, or any purse seine operated
in any manner, or any run around gill net, except as provided by §§ 911 and 919 of this title.
(b) Any person who is determined to be in violation of this section shall be fined not less than $2,000 and not more than $5,000, plus
the payment of costs, and/or imprisoned for up to 6 months; and for any subsequent violation of this section the person shall be fined not
less than $5,000, plus the payment of costs, and/or imprisoned for up to 6 months.
(c) Any authorized employee of the Department who has probable cause to believe that there is or has been a violation of this section
may seize the following items under the following conditions:
(1) Any finfish located, found, retained, taken and/or caught in violation of this section; or
(2) Any other item to be used as evidence in any case to be brought for violation of this section.
(d) Any authorized employee of the Department who has seized finfish pursuant to this section shall comply with § 935 of this title.
(e) Any authorized employee of the Department who has seized any finfish or other items pursuant to this section may seek to have
said finfish or items forfeited, in which case the Superior Court shall have jurisdiction over the alleged violation if the fair market value
of the forfeited finfish or other items exceeds $100, and any forfeiture of the finfish or other items shall be in accordance with the rules
of procedure for the Superior Court. The Justice of Peace Courts shall have jurisdiction over any violation in which the forfeiture sought
is of finfish or other items of $100 or less in fair market value.
(64 Del. Laws, c. 251, § 1; 65 Del. Laws, c. 193, §§ 11, 12; 73 Del. Laws, c. 241, § 1.)
§ 928. Interstate transfer of finfish.
(a) No person who catches food fish outside the jurisdictional boundaries of the State shall land and/or transfer said food fish from
said person’s vessel to a shore or any facility located in the State for the purpose of transporting, selling, packing and/or processing said
food fish, except for taxidermy purposes, unless said person has been issued by the Department a valid commercial food fishing license
in accordance with § 913 and § 914 of this title.
(b) Any person who catches food fish outside the jurisdictional boundaries of the State and then has said food fish transported into
this State by means other than by a vessel for the purpose of transporting, selling, packing and/or processing said food fish shall not be
required to acquire a commercial food fishing license from the Department.
(64 Del. Laws, c. 251, § 1.)
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§ 928A. Trade in shark fins; penalty.
(a) For the purpose of this section:
(1) “Shark” shall mean any species of the subclass Elasmbranchii, exclusive of the Spiny dogfish (Squalus acanthias) and Smooth
dogfish (Mustelus canis); and
(2) “Shark fin” shall mean the raw, dried or otherwise processed detached fin, or the raw, dried or otherwise processed detached
tail, of a shark.
(b) Except as otherwise provided in this section, no person shall possess, sell, offer for sale, trade or distribute a shark fin.
(c) Any person who holds a license and permit issued by the Department to take or land sharks for commercial purposes may possess
or distribute, but not sell within Delaware, a shark fin taken or landed by that person pursuant to, and consistent with, the terms of that
license or permit.
(d) Any person holding a license issued by the Department, or those persons exempt from licensing requirements concerning taking or
landing sharks for recreational purposes, may possess a shark fin taken or landed by that person for personal use.
(e) The Department may issue scientific permits pursuant to § 911 of this title permitting possession of a shark fin for bona fide
scientific research purposes.
(f) Any shark fin seized by the Department through the enforcement of this section shall upon forfeiture be destroyed by the Department,
and not sold.
(g) Changes, deletions, or additions relative to new fisheries subject to this section may be devised and enacted by the General Assembly
or by the Department regulatory process.
(h) Whoever violates this section shall be guilty of a class B environmental misdemeanor for each offense.
(79 Del. Laws, c. 22, § 1.)
§ 929. Size limits on finfish; exceptions [Subject to the provisions of 64 Del. Laws, c. 251, § 4].
(a) Unless otherwise provided in this chapter or by regulation promulgated by the Department or permit issued by the Division
subsequent to April 27, 1984, no person shall possess any finfish listed in this section or any regulations promulgated by the Department
that measure less than the dimensions set forth in this section or any regulation promulgated by the Department, unless said finfish is
the legal product of artificial propagation and aquaculture authorized under permit issued by the Division. The dimensions of said finfish
shall be the total measured from the tip of its snout to the furthest tip of its tail.
(b) Unless otherwise provided in this chapter or by regulation promulgated by the Department or permit issued by the Division
subsequent to April 27, 1984, no person shall possess any finfish in the State unless said finfish has at least the following dimensions:
(1) Striped bass (Morone saxatilis) taken from or caught in Delaware’s internal waters shall have a minimum length of 14 inches;
(2) Striped bass taken from or caught in Delaware’s territorial sea shall have a minimum length of 24 inches;
(3) Weakfish (Cynoscion regalis): The minimum length of a weakfish shall be 10 inches;
(4) Atlantic croaker (Micropogan undulatus): The minimum length of an Atlantic croaker shall be 8 inches;
(5) Atlantic sturgeon (Acipenser oxyrhynchus): The minimum length of an Atlantic sturgeon shall be 54 inches;
(6) Summer flounder (Paralichthys dentatus): The minimum length of a summer flounder shall be 12 inches;
(7) Tautog (Tautoga onitis): The minimum length of a tautog shall be 12 inches; and
(8) White perch (Marone americana): The minimum length of white perch shall be 8 inches.
(c) Any person, who comes into possession by purchasing, trading or bartering for, any finfish measuring less than the dimensions set
forth in this section or the dimensions set forth in any regulation promulgated by the Department, shall immediately report the possession
of said finfish to the Department and then dispose of said finfish in a manner directed by the Department provided that none may be
sold, traded or bartered.
(d) [Repealed.]
(64 Del. Laws, c. 251, § 1; 65 Del. Laws, c. 407, §§ 1, 2; 65 Del. Laws, c. 408, § 2; 67 Del. Laws, c. 293, § 1; 70 Del. Laws, c. 55,
§ 1.)
§ 930. Striped bass spawning areas.
(a) For purposes of this chapter or any regulation promulgated by the Department or permit issued by the Division, striped bass spawning
areas in the State shall mean the Nanticoke River and its tributaries and the Chesapeake and Delaware Canal.
(b) The Department may promulgate regulations pertaining to spawning area restrictions.
(64 Del. Laws, c. 251, § 1.)
§ 931. Theft and attempted theft of fishing equipment or finfish from fishing equipment.
(a) No person shall take and/or remove any finfish from any fishing equipment that is owned by another person without having received
written authority to take and/or remove said finfish.
(b) No person shall attempt to take and/or remove any finfish from any fishing equipment that is owned by another person without
having received the express written authority to attempt to take and/or remove said finfish.
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(c) No person shall remove legally placed fishing equipment of another person without the written permission of the lawful owner
thereof.
(d) No person shall attempt to remove legally placed fishing equipment of another person without the written permission of the lawful
owner thereof.
(e) The Division and employees thereof shall have the authority to confiscate and sell any finfish taken in violation of this section.
The purpose of any sale of confiscated finfish shall be to determine the fair market value of the illegally taken finfish and prevent the
wasting of the perishable resource. The moneys received from the sale of any finfish shall be paid to the owner of the fishing equipment
from which the finfish were illegally removed.
(f) Theft of finfish, or attempted theft of finfish, from another person’s fishing equipment shall be a class A misdemeanor, unless
the value of the finfish is $300 or more, in which case it shall be a class E felony. Whoever violates this section shall be fined and/or
imprisoned in accordance with the fines and/or terms of imprisonment specified in Chapter 42 of Title 11 for a class A misdemeanor
and a class E felony.
(64 Del. Laws, c. 251, § 1; 70 Del. Laws, c. 500, § 1; 73 Del. Laws, c. 28, § 2.)
§ 932. Removal and inspection of fishing equipment by authorized personnel; confiscation and sale of
illegally used equipment.
(a) Any authorized employee of the Department may inspect any fishing equipment placed in the tidal waters of this State.
(b) Any authorized employee of the Department may remove any fishing equipment used in the tidal waters of the State that is not
marked, identified and/or being used for fishing according to this chapter or regulation promulgated by the Department or permit issued
by the Division, provided that the Department notify, or attempt to notify, the owner of said equipment when said owner is known, and
give such owner the opportunity to remove said fishing equipment.
(c) Any fishing equipment removed from the tidal waters of the State, as provided for in this section, which is not claimed by its owner
within 30 days after its removal shall be subject to the following provisions that provide for its disposition by public sale:
(1) After the 30-day waiting period the Department shall advertise the sale of the removed fishing equipment in a newspaper of
general circulation throughout the State. The advertisement shall give a brief description of the property and the procedure for the
sale thereof.
(2) The sale of the advertised property will be conducted by the Department. The Department shall accept sealed bids for the property,
with the property being sold to the highest bid received.
(3) Any moneys received from the sale of the removed property shall be retained by the Department for a period of 1 year after
receipt of said moneys, during which time the owner of the removed property may file a claim with the Department for the payment of
said moneys. The expenses of the Department for arranging the public sale of the removed fishing equipment may be deducted from
any moneys paid to the owner of the removed fishing equipment.
(4) Moneys from the public sale of the removed fishing equipment that are not claimed by the owner of said equipment within 1
year after the receipt of said moneys shall be deposited into the Finfisheries Development Fund.
(Code 1915, § 2516; 28 Del. Laws, c. 203; Code 1935, § 3004; 7 Del. C. 1953, § 952; 57 Del. Laws, c. 739, §§ 62, 63; 64 Del.
Laws, c. 251, § 1.)
§ 933. Search of persons, boats, vessels and commercial facilities.
Any authorized employee of the Department, after determining there is probable cause that there has been a violation of this chapter or
any regulation promulgated by the Department or any permit issued by the Division, may do the following without obtaining a warrant
beforehand:
(1) Search, examine and/or inspect any person and/or any person’s vehicle, vessel and/or any container or other receptacle in and/or
on any vehicle or vessel that is under the control or possession of said person for the purpose of determining said person’s compliance
with this chapter or any regulation promulgated by the Department or permit issued by the Division pertaining to the size, limits, sale,
purchase and possession of finfish and/or the method of taking finfish;
(2) Detain any person and/or person’s vehicle or vessel for a reasonable length of time to conduct any search, examination and/or
inspection thereof, as described in paragraph (1) of this section; and
(3) Inspect, search and/or examine any commercial facility in the business of selling and/or storing finfish in the presence of any
occupant of said facility to determine compliance with this chapter and any regulation promulgated by the Department or permit issued
by the Division.
(64 Del. Laws, c. 251, § 1.)
§ 934. Seizure and forfeiture of finfish.
(a) Any authorized employee of the Department who has probable cause to believe that there is a violation of this chapter or any
regulation promulgated by the Department or permit issued by the Division may seize the following items under the following conditions:
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Any finfish located, found, retained, taken and/or caught in violation of this chapter or any regulation promulgated by the Department
or permit issued by the Division.
(b) Any authorized employee of the Department who has seized finfish pursuant to this section shall comply with the provisions of
§ 935 of this title.
(c) Any authorized employee of the Department who has seized any finfish pursuant to this section may seek to have the finfish forfeited.
If the fair market value of the seized finfish exceeds $100, then the Superior Court shall have jurisdiction over the alleged violation, and
any forfeiture of the finfish shall be in accordance with the appropriate rules of procedure of the Superior Court and § 935 of this title.
If the fair market value of the seized finfish is $100 or less, then the Justice of the Peace Courts shall have jurisdiction over the alleged
violation, and any forfeiture of the finfish shall be in accordance with the appropriate rules of procedure of the Justice of the Peace Courts.
(Code 1915, § 2516; 28 Del. Laws, c. 203; Code 1935, § 3004; 7 Del. C. 1953, § 952; 57 Del. Laws, c. 739, §§ 62, 63; 64 Del.
Laws, c. 251, § 1; 65 Del. Laws, c. 193, § 13.)
§ 935. Sale of seized finfish.
(a) Except as otherwise provided in this chapter, in view of the perishable nature of fish, any employee of the Department authorized
to enforce this chapter or any regulation promulgated by the Department or permit issued by the Division who seizes any finfish may
dispose of said finfish in accordance with the following procedures:
(1) Finfish may be sold, and any person may purchase said finfish for money at or above fair market value;
(2) The moneys received from the sale of the finfish shall be deposited with the Superior Court in which the complaint and/or charges
for the alleged violation are to be filed. Thereafter, disposition of the proceeds will be in accordance with the Rules of Civil Procedure
for the Superior Court of the State of Delaware. In each case where the Superior Court has declared the finfish and moneys obtained
from the sale thereof as being forfeited, all moneys not subject to valid claim by other parties and remaining with the Superior Court
shall be deposited by the Superior Court into the Finfisheries Development Fund. Upon the acquittal or dismissal of charges against
the alleged violator the proceeds shall be returned to said person; and
(3) The seizure and sale of finfish shall be without prejudice to any other rights and/or remedies provided for by law, contract or
agreement, or this chapter or any regulations promulgated by the Department or permit issued by the Division.
(b) Whenever the Department seizes any finfish, it may elect not to follow the procedures for the disposal of said finfish that are set
forth in subsection (a) of this section, and the Department may dispose of said seized finfish in accordance with the following procedures:
(1) Finfish that have been seized after an alleged violation of this chapter or any regulation promulgated by the Department or permit
issued by the Division may be sold by the person alleged to have committed said violation;
(2) The proceeds of the sale by the alleged violator shall be deposited with the Superior Court;
(3) Upon the conviction of the alleged violator, the disposition of the proceeds will be in accordance with the procedure set forth
in paragraph (a)(2) of this section. Upon the acquittal, or dismissal of the charges against the alleged violator, the proceeds shall be
returned to said person; and
(4) Paragraph (a)(3) of this section shall be applicable to any sale of finfish under this subsection.
(Code 1915, § 2514; 28 Del. Laws, c. 203; Code 1935, § 3002; 7 Del. C. 1953, § 915; 64 Del. Laws, c. 251, § 1.)
§ 936. Enforcement; penalties; seizure and forfeiture of illegally used property; injunctions; false
statements.
(a) The Secretary, the Department and persons authorized by the Secretary shall enforce this chapter and any regulation promulgated
by the Department or any permit issued by the Division.
(b) Any person, organization, group, business, corporation, partnership or any other type of entity that violates this chapter or regulation
promulgated by the Department or permit issued by the Division shall be punishable as follows:
(1) If there has been a violation of any provisions in §§ 910, 917, 918, 920, 921, 922, 923, 924, 925, and/or 928 of this title or any
regulation promulgated by the Department or permit issued by the Division relating to fishing equipment or methods of fishing, each
violator thereof shall be guilty of a Class D environmental violation. For any second violation of any provisions in §§ 910, 917, 918,
920, 921, 922, 923, 924, 925 and/or 928 of this title or any regulation promulgated by the Department or permit issued by the Division
relating to fishing equipment or methods of fishing, each violator thereof shall be guilty of a Class C environmental violation. For any
subsequent violation of any provisions in §§ 910, 917, 918, 920, 921, 922, 923, 924, 925 and/or 928 of this title or any regulation
promulgated by the Department or permit issued by the Division relating to fishing equipment or methods of fishing, each violator
thereof shall be guilty of a Class B environmental misdemeanor;
(2) If there has been a violation of any section of this chapter or any regulation promulgated by the Department or permit issued
by the Division other than a provision of §§ 910, 913, 917, 918, 920, 921, 922, 923, 924, 925, 926, 927 and/or 928 of this title or
regulation promulgated by the Department or permit issued by the Division relating to fishing equipment or method of fishing, each
violator thereof shall be guilty of a Class D environmental violation. For each violation of any section of this chapter, any regulation
promulgated by the Department pursuant thereto, or any permit issued by the Division which involves the illegal taking of a striped bass
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in the tidal waters of this State, shall be guilty of a Class C environmental violation. Each striped bass illegally taken shall constitute
a separate violation;
(3) Nothing expressed in this section should be interpreted to limit or supersede the authority of the Secretary and authorized personnel
to seize and seek the forfeiture of any finfish and/or other items as provided for in any other provisions of this chapter. The Superior
Court shall have jurisdiction of a violation in which forfeiture involves finfish or other items exceeding $100 in fair market value.
The Justice of Peace Courts shall have jurisdiction of a violation in which forfeiture involves finfish or other items with a fair market
value of $100 or less; and
(4) Except as otherwise provided in this chapter, the Justice of the Peace Court shall have jurisdiction over any violation of this
chapter or any regulation promulgated by the Department or any permit issued by the Division.
(c) If any violation of any provision in this chapter or regulation promulgated by the Department or permit issued by the Division is
continuing or threatening to begin, the Secretary may, in addition to having the violator prosecuted in either the Superior Court or Justice
of the Peace Court as provided for in this section, seek a temporary restraining order, a temporary injunction or permanent injunction
in the Court of Chancery.
(d) Any person, organization, group, business, corporation, partnership or any other type of entity that knowingly makes any false
statement, representation or certification in any application, record, report, plan or other document filed or required to be maintained
under any provision of this chapter, any permit or any regulation promulgated or issued under this chapter shall be guilty of a class A
misdemeanor. The Justice of the Peace Courts shall have jurisdiction over offenses under this subsection. No fine imposed under this
subsection shall be suspended.
(e) Any commercial food fishing license holder who does not file a monthly report on his or her catch by effort, species and weight
on forms provided by the Department, as required in § 914(6) of this title, by 4:30 p.m. of the last working day of the month following
the month for which the report is due, may have his or her commercial food fishing license revoked by the Director until such time when
all reporting requirements are fulfilled in a manner acceptable to the Director.
(Code 1915, § 2516; 28 Del. Laws, c. 203; Code 1935, § 3004; 7 Del. C. 1953, § 952; 57 Del. Laws, c. 739, §§ 62, 63; 64 Del.
Laws, c. 251, § 1; 65 Del. Laws, c. 192, § 3; 65 Del. Laws, c. 193, § 14; 67 Del. Laws, c. 310, § 1; 70 Del. Laws, c. 186, § 1; 79
Del. Laws, c. 421, § 4.)
§ 937. Suspension or refusal to issue commercial finfishing license.
If a commercial fisher during a 1-year period has committed 3 or more violations of any provision of this chapter or any regulation
promulgated by the Department or permit issued by the Division and is convicted of said violations, the Department, upon the
recommendation of the Council, may suspend or refuse to issue a commercial food fishing license to said fisher.
(64 Del. Laws, c. 251, § 1; 70 Del. Laws, c. 186, § 1.)
§ 938. Creel limits on finfish; exceptions.
(a) Unless otherwise provided in this chapter, or by regulations promulgated by the Department, or permit issued by the Division, a
fisher shall not have in possession at or between the place caught and the fisher’s personal abode or temporary or transient place of lodging
more finfish than exceed the following numbers for the species listed:
10 for tautog (Tautoga onitis) or blackfish.
(b) Each finfish of a species in possession that exceeds the number authorized in subsection (a) of this section shall constitute a separate
violation.
(67 Del. Laws, c. 298, § 1; 68 Del. Laws, c. 374, § 2; 70 Del. Laws, c. 186, § 1.)
§ 939. Fishing seasons; exception.
(a) Notwithstanding § 938 of this title, it shall be unlawful for any person to possess or retain more than 3 tautog (Tautoga onitis)
during the period beginning at 12:01 a.m. on April 1 through and including midnight on June 30 next ensuing except that an individual
who free dives without the aid of an underwater mechanical breathing device may take by spear and possess not more than 10 tautog
per day during this period.
Notwithstanding § 929(b)(7) of this title, it shall be unlawful to possess any tautog during the period beginning at 12:01 a.m. on April
1 through and including midnight on June 30, next ensuing, which measures less than 15 inches long in total length.
(b) Each tautog taken and retained in violation of the provisions in subsection (a) of this section shall constitute a separate violation.
(68 Del. Laws, c. 374, § 1; 69 Del. Laws, c. 177, § 1.)
§ 940. Food fish dealer permits.
(a) If a fishery management plan approved by the Secretary of the U.S. Department of Commerce or Atlantic States Marine Fisheries
Commission requires the commercial landings of a food fish species to be managed with a quota, said food fish species, if landed in
this State by a commercial finfisher, shall not be purchased, sold, traded and/or bartered by a food fish dealer without a food fish dealer
permit. The Department shall not charge a fee for a food fish dealer permit.
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(b) All food fish dealer permit holders shall maintain log books, supplied by the Department, for those food fish species that have
management plans which require commercial landings to be monitored for purposes of a quota. Food fish dealer permit holders shall
forward copies of their log book entries to the Department as prescribed by the Department. The log books shall record the following:
(1) The commercial food fishing license number of the commercial finfisher who landed the food fish; and
(2) The number and/or weight, by species, of food fish purchased, traded and/or bartered from each commercial finfisher.
(c) The Department may adopt, amend, modify or repeal rules and regulations to effectuate the policy and purpose of this section.
(71 Del. Laws, c. 214, § 2; 70 Del. Laws, c. 186, § 1.)
§ 941. Headboat/charter boat fishing permits; reporting requirements.
(a) If a fishery management plan approved by the Secretary of the U.S. Department of Commerce or Atlantic States Marine Fisheries
Commission requires the landings of a finfish species by headboats and charter boats to be monitored, said finfish species, if caught on
a headboat or charter boat, shall not be landed in this State unless the owner or operator of said boat has been issued a headboat/charter
boat fishing permit. The Department shall not charge a fee for the headboat/charter boat fishing permit.
(b) All headboat/charter boat fishing permit holders shall maintain a logbook, supplied by the Department, for those finfish species
that have management plans which require landings to be monitored. Headboat/charter boat fishing permit holders shall forward copies
of their logbook entries to the Department as prescribed by the Department. The logbooks shall contain, but not be limited to:
(1) The headboat/charter boat fishing permit number; and
(2) The number and/or weight, by species, of finfish landed on each date.
(c) The Department may adopt, amend, modify or repeal rules and regulations to effectuate the policy and purpose of this section.
(72 Del. Laws, c. 362, § 2.)
§ 942. Control of invasive finfish species.
(a) Definitions.
(1) “Invasive finfish species” means a non-native finfish species, including the eggs thereof or other biological material, capable of
spread, reproduction or propagation, whose introduction or proliferation causes or is likely to cause, as determined by the Department,
economic or environmental harm or harm to human health or safety.
(2) “Non-native finfish species” means finfish species that are not naturally occurring in Delaware but are capable of living and
reproducing in the wild without continued human agency, including invasive finfish species. Non-native finfish species may include
genetically modified native species.
(b) The Department is authorized to authorize, regulate, prohibit, prescribe, or restrict anywhere in the State the acquisition, importation,
introduction, possession, transportation, disposition, or release into public or private tidal waters of any invasive finfish species. The
Department is further authorized to prescribe and regulate the methods used to take or eliminate invasive finfish species from tidal waters.
(78 Del. Laws, c. 319, § 1.)
§ 943. Tagging striped bass.
The affixing of a tag on a striped bass by a commercial fisherman shall be required before landing or putting on shore.
(80 Del. Laws, c. 165, § 1.)
§§ 944-957.
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Part I
Game, Wildlife and Dogs
Chapter 11
Finfishing in Nontidal Waters
Subchapter I
General Provisions
§ 1101. Application of chapter.
This chapter shall apply to fishing for finfish in all the nontidal waters of this State. This chapter shall not apply to cultured aquatic
stock in transit to, or in or removed from, registered aquaculture facilities pursuant to Chapter 4 of Title 3.
(64 Del. Laws, c. 251, § 2; 69 Del. Laws, c. 103, § 9.)
§ 1102. Definitions.
(a) Unless otherwise provided in this chapter, and in addition to the words defined in this section, the words and definitions contained
in § 906 of this title are hereby incorporated into this section and chapter.
(b) “Freshwater finfish” or “freshwater fish” as used in this chapter shall mean any species of finfish that may be found in fresh or
nontidal waters of this State.
(c) “Nontidal waters” or “freshwater” as used in this chapter or any regulation promulgated by the Department or permit issued by the
Division or Director shall mean those waters in the State where the lunar tide does not regularly ebb and flow.
(64 Del. Laws, c. 251, § 2.)
§ 1103. Equipment and methods used for fishing for freshwater finfish.
Unless otherwise authorized by regulation promulgated by the Department or permit issued by the Division or Director, it shall be
illegal for any person to fish for any freshwater fish in the nontidal waters of this State with any fishing equipment or by any method,
unless it is provided for in the following paragraphs:
(1) A hook and line may be used, and each hook and line shall have no more than 3 hooks or 3 separate lures with hooks.
(2) Except for a person fishing for freshwater finfish with a hook and line through ice, the number of hooks and lines any 1 person
shall be permitted to use to fish for any freshwater finfish in the nontidal or fresh waters of the State shall be no more than 2. Fishing
through ice shall be governed by regulations promulgated by the Department.
(3) A person may use a dip net to aid in landing any freshwater finfish taken or caught by hook and line in the nontidal or fresh
waters of the State.
(4) Upon the request of an owner or tenant of any pond, lake or impoundment located in the State, the Director may issue a permit
to said owner or tenant, authorizing said owner or tenant to fish for freshwater finfish with any fishing equipment, or by any method
other than what has been authorized by this chapter or any regulation promulgated by the Department or permit issued by the Director.
However, no owner or tenant of any pond, lake or impoundment located in this State shall use or attempt to use any chemical, poison
and/or electrical equipment or device to fish for freshwater finfish.
(5) Upon the request of the owner of any privately owned pond located in the State, employees of the Division may be authorized
by the Director to use any chemical, poison and/or electrical equipment or device to fish in said owner’s pond for the purpose of fish
management practices.
(6) Carp may be taken and/or fished for by using a bow and arrow and/or spear, unless said equipment or method is otherwise
restricted by any regulation promulgated by the Department.
(Code 1915, § 2529; 30 Del. Laws, c. 176, § 8; Code 1935, § 3017; 7 Del. C. 1953, § 1106; 64 Del. Laws, c. 251, § 2.)
§ 1104. Regulations promulgated by Department.
Nothing in this chapter shall be interpreted to lessen or preclude the Department’s authority to promulgate regulations pertaining to
freshwater fish pursuant to the provisions of § 103 of this title.
(64 Del. Laws, c. 251, § 2.)
§ 1105. Sale and attempted sale of freshwater finfish.
(a) No person shall sell, trade or barter any finfish taken from the nontidal waters of this State, unless said person has been authorized
to do so in a permit issued by the Director.
(b) No person shall attempt to sell, trade or barter any freshwater finfish taken from the nontidal water of this State, unless said person
has been authorized to do so in a permit issued by the Director.
(64 Del. Laws, c. 251, § 2.)
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§ 1106. Enforcement of chapter; violations.
(a) The Secretary, the Department and persons authorized by the Secretary shall enforce this chapter and any regulation promulgated
by the Department or any permit issued by the Division or Director.
(b) Any person, organization, group, business, corporation, partnership or any other type of entity that violates this chapter and/or any
permit issued by the Division or Director pursuant to this chapter shall be punished under § 1304 of this title.
(c) Any person, organization, group, business, corporation, partnership or any other type of entity that violates any regulation
promulgated by the Department pursuant to § 103 of this title, shall be punished under § 103(d) of this title.
(23 Del. Laws, c. 128, § 2; Code 1915, § 2539; 40 Del. Laws, c. 191, § 34; Code 1935, § 3026; 7 Del. C. 1953, § 1124; 64 Del.
Laws, c. 251, § 2.)
§ 1107. Fee fishing operations; exemptions.
Any person who lawfully takes and has fish in the person’s possession from a fee fishing operation, registered as same with the
Department of Agriculture according to Chapter 4 of Title 3, is exempt from any seasonal restrictions, size limits and/or creel limits on
said fish, provided said person has in the person’s possession a valid receipt for said fish, issued by the owner or the owner’s agent of
the fee fishing operation pursuant to § 407(d) of Title 3.
(69 Del. Laws, c. 103, § 13; 70 Del. Laws, c. 186, § 1; 79 Del. Laws, c. 178, § 1.)
§§ 1108-1123.
Subchapter II
Fresh Water Trout Fishing
§ 1124. Issuance of special trout fishing stamp.
The Department shall annually issue a distinctive stamp for fresh water trout fishers, which shall be known as the Delaware trout
fishing stamp.
(7 Del. C. 1953, § 1125; 50 Del. Laws, c. 257, § 2; 57 Del. Laws, c. 739, § 68; 70 Del. Laws, c. 186, § 1.)
§ 1125. Sale of stamps; applications; price.
(a) Licensing agents, who are authorized by the Department to sell fishing licenses, are authorized to sell Delaware trout fishing stamps,
and for their sale shall be entitled to the compensation provided by § 511 of this title for the sale of migratory waterfowl stamps.
(b) Applications for the purchase of the said stamps shall be in a manner specified by the Department.
(c) The purchase price of the special trout fishing stamps shall be set by the Department annually, but the maximum prices shall be
as follows:
(1) For Delaware residents: $4.20 for persons 16 years of age and older; and $2.10 for persons 12 to 16 years of age. Stamps are
not required for any Delaware resident under 12 years of age.
(2) For nonresidents: $6.20. Stamps are not required for any nonresident under 12 years of age.
(7 Del. C. 1953, § 1126; 50 Del. Laws, c. 257, § 2; 57 Del. Laws, c. 739, § 69; 63 Del. Laws, c. 315, § 1; 70 Del. Laws, c. 186, §
1; 71 Del. Laws, c. 443, § 3; 83 Del. Laws, c. 218, § 3.)
§ 1126. Stamp requirement and possession; exemptions from purchase of stamp.
Anyone who fishes in fresh waters stocked with trout by the Department at locations and during seasons designated by the Department
shall purchase a Delaware trout fishing stamp. Such stamp must be in the possession of persons fishing in such waters, either as a gummed
paper stamp validated by the signature of the licensee written in ink across the face of said stamp, or in paper or digital form encoded in
a manner that validates the stamp holder. Delaware trout fishing stamp holders shall be permitted to take trout during the open season for
such fish and in a manner permitted by law from the fresh waters which are stocked with trout by the Department. Any person exempt
from purchasing a Delaware fishing license under § 502(e)-(i), § 502(k)-(l), or § 507(d) of this title is also exempt from purchasing a
Delaware trout fishing stamp.
(7 Del. C. 1953, § 1127; 50 Del. Laws, c. 257, § 2; 57 Del. Laws, c. 739, § 70; 63 Del. Laws, c. 315, § 2; 69 Del. Laws, c. 103, §
12; 70 Del. Laws, c. 186, § 1; 83 Del. Laws, c. 218, § 4.)
§ 1127. Exception for owner or lessee of land traversed by trout-stocked waters.
An owner or bona fide lessee of land traversed by trout-stocked waters and members of his or her immediate family may fish such
waters upon his or her land without purchasing a stamp.
(7 Del. C. 1953, § 1128; 50 Del. Laws, c. 257, § 2; 70 Del. Laws, c. 186, § 1.)
§ 1128. Use of proceeds of sale of stamps.
All moneys received from the sale of Delaware trout fishing stamps shall be deposited at least monthly by the Department with the
State Treasurer, to be by him or her retained until expended upon proper vouchers of the Department only for the purchase of trout for
restocking those waters of the State considered suitable for such purpose or for the improvement of such waters for trout fishing.
(7 Del. C. 1953, § 1129; 50 Del. Laws, c. 257, § 2; 57 Del. Laws, c. 739, § 71; 70 Del. Laws, c. 186, § 1.)
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§ 1129. Offenses; penalty.
The following acts shall be offenses under this subchapter punishable as a Class D environmental violation for each such act:
(1) To alter or change a Delaware trout fishing stamp in any way;
(2) To loan such a stamp to another person for use as authority to fish in trout-stocked waters;
(3) To furnish any false information as to the identity of the applicant upon the application for such a stamp;
(4) To take or attempt to take any rainbow, brown, or brook trout from any fresh waters stocked by the Department with trout
without having purchased a stamp and affixed and signed the same as provided in this subchapter, except upon lands owned or leased
as provided in § 1127 of this title;
(5) Upon demand by any Fish and Wildlife Agent to fail or refuse to exhibit a stamp when fishing in trout-stocked waters; except
upon lands owned or leased as provided in § 1127 of this title.
(7 Del. C. 1953, § 1130; 50 Del. Laws, c. 257, § 2; 57 Del. Laws, c. 739, § 72; 70 Del. Laws, c. 105, § 7; 79 Del. Laws, c. 421, §
5.)
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Title 7 - Conservation
Part I
Game, Wildlife and Dogs
Chapter 13
Enforcement of Game and Fish Laws
§ 1301. Arrest of violators without warrant by license holders.
Every person holding a license for hunting or fishing, as prescribed by law, may arrest, without warrant, violators of this part.
(26 Del. Laws, c. 162, § 10; Code 1915, § 2367; Code 1935, § 2813; 7 Del. C. 1953, § 1301.)
§ 1302. Arrest of violators without warrant by freeholder, leaseholder or employee.
Any freeholder or leaseholder or member of his or her family or any person in his or her employ may arrest, without warrant, any
person who, upon the freehold or leasehold, commits any violation of this part.
(26 Del. Laws, c. 162, § 11; Code 1915, § 2368; Code 1935, § 2814; 7 Del. C. 1953, § 1302; 70 Del. Laws, c. 186, § 1.)
§ 1303. Confiscation and disposition of game and fish unlawfully taken.
The Department shall confiscate all game and fish unlawfully taken or had in possession, and dispose of the same by destroying it or
distributing it among charitable institutions.
(26 Del. Laws, c. 162, § 13; Code 1915, § 2370; Code 1935, § 2816; 7 Del. C. 1953, § 1303; 57 Del. Laws, c. 739, § 73.)
§ 1304. Environmental misdemeanors, environmental violations, sentences and fines.
(a) Violations of Chapters 1, 5, 6, 7, 9, 18, 19, 21, 23, 24, 25, 26, 27, and 28 and of subchapter I of Chapter 11 of this title or Department
orders, rules or regulations promulgated to implement provisions of these chapters are designated as environmental misdemeanors and
violations.
(b) Environmental misdemeanors and environmental violations are classified for purposes of sentencing into the following 4 categories :
(1) Class A environmental misdemeanors;
(2) Class B environmental misdemeanors;
(3) Class C environmental violations;
(4) Class D environmental violations.
(c) Any violation of Chapters 1, 5, 6 or 7 or of subchapter I of Chapter 11 of this title for which there is no prescribed penalty shall
be a class C environmental violation.
(d) Any person convicted of a class A environmental misdemeanor shall be fined not less than $1000, nor more than $10,000, plus
the costs of prosecution and court costs, or such person shall be imprisoned for up to 60 days, or such person shall be both fined and
imprisoned according to the foregoing limitations. Any person convicted of a class A environmental misdemeanor within 5 years of a
prior conviction for a class A environmental misdemeanor shall be fined not less than $2,000, nor more than $20,000, plus the costs of
prosecution and court costs, or such person shall be imprisoned for up to 120 days, or such person shall be both fined and imprisoned
according to the foregoing limitations.
(e) Any person convicted of a class B environmental misdemeanor shall be fined not less than $250, nor more than $1,000, plus the costs
of prosecution and court costs, or such person shall be imprisoned for up to 30 days, or such person shall be both fined and imprisoned
according to the foregoing limitations. Any person convicted of a class B environmental misdemeanor within 5 years of a prior conviction
for a class B or greater environmental misdemeanor shall be fined not less than $500, nor more than $2,000, plus the costs of prosecution
and court costs, or such person shall be imprisoned for up to 60 days, or such person shall be both fined and imprisoned according to
aforesaid limitations.
(f) Any person convicted of a class C environmental violation shall be fined not less than $100, nor more than $250, plus the costs of
prosecution and court costs. Any person convicted of a class C environmental violation within 5 years of a prior conviction for a class C or
greater environmental violation shall be fined not less than $100, nor more than $500, plus the costs of prosecution and court costs, or such
person shall be imprisoned for up to 20 days, or such person shall be both fined and imprisoned according to the foregoing limitations.
(g) Any person convicted of a class D environmental violation shall be fined not less than $50, nor more than $100, plus the costs of
prosecution and court costs. Any person convicted of a class D environmental violation within 5 years of a prior conviction for a class D
or greater environmental violation shall be fined not less than $100, nor more than $500, plus the costs of prosecution and court costs.
(h) Any fine imposed for any environmental misdemeanor shall not be suspended to any amount less than the minimum prescribed fine.
(i) Any conviction of a class C or class D environmental violation, for a first offense, shall not be reported on criminal history records
provided by the State Bureau of Identification for employment purposes under § 8513(c) of Title 11. This provision shall not apply to a
subsequent conviction of a class C or class D environmental violation within 5 years, and any such subsequent conviction shall be reported
on a criminal history record provided by the State Bureau of Identification for employment purposes under § 8513(c) of Title 11.
(26 Del. Laws, c. 164, § 16; 26 Del. Laws, c. 165, § 16; Code 1915, §§ 2391A, 2405; 30 Del. Laws, c. 176, § 3; 40 Del. Laws, c.
191, § 23; Code 1935, §§ 2851, 2865; 7 Del. C. 1953, § 1304; 52 Del. Laws, c. 290; 63 Del. Laws, c. 389, § 2; 70 Del. Laws, c.
275, § 106; 70 Del. Laws, c. 436, § 6; 79 Del. Laws, c. 421, § 6; 80 Del. Laws, c. 216, § 1.)
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Title 7 - Conservation
§ 1305. Violations by corporations; service; collection of fines.
Where a corporation is accused of violating this part, the warrant of arrest may be read to the president, secretary, or manager in this
State, or to any general or local agent thereof in any county where the action or indictment is pending. Upon return of the warrant so
served, the corporation shall be deemed in court and subject to the jurisdiction thereof. Any fine imposed may be collected by execution
against the property of the corporation. This section shall not exempt an agent or employee from prosecution.
(26 Del. Laws, c. 164, § 10; Code 1915, § 2399; Code 1935, § 2859; 7 Del. C. 1953, § 1305.)
§ 1306. Failure of officer or Fish and Wildlife Agent to do duty; penalty.
Whoever, being an official, officer or Fish and Wildlife Agent, fails to perform any act, duty or obligation enjoined upon the person
by this part, shall be guilty of a class D environmental violation.
(26 Del. Laws, c. 164, § 11; Code 1915, § 2400; Code 1935, § 2860; 7 Del. C. 1953, § 1306; 70 Del. Laws, c. 105, § 8; 70 Del.
Laws, c. 186, § 1; 79 Del. Laws, c. 421, § 6.)
§ 1307. Report to Department.
Any court or officer of any court, before whom any prosecution, under this part, is commenced or shall go on appeal, and within 20
days after trial or dismissal thereof, shall report in writing the result thereof and the amount of fine or forfeiture collected, if any, and the
disposition thereof, to the Department, remitting at the same time all money collected from fines and forfeitures.
(26 Del. Laws, c. 164, §§ 12, 15; 27 Del. Laws, c. 155, §§ 2, 3; Code 1915, § 2401; Code 1935, § 2861; 7 Del. C. 1953, § 1307;
57 Del. Laws, c. 739, § 74.)
§ 1308. Affidavit, complaint or indictment charging several offenses; proof.
Two or more offenses may be charged in the same affidavit, complaint or indictment. Proof as to a part of a bird, animal or fish shall
be sufficient to sustain a charge to the whole of it. The violation of this part as to a number of animals, birds or fish may be charged in
the same count, and punished as a separate offense as to each animal, bird or fish.
(26 Del. Laws, c. 164, § 13; Code 1915, § 2402; Code 1935, § 2862; 7 Del. C. 1953, § 1308.)
§ 1309. Jurisdiction of justices of peace; appeal; bond.
(a) The justices of the peace in this State shall have jurisdiction of all offenses under this part, unless another court is given exclusive
jurisdiction.
(b) Any person charged before a justice of the peace with a violation of this part shall have the right to appeal to the Court of Common
Pleas for the county wherein the hearing before the justice of the peace takes place. The appeal shall be allowed by the justice at any
time within 15 days from the day of giving the judgment and not after, counting the day as 1, upon the party entitled to the appeal, or
the party’s agent or attorney, praying it and offering sufficient security in such sum as the justice deems sufficient to cover the judgment
appealed from and the costs on the appeal. The justice shall make an entry thereof as follows:
“On the .................. day of .................., 20........., the said .................................... appeals, and .................................... becomes surety
in the .................................... sum of .................. that the said appeal shall be prosecuted with effect, and also that any judgment
which shall be rendered against the said .................................... or that person’s executors or administrators, upon said appeal, shall
be satisfied.”
The entry shall be signed by the sureties or it shall be void. When signed it shall be an obligation of record to the extent of the sum
therein expressed, and shall bind the sureties and their executors and administrators, jointly and severally, to satisfy any judgment rendered
on the appeal against the party appealing, or that person’s executors or administrators, and, if the appeal is not duly entered in Court, or is
dismissed, then to satisfy the judgment appealed from with all costs on the appeal. A civil action may be sustained on such entry before
a justice, if the demand does not exceed $200, or if above that sum in the Court of Common Pleas, or if the appeal is not entered, or is
dismissed, execution may be issued against the defendant and surety.
(25 Del. Laws, c. 228, §§ 1, 2; Code 1915, § 2410; Code 1935, § 2863; 7 Del. C. 1953, § 1309; 69 Del. Laws, c. 423, § 5; 70 Del.
Laws, c. 186, § 1.)
§ 1310. Illegal possession of Atlantic sailfish, blue marlin, white marlin and striped marlin; penalties.
(a) No person shall sell, possess for sale, offer for sale, offer to purchase, purchase, deliver for shipment, ship, cause to be shipped,
deliver for transportation, transport or cause to be transported, carry or cause to be carried, by any means whatever, for the purpose of sale,
or barter, the carcass, processed byproduct, or any portion thereof of any Atlantic sailfish (istiophorus americanus), blue marlin (makaira
nigricans ampla), white marlin (makaira albida) or striped marlin (makaira mitsukurii).
(b) This section shall not apply to Atlantic sailfish, blue marlin, white marlin or striped marlin, whole, packed or processed in
transportation in unbroken packages and coming from any other state or country, but such packages shall be clearly marked by stencil,
tag or otherwise, showing the true origin of the shipment and its destination beyond the limits of this State.
(c) Any person, who violates any provision of this section shall be charged with a class B environmental misdemeanor.
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(d) The Justice of the Peace Courts shall have jurisdiction of offenses under this section.
(7 Del. C. 1953, § 1201; 55 Del. Laws, c. 347; 79 Del. Laws, c. 421, § 6.)
§ 1311. Fines payable by mail.
(a) Applicability. — Any duly constituted law-enforcement officer of the Department of Natural Resources and Environmental Control
or peace officer in this State, who charges any person with any of the offenses which are violations of laws or regulations established
or promulgated under the authority of Parts I and II of this title, Chapter 47 of this title or Chapter 21 of Title 23, may, in addition to
issuing a summons for any such offenses, provide the violator with a voluntary assessment form which, when properly executed by the
officer and the offender, allows the offender to dispose of the charges without the necessity of personally appearing in the court to which
the summons is returnable.
(b) Definitions. — (1) “Payment” as used in this section shall mean the total amount of the fine and of the costs as herein provided and
of the penalty assessment added to the fine pursuant to the Delaware Victim Compensation Law, Chapter 90 of Title 11.
(2) “Voluntary assessment form” as used in this section means the written agreement or document signed by the violator wherein he
or she agrees to pay by mail the fine for the offense described therein together with costs and penalty assessment.
(c) Places and time of payment. — Payments made pursuant to this section shall be remitted to the court to which the summons is
returnable and shall be disbursed in accordance with § 1307 of this title. The payment must be received by the court within 10 days from
the date of arrest (excluding Saturday and Sunday) and shall be paid only by check or money order.
(d) Offenses designated as “offenses subject to voluntary assessment”; exceptions. — All offenses, as now or hereafter set forth in
this title or Title 23, or regulations promulgated under the authority of this title or Title 23, are hereby designated as offenses subject to
voluntary assessment except the following offenses: Violation of § 787(a) of this title.
(e) Offer and acceptance of voluntary assessment; effect; withdrawal of acceptance; request for hearing. — (1) At the time of making
an arrest for any offense subject to this section, the arresting officer may offer the alleged violator the option of accepting a voluntary
assessment. The alleged violator’s signature on the voluntary assessment form constitutes an acknowledgment of guilt of the offense
stated in the form, and an agreement to pay the fine as herein provided, together with costs and penalty assessment, within 10 days from
the date of arrest (excluding Saturday and Sunday) during which time payment must be received by the court.
(2) The alleged violator, after signing and receiving the voluntary assessment form, may withdraw his or her acceptance of the
voluntary assessment and request a hearing on the charge stated in such form, provided that the alleged violator, within 10 days from the
date of arrest (excluding Saturday and Sunday), personally or in writing notifies the court to which payment of the penalty assessment
was to be made that he or she wishes to withdraw his or her acceptance of the voluntary assessment and requests a hearing on the
charge stated in the voluntary assessment form. If the alleged violator notifies the court of such withdrawal and request for hearing as
aforesaid, he or she shall be prosecuted for the charge stated in the voluntary assessment form as if such form had not been issued.
(f) Penalty. — If an alleged violator elects the option of accepting a voluntary assessment in accordance with subsection (e) of this
section, the penalty for offenses designated as offenses subject to voluntary assessment shall be the minimum fine for each specific offense
charged, and fines shall be cumulative if more than 1 offense is charged.
(g) Court costs and applicability of Delaware Victim Compensation Law. — In lieu of any other court costs, and provided the offense
is not subject to other proceedings under this section, each fine for an offense under this section shall be subject to court costs of $8.50.
Each fine for an offense under this section shall be subject also to the penalty assessment which is or may be provided for in the Delaware
Victim Compensation Law, Chapter 90 of Title 11.
(h) Agreement to accept voluntary assessment; procedure. — Whenever a person is arrested for commission of an offense subject to
voluntary assessment and has elected to make payment as herein provided, the arresting officer, using the uniform Department of Natural
Resources and Environmental Control complaint and summons citation, shall complete the information section and prepare the voluntary
assessment form indicating the amount of the fine, have the arrested person sign the voluntary assessment form, give a copy of the citation
and form to the arrested person and release the arrested person from custody. The arresting officer shall also inform the arrested person
of the court to which payment shall be submitted. No officer shall receive or accept custody of a payment. If the person declines to accept
the voluntary assessment, the arresting officer shall follow the procedure for arrest as set forth in Chapter 19 of Title 11.
(i) Payment of fine as complete satisfaction; repeat offenders. — (1) Payment of the prescribed fine, costs and penalty assessment is a
complete satisfaction of the violation, except as provided in paragraph (i)(2) of this section, but does not waive any administrative penalty
in the nature of license revocation which may be lawfully revoked by the Department of Natural Resources and Environmental Control.
(2) In the event that following compliance with the payment provisions of this section, it is determined that within the 2-year period
immediately preceding the violation, the violator was convicted of or made a payment pursuant to this section in satisfaction of a
violation of the same section of this title, personal appearance before the court to which the summons is returnable shall be required.
Notice of the time and place for the required court appearance shall be given to the violator by the court to which the summons for
the offense would be returnable.
(j) Removal from applicability of section. — (1) If a payment due pursuant to this section is not received by the court to which the
summons is returnable within 10 days from the date of arrest (excluding Saturday and Sunday), the violator shall be prosecuted for the
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Title 7 - Conservation
offense charged on the voluntary assessment form in a manner as if a voluntary assessment form had not been issued. Upon conviction in
such prosecution, the court shall impose penalties as provided for by this title and Title 23 or other law relating to the particular violation
charged, and this section, as to payment of fines under voluntary assessments, shall not apply.
(2) In addition to the penalties provided for in paragraph (j)(1) of this section, it is a class B misdemeanor, punishable as provided by
Title 11, for any person, who has elected to make payment pursuant to this section, to fail to do so within 10 days (excluding Saturday
and Sunday) from the date of arrest.
(k) Nonexclusive procedure. — The procedure prescribed is not exclusive of any other method prescribed by law for the arrest and
prosecution of persons violating this title.
(61 Del. Laws, c. 378, § 1; 62 Del. Laws, c. 213, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 436, §§ 7-9.)
§ 1312. Wildlife Theft Prevention Special Fund.
(a) There is hereby established by this section a Wildlife Theft Prevention Special Fund which shall consist of:
(1) Moneys received from fines imposed for violations of Chapters 1, 5, 6 and 7 of this title;
(2) Moneys received from donations to the Fund;
(3) Moneys appropriated by the General Assembly to the Fund to carry out the purposes provided for in this section.
(b) Funds from the Wildlife Theft Prevention Special Fund shall be expended only for the following purposes:
(1) Financing of rewards to persons other than peace officers, Department of Natural Resources and Environmental Control personnel
or members of their immediate families, responsible for information leading to the conviction of any person for unlawfully taking,
wounding or carrying, possessing, transporting or selling wildlife or trapping, attempting to trap or illegally setting traps for the purpose
of catching wildlife. The Division of Fish and Wildlife shall establish a schedule of rewards for information received and payment shall
be made from the funds available for this purpose. The amount of such reward shall not exceed $1,000;
(2) Financing of a statewide telephone reporting system containing the name of Operation Game Theft;
(3) Promotion of public recognition and awareness of the Wildlife Theft Prevention Special Program.
(c) The Wildlife Theft Prevention Special Fund shall be expended in conformity with the laws governing the state financial operations,
except that regulations shall be developed by the Department to maintain the confidentiality of the informant’s identity.
(d) For the purpose of implementing paragraph (a)(1) of this section, all moneys received from fines assessed for violation of Chapters
1, 5, 6 and 7 of this title shall be deposited at least monthly with the State Treasurer to be retained by him or her in a Special Fund until
expended upon proper vouchers of the Department to carry out the purposes of this section.
(62 Del. Laws, c. 326, § 4; 67 Del. Laws, c. 307, § 1; 70 Del. Laws, c. 186, § 1.)
§ 1313. Peace officers ex officio Fish and Wildlife Agents.
All constables and police officers, and all other peace officers of this State, shall be ex officio Fish and Wildlife Agents.
(70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 275, § 107; 78 Del. Laws, c. 266, § 12.)
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Title 7 - Conservation
Part I
Game, Wildlife and Dogs
Chapter 15
Atlantic States Marine Fisheries Compact
§ 1501. Governor to enter into Compact; provisions thereof.
The Governor of this State shall execute a Compact on behalf of this State with any 1 or more of the States of Maine, New Hampshire,
Massachusetts, Connecticut, Rhode Island, New York, New Jersey, Maryland, Virginia, North Carolina, South Carolina, Georgia and
Florida and with such other states as may enter into the Compact, legally joining therein in the form substantially as follows:
ATLANTIC STATES MARINE FISHERIES COMPACT
The contracting states solemnly agree:
Article I
The purpose of this compact is to promote the better utilization of the fisheries, marine, shell and anadromous, of the Atlantic seaboard
by the development of a joint program for the promotion and protection of such fisheries, and by the prevention of the physical waste of
the fisheries from any cause. It is not the purpose of this compact to authorize the states joining herein to limit the production of fish or
fish products for the purpose of establishing or fixing the price thereof, or creating and perpetuating monopoly.
Article II
This agreement shall become operative immediately as to those states executing it whenever any two or more of the States of Maine,
New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Delaware, Maryland, Virginia, North Carolina,
South Carolina, Georgia and Florida have executed it in the form that is in accordance with the laws of the executing state and the Congress
has given its consent. Any state contiguous with any of the aforementioned states and riparian upon waters frequented by anadromous
fish, flowing into waters under the jurisdiction of any of the aforementioned states, may become a party hereto as hereinafter provided.
Article III
Each state joining herein shall appoint 3 representatives to a Commission hereby constituted and designated as the Atlantic States
Marine Fisheries Commission. One shall be the executive officer of the administrative agency of such state charged with the conservation
of the fisheries resources to which this compact pertains or, if there be more than 1 officer or agency, the official of that state named
by the governor thereof. The second shall be a member of the legislature of such state designated by the Commission or Committee on
Interstate Cooperation of such state, or if there be none, or if said Commission on Interstate Cooperation cannot constitutionally designate
the said member, such legislator shall be designated by the governor thereof; provided that if it is constitutionally impossible to appoint a
legislator as a commissioner from such state, the second member shall be appointed by the governor of said state in his or her discretion.
The third shall be a citizen who shall have a knowledge of and interest in the marine fisheries problem to be appointed by the governor.
This Commission shall be a body corporate with the powers and duties set forth herein.
Article IV
The duty of the said Commission shall be to make inquiry and ascertain from time to time such methods, practices, circumstances
and conditions as may be disclosed for bringing about the conservation and the prevention of the depletion and physical waste of the
fisheries, marine, shell and anadromous of the Atlantic seaboard. The Commission shall have power to recommend the coordination of
the exercise of the police powers of the several states within their respective jurisdictions to promote the preservation of those fisheries
and their protection against overfishing, waste, depletion or any abuse whatsoever and to assure a continuing yield from the fisheries
resources of the aforementioned states.
To that end the Commission shall draft and, after consultation with the Advisory Committee hereinafter authorized, recommend to the
governors and legislatures of the various signatory states legislation dealing with the conservation of the marine, shell and anadromous
fisheries of the Atlantic seaboard. The Commission shall, more than one month prior to any regular meeting of the legislature in any
signatory state, present to the governor of the state its recommendations relating to enactments to be made by the legislature of that state
in furthering the intents and purposes of this compact.
The Commission shall consult with and advise the pertinent administrative agencies in the states party hereto with regard to problems
connected with the fisheries and recommend the adoption of such regulations as at deems advisable.
The Commission shall have power to recommend to the states party hereto the stocking of the waters of such states with fish and fish
eggs or joint stocking by some or all of the states party hereto and when 2 or more of the states shall jointly stock waters the Commission
shall act as the coordinating agency for such stocking.
Article V
The Commission shall elect from its number a Chairman and a Vice Chairman and shall appoint and at its pleasure remove or discharge
such officers and employees as may be required to carry the provisions of this compact into effect and shall fix and determine their duties,
qualifications and compensation. Said Commission shall adopt rules and regulations for the conduct of its business. It may establish and
maintain 1 or more offices for the transaction of its business and may meet at any time or place but must meet at least once a year.
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Title 7 - Conservation
Article VI
No action shall be taken by the Commission in regard to its general affairs except by the affirmative vote of a majority of the whole
number of compacting states present at any meeting. No recommendation shall be made by the Commission in regard to any species of
fish except by the affirmative vote of a majority of the compacting states which have an interest in such species. The Commission shall
define what shall be an interest.
Article VII
The Fish and Wildlife Service of the Department of the Interior of the Government of the United States shall act as the primary
research agency of the Atlantic States Marine Fisheries Commission cooperating with the research agencies in each state for that purpose.
Representatives of the said Fish and Wildlife Service shall attend the meetings of the Commission.
An advisory committee to be representative of the commercial fishermen and the salt water anglers and such other interests of each
state as the Commission deems advisable shall be established by the Commission as soon as practicable for the purpose of advising the
Commission upon such recommendations as it may desire to make.
Article VIII
When any state other than those named specifically in Article II of this compact shall become a party thereto for the purpose of
conserving its anadromous fish in accordance with the provisions of Article II the participation of such state in the action of the Commission
shall be limited to such species of anadromous fish.
Article IX
Nothing in this compact shall be construed to limit the powers of any signatory state or to repeal or prevent the enactment of any
legislation or the enforcement of any requirement by any signatory state imposing additional conditions and restrictions to conserve its
fisheries.
Article X
Continued absence of representation of any representative on the Commission from any state party hereto shall be brought to the
attention of the governor thereof.
Article XI
The states party hereto agree to make annual appropriation to the support of the Commission in proportion to the primary market
value of the products of their fisheries, exclusive of cod and haddock, as recorded in the most recent published reports of the Fish and
Wildlife Service of the United States Department of the Interior, provided no state shall contribute less than $200 per annum and the
annual contribution of each state above the minimum shall be figured to the nearest $100.
The compacting states agree to appropriate initially the annual amounts scheduled below, which amounts are calculated in the manner
set forth herein, on the basis of the catch record of 1938. Subsequent budgets shall be recommended by majority of the Commission and
the cost thereof allocated equitably among the states in accordance with their respective interests and submitted to the compacting states.
Maine
New Hampshire
Massachusetts
Rhode Island
Connecticut
New York
New Jersey
Delaware
Maryland
Virginia
North Carolina
South Carolina
Georgia
Florida
Schedule of Initial Annual State Contributions:
$ 700
200
2,300
300
400
1,300
800
200
700
1,300
600
200
200
1,500
Article XII
This compact shall continue in force and remain binding upon each compacting state until renounced by it. Renunciation of this compact
must be preceded by sending 6 months’ notice in writing of intention to withdraw from the compact to the other states party hereto.
(43 Del. Laws, c. 287, § 1; 7 Del. C. 1953, § 1501; 70 Del. Laws, c. 186, § 1.)
§ 1502. Atlantic States Marine Fisheries Commissioners; qualifications; term of office; vacancies; removal.
(a) In pursuance of Article III of the Compact authorized in § 1501 of this title, there shall be 3 members (hereinafter called
Commissioners) of the Atlantic State Marine Fisheries Commission (hereinafter called Commission) from the State. The first
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Commissioner from the State shall be the Commissioner of Conservation of the State ex officio, and the term of any such ex officio
Commissioner shall terminate at the time the ex officio Commissioner ceases to hold the office of Commissioner of Conservation and the
successor as Commissioner shall be the successor as Commissioner of Conservation. The second Commissioner from the State shall be
a legislator designated by said Commission on Interstate Cooperation, and the term of any such ex officio Commissioner shall terminate
at the time the ex officio Commissioner ceases to hold said legislative office, and the successor as Commissioner shall be named in like
manner. The Governor, (by and with the advice and consent of the Senate) shall appoint a citizen as a third Commissioner who has a
knowledge of and interest in the marine fisheries problem. The term of such Commissioner shall be 3 years and such Commissioner shall
hold office until a successor is appointed and qualified. Vacancies occurring in the office of such Commissioner from any reason or cause
shall be filled by appointment by the Governor (by and with the advice and consent of the Senate) for the unexpired term.
(b) The Commissioner of Conservation as ex officio Commissioner may delegate, from time to time, to any deputy or other subordinate
in his or her department or office, the power to be present and participate, including voting as his or her representative or substitute at
any meeting of or hearing by or other proceeding of the Commission.
(c) The terms of each of the initial 3 members shall begin at the date of the appointment of the appointive Commissioner, if the said
Compact has then gone into effect in accordance with Article II of the Compact; otherwise they shall begin upon the date upon which
the Compact becomes effective in accordance with said Article II.
(d) Any Commissioner may be removed from office by the Governor upon charges and after a hearing.
(43 Del. Laws, c. 287, § 2; 7 Del. C. 1953, § 1502; 69 Del. Laws, c. 62, § 1; 70 Del. Laws, c. 186, § 1.)
§ 1503. Powers of Commission and Commissioners; duties of other state officials.
The Commission and the Commissioners thereof shall have all the powers provided for in the Compact and all the powers necessary or
incidental to the carrying out of the Compact in every particular. All officers of the State shall do all things falling within their respective
provinces and jurisdiction necessary or incidental to the carrying out of the Compact in every particular; it being the policy of the State
to perform and carry out the said Compact and to accomplish the purposes thereof. All officers, bureaus, departments and persons of
and in the state government or administration of the State shall, at convenient times and upon request of the Commission furnish the
Commission with information and data possessed by them or any of them and aid said Commission by loan of personnel or other means
lying within their legal rights respectively.
(43 Del. Laws, c. 287, § 3; 7 Del. C. 1953, § 1503.)
§ 1504. Powers of Commission supplementary to powers vested by laws of other compacting states.
Any powers granted to the Commission shall be regarded as in aid of and supplemental to and in no case a limitation upon any of
the powers vested in said Commission by other laws of the State of Delaware or by the laws of the States of Maine, New Hampshire,
Massachusetts, Connecticut, Rhode Island, New York, New Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina,
Georgia and Florida or by the Congress or the terms of the Compact.
(43 Del. Laws, c. 287, § 4; 7 Del. C. 1953, § 1504.)
§ 1505. Receipts and disbursements of Commission; annual report; examination of accounts.
(a) The Commission shall keep accurate accounts of all receipts and disbursements and shall report to the Governor and the General
Assembly of the State on or before December 10 in each year, setting forth in detail the transactions conducted by it during the 12
months preceding December 1 of that year and shall make recommendations for any legislative action deemed by it advisable, including
amendments to the statutes of the State necessary to carry out the intent and purposes of the Compact between the signatory states.
(b) The Auditor of Accounts of the State may, from time to time, examine the accounts and books of the Commission, including its
receipts, disbursements and such other items referring to its financial standing as the Auditor deems proper and report the results of such
examination to the Governor of the State.
(43 Del. Laws, c. 287, § 5; 7 Del. C. 1953, § 1505.)
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Title 7 - Conservation
Part I
Game, Wildlife and Dogs
Chapter 17
Dogs
§ 1701. Field trials; permit.
Field trials with dogs may not be held in this State without first securing a permit from the Department. The Department may grant
permits to bona fide field trial clubs or associations to hold field trials in this State under such rules and regulations adopted by the
Department, safeguarding the interests of the game of this State. Dogs brought into the State to participate in such field trials and which
are removed from the State within 10 days, are exempt from the state dog license tax.
(Code 1915, § 2406L; 34 Del. Laws, c. 185, § 1; Code 1935, § 2876; 7 Del. C. 1953, § 1711; 57 Del. Laws, c. 739, § 81; 77 Del.
Laws, c. 428, §§ 1, 2.)
§ 1702. Dogs on state coastal beaches.
Whoever, being the owner, possessor, harborer or custodian of any dog, allows such dog to be upon the designated swimming or
sunbathing area of a state coastal beach strand at any time between May 1 and September 30, inclusive, of any year, except when such
dog is on said property on behalf of a law enforcement agency or a blind person, as defined in § 2101 of Title 31, is guilty of a violation
and shall be fined not less than $25 nor more than $50. For each subsequent offense, the person shall be fined not less than $50 nor more
than $100. “Coastal beach strand” shall mean all that coastal real property between the western base of the dunes and the low water mark
except those lands within a municipality which has enacted an ordinance governing the activities of dogs on said real property.
(64 Del. Laws, c. 283, § 1; 71 Del. Laws, c. 135, § 11; 74 Del. Laws, c. 253; 77 Del. Laws, c. 428, §§ 1, 2.)
§ 1703. License for special dog training area; requirements.
Upon application of any club or organization having 20 or more members who are citizens of this State, or upon application of 20
or more citizens of this State, and the payment of an annual registration fee of $10, the Department may issue a license authorizing the
establishment and maintenance by such club, organization of citizens, on land owned by them, or over which they have legal control,
of a special dog training area wherein and whereon dogs may be trained at any time during the year. No such dog training area shall be
less than 100 acres, nor more than 250 acres.
(Code 1935, § 2869A; 48 Del. Laws, c. 131, § 1; 7 Del. C. 1953, § 1721; 55 Del. Laws, c. 329; 57 Del. Laws, c. 739, § 82; 71 Del.
Laws, c. 135, § 13; 77 Del. Laws, c. 428, §§ 1, 2.)
§ 1704. Stocking area; training therein; hunting and trapping.
The licensees shall, from time to time, during each year stock each such area with 25 pieces of game per 100 acres at their own expense,
under supervision of the Department, unless the Department determines that the area is already adequately stocked. The licensees may at
any time during the year train their own dogs or the dogs of other persons on such area or permit others so to do under such conditions
as are mutually agreed upon. Neither the licensees nor any other person shall, at any time, hunt or trap within the confines of such area,
except that the licensees or any person authorized by them may hunt or trap vermin and predators for the purpose of exterminating vermin
and predators on such area.
(Code 1935, § 2869A; 48 Del. Laws, c. 131, § 1; 7 Del. C. 1953, § 1722; 57 Del. Laws, c. 739, § 83; 77 Del. Laws, c. 428, §§ 1,
2.)
§ 1705. Marking of boundary lines; posting of notice; penalty.
(a) The boundary lines of the special dog training area shall be plainly and conspicuously posted prior to September 1 of each year with
legible notices, at least 10 inches by 12 inches in size, placed not more than 100 yards apart which shall bear the following warning:
SPECIAL DOG TRAINING AREA
HUNTING UNLAWFUL
THIS LAND IS SET ASIDE UNDER SPECIAL LICENSE FOR THE
TRAINING OF DOGS.
ENTERING HEREON FOR THE PURPOSE OF HUNTING OR DISTURBING GAME OR PERMITTING DOGS TO ENTER
WITHOUT AUTHORIZATION IS PUNISHABLE BY PENALTY OF TWENTY-FIVE DOLLARS ($25.00) FOR EACH OFFENSE.
........................................................................ (Name and address of licensee to be printed here)
(b) Whoever violates any of the provisions of any such notice and warning is guilty of a violation and shall be fined $25 for each
offense, together with the costs of prosecution.
(Code 1935, § 2869A; 48 Del. Laws, c. 131, § 1; 7 Del. C. 1953, § 1723; 71 Del. Laws, c. 135, § 14; 77 Del. Laws, c. 428, §§ 1,
2.)
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§ 1706. Injuring or destroying fence, wire or poster; penalty.
No person shall wilfully, negligently or maliciously cut, remove, cover up, deface or otherwise mutilate, injure or destroy any special
dog training area boundary fence, wire or poster placed in accordance with this subchapter.
Whoever violates this section is guilty of a violation and shall be fined $10 for each offense, together with costs of prosecution.
(Code 1935, § 2869A; 48 Del. Laws, c. 131, § 1; 7 Del. C. 1953, § 1724; 71 Del. Laws, c. 135, § 15; 77 Del. Laws, c. 428, §§ 1,
2.)
§ 1707. Training of dogs; unlawful to carry firearm; penalty.
(a) The owner or custodian of any bird, rabbit, raccoon or fox dog, may train and break the same, at any time of the year, daylight or
night, except during the months of March, April, May, June, July and August. If while training or breaking dogs, the owner or custodian
thereof exercises reasonable precaution to keep such dogs in control, and if any such dog, during such training, wanders off and out of
control of the owner or custodian without the owner’s or custodian’s fault, such dog shall not be deemed to be running at large within
the meaning of this section. If any dog kills any game protected by the laws of this State, during the closed season while so training, the
owner or custodian shall be fined not less than $2.00 nor more than $5.00 for each offense.
(b) No person shall carry a firearm while training a dog in closed game season.
(c) The Department may issue an annual permit to the owner or custodian of any retriever dog authorizing the training of such dog or
dogs at any time of the year provided such owner or custodian is a trainer of retriever dogs, and provided no game is to be used in the
training. Any person to whom such a permit shall issue may possess artificially reared game and may hunt such game with a shotgun;
but such game must be hand-liberated during dog training.
(Code 1915, § 2406E; 34 Del. Laws, c. 185, § 1; 35 Del. Laws, c. 166, § 1; 37 Del. Laws, c. 225, § 1; Code 1935, § 2869; 45 Del.
Laws, c. 208, § 1; 7 Del. C. 1953, § 1704; 56 Del. Laws, c. 257; 57 Del. Laws, c. 739, § 77; 70 Del. Laws, c. 186, § 1; 71 Del.
Laws, c. 431, § 1; 77 Del. Laws, c. 428, § 3.)
§ 1708. Penalties.
(a) Whoever violates this chapter, unless otherwise specifically provided, shall be fined not less than $50 or more than $100 for each
offense. For each subsequent offense, the person shall be fined not less than $100 or more than $250. All fines imposed following a
conviction for violation for any section of this subchapter shall be remitted by the sentencing court or voluntary assessment center to the
county in which the offense occurred.
(b) Applicability. — Any duly constituted law-enforcement officer of this State or any of its political subdivisions, the county, or any
animal welfare officer employed by the county who charges a person with any offense which is a violation of a law, ordinance or regulation
established or promulgated under the authority of this chapter shall, in addition to issuing a summons for any such offense, provide the
alleged violator with a voluntary assessment form which, when properly executed by the officer, allows the offender to dispose of the
charge without the necessity of personally appearing in the court to which the summons is returnable.
(c) Definitions. — (1) “Payment” as used in this section shall mean the total amount of the fine and costs as herein provided and any
assessment added to the fine pursuant to Delaware law.
(2) “Voluntary assessment form” as used in this section shall mean the written document issued to an alleged violator which advises
such person that they may dispose of the charge without the necessity of personally appearing in court by paying the fine together with
any costs and statutory assessments.
(d) Places and time of payment. — Payments made pursuant to this section shall be remitted to the voluntary assessment center or court
to which the summons is returnable and shall be disbursed to the county in which the offense occurred. The payment must be received by
the voluntary assessment center or court within 30 days from the date of arrest (excluding Saturday and Sunday) and shall be paid only
by check or money order or by electronic means as authorized by the voluntary assessment center.
(e) Offenses designated as “offenses subject to voluntary assessment” exceptions. — All offenses, as now or hereafter set forth in
this chapter, or ordinances or regulations promulgated under authority thereof, are hereby designated as offenses subject to voluntary
assessment except for violations punishable under § 3079F of Title 16.
(f) Offer and acceptance of voluntary assessment; effect; request for hearing. — (1) At the time of making an arrest for any offense
subject to this section, the arresting officer, or animal welfare officer may offer the alleged violator the option of accepting a voluntary
assessment. The alleged violator’s acceptance of the voluntary assessment constitutes an acknowledgment of guilt of the offense stated in
the form, and an agreement to pay the fine as herein provided, together with costs and assessments, within 30 days from the date of arrest
(excluding Saturday and Sunday), during which time payment must be received by the applicable court or voluntary assessment center.
(2) In lieu of paying the voluntary assessment, a person who has been issued a voluntary assessment form may request a hearing
on any charge stated in such form by notifying, in writing, the voluntary assessment center or court to which payment was to be made
of such request within 30 days of the date of arrest. If the alleged violator makes a timely request for a hearing, the charge shall be
prosecuted as if the voluntary assessment had not been permitted and the officer shall swear to the summons prior to trial.
(g) Penalty. — If an alleged violator elects the option of accepting a voluntary assessment in accordance with subsection (f) of this
section, the penalty imposed shall be the minimum fine for each offense charged, and fines shall be cumulative if more than 1 offense
is charged.
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(h) Court costs and assessments. — In lieu of any other court costs, and provided the offense is not subject to other proceedings under
this section, each fine for an offense under this section shall be subject to court costs of $20, unless otherwise provided by court rule in
lieu thereof. Each fine for an offense under this section shall be subject to all penalty assessments which are provided for in Chapter 90
of Title 11 or any other provision of the Code.
(i) Agreement to accept voluntary assessment; procedure. — Whenever a person is arrested for commission of an offense subject to
voluntary assessment and has elected to make payment as herein provided, the arresting officer, using the uniform Delaware complaint
and summons citation, shall complete the information section and prepare the voluntary assessment form indicating the amount of the
fine, and give a copy of the citation and form to the arrested person and release the arrested person from custody. The arresting officer
shall also inform the arrested person of the court or voluntary assessment center to which payment should be submitted if the person does
not request a hearing. No officer shall receive or accept custody of a payment. If the person declines to accept voluntary assessment, the
arresting officer shall issue a citation and summons or, if appropriate, follow the procedure for arrest as set forth in Chapter 19 of Title 11.
(j) Payment of fine as complete satisfaction; repeat offenders. — (1) Payment of the prescribed fine, costs and penalty assessment is a
complete satisfaction of the violation, except as provided in paragraph (j)(2) of this section, but does not waive any administrative penalty
in the nature of license revocation which may lawfully be revoked by a county.
(2) In the event that following compliance with the payment provisions of this section, it is determined that within the 2-year period
immediately preceding the violation, the violator was convicted of or made a payment pursuant to this section in satisfaction of a
violation of the same section of this title, personal appearance before the court to which the summons is returnable shall be required.
Notice of the time and place for the required court appearance shall be given to the violator by the court to which the summons for
the offense would be returnable.
(k) Removal from applicability of section. — If a payment due pursuant to this section is not received by voluntary assessment center
or the court to which the summons is returnable within 30 days from the date of arrest (excluding Saturday and Sunday), the violator
shall be prosecuted for the offense charged on the voluntary assessment form in a manner as if a voluntary assessment form had not been
issued. Upon conviction in such prosecution, the court shall impose penalties as provided for by this chapter and this section.
(l) Nonexclusive procedure. — The procedure prescribed is not exclusive of any other method prescribed by law for the arrest and
prosecution of persons violating this chapter.
(Code 1915, § 2406E; 34 Del. Laws, c. 185, § 1; 35 Del. Laws, c. 166, § 1; 37 Del. Laws, c. 225, § 1; Code 1935, § 2869; 45 Del.
Laws, c. 208, § 1; 7 Del. C. 1953, § 1704; 56 Del. Laws, c. 257; 57 Del. Laws, c. 739, § 77; 70 Del. Laws, c. 186, § 1; 71 Del.
Laws, c. 431, § 1; 77 Del. Laws, c. 428, § 4; 80 Del. Laws, c. 248, § 6.)
§§ 1709-1729. [Reserved.]
§§ 1730-1740. Seizure and impoundment of dangerous or potentially dangerous dogs; notification of dog
owner; request for hearing; exceptions; hearing procedures; appeal; finding to declare a dog dangerous;
duties of owner; finding to declare a dog potentially dangerous; duties of owner; liability of owner for costs
of impoundment; rules and regulations; violations by owners of dangerous or potentially dangerous dogs;
penalties; local ordinances.
Repealed by 77 Del. Laws, c. 428, § 5, effective July 1, 2010.
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Title 7 - Conservation
Part I
Game, Wildlife and Dogs
Chapter 18
Eel Fishing
§ 1801. Definitions.
(a) [Repealed.]
(b) “Commercially fish” shall mean for any person to attempt to take, take, catch, kill or reduce to possession any eel for the purpose
of selling, trading or exchanging for money, materials or services with another or to set or fish any commercial eel fishing gear as defined
in § 1810(3) of this title.
(c) “Delaware Bay” shall mean all those waters and submerged lands under the jurisdiction of the State located within an area bordered
on the north by a straight line drawn between Liston Point, Delaware and Hope Creek, New Jersey and bordered on the south by a line
drawn from Cape May Light to Harbor of Refuge Light; thence to the northernmost extremity of Cape Henlopen, but not including any
tributaries thereto.
(d) “Delaware River” shall mean all those waters and submerged lands under the jurisdiction of the State located within an area to the
north of a straight line connecting Liston Point, Delaware and Hope Creek, New Jersey, but not including any tributaries thereto.
(e) “Department” shall mean the Department of Natural Resources and Environmental Control.
(f) “Eels” shall mean American eels, Anguilla rostrata.
(g) “Initially sold” shall mean the first transaction of eel exchange between the person catching the eels and another person for monetary,
material or services exchange.
(h) [Repealed.]
(i) “Nontidal waters” shall mean those waters where the tide does not regularly rise and fall.
(j) “Person” shall mean any human being.
(k) “Resident” shall mean a person who has resided in this State continuously for 1 year.
(l) “Secretary” shall mean the Secretary of the Department of Natural Resources and Environmental Control or the Secretary’s duly
authorized designee.
(m) “Tidal waters” shall mean those waters where the tide regularly rises and falls.
(n) “To fish” shall mean to attempt to take, take, catch, kill or reduce to possession any eel by any means whatsoever.
(61 Del. Laws, c. 256, § 1; 70 Del. Laws, c. 186, § 1; 80 Del. Laws, c. 196, §§ 4, 5.)
§ 1802. Commercial license requirements; restrictions.
(a) It shall be unlawful for any person to initially sell or offer for sale 25 or more eels per day unless the person selling or offering such
eels for sale has a valid commercial eel fishing license issued by the Department.
(b) It shall be unlawful for any person to fish for eels with commercial eel fishing gear in the tidal waters of this State unless the person
has a valid commercial eel fishing license on board the vessel used to fish issued by the Department.
(c) It shall be unlawful to fish for eels for the purpose of initially selling such eels in nontidal waters within the State unless authorized
to do so by the Department.
(d) A commercial eel fishing license shall be valid from January 1 through December 31 next ensuing.
(e) Application for a commercial eel fishing license shall be made on the forms provided by the Department.
(f) The fee for a commercial eel fishing license to take eels shall be $115 for residents and $1,150 for nonresidents.
(g) A licensee may designate a resident of such licensee’s state as an alternate on his or her license application, who shall be approved
by the Department to fish for eels with the licensee’s commercial eel fishing gear in the event that said licensee is unable to fish his or
her commercial eel fishing gear already in the water and capable of catching eels.
(h) It shall be unlawful for an alternate to any commercial eel fishing licensee to sell or offer for sale any eels without the written
consent of the licensee and without prior notification to the Department.
(i) Any person issued a commercial eel license by the Department shall file monthly reports of their catch by area, effort and weight
on forms provided by the Department. The monthly report must be filed with the Department by 4:30 p.m. of the last working day of
the month following the month for which the information contained in the report reflects. Failure to abide with the filing requirement,
set forth in this subsection, will result in:
(1) A warning issued by the Secretary, for the first failure to file;
(2) Suspension of the commercial eel fishing license by the Secretary for a period of up to 30 days or until such time as the report
is filed, whichever occurs sooner, for the second failure to file; and
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Title 7 - Conservation
(3) Revocation of the commercial eel license by the Secretary until such time when all reporting requirements are fulfilled in a
manner acceptable to the Secretary, for a third or subsequent failures to file.
(61 Del. Laws, c. 256, § 1; 67 Del. Laws, c. 260, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 53, § 1.)
§ 1803. Use of funds derived from sale of commercial licenses.
All funds derived from the issuances of commercial eel fishing licenses shall be deposited by the Department in the General Fund.
(61 Del. Laws, c. 256, § 1.)
§ 1804. Reciprocity for commercial nonresident licenses.
When by or pursuant to the laws or regulations of any other state, should any other state impose any tax, other fee or restrictions
on nonresidents for the privilege of commercial eel fishing within its boundaries, which tax, or other fee is in the aggregate greater or
restriction is greater, to include the nonavailability of a license for nonresidents, the same taxes, other fees, license requirements and
restrictions shall be imposed by the Department upon residents of the state who seek to apply for a license to commercially fish for eels
within the boundaries of this State.
(61 Del. Laws, c. 256, § 1.)
§ 1805. Commercial license number.
(a) The Department shall assign a number to all commercial eel fishing licensees.
(b) It shall be unlawful for a commercial eel fishing licensee to fish with commercial eel fishing gear without fixing his or her assigned
number in 2 inch block numbers, prefixed by “E” to each piece of gear, in a conspicuous place on the floats, markers, stakes or flags
observable above the surface of the waters at all times.
(61 Del. Laws, c. 256, § 1; 70 Del. Laws, c. 186, § 1.)
§ 1806. Prohibited fishing devices and substances.
(a) It shall be unlawful for any person to make use of any net, trap, catching device, contrivance, explosive, chemical or substance
whatsoever, except commercial eel fishing gear or noncommercial eel fishing gear as defined in § 1801 of this title, for the purpose
of taking or attempting to take eels for any reason whatsoever in any waters of this State. Said devices and/or substances when found
unlawfully in use may be confiscated by the Department. Said devices and/or substances shall be destroyed or disposed of by public
auction. Costs of the auction will be taken from the proceeds; any balance from the auction will revert to the General Fund of the State.
(b) It shall be legal for the Department and its authorized agents to use chemicals, electrofishing apparatus and other devices deemed
appropriate for use in eel management, research and other scientific purposes; provided consent is obtained from owners of privately
owned waters, or in the event such owners cannot be located after a reasonable search, a notice will be posted on those waters and
surrounding shores of the intended use of these chemicals or devices 5 days prior to their use.
(61 Del. Laws, c. 256, § 1.)
§ 1807. Illegal use or destruction of fishing gear.
It shall be unlawful for any person to fish, lift, remove or wilfully damage or destroy any commercial or noncommercial eel fishing
gear owned by another person, except that employees of the Department may inspect commercial eel fishing gear to insure compliance
with this chapter.
(61 Del. Laws, c. 256, § 1.)
§ 1808. Penalty.
Any person who violates any of the provisions of this chapter shall be guilty of a class C environmental violation. Justices of the Peace
Courts shall have jurisdiction over offenses under this chapter.
(61 Del. Laws, c. 256, § 1; 79 Del. Laws, c. 421, § 7.)
§ 1809. Department of Natural Resources and Environmental Control; authority; regulations.
(a) The Department of Natural Resources and Environmental Control shall administer and enforce the laws and regulations of this State
relating to eel fishing. The Department shall have the authority to cooperate with and assist departments, agencies and offices of this State
and other states, local governments, and the federal government in the management and conservation of eels.
(b) The Department of Natural Resources and Environmental Control shall have the authority to promulgate regulations concerning
eels in accordance with the Administrative Procedures Act, Chapter 101 of Title 29. Eel regulations promulgated by the Department shall
be consistent with the adopted Interstate Fishery Management Plan for American Eel. Such regulations may include any of the following:
(1) Minimum and maximum size limits.
(2) The quantities of eels that may be taken.
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Title 7 - Conservation
(3) The periods of time that eels may be taken.
(4) The areas from which eels may be taken.
(5) The gear by which eels may be taken.
(70 Del. Laws, c. 204, § 1; 72 Del. Laws, c. 296, § 1; 80 Del. Laws, c. 196, § 1.)
§ 1810. Temporary limits [Effective until fulfillment of requirements in the introductory paragraph of this
section].
The following limits prescribed by the Atlantic States Marine Fisheries Commission for eel on August 20, 2013, shall be in effect until
the Department adopts regulations pursuant to the authority granted in § 1809 of this title.
(1) Minimum mesh size for eel pots shall not be less than ½ inch by ½ inch.
(2) It shall be unlawful for any person to possess any eel that measures less than 9 inches in total length.
(3) “Commercial eel fishing gear” shall include the following items:
a. A fyke net or hoop net of a diameter not exceeding 30 inches when more than 1 such net is being fished by a person;
b. Eel pots when more than 2 such pots are being fished by a person;
c. Any seine net with a mesh size of less than 1 inch and greater than 100 feet in total length; and
d. A minnow trap when more than 2 such traps are being fished by any person.
(4) “Noncommercial eel fishing gear” shall include the following items:
a. A fyke net or hoop net of a diameter not exceeding 30 inches when only 1 is in use by a person;
b. Eel pots when 2 or less pots are being fished by a person;
c. A seine net less than or equal to 100 feet in length;
d. A cast net;
e. A lift net or umbrella net less than or equal to 5 feet in diameter;
f. A dip net less than or equal to 3 feet in diameter;
g. Spear, arrow or gigs;
h. A minnow trap when less than 2 are being fished by a person;
i. Hooks and lines when an individual places, sets or tends 3 or less separate lines with any 1 line having no more than 3 hooks
attached (double and treble hooks counted as 1 hook).
(5) It shall be unlawful for any person to possess more than 25 eels, unless said person has been issued a valid commercial eel
license or has in that person’s possession a valid receipt for said eels from another person who is authorized to catch or take eels for
commercial purposes.
(72 Del. Laws, c. 296, § 2; 80 Del. Laws, c. 196, § 2.)
§ 1811. Quota management system implementation.
If a fishery management plan approved by the Atlantic States Marine Fisheries Commission requires the implementation of a quota
management system for commercial landings of eel, any regulations adopted by the Department of Natural Resources shall not establish
such quota management system, including, but not limited to, requirements associated with setting a statewide quota management system
for eels and limitations or conditions on the number or transfer of commercial eel licenses. Any such quota management system required
by the Atlantic States Marine Fisheries Commission shall be implemented through legislative action.
(80 Del. Laws, c. 196, § 3.)
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Part II
Shellfish
Chapter 19
General Provisions
§ 1901. Definitions.
The following definitions shall apply to Chapters 19 through 28 inclusive of this title:
(1) “Bivalve shellfish” means any species of shellfish having 2 shells connected by a hinge.
(2) “Commercial purpose” means a person’s intent to sell shellfisheries to another.
(3) “Crab pot” means a cube shaped wire device that contains opening or openings toward the inside for the entrance and capture of
crabs without the assistance of any manually exerted tension to any closing mechanism.
(4) “Culled” means separated live shellfish from all other material and organisms.
(5) “Cultivation” means the process of preparing and/or improving shellfish grounds to foster the growth and survival of shellfish.
(6) “Delaware’s Inland Bays” shall mean Rehoboth Bay, Indian River and Indian River Bay and Little Assawoman Bay and Big
Assawoman Bay and their respective tributaries.
(7) “Department” means Department of Natural Resources and Environmental Control.
(8) “East line” means a political division of the Delaware Bay along a line running due east from the Port Mahon lighthouse (Delaware
State Plan Coordinates: N431, 537.3600, E504, 396.9600).
(9) “Hand tongs” means any grasping device consisting of 2 pieces joined at 1 end of a pivot and manipulated by physical exertion
of a person.
(10) “Market oysters” means oysters harvested for sale to another for consumption.
(11) “Mean high water” means the level of the water surface which is an average of the highest daily tides over a period of at least
29 days.
(12) “Mechanical device” means an apparatus operated by a machine used to take shellfish.
(13) “Natural oyster beds” means those shellfish grounds designated to be “natural oyster beds” by the Department.
(14) “Nonresident” means any person not an alien who has not continuously resided for 1 year within this State.
(15) “Patent tongs” means any grasping device consisting of 2 pieces joined at 1 end by a pivot and raised with a rope, cable or
other hoisting device used to take shellfish.
(16) “Person” means a human being.
(17) “Public tonging area” means any shellfish ground designated by the Department to be used for the tonging of oysters in areas
exclusive of Delaware’s Inland Bays.
(18) “Resident” means any person not an alien who has continuously resided 1 year or more within this State.
(19) “Secretary” means the Secretary of the Department of Natural Resources and Environmental Control or a duly authorized
designee provided any such delegation of authority is consistent with Chapter 80 of Title 29.
(20) “Shellfish” means any mollusca, crustacea and chelicerata that includes oysters, clams, lobsters, mussels, whelks, bay scallops,
crabs, shrimp and horseshoe crabs.
(21) “Shellfishing” means to attempt to take, catch, kill or reduce to possession any shellfish by any means whatsoever.
(22) “Shellfish aquaculture” means the culture or rearing of any life stage of bivalve shellfish for commercial purposes within an
area leased for that purpose. Within the leased area, said shellfish may be reared in an artificial enclosure, or on any other type of
structure or substrate, either on land or in the water.
(23) “Shellfish grounds” means the submerged lands of the rivers, bays and oceans sustaining or capable of sustaining shellfish
under the jurisdiction of the State.
(24) “Spat” means immature oysters.
(60 Del. Laws, c. 513, § 2; 64 Del. Laws, c. 243, § 1; 67 Del. Laws, c. 194, §§ 2, 3; 68 Del. Laws, c. 33, § 1; 69 Del. Laws, c. 284,
§ 1; 70 Del. Laws, c. 186, § 1; 79 Del. Laws, c. 178, § 2.)
§ 1902. Duties of Department; powers; making and enforcing regulations.
(a) The Department shall have control and direction of the shellfish industry and of the protection of shellfish resources throughout
this State. The Department may adopt, promulgate, amend and repeal regulations consistent with the law, which shall be enforced by the
Department or any peace officers for the following purposes:
(1) To preserve and improve the shellfish industry of this State;
(2) To prevent and control the spread of shellfish-borne diseases by providing for the sanitary harvesting, handling, transportation,
processing, production and sale of shellfish;
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(3) To regulate, inspect and approve any vessel or equipment used in the shellfish industry in this State;
(4) To provide for the issuance of licenses or leases to persons engaged in the shellfish industry in this State and for the revocation
for cause of such licenses or leases;
(5) To provide for the preservation and improvement of the shellfish resources of this State, when deemed necessary.
(b) The regulations of the Department shall have the force and effect of law and shall supersede all local ordinances and regulations
enacted or adopted which are inconsistent therewith.
(c) For the purpose of enforcing the marine fisheries laws on the waters under the jurisdiction of the State, the Department shall keep
and maintain suitable vessels to patrol these waters. The patrol vessel shall be subject to call at all times to enforce the marine fisheries
laws of the State. On board the patrol boats shall be kept log books in which shall be recorded the daily activities of all the functions
performed on any work day.
(7 Del. C. 1953, § 1907; 51 Del. Laws, c. 151, § 1; 57 Del. Laws, c. 739, §§ 91, 92; 60 Del. Laws, c. 513, § 2; 70 Del. Laws, c.
588, § 1; 79 Del. Laws, c. 178, § 2.)
§ 1903. Filing of regulations.
A copy of the regulations adopted pursuant to this chapter and any amendments thereto shall be filed in the office of the Secretary of
State. The regulations of the Department shall be published by the Department in convenient form and distributed to or made available
to all persons shellfishing in Delaware who request this information.
(7 Del. C. 1953, § 1907; 51 Del. Laws, c. 151, § 1; 57 Del. Laws, c. 739, §§ 91, 92; 60 Del. Laws, c. 513, § 2.)
§ 1904. Unlawful taking of shellfish.
(a) It shall be unlawful to take any shellfish from any waters or shellfish grounds of this State unless specifically authorized by statute
or regulation.
(b) Except on leased shellfish aquaculture sites, it is unlawful to take or attempt to take shellfish, except crabs, conchs (whelks) and
clams, for commercial purposes on Sundays, provided however, that clams may not be taken for commercial purposes on any Sunday
between and including this State’s designated Memorial Day and Labor Day, next ensuing.
(c) It shall be unlawful to take shellfish for commercial purposes between sunset and sunrise, except a commercial crab pot licensee or
a commercial conch pot licensee may take blue crabs or conchs, respectively, 1 hour before sunrise.
(60 Del. Laws, c. 513, § 2; 67 Del. Laws, c. 2, § 1; 67 Del. Laws, c. 194, § 4; 68 Del. Laws, c. 412, §§ 1, 2; 69 Del. Laws, c. 284,
§§ 2, 3; 79 Del. Laws, c. 178, § 2.)
§ 1905. Leases.
(a) Authorized lease of shellfish grounds. — The Department is hereby authorized to lease, in the name of the State, tracts or parcels
of shellfish grounds to be used for protecting, planting and harvesting shellfish beneath the waters of this State, subject to the provisions,
limitations and restrictions set forth herein.
(b) Shellfish grounds not leasable. — No lease, other than a scientific lease, shall be granted for any of the following shellfish grounds
of this State, nor shall any person acquire by lease, assignment, appropriation or otherwise any of the following shellfish grounds:
(1) Except in the case of shellfish aquaculture in Delaware’s Inland Bays, shellfish grounds within 1,000 feet of the natural shoreline
(mean high water) of any waters under the jurisdiction of the State;
(2) Natural oyster beds;
(3) Any leasing of shellfish aquaculture grounds in Delaware’s Inland Bays shall be governed by a separate chapter.
(c) Scientific use of shellfish grounds. — The Secretary is hereby authorized to issue a permit in the name of the State to educational
and/or scientific institutions for tracts or parcels of shellfish grounds to be used for scientific and/or management purposes determined
by the Secretary to be in the best interests of shellfisheries management. Such permit shall contain at least the following information
and criteria: Seasonal dates, seasonal harvest, size limits and the reason for the issuance of the permit. The cost of processing shall be
paid by the applicant.
(7 Del. C. 1953, § 1908; 51 Del. Laws, c. 151, § 1; 57 Del. Laws, c. 640; 57 Del. Laws, c. 739, § 93; 58 Del. Laws, c. 107, § 1; 60
Del. Laws, c. 513, § 2; 79 Del. Laws, c. 178, § 2.)
§ 1906. Size and advertising of shellfish grounds; application for lease.
(a) Except in the case of shellfish aquaculture leases on Delaware’s Inland Bays, no new shellfish grounds shall be leased to any person
in tracts consisting of less than 50 or more than 100 acres. All new leases will be in a general rectangular shape. The restriction contained
in this subsection shall not apply to those leases granted for scientific purposes as described in § 1905(c) of this title.
(b) Except in the case of shellfish aquaculture leases on Delaware’s Inland Bays, the Department shall annually advertise the general
locations of shellfish grounds which may be leased and are not currently subject to a valid lease. Such advertisements shall be in 1 daily
newspaper of statewide distribution and shall be published on 2 separate occasions at least 30 days apart between January 1 and March 1
of each calendar year. Upon specific request, the Department shall furnish a more detailed description of the specific shell-lands available
for lease.
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(c) Except in the case of shellfish aquaculture leases on Delaware’s Inland Bays, any person wishing to lease shellfish grounds in
accordance with this section shall make application to the Department prior to March 15 on the form which shall be provided by the
Department. Each application must be complete. The Department may require additional and/or supplemental information if deemed
necessary.
(d) Except in the case of shellfish aquaculture leases on Delaware’s Inland Bays, in the event that more than 1 application is received
for the same grounds, the grounds will be leased on a competitive sealed bid over and above the base fee for the first year.
(60 Del. Laws, c. 513, § 2; 79 Del. Laws, c. 178, § 2.)
§ 1907. Fees for lease.
(a) Except in the case of shellfish aquaculture in Delaware’s Inland Bays, the Department shall charge $0.90 per acre annually for
shellfish grounds leased pursuant to this chapter to a resident of the State.
(b) Except in the case of shellfish aquaculture in Delaware’s Inland Bays, the Department shall charge $11.50 per acre annually for
new shellfish grounds leased pursuant to this chapter to nonresidents.
(c) Except in the case of shellfish aquaculture in Delaware’s Inland Bays, the Department shall charge $1.75 per acre annually for
shellfish grounds to nonresidents who hold valid leases at the time of adoption of this chapter.
(d) Except in the case of shellfish aquaculture in Delaware’s Inland Bays, in addition to the above application fee for a shellfish ground
lease, there will be an additional charge of $17.25 per corner within 60 days of the approval and acceptance of a lease. The Department
will inspect all corners for said leased grounds and where necessary will assist in the relocation of buoys to their correct location. All
corners will be located in accordance with the lease as filed with the Department.
(7 Del. C. 1953, § 1908; 51 Del. Laws, c. 151, § 1; 57 Del. Laws, c. 640; 57 Del. Laws, c. 739, § 93; 58 Del. Laws, c. 107, § 1; 60
Del. Laws, c. 513, § 2; 67 Del. Laws, c. 260, § 1; 79 Del. Laws, c. 178, § 2.)
§ 1908. Term of leases.
(a) Except in the case of Delaware’s Inland Bays, all shellfish leases shall begin on January 1 and end December 31 of the same year.
In no case shall a shellfish lease be transferred or subleased, except to a person eligible according to this chapter.
(b) Upon Department approval, a lease will be drawn up and executed by the Secretary and the applicant. Said lease shall be recorded
with the Department and shall grant the exclusive shellfishing rights of those shellfish grounds to the lessee.
(7 Del. C. 1953, § 1908; 51 Del. Laws, c. 151, § 1; 57 Del. Laws, c. 640; 57 Del. Laws, c. 739, § 93; 58 Del. Laws, c. 107, § 1; 60
Del. Laws, c. 513, § 2; 71 Del. Laws, c. 245, § 1; 79 Del. Laws, c. 178, § 2.)
§ 1909. Actions subsequent to granting of lease.
(a) Except in the case of shellfish aquaculture leases on Delaware’s Inland Bays, upon approval of the application, the successful
applicant will, within 30 days after location of the corners by the Department, mark all corners of the area leased with buoys or stakes
approved by the Department. Such buoys or stakes shall, in addition to other requirements of the Department, extend vertically at least
6 feet above mean high water.
(b) Except in the case of shellfish aquaculture leases on Delaware’s Inland Bays, any buoys, or stakes removed, destroyed or broken in
such a manner that said buoys or stakes are less than 6 feet above mean high water shall be replaced with a positive flotation buoy within
5 days and subsequently a buoy or stake extending 6 feet above mean high water within 30 days.
(7 Del. C. 1953, § 1908; 51 Del. Laws, c. 151, § 1; 57 Del. Laws, c. 640; 57 Del. Laws, c. 739, § 93; 58 Del. Laws, c. 107, § 1; 60
Del. Laws, c. 513, § 2; 79 Del. Laws, c. 178, § 2.)
§ 1910. Monthly report; failure to submit.
Except in the case of shellfish aquaculture in Delaware’s Inland Bays, any person issued a commercial shellfishing license or permit
by the Department shall file monthly reports of his or her catch by area, effort, species, and weight or number on forms provided by the
Department. A commercial shellfishing license or permit holder who does not file said monthly report by 4:30 p.m. of the last working
day of the month following the month for which the report is due shall be guilty of a class D environmental violation.
(7 Del. C. 1953, § 1908; 51 Del. Laws, c. 151, § 1; 57 Del. Laws, c. 640; 57 Del. Laws, c. 739, § 93; 58 Del. Laws, c. 107, § 1; 60
Del. Laws, c. 513, § 2; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 436, §§ 1-3; 79 Del. Laws, c. 178, § 2; 79 Del. Laws, c. 421, §
8.)
§ 1911. Removal of shellfish; presumptions.
(a) It shall be unlawful for any person to take, carry away or remove shellfish or equipment from shellfish grounds leased, pursuant
to this chapter, to a person other than himself or herself. If convicted, said person shall be guilty of grand or petty larceny according to
the value of shellfish or equipment in question.
(b) For the purpose of determining the value of shellfish unlawfully removed, all shellfish found on board a vessel utilized in the
removal of shellfish from grounds leased to another shall be presumed to have been unlawfully removed from those leased grounds.
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(c) Any vessel on or over grounds leased to another shall be presumed to be removing shellfish from those grounds if that vessel has
overboard at that time any device used for the taking of shellfish.
(60 Del. Laws, c. 513, § 2; 70 Del. Laws, c. 186, § 1.)
§ 1912. Penalties.
(a) Any person who violates any of the provisions of Chapters 19, 21, 23, 24, 25 and 28 of this title, except §§ 1910, 1911, 2306, 2506,
2509 of this title, or any rules or regulations adopted pursuant thereto except those adopted under the auspices of Chapter 20 of this title,
shall be guilty of a class D environmental violation. Justice of the Peace Courts shall have jurisdiction over all offenses under this section.
(b) Any person convicted of violating any of the provisions of Chapters 19, 21, 23, 24, 25, 26 and 28 of this title, or any rules or
regulations adopted pursuant thereto, may have, upon the recommendation to the Secretary by the majority of the Council on Shellfisheries
and/or at the discretion of the Secretary, any licenses or permits issued to the person revoked for a term to be determined by the Department.
(60 Del. Laws, c. 513, § 2; 69 Del. Laws, c. 284, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 73, §§ 1, 2; 73 Del. Laws, c. 132,
§ 2; 79 Del. Laws, c. 178, § 2; 79 Del. Laws, c. 421, § 8.)
§ 1913. Inspection and seizure.
(a) Any employee, authorized by the Department, at a reasonable time may board any boat, inspect equipment, materials or shellfish,
or lands associated with or used in the taking or cultivation of shellfish.
(b) The Department may seize any shellfish or equipment as evidence which is believed to be in violation of or is being used by a
violator of Chapters 19 through 28 of this title or the regulations promulgated pursuant thereto. Seized equipment, at the discretion of the
Department, may be released upon the posting of a bond, the value of which shall be determined by the magistrate.
(60 Del. Laws, c. 513, § 2; 69 Del. Laws, c. 284, § 1.)
§ 1914. Disposition of evidence.
In the event that any shellfish are seized as evidence as a result of an investigation or an arrest for any violation of the statutes or
regulations governing shellfish in the State, said shellfish shall be disposed of as deemed appropriate by the Department.
(60 Del. Laws, c. 513, § 2.)
§ 1915. Licensees with disabilities.
In the event a person with a commercial shellfishing license is disabled and unable to perform the physical requirements necessary
to harvest, transport and/or market shellfish for which he or she is licensed to harvest, said person may be issued a written permit by
the Department authorizing a member of said person’s immediate family, as defined in § 1918(c) of this title to assist said person or
perform in place of said person the harvesting, transporting and marketing of the shellfish for a period or periods not exceeding a total
of 24 months. The duration and nature of the disability shall be specified in writing by a medical physician licensed to practice in the
State. The 24 months may be continuous or fragmented. For purposes of this section, the term “disabled” shall mean a person, certified in
writing by a licensed medical physician in Delaware, to be temporarily unable to perform the substantial and material duties associated
with the harvesting, transporting or marketing of the shellfish in question based upon medical evidence.
(73 Del. Laws, c. 28, § 1; 70 Del. Laws, c. 186, § 1.)
§ 1916. Expiration of licenses and permits.
All licenses and permits issued pursuant to Chapters 21 through 28 of this title shall automatically expire on December 31 of each
calendar year.
(7 Del. C. 1953, § 1906; 51 Del. Laws, c. 151, § 1; 57 Del. Laws, c. 739, § 89; 60 Del. Laws, c. 513, § 2; 69 Del. Laws, c. 284, §
1; 71 Del. Laws, c. 245, § 3.)
§ 1917. Reciprocity for commercial nonresident licenses.
(a) This section applies to this title.
(b) When by or pursuant to the laws of any other state, should any other state impose any tax, other fee or restrictions on nonresidents
for the privilege of commercial shellfishing or leasing of shellfish grounds within its boundaries, which tax or other fee is in the aggregate
greater or restriction is greater, to include but limited to the nonavailability of license or leasing for nonresidents, the same taxes, other
fees, license requirements and restrictions shall be imposed by the Division of Fish and Wildlife of the Department of Natural Resources
and Environmental Control upon the residents of the state who seek to apply for a license to commercially shellfish or lease shellfish
grounds within the boundaries of this State.
(60 Del. Laws, c. 513, § 2.)
§ 1918. Limited entry and transfer of commercial crabbing licenses.
(a) Notwithstanding the provisions of § 2303 of this title, the Department shall not issue any commercial crab pot license to any new
licensee after March 13, 1990, and shall not issue crab pot licenses to any new licensee until the number of commercial crab pot licenses
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Title 7 - Conservation
drops to 82 or below as of October 31 of any year. At that time, a lottery will be held by the Department to allow the number of commercial
crab pot licenses to increase to 100.
(b) Notwithstanding the provisions of § 2307 of this title, the Department shall not issue any crab dredgers licenses to any new licensee
after March 13, 1990, and shall not issue crab dredgers licenses to any new licensee until the number of crab dredgers licenses drops
to 18 or below as of March 31 of any year. At that time, a lottery will be held by the Department to allow the number of crab dredgers
licenses to increase to 21.
(c) A commercial crab pot licensee or crab dredgers licensee may transfer a license at any time, including posthumously, to a member
of the immediate family. A member of the immediate family shall mean a parent, child, sibling or spouse. A commercial crab pot licensee
also may transfer a license, including posthumously, to a designee provided the designee has been listed as same on the license for at least
2 consecutive years. The transfer of the appropriate license shall be in writing.
(d) Notwithstanding subsection (c) of this section, no license shall be transferred to any person under 16 years of age.
(e) An active commercial fisher with a commercial crab dredger’s license may transfer his or her license to a commercial fishing
apprentice who has completed no less than 150 days of commercial fishing activities over no less than a 1-year period.
(67 Del. Laws, c. 194, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 216, §§ 1, 2; 73 Del. Laws, c. 29, § 5; 78 Del. Laws, c. 42,
§§ 1-3; 80 Del. Laws, c. 348, § 2.)
§ 1919. Prohibition against the selling of both licenses and the privilege of being designated a designee;
penalties [Repealed].
Repealed by 73 Del. Laws, c. 29, § 6, effective May 3, 2001.
§ 1920. Apprenticeships.
An individual at least 15 years of age may enter into an agreement with an active commercial fisher licensed by the Department to serve
as a commercial fishing apprentice to said commercial fisher. This agreement shall be in writing on a form provided by the Department
and filed with the Department. In the event an agreement is cancelled by either party, the Department shall credit an apprentice with time
served and said time shall be retained if the apprentice signs an agreement with another active commercial fisher. An apprentice shall not
enter into an agreement with more than 1 active commercial fisher at any 1 time and an active commercial fisher shall not enter into an
agreement with more than 1 apprentice at any 1 time. An apprentice must compete no less than 150 days of commercial fishing activities
over no less than a 1-year period to be eligible for the transfer or enter lotteries for certain commercial fishing licenses. Eight hours
of commercial fishing activities shall equal 1 day. Commercial fishing activities shall include fishing, operating a vessel, maintaining
fishing equipment or a vessel, handling and transporting fish for sale, or other activities directly associated with a commercial fishery.
Fishing activities shall be documented on a daily log form provided by the Department. Said logs shall be signed by the apprentice and
the commercial fisher listed on the agreement and witnessed by another commercial fisher licensed by the Department. Log sheets shall
be submitted to the Department on a monthly basis on or before the tenth day of the following month. An apprentice who completes no
less than 150 days of commercial fishing activities over no less than a 1-year period shall be eligible for the following:
(1) Commercial crab dredgers license transferred by another active commercial crab dredger;
(2) Commercial conch pot license transferred by another active commercial conch potter;
(3) Commercial conch dredge license transferred by another active commercial conch dredger;
(4) Commercial crab pot license transferred by another active commercial crab potter;
(5) Oyster harvesting license transferred from another active oyster harvester;
(6) Commercial clam tong/rake license transferred from another active commercial clam tong/raker;
(7) Commercial dredge clam license transferred from another active commercial clam dredger;
(8) Commercial lobster pot license transferred from another active commercial lobster potter;
(9) Commercial surf clam license transferred from another active commercial surf clammer;
(10) Commercial horseshoe crab collecting permit transferred from another active horseshoe crab collector;
(11) Participation in lotteries conducted by the Department for commercial crab dredgers licenses, commercial conch pot licenses
and commercial conch dredge licenses; and
(12) Commercial food fishing equipment permits for gill nets and authority to commercially fish with hook and line according to
the provisions of § 915(n) of this title.
If, during the previous calendar year, fewer commercial crab dredgers licenses are issued than in 1999, the Department shall conduct
a lottery for the number of said licenses different from the number issued in 1999 and the previous year. In 1999, the Department issued
52 commercial conch pot licenses. If during the previous calendar year, fewer commercial conch dredge licenses are issued than in 1999,
the Department shall conduct a lottery for the number of said licenses different from the number issued in 1999 and the previous year.
In 1999, the Department issued 15 conch dredge licenses.
(73 Del. Laws, c. 29, § 7; 70 Del. Laws, c. 186, § 1; 78 Del. Laws, c. 49, § 1; 79 Del. Laws, c. 178, § 2; 80 Del. Laws, c. 348, § 2.)
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Title 7 - Conservation
Part II
Shellfish
Chapter 20
General Provisions
§ 2001. Definitions.
The following definitions shall apply to Chapters 19 through 28 inclusive of this title:
(1) “Bivalve shellfish” means any species of shellfish having 2 shells connected by a hinge.
(2) “Certified dealer” shall mean anyone who is certified by the Department as being qualified to sell shellfish products.
(3) “Delaware corporation” shall mean a corporation or other legal entity whose ownership or Board of Directors is comprised of
50% or more Delaware residents. If fewer than 50% of the ownership or Board of Directors of a corporation is comprised of Delaware
residents, then the corporation shall be considered a nonresident corporation.
(4) “Delaware partnership” shall mean a partnership comprised of at least 50% Delaware residents. If fewer than 50% of a partnership
is comprised of Delaware residents, then the partnership shall be considered a nonresident partnership.
(5) “Delaware’s Inland Bays” shall mean Rehoboth Bay, Indian River and Indian River Bay, Little Assawoman Bay, and Big
Assawoman Bay and their respective tidal tributaries.
(6) “Department” means Department of Natural Resources and Environmental Control.
(7) “Handle shellfish” shall mean to take ownership either temporarily or permanently of a shellfish aquaculture product.
(8) “Off-bottom rearing cages and enclosures” mean any cage or artificial enclosure that retains for rearing purposes any stage of the
life cycle of bivalve shellfish where such cage or enclosure is staked on or suspended above the bottom of the bay or tributary to the bay.
(9) “Secretary” means the Secretary of the Department of Natural Resources and Environmental Control or a duly authorized designee
provided any such delegation of authority is consistent with Chapter 80 of Title 29.
(10) “Seed-on-cultch” shall mean bivalve shellfish seed attached to shell material.
(11) “Seed stock” shall mean immature or sub-legal stages of shellfish available for culturing or planting purposes.
(12) “Shellfish aquaculture” means the culture or rearing of any life stage of bivalve shellfish for commercial purposes within a
leased area. Within the leased area, said shellfish may be reared in an artificial enclosure, or on any other type of structure or substrate,
either on land or water.
(13) “Shellfish grounds” for the purposes of this chapter means the submerged lands of Delaware’s Inland Bays and their tributaries
capable of sustaining shellfish under the jurisdiction of the State.
(79 Del. Laws, c. 178, § 3.)
§ 2002. Duties of Department; powers; making and enforcing regulations.
(a) The Department is authorized to adopt, promulgate, amend and repeal regulations consistent with Titles 7 and 29 which shall be
enforced by the Department for the following purposes:
(1) To issue and administer leases, licenses, and permits to engage in shellfish aquaculture and to amend or revoke said leases,
licenses or permits for due cause;
(2) To identify areas where shellfish aquaculture leases may be established that are compatible with commercial and recreational
finfishing and shellfishing, boating navigation and safety, public water access and use, and native biota. In no cases shall the sum
total of areas identified for shellfish aquaculture leasing in Rehoboth Bay and Indian River Bay exceed 5% of their respective total
subaqueous lands in each bay at mean high water and shellfish aquaculture leasing in Little Assawoman Bay shall be limited to within
the following 2 areas as defined by their respective corner latitude and longitude coordinates:
a. 38° 29# 16.87142" N, 075° 03# 39.95005" W and 38° 29# 16.85469" N, 075° 03# 34.44911" W and 38° 28# 56.70667" N,
075° 03# 34.54853" W and 38° 28# 56.72340" N, 075° 03# 40.04904" W; and
b. 38° 28# 15.51403" N, 075° 03# 32.63198" W and 38° 28# 15.47068" N, 075° 03' 18.50567" W and 38° 28# 04.36517" N, 075°
03# 18.56112" W and 38° 28# 04.40853" N, 075° 03# 32.68683" W;
(3) To add acreage for shellfish aquaculture from areas not identified by the Department as long as all state and federal criteria for
leasing are met and the percentage of subaqueous bottom available for leasing in each inland bay as detailed in paragraph (a)(2) of
this section is not exceeded;
(4) To inspect and approve vessels and equipment intended to be used in Inland Bays waterways in support of the shellfish aquaculture
industry. Off-bottom rearing cages and enclosures are strictly prohibited in Little Assawoman Bay, except for predator mesh placed
at grade directly upon hard clams grown on the bottom;
(5) To attempt to prevent and control the spread of shellfish-borne diseases among both shellfish aquaculture products as well as wild
shellfish and to provide for the sanitary harvesting, handling, transportation, processing, production and sale of shellfish aquaculture
products and wild shellfish;
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(6) To inspect and approve the importation of any live or dead shellfish and/or seed-on-cultch material to be used for shellfish
aquaculture purposes conducted in or on waters of Delaware’s Inland Bays or having a discharge into waters of Delaware’s Inland Bays;
(7) To provide for the conservation, preservation and improvement of the wild shellfish resources of the Inland Bays or their
tributaries when deemed necessary;
(8) To set criteria for the approval or denial of shellfish aquaculture leases in Delaware’s Inland Bays;
(9) To establish criteria for the approval or denial of any requests to conduct shellfish aquaculture outside of identified shellfish
aquaculture lease sites;
(10) To establish criteria for what constitutes active use of shellfish aquaculture lease sites and the criteria that define the abandonment
of a shellfish aquaculture lease site, and for the release of the abandoned acreage into the inventory of available shellfish aquaculture
lease sites;
(11) To establish marking requirements for shellfish aquaculture lease sites and any equipment moored on, suspended above,
or placed on subaqueous lands leased for shellfish aquaculture purposes, except that shellfish aquaculture lease sites within Little
Assawoman Bay shall not be marked by poles, pipes or stakes. The corners of each leased acre within Little Assawoman Bay shall be
marked with 9-inch x 16-inch orange bullet-style floating buoys, marked with at least 100 square inches of orange reflective material,
a portion of which must be visible from all directions. Each corner buoy must include the corresponding lease number in 3-inch black
block lettering;
(12) To establish eligibility requirements for lease applicants and reporting requirements for shellfish planted and/or harvested from
shellfish aquaculture lease sites;
(13) To approve the species of shellfish that may be used for aquaculture purposes in Delaware's Inland Bays, except that the species
of shellfish cultured within the Little Assawoman Bay shall be limited to hard clams grown directly on the bay bottom;
(14) To establish the eligibility of shellfish seed stock proposed for planting on shellfish aquaculture leases, including consideration
of the use of disease-free stock and the genetic make-up of the stock;
(15) To establish what types of mechanical gear may be used to harvest shellfish from identified shellfish aquaculture lease sites;
(16) To establish seasonal restrictions on when leased shellfish aquaculture sites may be actively worked;
(17) To approve methodologies to determine wild shellfish densities that will allow for prospective aquaculture lease sites.
(b) The regulations of the Department shall have the force and effect of law and shall supersede all local ordinances and regulations
enacted or adopted which are inconsistent therewith.
(79 Del. Laws, c. 178, § 3; 81 Del. Laws, c. 133, § 1.)
§ 2003. Filing of regulations.
A copy of the regulations adopted pursuant to this chapter and any amendments thereto shall be filed in the office of the Registrar
of Regulations. The regulations of the Department shall be published by the Department in convenient form and distributed to or made
available to all persons who request this information.
(79 Del. Laws, c. 178, § 3.)
§ 2004. Unlawful taking of shellfish on areas leased for aquaculture purposes.
(a) It shall be unlawful for anyone to take any bivalve shellfish from any shellfish aquaculture grounds leased to another unless
specifically authorized in writing by the holder of said lease.
(b) It shall be unlawful to harvest or remove bivalve shellfish from aquaculture lease sites including off-bottom cages and enclosures
between sunset and sunrise.
(c) It shall be unlawful to have both wild-caught bivalve shellfish and shellfish aquaculture products on the same vessel or to place wildcaught bivalve shellfish and shellfish aquaculture products in the same container prior to transfer to a licensed buyer or shellfish dealer.
(79 Del. Laws, c. 178, § 3.)
§ 2005. Leases.
(a) Authorized lease of shellfish grounds. — The Department is hereby authorized to lease, in the name of the State, tracts or parcels of
shellfish grounds in Delaware’s Inland Bays to be used for shellfish aquaculture beneath the waters of this State, subject to the provisions,
limitations and restrictions set forth herein.
(b) Scientific use of shellfish grounds. — The Secretary is hereby authorized to issue a lease in the name of the State to educational and/
or scientific institutions or their designees for tracts or parcels of shellfish grounds to be used for scientific and/or educational purposes
determined by the Secretary to be in the best interests of the shellfisheries aquaculture industry. Such a permit shall contain at least the
following information and criteria: geographic location of the lease, species of shellfish being reared on the leased grounds, and the reason
for the issuance of the lease. At no time may the aquaculture products produced on shellfish grounds leased for scientific purposes be sold
or traded or offered for sale or trade. Importation of any shellfish or shellfish parts from areas outside of Delaware’s Inland Bays must be
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approved in advance by the Department according to regulations filed by the Department. The cost of processing this application shall
be paid by the applicant. Anyone deploying and leaving in place any equipment for scientific use of shellfish grounds in the Inland Bays
shall conform to all applicable Department equipment marking requirements and shall be responsible for the removal of this equipment
upon the termination of the scientific investigation.
(79 Del. Laws, c. 178, § 3.)
§ 2006. Size and advertising of shellfish grounds; application for lease.
(a) No shellfish grounds shall be leased to any person or persons, partnerships or corporations in tracts consisting of less than 1 acre or
more than 5 acres in Rehoboth and Indian River Bays combined. All leases shall be granted in minimum increments of 1 acre. An applicant
may lease 1-5 acres in Little Assawoman Bay in addition to any acreage leased by the applicant in Rehoboth and Indian River Bay. All
leases will be in a general rectangular shape. The initial offering of sites available for leasing shall be by public lottery conducted by the
Department. Included in the lottery shall be all eligible applicants who indicate in writing before the published deadline their desire to
participate in the lottery. Opportunity to participate in the lottery shall be duly noticed by the Department in a press release and publication
of a legal notice in 2 newspapers of state-wide distribution at least 30 days prior to the lottery. The first participant selected in the lottery
shall have first choice among available lease sites. The second participant selected shall have second choice. The third participant shall
have third choice and so on until all available acreage for leasing has been assigned, or there are no more applicants remaining in the
lottery. Subsequent to the initial lottery, potential lease sites shall be available for leasing on a first-come, first-serve basis.
(b) After 3 years from the date of issuance of the first lease, the Department shall decide by regulation if the size of leases issued to
any 1 applicant may be increased beyond 5 acres. Those already holding leases shall have first right of refusal concerning adding to their
acreage beyond 5 acres up to the maximum acreage allowed to any 1 applicant. The restriction contained in this subsection shall not apply
to those leases granted for scientific purposes as described in § 2005(b) of this title.
(c) The Department shall annually make available to anyone requesting it the general locations of identified shellfish grounds which
are available to be leased and are not currently subject to a valid lease. Upon specific request, the Department shall furnish a more detailed
description of the remaining specific shellfish aquaculture subaqueous lands identified for lease.
(d) Any person wishing to lease shellfish grounds in accordance with this section shall make application to the Department on a
form which shall be provided by the Department. Each application must be complete. The Department may require additional and/or
supplemental information if deemed necessary.
(e) The Department shall have the final authority to approve a proposed lease in an area not identified for shellfish aquaculture by the
Department, taking into consideration comments received at any public hearings relative to the proposed lease.
(f) In the event that more than 1 application is received for the same lease grounds, the grounds will be leased on a first-come, firstserve basis.
(79 Del. Laws, c. 178, § 3.)
§ 2007. Fees for lease.
(a) The Department shall charge a 1-time fee of $300 for each shellfish aquaculture lease application received or each request for the
transfer of an existing shellfish aquaculture lease. This fee is nonrefundable even if the application is eventually rejected or withdrawn.
(b) The Department shall charge a Delaware resident or Delaware resident partnership or Delaware resident corporation an annual fee
of $100/acre for administration of a shellfish aquaculture lease.
(c) The Department shall charge a nonresident of this State or a nonresident partnership or nonresident corporation $1,000/acre annually
for administration of a shellfish aquaculture lease.
(d) All revenue generated by the fees in this section shall be deposited in an appropriated special fund account that shall be used to
partially offset the expenses of the Department activities pursuant to this chapter.
(79 Del. Laws, c. 178, § 3.)
§ 2008. Term of leases.
(a) Shellfish aquaculture leases shall be renewable annually for a term of 15 years from the date of issue. In the event that the original
lessee does not pay their annual leased acreage fee by December 31 of each year, then these formerly leased grounds will become part
of the inventory of potential lease sites on a first-come, first-served basis. Lease holders may designate any portion of their lease acreage
in minimum 1-acre increments to be released to the inventory of available lease acreage at any time during the calendar year. There shall
be no refund of lease fees for any acreage so released.
(b) At the end of 15 years from issuance of a lease, the original lessee shall have first right to renew the lease for another 15-year period.
In the event that the original lessee or their designee fails to renew their lease for 1 or more acres of their original lease acreage, then
after 60 days following the expiration date of the lease on the acreage in question, the acreage not renewed shall revert to the inventory
of available lease sites. Any equipment on lease acreage that is not renewed must be removed by the original lease holder within 30 days
after the termination of the lease, or it will be considered by the Department as abandoned.
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(c) It shall be lawful for any lease holder to transfer his or her lease to another eligible applicant at any time within 30 days after written
notification is received and approved by the Department, provided such notification is signed and notarized by both the parties making
and receiving the transfer. Any stipulations or restrictions placed by the Department on the lease site in question shall be binding for any
subsequent holders of a lease for this particular lease site.
(79 Del. Laws, c. 178, § 3; 70 Del. Laws, c. 186, § 1.)
§ 2009. Harvester licenses.
(a) For an annual fee of $25 the Department shall issue and administer shellfish aquaculture harvester licenses to any qualifying
individual desiring to work on leased shellfish aquaculture sites who is not the lease holder of the shellfish aquaculture sites. The
Department shall establish by regulation the qualifications for obtaining a shellfish aquaculture harvesting license.
(b) It shall be unlawful for any individual(s) working on a shellfish aquaculture lease site to not have at all times at least 1 person who
is the holder of the lease for the site in question or 1 person having in his or her possession a valid shellfish aquaculture harvest license.
(c) It shall be unlawful for any licensed shellfish harvester to work on any shellfish aquaculture lease site without first obtaining the
written permission of the lease holder for the site in question. Such written permission from the lease holder shall be in the possession of
the shellfish aquaculture harvester licensee at all times while working on the lease site in question.
(79 Del. Laws, c. 178, § 3; 70 Del. Laws, c. 186, § 1.)
§ 2010. Reports; failure to submit.
(a) Shellfish aquaculture lessees shall file reports on the number of shellfish planted on any leased areas in a manner and frequency
as specified by Department regulation, but shall include as a minimum the number of bivalve shellfish planted and number subsequently
harvested annually.
(b) Any lease holder who fails to submit timely reports shall be charged with a class D misdemeanor for a first offense and fined $25$100. Anyone convicted of a second offense within 2 years of the first offense for failure to report in a timely fashion shall be charged
with a class B misdemeanor and fined $250-$1,000. Anyone convicted of a third offense for failure to report within 2 years of a second
offense for failure to report will be subject to having his or her lease revoked by the Department.
(79 Del. Laws, c. 178, § 3; 70 Del. Laws, c. 186, § 1.)
§ 2011. Unlawful removal of shellfish or tampering with shellfish aquaculture equipment; presumptions,
illegal harvesting gear.
(a) It shall be unlawful for any person to intentionally tamper with, damage, take, carry away or remove shellfish or shellfish equipment
from shellfish grounds leased, pursuant to this chapter, to a person other than himself or herself. If convicted, this person shall be guilty of
grand or petty larceny according to the value of shellfish or equipment in question. In the case of shellfish grounds leased by a corporation,
it shall be unlawful for any individual to remove shellfish from leased shellfish grounds unless the individual is a bona fide employee of
or member of the corporation or is acting on behalf of the corporation that holds the lease to the shellfish grounds in question.
(b) Anyone convicted of damaging or removing equipment lawfully placed for shellfish aquaculture on a leased site may, at the
discretion of the appropriate court, be required to make restitution to the lease holder in the amount of the replacement value for the
equipment so damaged or removed.
(c) For the purpose of determining the value of shellfish unlawfully removed, all shellfish found on board a vessel utilized in the
removal of shellfish from grounds leased to another shall be presumed to have been unlawfully removed from those leased grounds.
(d) Any vessel or person on or over grounds leased to another shall be presumed to be removing shellfish from those grounds if that
vessel or person has overboard or in his or her possession at that time any device used for the taking of shellfish, subject to the discretion
of the investigating Department officer.
(e) It shall be unlawful to sell or transfer aquaculture products to a final customer or consumer that has not been handled by a certified
shellfish dealer/processor.
(79 Del. Laws, c. 178, § 3; 70 Del. Laws, c. 186, § 1.)
§ 2012. Penalties.
(a) Any person convicted of violating any of the provisions of this chapter or regulations promulgated pursuant thereto shall have
committed a class B misdemeanor subject to a fine of from $250 to $1,000 for the first offense and $1,000 for each offense thereafter.
(b) Any person convicted of a second offense for violating any of the provisions of this chapter, or any rules or regulations adopted
pursuant thereto, may have, at the discretion of the Secretary, any licenses or leases issued to the person(s), partnership or corporation
revoked for a term to be determined by the Department.
(c) All revenue generated by the fines in this section shall be deposited in an appropriated special fund account that shall be used to
partially offset the expenses of the Department activities pursuant to this chapter.
(79 Del. Laws, c. 178, § 3.)
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§ 2013. Inspection and seizure.
(a) Any employee, authorized by the Department, may board any boat, and inspect equipment, materials or shellfish, or leased
subaqueous lands associated with or used in the taking or culture of shellfish for aquaculture purposes.
(b) The Department may seize any shellfish or equipment as evidence which is believed to be in violation of or is being used by a
violator of Chapters 19 through 28 of this title or the regulations promulgated pursuant thereto. Seized equipment, at the discretion of
the Department, may be released upon the posting of a bond, the value of which shall be determined by the court having jurisdiction
over the case.
(c) In the event that any bivalve shellfish are seized as evidence as a result of an investigation or arrest for any violation of the statutes
in this chapter or Department regulations governing shellfish aquaculture, these shellfish shall be destroyed and disposed of as deemed
appropriate by the Department. The lessee in consultation with the court of record shall determine the fair market value of the shellfish
that were seized.
(d) In addition to being subject to the penalties of § 2012 of this title, anyone convicted of illegally removing bivalve shellfish products
from a leased aquaculture site shall be assessed the fair market value of the shellfish so seized.
(e) Undamaged equipment that is seized by the Department shall be made available to the rightful owner as expeditiously as possible,
provided the rightful owner can be identified with a reasonable amount of effort. If the rightful owner cannot be readily located or does
not claim his or her equipment within 30 days of removal or the final disposition the case, this equipment shall be considered abandoned
and will be disposed of by Department procedures.
(f) Any shellfish aquaculture equipment that the Department determines is abandoned as defined by Department regulation, which is
not claimed by its owner within 30 days after its removal or disposition of the case by the court having jurisdiction, shall be disposed
of according to Department procedures for the disposition of abandoned equipment and the funds from the public sale of abandoned
equipment shall be deposited into an appropriated special fund account that the Department maintains to partially offset the Department’s
costs associated with administering this chapter.
(79 Del. Laws, c. 178, § 3; 70 Del. Laws, c. 186, § 1.)
§ 2014. Expiration of licenses and permits.
All shellfish harvester licenses for a given year shall expire on December 31 each year.
(79 Del. Laws, c. 178, § 3.)
§ 2015. Reciprocity for nonresident leases and licenses.
When by or pursuant to the laws of any other state, should any other state impose any tax, other fee or restrictions on nonresidents for
the privilege of commercial shellfish aquaculture or leasing of shellfish aquaculture grounds within its boundaries, which tax or other fee
is in the aggregate greater or restriction is greater, to include but limited to the nonavailability of license or leasing for nonresidents, the
same taxes, other fees, license requirements and restrictions shall be imposed by the Department upon the residents of the state who seek
to apply for a license to lease shellfish aquaculture grounds within the boundaries of the Inland Bays of this State.
(79 Del. Laws, c. 178, § 3.)
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Part II
Shellfish
Chapter 21
Oysters
§ 2101. Oyster harvesting license.
Except in the case of shellfish aquaculture leases on Delaware’s Inland Bays pursuant to Chapter 20 of this title, it shall be unlawful for
a person to harvest oysters from the natural oyster beds or from leased shellfish grounds in the State unless said person has been issued
an oyster harvesting license by the Department.
(1) An oyster harvesting license shall be valid only on the vessel listed on said license by the Department. The Department shall not
simultaneously list a vessel on more than 3 oyster harvesting licenses.
(2) The Department may list no more than 1 person as an apprentice on an oyster harvesting license.
(3) The fee for an oyster harvesting license shall be $57.50 for residents of this State.
(4) The fee for an oyster harvesting license shall be $575 for nonresidents of this State.
(5) The Department shall not issue any oyster harvesting licenses to any new licensee after June 30, 2011.
(6) An oyster harvesting license shall automatically expire on December 31 of each calendar year. If a person does not renew a license
within 1 year of expiration of any oyster harvesting license such person forfeits any right to such license.
(7) An oyster harvesting licensee may transfer a license at any time, including posthumously, to a member of the immediate family. A
member of the immediate family shall mean a parent, child, sibling or spouse. The transfer of the license shall be in writing.
(60 Del. Laws, c. 513, § 2; 71 Del. Laws, c. 245, §§ 4, 5; 73 Del. Laws, c. 132, § 1; 78 Del. Laws, c. 55, § 1; 79 Del. Laws, c. 178,
§ 4.)
§ 2102. Natural oyster beds.
(a) It shall be unlawful for a person to harvest oysters from the natural oyster beds at any time except as specifically authorized by
the Department.
(b) The Department shall determine on an annual basis the amount of oysters available for harvest from specific natural oyster beds
by analyzing the best available scientific data on said oysters.
(60 Del. Laws, c. 513, § 2; 73 Del. Laws, c. 132, § 1.)
§ 2103. Eligibility to harvest oyster for direct sale.
(a) It shall be unlawful for a person to harvest oysters from the natural oyster beds for direct sale unless said person meets 1 of the
following criteria:
(1) Held at least 2 specific commercial shellfish licenses on September 30, 1999;
(2) Held an oyster harvesting license to harvest oysters from natural oyster beds in Delaware prior to September 30, 1999;
(3) Held a public oyster tonger’s license to take oysters from public tonging areas in Delaware prior to September 30, 1999;
(4) Held an oyster harvesting license and was eligible to harvest oysters for direct sale pursuant to this section prior to June 30, 2011;
(5) An oyster harvesting license has been transferred to such person pursuant to § 2101(7) of this title and the prior holder of such
license was eligible to harvest oysters for direct sale pursuant to this section; or
(6) An oyster harvesting license was transferred to such person pursuant to § 1920 of this title and the prior holder of such license
was eligible to harvest oysters for direct sale pursuant to this section.
(b) “Direct sale” shall mean to immediately sell or attempt to sell oysters harvested from the State’s natural oyster beds to another person.
(c) It shall be unlawful for a person to harvest oysters from the natural oyster beds for subsequent use other than direct sale.
(73 Del. Laws, c. 132, § 1; 70 Del. Laws, c. 186, § 1; 78 Del. Laws, c. 55, §§ 2, 3.)
§ 2104. Oyster harvesting methods.
(a) It shall be unlawful for a person to use any hydraulic dredge or mechanical device employing a vacuum or suction for the harvesting
of oysters from any natural oyster bed without the prior written permission of the Department.
(b) It shall be unlawful for a person to harvest oysters from the State’s natural oyster beds without immediately culling said live oysters
from all shell and other materials and returning said shell and other materials to the State’s natural oyster beds. Oysters shall be culled as
aforesaid so that 2 bushels of oysters shall not contain more than 5 percent shells and other materials.
(7 Del. C. 1953, §§ 2105, 2111; 51 Del. Laws, c. 151, § 1; 58 Del. Laws, c. 107, § 2; 60 Del. Laws, c. 513, § 2; 73 Del. Laws, c.
132, § 1.)
§ 2105. Oyster harvest fees and tags.
Except where otherwise noted, nothing in this section shall apply to oyster aquaculture products harvested from leased sites on
Delaware’s Inland Bays:
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(1) An annual oyster harvest fee of $1.25 per bushel of oysters harvested from the State’s natural oyster beds shall be prepaid to the
Department by a resident of this State on or before specific dates established by the Department.
(2) An annual oyster harvest fee of $12.50 per bushel of oysters harvested from the State’s natural oyster beds shall be prepaid to
the Department by nonresidents of the state area before specific date or dates established by the Department.
(3) A person’s total oyster harvest fees shall be determined by dividing the number of bushels of oysters authorized to be harvested
in a given year by the number of eligible persons who sign up to participate in the oyster harvest during said year multiplied by the
appropriate oyster harvest fee.
(4) The Department shall issue tags to those persons who prepay their annual oyster harvest fees at the rate of 1 tag per bushel or
1 tag per 30-bushel cage.
(5) The Department shall notify each person who has been issued an oyster harvesting license of the amount of oysters available
for harvest during a given year.
(6) Oyster harvesting tags, once issued to a person by the Department, shall not be reimbursable or transferable.
(7) It shall be unlawful for a person who harvests oysters from the natural oyster beds of this State for direct sale to not place said
oysters in a bushel bag or 30-bushel cage prior to landing said oysters. “Landing” shall mean to bring to shore.
(8) It shall be unlawful for a person who harvests oysters from the natural oyster beds of this State for direct sale to not attach an
oyster harvesting tag in the locked position to a bushel bag or 30-bushel cage containing oysters prior to landing said oysters.
(9) It shall be unlawful for a person to attach an oyster harvesting tag which had been previously attached to a bushel bag or a 30bushel cage to another bushel bag or 30-bushel cage.
(10) It shall be unlawful for any person to have any bushel bag or 30-bushel cage that is empty or partially filled with oysters on
board a vessel that has an oyster harvesting tag attached.
(11) It shall be lawful for anyone with a valid oyster harvesting license to transfer oyster harvesting tags to another licensed oyster
harvester authorized to participate in the oyster harvesting season, provided said transfer is made prior to said tags being issued by the
Department. All transfers shall be in writing on forms supplied by the Department.
(7 Del. C. 1953, § 2111; 58 Del. Laws, c. 107, § 2; 60 Del. Laws, c. 513, § 2; 73 Del. Laws, c. 132, § 1; 78 Del. Laws, c. 41, § 1;
79 Del. Laws, c. 178, § 4.)
§ 2106. Authority.
(a) The Department is authorized to adopt shellfish regulations to establish the dates for annual open seasons to harvest oysters from
the State’s natural oyster beds.
(b) The Department is authorized to adopt shellfish regulations to establish the areas where oysters that are harvested from the State’s
natural oyster beds for direct sale shall be landed.
(c) The Department is authorized to adopt shellfish regulations to govern the type and amount of gear or equipment that may be used
to harvest oysters from the State’s natural oyster beds.
(d) The Department is authorized to adopt shellfish regulations to establish a minimum size of oysters for harvest.
(e) The Department is authorized to adopt shellfish regulations to establish an annual oyster harvest quota.
(73 Del. Laws, c. 132, § 1; 70 Del. Laws, c. 186, § 1.)
§ 2107. Oyster Recovery Fund.
(a) There is hereby established an Oyster Recovery Fund which shall be funded from the following sources:
(1) Fee received by the Department for oyster harvesting licenses;
(2) Revenue received by the Department for oyster harvest fees; and
(3) Fees received for leasing shellfish grounds in Delaware Bay.
(b) Oyster Recovery Funds shall be used by the Department for the following:
(1) To purchase shells to be placed on natural oyster beds;
(2) To purchase oysters to be placed on natural oyster beds;
(3) To conduct research on oysters; and
(4) To transfer oysters from one natural bed to another.
(73 Del. Laws, c. 132, § 1; 70 Del. Laws, c. 186, § 1.)
§ 2108. Importation of oysters prohibited.
It shall be unlawful for a person to bring oysters from outside the State to be placed in the waters of the State without the prior written
permission of the Department.
(73 Del. Laws, c. 132, § 1; 70 Del. Laws, c. 186, § 1.)
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§ 2109. Oyster harvesting from private leased beds.
(a) Except in the case of shellfish aquaculture leases on Delaware’s Inland Bays, it shall be unlawful for any person to harvest oysters
from leased shellfish grounds unless said person notifies the Department of said harvest at least 48 hours prior to harvesting oysters from
leased shellfish grounds.
(b) It shall be unlawful for any person to harvest oysters from natural oyster beds on any date said person notified the Department when
he or she would be harvesting oysters from leased shellfish grounds.
(73 Del. Laws, c. 132, § 1; 70 Del. Laws, c. 186, § 1; 79 Del. Laws, c. 178, § 4.)
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Part II
Shellfish
Chapter 23
Blue Crabs (Callinectes Sapidus)
§ 2301. Minimum size.
It shall be unlawful for any person to take from any waters within the jurisdiction of the State or have in his or her possession at any
time any hard-shell blue crab measuring less than 5 inches from tip to tip, nor any soft-shell blue crab measuring less than 31/2 inches
from tip to tip, nor any peeler blue crab measuring less than 3 inches from tip to tip. The minimum size of hard-shell blue crabs shall
not apply to mature female blue crabs that are identified by having a rounded or u-shaped apron. The apron is the abdomen which is the
rear portion of the blue crab that is folded underneath the body. Any commercial measure of blue crabs shall not contain more than 5%
crabs that are less than the respective minimum size.
(7 Del. C. 1953, §§ 2303, 2304; 51 Del. Laws, c. 151, § 1; 57 Del. Laws, c. 587, §§ 1, 2; 60 Del. Laws, c. 513, § 2; 67 Del. Laws,
c. 194, § 5; 70 Del. Laws, c. 186, § 1.)
§ 2302. Female blue crabs bearing eggs.
It shall be unlawful for any person to take or have in his or her possession or offer for sale at any time any female blue crab bearing
eggs visible thereon (sponge crabs), or any female blue crab from which the egg pouch or bunion has been removed.
(7 Del. C. 1953, § 2301; 51 Del. Laws, c. 151, § 1; 60 Del. Laws, c. 513, § 2; 70 Del. Laws, c. 186, § 1.)
§ 2303. Commercial crab pot license.
(a) It shall be unlawful for any person to catch or land crabs for commercial purposes in this State unless said person has applied for and
secured from the Department and has in his or her possession a valid commercial crab pot license. The fee for a resident commercial crab
pot license shall be $28.75 for up to 50 pots; $57.50 for up to 100 pots; $86.25 for up to 150 pots; and $115 for up to 200 pots. The fee for
nonresident commercial crab pot licenses shall be $287.50 for up to 50 pots; $575 for up to 100 pots; $862.50 for up to 150 pots; and $1,150
for up to 200 pots. Said license shall be valid only for commercial taking of crabs from 1 vessel owned and operated by the applicant or
designees approved in the license. Designees for a holder of a resident commercial crab pot license must be residents of the State.
(b) The license issued pursuant to this section shall automatically expire on December 31 of each calendar year.
(c) In the event that a licensee is unable to tend his or her crab pots from the vessel specified in his or her license application, said
licensee shall apply to the Department within 48 hours after the boat or vessel has been disabled for a written permit to be carried on his
or her person to tend that licensee’s pots from another specified vessel for a period to be specified by the Department.
(d) A commercial crab pot license may designate no more than 2 persons on said licensee’s commercial crab pot license as designees.
A commercial crab pot licensee’s designees are authorized, whether in the presence of the licensee or not, to place, use, set or tend said
licensee’s crab pots while operating the vessel owned by the licensee that is listed on said licensee’s commercial crab pot license.
(e) Notwithstanding subsection (a) of this section, the number of commercial crab pot licensees that may list the same vessel on their
commercial crab pot license shall not exceed 3 and the total number of crab pots that 3 licensees may be licensed to place, use, set or
tend from the same vessel shall not exceed 500 pots.
(7 Del. C. 1953, § 2305; 51 Del. Laws, c. 151, § 1; 57 Del. Laws, c. 739, § 99; 59 Del. Laws, c. 90; 60 Del. Laws, c. 513, § 2; 67
Del. Laws, c. 260, § 1; 68 Del. Laws, c. 9, § 9; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 216, §§ 4, 5; 71 Del. Laws, c. 245, §
6.)
§ 2304. Area permitted for commercial crabbing.
It shall be unlawful for any commercial crabber to catch or take, or attempt to catch or take, for commercial purposes any hard-shell,
soft-shell or peeler crabs from any waters of the rivers and bays of this State and the tributaries thereof or sell, offer for sale or buy any
hard-shell crabs taken from said waters, except the Delaware Bay and the Delaware River and that area of Roy’s Creek which lies south
of Fenwick Island Ditch.
(7 Del. C. 1953, §§ 2303, 2304; 51 Del. Laws, c. 151, § 1; 57 Del. Laws, c. 587, §§ 1, 2; 60 Del. Laws, c. 513, § 2; 61 Del. Laws,
c. 352, § 1.)
§ 2305. Seasons; limits.
(a) No person shall catch and take or attempt to catch and take crabs in any of the waters under the jurisdiction of this State with any
commercial crab pot between December 1 of each year and the last day of February immediately following.
(b) The Department may restrict the number of crab pots which may be set by any 1 licensee when, in its discretion, the Department
determines from biological evidence that emergency restrictions are necessary to protect crabs or other shellfish resources of the State;
they may do so with such advance notice as it deems necessary.
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(c) No person shall catch and take or attempt to catch and take crabs by dredge in any of the waters under the jurisdiction of this State
between March 31 of each year and December 15 thence next ensuing of any year.
(60 Del. Laws, c. 513, § 2.)
§ 2306. Marking of commercial crab pots and vessels; penalties.
(a) The buoys of all crab pots placed for commercial purposes shall be colored a specific color combination as assigned to each
commercial crab pot licensee. The crabbing vessel specified on the license shall display the same color code assigned to the licensee on
a panel measuring at least 2 feet by 2 feet. Said panel must be fully visible from either side of the vessel.
(b) It shall be unlawful for any person to lift any commercial crab pot from a vessel other than the 1 corresponding with the color code
on that crab pot buoy. Any commercial crab pot which is not marked as specified in this section may be confiscated by the Department.
Any person guilty of taking crabs from a commercial crab pot from a vessel other than the 1 corresponding with the color code of that
pot buoy shall be guilty of a class C environmental violation.
(60 Del. Laws, c. 513, § 2; 79 Del. Laws, c. 421, § 9.)
§ 2307. Crab dredger’s license; fees.
It shall be unlawful for any person to dredge for blue crabs in this State unless said person has applied for and secured from the
Department and has in his or her possession a valid crab dredger’s license. The fee for a resident crab dredger’s license shall be $57.50.
The fee for a nonresident crab dredger’s license shall be $575.
(7 Del. C. 1953, § 2305; 51 Del. Laws, c. 151, § 1; 57 Del. Laws, c. 739, § 99; 59 Del. Laws, c. 90; 60 Del. Laws, c. 513, § 2; 67
Del. Laws, c. 260, § 1; 70 Del. Laws, c. 186, § 1.)
§ 2308. Area where dredging permitted; method of taking; crabs taken by oysterers or clammers.
(a) Dredging for blue crabs is permitted only on unleased shellfish grounds in Delaware Bay. Under no circumstances shall any person
operate a dredge for the purpose of taking crabs over leased shellfish grounds, natural oyster beds, public tonging areas or other areas
declared off limits to potting or dredging for crabs by the Secretary, pursuant to Chapters 19 through 25 of this title.
(b) It shall be unlawful for any person to use any hydraulic dredge or mechanical device which employs a vacuum or suction method
for the taking or catching or harvesting of crabs from any of the waters under the jurisdiction of this State without the prior written consent
of the Department which may be granted for research purposes.
(c) Those crabs of legal size and condition taken by oysterers with a valid oyster harvesting license or by a clammer with a valid
commercial dredge clam license while engaged in legal dredging operations may be retained for noncommercial purposes.
(60 Del. Laws, c. 513, § 2; 70 Del. Laws, c. 186, § 1.)
§ 2309. Unloading locations.
It shall be unlawful for any person to unload blue crabs taken from the waters or shellfish grounds within the jurisdiction of the State
at any port or unloading facilities located outside the geographic boundaries of the State.
(60 Del. Laws, c. 513, § 2.)
§ 2310. Noncommercial crabbing; daily limits.
(a) Noncommercial crabbing is permitted in any of the waters under the jurisdiction of the State unless otherwise posted by the
Department.
(b) It is unlawful for any person actively engaged in noncommercial crabbing to sell any crabs.
(c) It shall be unlawful for any person to place, use, set or tend any noncommercial crab pot unless said pot is attached to an all white
buoy with said person’s full name and permanent mailing address inscribed either on the white buoy or on a waterproof tag attached to
said buoy that is legible at all times.
(d) It shall be unlawful for any person to take in any 1 day more than 1 bushel of blue crabs unless otherwise authorized to do so by
license or permit.
(e) Unless otherwise authorized, it shall be unlawful for any person to leave, place, use, set or tend any noncommercial crab pots in the
tidal waters of this State between and including December 1 and the last day of February immediately following.
(f) Unless otherwise authorized, it shall be unlawful for any person who does not have a valid commercial crab pot license to have,
place, use, set or tend more than 2 crab pots in the tidal waters of this State.
(7 Del. C. 1953, § 2302; 51 Del. Laws, c. 151, § 1; 60 Del. Laws, c. 513, § 2; 67 Del. Laws, c. 194, § 6; 68 Del. Laws, c. 382, §§
1-3.)
§ 2311. Crab pot attendance; abandonment; confiscation; forfeiture.
(a) It shall be unlawful for any person who places, uses or sets a crab pot in the tidal waters of this State to fail to tend and remove
crabs from said crab pot at least once every 72 hours.
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(b) Failure to tend and remove crabs from a crab pot in the tidal waters of this State at least 72 hours after said pot is tagged by the
Department shall constitute abandonment of said crab pot.
(c) Any employee of the Department authorized to enforce this chapter shall be authorized to seize and confiscate any crab pot which
has been determined to have been abandoned pursuant to subsection (b) of this section.
(d) Upon a determination that a crab pot has been abandoned and seized by the Department, ownership in said crab pot shall be forfeit
to the Department.
(e) Notwithstanding the provisions set forth in subsections (a), (b) and (c) of this section, any employee of the Department authorized
to enforce this chapter shall be authorized to seize any crab pot which fails to be placed, used or set in compliance with the provisions
of this chapter.
(f) Title to a crab pot seized by the Department and not claimed by the lawful owner after proper notification from the Department
within 90 days of said notification shall be forfeit to the Department.
(68 Del. Laws, c. 382, § 4.)
§ 2312. Vessels used by commercial crab dredgers in Delaware waters.
(a) It shall be unlawful for a crab dredge licensee to dredge crabs from the waters of this State from any vessel other than 1 vessel
owned and operated by said crab dredge licensee. The vessel shall be listed on the crab dredger’s license.
(b) It shall be unlawful for a resident crab dredge licensee to list a vessel on his or her crab dredger’s license if said vessel has been
exclusively used in commercial fishing operation in waters outside the jurisdiction of this State during the previous 2 years. However,
for a vessel acquired by a crab dredger licensee to replace a vessel listed on his or her crab dredger’s license, the provision for that vessel
not having been exclusively used in commercial fishing operations in waters outside the jurisdiction of this State during the previous 2
years shall not be in effect.
(69 Del. Laws, c. 119, § 1; 70 Del. Laws, c. 186, § 1.)
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Part II
Shellfish
Chapter 24
Hard Clams (Mercenaria Mercenaria)
§ 2401. Minimum size.
It shall be unlawful for any person to possess hard clams taken from the waters under the jurisdiction of the State which measure less
than 11/2 inches. Any commercial measure of hard clams shall not contain more than 5% clams that are less than 11/2 inches.
(60 Del. Laws, c. 513, § 2.)
§ 2402. Commercial clam tong/rake license.
It shall be unlawful for any person to tong or to rake clams for commercial purposes in this State unless said person has applied for and
secured from the Department and has in his or her possession a valid clam tong/rake license. The fee for a commercial clam tong/rake
license shall be $57.50 for residents and $575 for nonresidents. A commercial clam tong/rake license will entitle the holder to harvest
a maximum number set by Department regulations.
(60 Del. Laws, c. 513, § 2; 67 Del. Laws, c. 260, § 1; 70 Del. Laws, c. 186, § 1.)
§ 2403. Area permitted; method of taking under clam tong/rake license.
(a) It shall be unlawful to take clams from any leased shellfish grounds or contaminated area, as determined by the Department,
in Delaware Bay, Indian River and Bay, Rehoboth Bay, Little and Big Assawoman Bays and the tributaries thereof, except a person
authorized in writing by the holder of a lease site may take clams from said leased shellfish grounds. Such written authorization shall be
at all times on the person of a least 1 member of any crew while working on leased shellfish grounds.
(b) It shall be unlawful to take or attempt to take clams under a clam tong/rake license with any device from a vessel powered by
sail or mechanical means.
(60 Del. Laws, c. 513, § 2; 70 Del. Laws, c. 186, § 1; 79 Del. Laws, c. 178, § 5.)
§ 2404. Commercial dredge clam license.
It shall be unlawful for any person to dredge for hard clams in this State unless said person has applied for, secured from the Department
and has in his or her possession a valid clam dredger’s license. The fee for a resident clam dredger’s license shall be $57.50. The fee for
a nonresident clam dredger’s license shall be $575.
(60 Del. Laws, c. 513, § 2; 67 Del. Laws, c. 260, § 1; 70 Del. Laws, c. 186, § 1.)
§ 2405. Commercial dredge clam license — Area permitted; method of taking under commercial dredge
clam license.
(a) It shall be unlawful to dredge for hard clams with a commercial dredge clam license on leased shellfish grounds, except that a person
may dredge hard clams from his or her own leased shellfish grounds as long as those grounds are not within Delaware’s Inland Bays.
(b) It shall be unlawful to dredge hard clams in any waters designated as contaminated by the Department.
(c) It shall be unlawful for any person to use any hydraulic dredge or mechanical device which employs a vacuum or suction method
for the taking or catching or harvesting of clams from any of the waters under the jurisdiction of this State without the prior written
consent of the Department.
(60 Del. Laws, c. 513, § 2; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 588, § 2; 79 Del. Laws, c. 178, § 5.)
§ 2406. Seasons; limits.
Except in the case of clams reared on shellfish aquaculture lease sites on Delaware’s Inland Bays, the Department will establish by
regulation the seasons for the taking of clams and/or limit the number of clams which may be harvested commercially by any 1 licensee.
If, in its discretion, the Department determines from biological evidence that emergency restrictions are necessary to protect clams or
other shellfish resources of the State, they may do so with advance notice as it deems necessary.
(60 Del. Laws, c. 513, § 2; 79 Del. Laws, c. 178, § 5.)
§ 2407. Unloading locations.
It shall be unlawful for any person to unload hard clams taken from the waters or shellfish grounds within the jurisdiction of the State
at any port or unloading facilities located outside the geographic boundaries of the State.
(60 Del. Laws, c. 513, § 2.)
§ 2408. Noncommercial clamming permit.
(a) It shall be unlawful for any person to harvest, in any 1 day, hard clams for noncommercial purposes in excess of the daily recreational
clam limit unless said person has applied for and received from the Department, and has in his or her possession, a valid noncommercial
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Title 7 - Conservation
clamming permit. The fee for a resident noncommercial clam permit will be $5.75. The fee for a nonresident noncommercial clamming
permit will be $57.50.
(b) The Department will establish, by regulation, the seasons for taking clams and/or limit the number of clams that may be harvested
in any 1 day for noncommercial clamming permit holders.
(60 Del. Laws, c. 513, § 2; 67 Del. Laws, c. 260, § 1; 68 Del. Laws, c. 9, § 8; 70 Del. Laws, c. 186, § 1.)
§ 2409. Recreational clamming.
The Department will establish, by regulation, the seasons for the taking of clams and/or limit the number of clams which may be taken
for recreational purposes.
(60 Del. Laws, c. 513, § 2; 76 Del. Laws, c. 71, § 13.)
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Title 7 - Conservation
Part II
Shellfish
Chapter 25
American Lobsters (Homarus Americanus)
§ 2501. Size limit.
It shall be unlawful for any person to take from any waters within the jurisdiction of the State or have in that person’s possession at any
time any American lobster with a minimum carapace length measuring less than 31/4 inches between January 1, 1989 and December 31,
1990; 39/32 inches between January 1, 1991, and December 31, 1991; and 35/16 inches after January 1, 1992, and 33/8 inches beginning
July 1, 2004. The carapace, or body shell, is measured from the rear end of the eye socket along a line parallel to the center line of the
carapace to the posterior end of the carapace. Further, it shall be unlawful for any person to take from any waters within the jurisdiction
of the state or have in that person’s possession, at any time, any female American lobster with a carapace length measuring more than
51/2 inches except that beginning July 1, 2008, no male or female lobster may be taken or possessed that has a carapace length measuring
more than 51/4 inches.
(7 Del. C. 1953, § 2502; 55 Del. Laws, c. 77, § 2; 60 Del. Laws, c. 513, § 2; 67 Del. Laws, c. 302, § 1; 70 Del. Laws, c. 186, § 1;
74 Del. Laws, c. 368, §§ 1-3; 76 Del. Laws, c. 300, § 1.)
§ 2502. Female lobsters bearing eggs.
It shall be unlawful for a person to take, offer for sale or have in his or her possession at any time any female lobster bearing eggs
visible thereon (berried lobsters) or any female lobster from which the eggs have been removed.
(7 Del. C. 1953, § 2502; 55 Del. Laws, c. 77, § 2; 60 Del. Laws, c. 513, § 2; 70 Del. Laws, c. 186, § 1.)
§ 2503. Landing of dismembered lobsters.
It shall be unlawful for any person, firm or corporation to bring to shore in Delaware or have in possession on the waters of this State
any dismembered lobsters, detached tails or claws, picked or cooked lobster meat.
(60 Del. Laws, c. 513, § 2.)
§ 2504. Commercial lobster pot license.
(a) It shall be unlawful for any person to catch or land lobsters for commercial purposes in this State unless said person has applied for,
secured from the Department and has in his or her possession a valid commercial lobster pot license. The fee for a resident commercial
lobster license shall be $57.50. The fee for a nonresident commercial lobster license shall be $575. Said license shall be valid only for the
commercial taking of lobsters from 1 vessel operated by the applicant or designee as specified in the license.
(b) Residential commercial lobster licenses shall be issued only to residents of this State.
(c) In the event that a licensee is unable to tend his or her lobster pots from the vessel specified in his or her license application, said
licensee shall apply to the Secretary for a written permit to be carried on his or her person to tend his or her pots from another specified
vessel for a period to be specified by the Department.
(60 Del. Laws, c. 513, § 2; 67 Del. Laws, c. 260, § 1; 70 Del. Laws, c. 186, § 1.)
§ 2505. Area permitted; method of taking.
(a) Potting for lobsters is permitted in any waters under the jurisdiction of the State.
(b) It shall be unlawful to take or attempt to take lobsters for commercial purposes by any method other than a lobster pot. The number
of and design of said pots will be established by regulation.
(c) It shall be unlawful to take or attempt to take lobsters by dragging, dredging, trawling and spearing.
(7 Del. C. 1953, § 2501; 55 Del. Laws, c. 77, § 2; 60 Del. Laws, c. 513, § 2.)
§ 2506. Marking of commercial lobster pots and vessels.
The buoys of all lobster pots placed for commercial purposes shall be marked with the color code and number that is assigned to each
commercial lobster pot licensee. All buoys must be of a positive flotation material. The lobstering vessel specified on the license shall
display the color code assigned to the licensee on a panel measuring at least 2 feet by 2 feet. Said panel must be fully visible from either
side of said vessel. It shall be unlawful for any person to lift any commercial lobster pot from a vessel other than the 1 corresponding to
the color code on that pot buoy. Any pot attached to a buoy, which is not marked as specified in the regulation, may be confiscated by
the Department. Any person guilty of removing lobsters from any commercial lobster pot from a vessel other than the 1 corresponding
to the color code on that pot buoy shall be guilty of a class C environmental violation.
(60 Del. Laws, c. 513, § 2; 79 Del. Laws, c. 421, § 10.)
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§ 2507. Seasons; limits.
The Department will establish by regulation the seasons for the taking of lobsters and will determine the number of lobster pots which
may be set by any 1 licensee. If, in its discretion, the Department determines from biological evidence that emergency restrictions are
necessary to protect lobsters or other shellfish resources of the State, it may do so with advance notice as it deems necessary.
(7 Del. C. 1953, § 2501; 55 Del. Laws, c. 77, § 2; 60 Del. Laws, c. 513, § 2.)
§ 2508. Noncommercial lobstering.
(a) A lobster pot placed by a person for noncommercial purposes shall be marked with a buoy painted white and have black lettering,
and be marked with the initials “N.C.” followed by a dash and then followed by the owner’s initials (i.e., John Smith would mark his
lobster pot buoys as follows: “N.C. — J.S.”). The use of more than 2 lobster pots by any individual or his or her agents shall constitute
prima facie evidence of commercial intent and shall be unlawful.
(b) Noncommercial potting for lobster is permitted in any waters under the jurisdiction of the State.
(c) It shall be unlawful for any person who is engaged in noncommercial lobstering to sell any lobsters.
(d) Any individual diver may catch, by hand, up to 2 lobsters a day.
(60 Del. Laws, c. 513, § 2; 70 Del. Laws, c. 186, § 1.)
§ 2509. Unloading locations.
It shall be unlawful for any person to unload lobsters taken from the waters or shellfish grounds within the jurisdiction of the State at
any port or unloading facilities located outside the geographic boundaries of the State. Any person violating this section will be guilty
of a class C environmental violation.
(60 Del. Laws, c. 513, § 2; 79 Del. Laws, c. 421, § 10.)
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Title 7 - Conservation
Part II
Shellfish
Chapter 26
Surf Clams (Spisula Solidissima)
§ 2601. Commercial surf clam license.
It shall be unlawful for any person to harvest surf clams in this State unless said person has applied for and secured from the Department
of Natural Resources and Environmental Control and has in his or her possession a valid surf clam harvester’s license. The fee for a
resident surf clam harvester’s license shall be $50 for residents and $500 for nonresidents.
(64 Del. Laws, c. 243, § 2; 70 Del. Laws, c. 186, § 1.)
§ 2602. Seasons.
The Department will establish by regulation the seasons for the harvesting of surf clams.
(64 Del. Laws, c. 243, § 2.)
§ 2603. Minimum size.
It shall be unlawful for any person to possess surf clams taken from the waters under the jurisdiction of the State which measure less
than the size limit designated by the Department.
(64 Del. Laws, c. 243, § 2.)
§ 2604. Permitted harvesting areas.
(a) It shall be unlawful to harvest surf clams in any waters designated as contaminated by the Department.
(b) The Department may open and close harvesting areas by regulation. If, in its discretion, the Department determines from biological
evidence that emergency restrictions are necessary to protect clams or other shellfish resources of the State, it may do so with advance
notice, as it deems necessary.
(64 Del. Laws, c. 243, § 2; 70 Del. Laws, c. 588, § 3.)
§ 2605. Penalty.
Any person who violates this chapter shall be fined not less than $100 nor more than $1,000 for a first offense. For each subsequent
conviction, a person shall be guilty of a class C environmental violation for the first offense. For each subsequent conviction, a person
shall be guilty of a class B environmental misdemeanor.
(64 Del. Laws, c. 243, § 2; 79 Del. Laws, c. 421, § 11.)
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Title 7 - Conservation
Part II
Shellfish
Chapter 27
Horseshoe Crabs (Limulus Polyphemus)
§ 2701. Authority of the Department.
(a) The Department shall establish and administer a program for the conservation and management of horseshoe crabs. Such program
shall include the promulgation of regulations for:
(1) Administration of a permitting system and issuance of permits as defined by this chapter;
(2) Designation of areas for harvest and restriction as necessary to sensitive habitat and public safety;
(3) Definition of acceptable equipment and methods of harvest;
(4) Designation of lawful seasons for collection;
(5) Establishment of limits or the quantities to be harvested; and
(6) Establishment of reporting requirements for all permit holders authorized to take horseshoe crabs.
(b) Before implementing rules and regulations, and any subsequent changes thereto, the Department shall conduct a public hearing
on the proposed regulations. The Department shall publish notice of a public hearing in newspapers of general circulation in the State
no less than 20 days in advance of the public hearing. Said notice shall include a brief description of the proposed regulation, the time
and location of the public hearing and the manner in which the public may respond to the Department on the proposed regulation. The
regulations shall be filed with the Secretary of State prior to implementation.
(c) The Department shall be authorized to adopt interim regulations notwithstanding the provisions of subsection (b) of this section
in order to implement administrative procedures and the provisions of subsection (a) of this section in a timely manner. These interim
regulations may be adopted by the Department for a period not to exceed 90 days. Interim regulations shall become effective upon the
date they are filed with the Secretary of State.
(d) The Department shall be further authorized to adopt emergency regulations notwithstanding the provisions of subsection (b) of this
section when such regulations are necessary to deal with an actual or eminent threat to the horseshoe crab resources and the fishery thereof.
Emergency regulations may be adopted by the Department for a period not to exceed 90 days. As soon as practicable after adoption of
emergency regulations hereunder, the Department shall conduct a public hearing on the matter in accordance with subsection (b) of this
section for the purpose of implementing regulations. Emergency regulations shall become effective upon the date they are filed with the
Secretary of State.
(68 Del. Laws, c. 33, § 2.)
§ 2702. Scientific collecting permit.
The Department may issue a scientific collecting permit to a person to permit the collecting of horseshoe crabs solely for scientific,
medical or educational purposes. There shall be no fee for this collecting permit. The person shall apply to the Department for a collecting
permit on an application provided by the Department, and shall present in writing the specific purpose for which the horseshoe crab
will be used and shall present credible evidence that the disposition of the horseshoe crabs collected shall be for scientific, medical or
educational purposes. Where possible only males shall be collected. Also, those collected for above purposes shall be returned to the
original habitat when feasible.
(68 Del. Laws, c. 33, § 2.)
§ 2703. Dredging.
Unless otherwise authorized by the Department, it shall be unlawful for any person to use dredges to take horseshoe crabs in this State
unless said person has a valid horseshoe crab dredge permit issued annually by the Department. The fee for a resident horseshoe crab
dredge permit shall be $100. The fee for a nonresident horseshoe crab dredge permit shall be $1,000. The Department shall not issue a
horseshoe crab dredge permit to any person unless said person is the current owner and operator of an oyster vessel licensed to transplant
oysters from natural oyster beds as provided under the provisions of Chapter 19 of this title and shellfish regulations adopted by the
Department. The permit shall designate the vessel to be used to dredge for horseshoe crabs. The Department shall not issue more than
5 horseshoe crab dredge permits during any 1 calendar year.
(68 Del. Laws, c. 33, § 2.)
§ 2704. Collecting permits for other than scientific purposes.
(a) A commercial collecting permit shall be required of any individual 16 years of age or older, (including a property owner), collecting
horseshoe crabs, except for personal, noncommercial uses. The collection fee to obtain a commercial collecting permit for residents of
Delaware shall be $100. The collection fee to obtain a commercial collecting permit for nonresidents shall be $1,000. A commercial
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Title 7 - Conservation
collecting permit shall not be required of a property owner, or a property owner’s tenant or agent, on those lands from which crabs are
taken for personal usage. An agent or tenant shall mean a person who has written permission from the property owner of the land from
which horseshoe crabs are taken to act on the owner’s behalf.
(b) Any municipality, town, other local government or individual who collects dead horseshoe crabs in order to clean up a beach or
to otherwise dispose of said crabs properly shall be required to obtain a beach clean-up collecting permit. There shall be no fee for a
beach clean-up collecting permit.
(c) Unless authorized by a scientific collecting permit issued by the Department, it shall be unlawful for any person to take or attempt
to take horseshoe crabs by any method unless said person has obtained a valid collecting permit as provided in this section.
(d) When by, or pursuant to, the laws or regulations of any other state should said state impose any tax, other fee or restrictions on
nonresidents for the privilege of commercially collecting horseshoe crabs within its boundaries, which tax or other fee is in the aggregate
greater or restriction is greater, to include but not be limited to, the nonavailability of a permit for nonresidents, the similar or identical
taxes, other fees, permit requirements and restrictions shall be imposed by the Department upon the residents of that state who seek to
apply for a commercial collecting permit from the Department to collect horseshoe crabs within the boundaries of this State.
(68 Del. Laws, c. 33, § 2; 70 Del. Laws, c. 186, § 1.)
§ 2705. Penalties.
(a) Any person who is convicted 2 times in the same calendar year for violations of this chapter or any regulation promulgated by the
Department pursuant thereto shall be subject to the following provisions:
(1) If the person holds a valid permit at the time of the second conviction, said permit shall be revoked by the Department. Persons
whose permits are revoked shall not be eligible to reapply for a permit under this chapter until 5 years after the date of revocation.
(2) If said person does not hold a valid permit at the time of the second conviction, such person shall not be eligible to apply for any
permit outlined in this chapter for a period of 5 years after the second conviction.
(b) Any person convicted of a violation of any provision of this chapter or any regulation promulgated by the Department pursuant
thereto, shall be guilty of a class B environmental misdemeanor. Each individual horseshoe crab taken in violation of any provision of
this chapter or regulation promulgated by the Department pursuant thereto shall constitute a separate violation.
(c) The Justice of the Peace Court shall have jurisdiction over violations of this chapter.
(d) The Department shall not renew any permit to collect or dredge horseshoe crabs until the applicant has reported his or her harvest
of the previous calendar year’s total number of horseshoe crabs to the Department on forms provided by the Department.
(68 Del. Laws, c. 33, § 2; 70 Del. Laws, c. 186, § 1; 79 Del. Laws, c. 421, § 12.)
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Title 7 - Conservation
Part II
Shellfish
Chapter 28
Conchs (Whelks) Busycon Canaliculatum and B. Carica
§ 2801. Definitions.
(a) “Bullrake” means any rake with a width of more than 14 inches measured perpendicular to the tines or any rake with a handle
of more than 7 feet.
(b) “Conch pot” means any pot, basket, box, cage, container or other similar catching device that has at least 1 escape vent measuring
at least 5# x 10# in the top or parlor section of said pot, basket, box, cage or container or other similar catching device.
(c) “Delaware’s internal waters” means all of those tidal waters under the jurisdiction of the State, except the Atlantic Ocean, as
separated from the Delaware Bay by a straight line drawn between Cape May Point, New Jersey and Cape Henlopen Point, Delaware.
(d) “Delaware’s territorial sea” means all of those tidal waters in the Atlantic Ocean separated from the Delaware Bay under the
jurisdiction of the State, the outer boundary of which is a line 3 nautical miles coterminous with the shoreline of the State.
(e) “Trawline” means a long line, anchored on each end, to which more than 1 conch pot is attached by short lines.
(69 Del. Laws, c. 284, § 4; 71 Del. Laws, c. 122, § 1.)
§ 2802. Commercial conch pot license; fees; exemptions.
(a) It shall be unlawful for any person to catch, take or harvest conchs while fishing more than 2 conch pots in the waters of this State
unless said person has in possession a valid commercial conch pot license.
(b) It shall be unlawful for any person to attempt to catch, take or harvest conchs while fishing more than 2 conch pots in the waters
of this State unless said person has in possession a valid commercial conch pot license.
(c) It shall be unlawful for the operator of any vessel not equipped with a dredge to have on board said vessel more than 5 bushels of
conchs unless said operator has in possession a valid commercial conch pot license.
(d) It shall be unlawful for a commercial conch pot licensee to place, use, set or tend more than 2 conch pots from any vessel other than a
vessel owned and operated by said licensee. Said vessel shall be listed by the Department on the licensee’s commercial conch pot license.
(e) It shall be unlawful for more than 1 commercial conch pot licensee to place, use, set or tend conch pots from the same vessel.
(f) The Department is authorized to issue a commercial conch pot license to a person who applies for same on forms to be supplied by
the Department. To be eligible for a commercial conch pot license, an applicant shall comply with 1 of the following conditions:
(1) Produce receipts, personal income tax records or affidavits from a certified public accountant that indicates said applicant
previously harvested conchs in Delaware for commercial purposes; or
(2) Be eligible for a commercial crab pot license in Delaware pursuant to the provisions of § 1918 of Title 7.
An applicant who is eligible for a commercial conch pot license shall apply and pay all applicable fees to the Department within 90
days of August 26, 1994. An applicant who is not eligible or an applicant who does not obtain a commercial conch pot license within 90
days of August 26, 1994, or a commercial conch pot licensee who fails to renew the license as provided in the provisions of subsection
(g) of this section may register with the Department on a form provided by the Department for a commercial conch pot license that may
become valid after a 5-year waiting period.
(g) A commercial conch pot licensee shall renew the license for at least 1 year in every 3 consecutive years. Any person who does not
renew the commercial conch pot license for at least 1 year in every 3 consecutive years shall be deemed not eligible for a commercial
conch pot license.
(h) The annual fee for a commercial conch pot license shall be $57.50 for residents and $575 for nonresidents.
(i) A commercial conch pot licensee may designate no more than 2 persons who are residents of this State on the license as designee
or designees. A commercial conch pot licensee’s designee is authorized to place, use, set, tend or remove the licensee’s conch pots while
operating a vessel listed on the licensee’s commercial conch pot license without the licensee being on board the vessel.
(j) An active commercial fisher with a commercial conch pot license may transfer his or her license to a commercial fishing apprentice
who has completed no less than 150 days of commercial fishing activities over no less than a 1-year period.
(69 Del. Laws, c. 284, § 4; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 29, § 8; 80 Del. Laws, c. 348, § 3.)
§ 2803. Commercial conch dredge license; fees; exceptions.
(a) It shall be unlawful for any person, while operating a vessel equipped with a dredge or a vessel with a bullrake on board, to possess
more than 15 bushels of conchs unless said person has in possession a valid commercial conch dredge license.
(b) It shall be unlawful for a commercial conch dredge licensee to dredge conchs from any vessel other than a vessel owned and operated
by said licensee. Said vessel shall be listed by the Department on the licensee’s commercial conch dredge license.
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(c) The Department is authorized to issue a commercial conch dredge license to a person who applies for same on forms to be supplied
by the Department. To be eligible for a commercial conch dredge license, an applicant shall meet 1 of the following conditions:
(1) Produce receipts, personal income tax records or affidavits from a certified public accountant the applicant previously harvested
conchs in Delaware for commercial purposes; or
(2) Be eligible for a commercial crab dredger’s license in Delaware according to the provisions of § 1918 of Title 7.
An applicant who is eligible for a commercial conch dredge license shall apply and pay all applicable fees to the Department within
90 days of August 26, 1994. An applicant who is not eligible or an applicant who does not obtain a commercial conch dredge license
within 90 days of August 26, 1994, or a commercial conch dredge licensee who fails to renew the license as provided in the provisions
of subsection (d) of this section may register with the Department on a form provided by the Department for a commercial conch dredge
license that may become valid after a 5-year waiting period.
(d) A commercial conch dredge licensee shall renew the license for at least 1 year in every 3 consecutive years. Any person who does
not renew the commercial conch pot license for at least 1 year in every 3 consecutive years shall be deemed not eligible for a commercial
conch dredge license.
(e) The fee for a resident commercial conch dredge license shall be $57.50 for residents and $575 for nonresidents.
(f) An active commercial fisher with a commercial conch dredge license may transfer his or her license to a commercial fishing
apprentice who has competed no less than 150 days of commercial fishing activities over no less than a 1-year period.
(69 Del. Laws, c. 284, § 4; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 29, § 9; 80 Del. Laws, c. 348, § 3.)
§ 2804. Minimum size.
It shall be unlawful for any person to possess any conch which measures less than a minimum possession size limit specified in
regulations promulgated by the Department. The Department is authorized to promulgate regulations to establish the minimum possession
size limit of conchs.
(69 Del. Laws, c. 284, § 4.)
§ 2805. Areas closed for commercial conch potting or dredging.
It shall be unlawful for any person to operate a dredge for the purpose of catching, taking or harvesting conchs over leased shellfish
grounds, natural oyster beds or other areas declared closed to dredging for conchs by the Department by regulation; provided however,
that those conchs of legal size taken by a person on a vessel with a valid oyster harvesting license or a person with a valid commercial
clam dredge license while engaged in lawful dredging operations, whether or not over leased shellfish grounds, natural oyster beds, or
other areas declared closed to dredging for conchs by the Department, may be retained for noncommercial purposes. The Department is
authorized to promulgate regulations that close areas to either dredging or potting for conchs.
(69 Del. Laws, c. 284, § 4.)
§ 2806. Seasons closed for commercial conch potting or dredging.
The Department is authorized to promulgate regulations that close seasons to either dredging or potting for conchs.
(69 Del. Laws, c. 284, § 4.)
§ 2807. Marking of conch pots.
(a) In Delaware’s internal waters, it shall be unlawful for any commercial conch pot licensee to catch, take or harvest conchs with
any conch pot or attempt to catch, take or harvest conchs with any conch pot unless each conch pot is attached to a floating buoy. In
Delaware’s territorial sea, conch pots may be attached to a trawline up to 1,200 feet long, provided each end of the trawline is attached
to a buoy. The buoys for commercial conch pots and trawlines shall be a specific color combination as assigned to each commercial
conch pot licensee by the Department. Any person who has a valid commercial crab pot license shall be assigned the same color code for
the person’s commercial conch pot buoys as assigned to the person’s commercial crab pots. An additional buoy shall be attached at the
farthest position from the conch pot or trawline which shall be colored 1/2 white and 1/2 black. The Department shall assign a commercial
conch pot number to each commercial conch pot licensee. Inscribed on the 1/2 white and 1/2 black buoy the farthest from the conch pot
shall be a capital letter “C” followed by said person’s commercial conch pot number. The letter “C” and conch pot number shall be at
least 2 inches tall, and a contrasting color to be legible at all times.
(b) It shall be unlawful for any person other than a commercial conch pot licensee to catch, take or harvest conchs with any conch pot
or attempt to catch, take or harvest conchs with any conch pot unless said conch pot is attached to an all white buoy with said persons
full name and permanent mailing address inscribed either on the white buoy or on a waterproof tag attached to said buoy. The person’s
name and address shall be legible at all times.
(69 Del. Laws, c. 284, § 4; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 122, § 2.)
§ 2808. Conch pot attendance; abandonment; confiscation; forfeiture.
(a) It shall be unlawful for any person who places, uses or sets a conch pot in the tidal waters of this State to fail to tend and remove
conchs from said conch pot at least once every 72 hours.
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(b) Failure to tend and remove conchs from a conch pot in the tidal waters of this State at least 72 hours after said pot is tagged by
the Department shall constitute abandonment of said conch pot.
(c) Any employee of the Department authorized to enforce this chapter shall be authorized to seize and confiscate any conch pot which
has been determined to have been abandoned pursuant to subsection (b) of this section.
(d) Upon a determination that a conch pot has been abandoned and seized by the Department, ownership in said conch pot shall be
forfeited to the Department.
(e) Notwithstanding the provisions set forth in subsections (a), (b) and (c) of this section, any employee of the Department authorized
to enforce this chapter shall be authorized to seize any conch pot which fails to be placed, used or set in compliance with the provisions
of this chapter.
(f) Title to a conch pot seized by the Department and not claimed by the lawful owner after proper notification from the Department
within 90 days of said notification shall be forfeited to the Department.
(69 Del. Laws, c. 284, § 4.)
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Title 7 - Conservation
Part III
Transfers
Chapter 29
Transfer of Finfish, Eel Fishing and Shellfish Permits and Licenses
§ 2901. Applicability.
The provisions of this chapter shall apply to the fisheries covered by Chapters 9, 18, 19, 21, 23, 24, 25, 26, 27 and 28 of this title which
are or become closed to new entrants.
(78 Del. Laws, c. 263, § 1; 80 Del. Laws, c. 196, § 6.)
§ 2902. Transfers of permits and licenses.
Any person who holds a valid permit or license issued by the Department for any of the fisheries referenced and subject to § 2901
of this title shall be entitled to assign or transfer such permit or license to an eligible person as defined in this chapter under terms and
conditions agreeable to the permit or license holder and the assignee or transferee.
(78 Del. Laws, c. 263, § 1.)
§ 2903. Eligibility.
In order to be eligible for the transfer of a permit or license under this chapter the assignee or transferee of the permit or license shall
be any of the following:
(1) An apprentice with at least 150 days of commercial fishing experience;
(2) An alternate or designee with actual fishing experience during at least 1 calendar year; or
(3) The holder of a valid permit or license for any of the fisheries covered under § 2901 of this title with actual fishing experience
during at least 2 calendar years.
Actual fishing experience as provided herein may be established by catches reported by or attributed to the prospective assignee or
transferee engaged in fishing.
(78 Del. Laws, c. 263, § 1.)
§ 2904. Death, incapacity and disability.
(a) In the event of the death of a permit or license holder covered by this chapter any permit or license of the decedent may be transferred
as follows:
(1) The decedent may by will or other written document designate the recipient of any permit or license, provided however, that
if the recipient is not eligible to receive the permit or license under the provisions of § 2903 of this title, the recipient shall have 2
years from the date of death of the permit or license holder to transfer the permit or license to an eligible person, otherwise the permit
or license shall be relinquished.
(2) If the decedent has not designated the recipient of the permit or license as provided in paragraph (a)(1) of this section above, the
executor or personal representative of the estate of the decedent shall be entitled to transfer any permit or license to an eligible person
within 2 years of the date of death of the permit or license holder, otherwise the permit or license shall be relinquished.
(3) The provisions of this subsection (a) shall apply to any permit or license holder who died on or after January 1, 2010.
(b) In the event of the mental incapacity of a permit or license holder, the guardian, attorney-in-fact, or other person authorized to act
on behalf of the incapacitated license or permit holder, shall be entitled to transfer any permit or license to an eligible person within 2
years of the date the guardian, attorney-in-fact, or other person authorized to act on behalf of the incapacitated license or permit holder is
entitled to act on behalf of the incapacitated permit or license holder, otherwise the permit or license shall be relinquished.
(c) In the event of the physical disability of a permit or license holder, the permit or license holder with the disability shall be entitled
to assign any permit or license to an eligible person in accordance with § 2902 of this title.
(d) Any person authorized to act on behalf of any permit or license holder pursuant to subsections (a) and (b) of this section shall
be entitled to assign the permit or license in accordance with § 2902 of this title to an eligible person prior to the time of transfer or
relinquishment of the permit or license.
(78 Del. Laws, c. 263, § 1.)
§ 2905. Notification and transfer or assignment.
(a) Any person holding a permit or license, or such persons authorized representative as provided herein, shall provide written
notification to the Department of the intent to transfer or assign the permit or license, and provide such other information as may be
necessary to establish the eligibility to make the transfer or assignment in accordance with this chapter.
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(b) The Department shall process notifications as provided herein within 30 days of the date of receipt of the notification and other
documentation, and provide a written response indicating approval or disapproval of the transfer or assignment. For any disapproval the
Department shall indicate the reasons and any actions needed to obtain approval.
(c) Any permit or license which is approved for transfer or assignment by the Department shall include the allotment of catch or other
entitlements associated with the permit or license.
(78 Del. Laws, c. 263, § 1.)
§ 2906. Savings.
The provisions of this chapter shall be in addition to and not affect any other entitlements or allowances regarding the transfer or
assignment of permits and licenses covered by this chapter.
(78 Del. Laws, c. 263, § 1.)
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Title 7 - Conservation
Part III
Transfers
Chapter 30
Urban and Community Forestry Program [Repealed].
§§ 3001-3008. Findings and policy; definitions; powers and duties; Community Forestry Council; duties of
Forestry Administrator; development, distribution of comprehensive community forestry plan; approval;
annual report on the status of Delaware Urban and Community Forestry Program; rules, regulations
[Repealed].
Repealed by 72 Del. Laws, c. 235, § 1, effective July 29, 1999.
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Title 7 - Conservation
Part IV
Agricultural and Soil Conservation; Drainage and Reclamation of Lowlands
Chapter 37
Agricultural Conservation and Adjustment
§ 3701. Purpose of chapter; limitations.
(a) It is recognized and declared that:
(1) The soil resources and fertility of the land of this State, the economic use thereof, and the prosperity of the farming population
of this State are matters affected with a public interest;
(2) The welfare of this State has been impaired and is in danger of being further impaired through failure to conserve adequately
its soil resources, and by the decrease in the purchasing power of the net income per person on farms in the State as compared with
the net income per person in the State not on farms;
(3) Such evils have been augmented and are likely to be augmented by similar conditions in other states and are so interrelated with
such conditions in other states, that the remedying of such conditions in this State requires action by this State in cooperation with
the governments and agencies of other states and of the United States and requires assistance therein by the government and agencies
of the United States; and
(4) The formulation and effectuation by this State of state plans in conformity with § 7 of the Soil Conservation and Domestic
Allotment Act [16 U.S.C. § 590g] is calculated to remedy said conditions and will tend to advance the public welfare of this State.
(b) Therefore, in order to promote the welfare of the people of this State by aiding in the preservation and improvement of soil fertility,
in the promotion of the economic use and conservation of land, and in the reestablishment, at as rapid a rate as is practicable and in the
general public interest, of the ratio between the purchasing power of the net income per person on farms and that of the net income per
person not on farms that prevailed during the 5-year period August 1909 to July 1914, inclusive, as determined from statistics available in
the United States Department of Agriculture, and the maintenance of such ratio, the State assents to and accepts the Soil Conservation and
Domestic Allotment Act [16 U.S.C. § 590a et seq.] and adopts the policy and purpose of cooperating with the government and agencies
of other states and of the United States in the accomplishment of the policy and purposes specified in § 7 of said act; subject, however,
to the limitations that:
(1) The powers conferred in this chapter shall be used only to assist voluntary action calculated to effectuate such purposes;
(2) In carrying out the purposes specified in this section due regard shall be given to the maintenance of a continuous and stable
national supply of agricultural commodities adequate to meet consumer demand at prices fair to both the producers and consumers.
(41 Del. Laws, c. 175, § 2; 7 Del. C. 1953, § 3701.)
§ 3702. Definitions.
For the purposes of this chapter, unless otherwise specifically defined, or another intention clearly appears, or the context requires a
different meaning:
(1) “Other states of the United States” includes Puerto Rico.
(2) “Person” includes an individual, corporation, partnership, firm, statutory trust, business trust, joint-stock company, association,
syndicate, group, pool, joint venture and any other unincorporated association or group.
(3) “University” means the University of Delaware.
(41 Del. Laws, c. 175, §§ 3, 4; 7 Del. C. 1953, § 3702; 73 Del. Laws, c. 329, § 42.)
§ 3703. Designation of state agency.
The University shall be the state agency of this State to carry out the policy and purposes of this chapter and to formulate and administer
state plans pursuant to the terms of this chapter.
(41 Del. Laws, c. 175, § 4; 7 Del. C. 1953, § 3703.)
§ 3704. Formulation and administration of state conservation plans.
(a) The University shall formulate for each calendar year and submit to the Secretary of Agriculture of the United States for and in the
name of this State, a state plan for carrying out the purposes of this chapter during such calendar year.
(b) The University may modify or revise any such plan in whatever manner, consistent with the terms of this chapter, it finds necessary
to provide for more substantial furtherance of the accomplishment of the purposes of this chapter.
(c) Each plan shall provide for such participation in its administration by such voluntary county and community committees, or voluntary
associations of agricultural producers, organized under this chapter, as the University determines to be necessary or proper for the effective
administration of the plan.
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Title 7 - Conservation
(d) Each plan shall provide, through agreements with agricultural producers or through other voluntary methods, for such adjustments
in the utilization of land, in farming practices, and in the acreage or in the production for market, or both, of agricultural commodities, as
the University determines to be calculated to effectuate as substantial accomplishment of the purposes of this chapter as may reasonably
be achieved through action of this State, and for payments to agricultural producers in connection with such agreements or methods in
such amounts as the University determines to be fair and reasonable and calculated to promote such accomplishment of the purposes of
this chapter without depriving such producers of a voluntary and uncoerced choice of action.
(e) Any such plan shall provide for the educational programs that the University determines to be necessary or proper to promote the
more substantial accomplishment of the purposes of this chapter.
(f) Each plan shall contain an estimate of expenditures necessary to carry out such plan together with a statement of the amount that
the University determines to be necessary to be paid by the Secretary of Agriculture of the United States as a grant in aid of such plan
under § 7 of the Soil Conservation and Domestic Allotment Act [16 U.S.C. § 590g], in order to provide for the effective carrying out
of such plan, and shall designate the amount and due date of each installment of such grant, the period to which such installment relates,
and the amount determined by the University to be necessary for carrying out such plan during such period.
(g) The University may conduct such investigations as it finds to be necessary for the formulation and administration of such plans.
The investigations shall be paid for from federal funds provided for the purposes of this chapter.
(41 Del. Laws, c. 175, § 5; 7 Del. C. 1953, § 3704.)
§ 3705. Receipt and disbursement of funds.
(a) The University may receive on behalf of this State all grants of money or other aid made available from any source to assist the
State in carrying out the policy and purposes of this chapter. All such money or other aid together with any moneys appropriated or other
provisions made by this State for such purpose, shall be forthwith available to the University as the agency of the State subject, in the
case of any conditioned funds or other aid, to the conditions upon which such funds or other aid has been received, for the purpose of
administering this chapter and may be expended by the University in carrying out only such state plans or in otherwise effectuating the
purposes and policies of this chapter.
(b) Subject to any conditions upon which any such money or other aid is made available to the State and to the terms of any applicable
plan made effective pursuant to this chapter, such expenditures may include, but need not be limited to, expenditures for administrative
expenses; equipment, cost of research and investigation, cost of educational activities; compensation and expenses of members of the
State Advisory Board; reimbursement to other state agencies or to voluntary committees or associations of agricultural producers for costs
to such agencies; committees or associations of assistance in the administration of this chapter requested in writing by the University
and rendered to the University; reimbursement of any other fund from which it has made expenditures in providing services in the
administration of this chapter; payments to agricultural producers provided for in any plan made effective pursuant to this chapter; salaries
of employees; and all other expenditures requisite to carrying out this chapter.
(c) The University shall provide for the keeping of full and accurate accounts as such state agency, separate from its accounts kept in
its other capacities, showing all receipts and expenditures of moneys, securities or other property received, held or expended under this
chapter and shall provide for the auditing of all such accounts and for the execution of surety bonds for all employees entrusted with
moneys or securities under this chapter.
(41 Del. Laws, c. 175, § 6; 7 Del. C. 1953, § 3705.)
§ 3706. Additional powers and duties of the University.
(a) The University shall utilize such available services and assistance of other state agencies and of voluntary county and community
committees and associations of agricultural producers as it determines to be necessary or calculated to assist substantially in the effective
administration of this chapter.
(b) The University may make such rules and regulations, and do any and all other acts consistent with this chapter, which it finds to
be necessary or proper for the effective administration of this chapter.
(c) The University may obtain, by lease or purchase, such equipment, office accommodations, facilities, services and supplies, and
employ such technical or legal experts or assistants and such other employees, including clerical and stenographic help, as it determines to
be necessary or proper to carry out this chapter, and may determine the qualifications, duties and compensation of such experts, assistants
and other employees.
(d) All other agencies of this State may assist the University in carrying out this chapter upon written request of the University, in any
manner determined by the University to be necessary or appropriate for the effective administration of this chapter.
(41 Del. Laws, c. 175, § 7; 7 Del. C. 1953, § 3706.)
§ 3707. Agricultural communities.
(a) The University shall designate within each county of this State such geographic units, which shall be called “communities,” as it
determines to be the most convenient for the administration of this chapter and of state plans adopted pursuant to this chapter, and shall
establish the boundaries of such communities.
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Title 7 - Conservation
(b) The University may revise the boundaries of such communities, in conformity with the respective standards prescribed herein, at
such time or times as it finds that a revision is necessary either to cause communities to conform to the standards or to provide for the
more substantial or more efficient accomplishment of the purposes of this chapter.
(41 Del. Laws, c. 175, § 8; 7 Del. C. 1953, § 3707.)
§ 3708. Organization of producers and committees.
The University shall establish and define the duties:
(1) Within each community, of a voluntary association of agricultural producers all of whose members shall be entitled to equal rights;
(2) Of a community committee within each community elected by the association membership of said community from their own
membership;
(3) Of a county board of directors within each county, consisting of the chairperson of the community committees within the county,
which county board shall elect a chairperson and such other officers as are deemed necessary;
(4) Of a county policy committee within each county elected by the county board of directors from their own members.
(41 Del. Laws, c. 175, § 9; 7 Del. C. 1953, § 3708; 70 Del. Laws, c. 186, § 1.)
§ 3709. State Advisory Board; selection; qualifications; functions.
(a) The University shall, by regulations, provide for the selection of 6 persons of legal age, resident in this State, who shall be selected
from the standpoint of their qualification by actual farming experience and comprehensive understanding of the agricultural problems
of this State, to act as farmer members of a State Advisory Board. There shall be not less than 1 nor more than 3 selected from any 1
of the counties.
(b) The State Advisory Board, upon the request of the University, shall advise the University with regard to all matters of major
importance in carrying out this chapter.
(41 Del. Laws, c. 175, § 10; 7 Del. C. 1953, § 3709.)
§ 3710. Reports.
The University shall compile or require to be made such reports as it determines to be necessary or proper in order to ascertain whether
any plans provided for in this chapter are being carried out according to their terms. The University shall provide for compliance, on the
part of all persons and agencies participating in the administration of any such plan, with such requirements, and may make, or cause to
be made, such investigations as it determines to be necessary or proper to assure the correctness of and to make possible the verification
of such reports.
(41 Del. Laws, c. 175, § 11; 7 Del. C. 1953, § 3710.)
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Title 7 - Conservation
Part IV
Agricultural and Soil Conservation; Drainage and Reclamation of Lowlands
Chapter 38
Giant Reed Grass Control
§ 3801. Declared public and common nuisance.
The existence of growth of giant reed grass (Phragmites australis) is declared to be a public and common nuisance.
(64 Del. Laws, c. 263, § 1.)
§ 3802. Department of Natural Resources and Environmental Control; investigations; rules and regulations;
programs of control; acceptance of grants.
(a) The State Department of Natural Resources and Environmental Control may make such investigations, studies and determinations
as it may deem advisable in order to ascertain the extent of growth and infestation of Phragmites australis in this State, and the effect
of such species on wildlife and the environment.
(b) The Department may promulgate such rules and regulations as in its judgment are necessary to carry into effect this chapter and
may alter or suspend such rules when necessary.
(c) The Department may institute programs of control and eradication.
(d) The Department may enter into agreements with any county or subdivision of this State, with any adjoining state or with agencies
of the federal or state government to effect a program of control and eradication.
(e) The Department may accept, use or expend such aid, gift or grant as may from time to time be made available from any source,
public or private, for the purposes of carrying out this chapter.
(64 Del. Laws, c. 263, § 1.)
§ 3803. Agreements relating to eradication.
The State Department of Natural Resources and Environmental Control may enter into an agreement with any designated county in
this State for the purpose of control and eradication of Phragmites australis within that county. When such agreement is executed and
certified in writing to the Secretary of State, the Department and the county may conduct surveys to determine the location and amount
of infestations of Phragmites australis within that county, and may provide technical and financial assistance to landowners on a costsharing basis with those landowners in a cooperative control or eradication program, and may effect a program of mowing, spraying or
other control or eradication practices on road rights-of-way, drainage ditch banks, parks, playgrounds and other public and private lands.
The agreement between the Department and county may be terminated by either party on 30 days’ written notice.
(64 Del. Laws, c. 263, § 1.)
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Title 7 - Conservation
Part IV
Agricultural and Soil Conservation; Drainage and Reclamation of Lowlands
Chapter 39
Soil and Water Conservation Districts
Subchapter I
General Provisions
§ 3901. Declaration of policy.
It is the policy of the State to provide for the preservation of the productive power of Delaware land and the optimum development
and use of certain surface water resources of the State by furthering the conservation, protection, development and utilization of land and
water resources, including the impoundment, and disposal of water and by preventing and controlling floodwater and sediment damages,
and thereby to preserve natural resources and promote their beneficial use, control floods, prevent impairment of dams and reservoirs,
assist in maintaining the navigability of rivers and harbors, preserve wildlife, provide recreation development, protect the tax base, protect
public lands and highways, and protect and promote the health, safety and general welfare of the people of this State.
(44 Del. Laws, c. 212, § 2; 7 Del. C. 1953, § 3901; 54 Del. Laws, c. 188, § 2; 55 Del. Laws, c. 456, § 1.)
§ 3902. Definitions.
For the purpose of this chapter, unless otherwise specifically defined, or another intention clearly appears, or the context requires a
different meaning:
(1) “Board of district supervisors” or “board” means the governing body of a soil and water conservation district, elected or appointed
in accordance with this chapter.
(2) “Cooperator” means a landowner for whom a district provides, or has agreed to provide, in accordance with this chapter, services,
material and equipment with respect to the landowner’s land within the district.
(3) “Department of Natural Resources and Environmental Control” or “Department” means the agency responsible for the
administration of soil and water conservation districts in Delaware, with the powers and duties prescribed by this chapter.
(4) “Farmer” means any person holding legal title to a farm and being actively engaged in farming operations.
(5) “Landowner” or “owner of land” means and includes any person, firm or corporation who shall hold title to any land in this State.
(6) “Soil and water conservation district” or “district” means a governmental subdivision of this State, the boundaries of which
coincide with county boundaries, and having the powers and duties prescribed by this chapter.
(44 Del. Laws, c. 212, § 3; 7 Del. C. 1953, § 3902; 54 Del. Laws, c. 188, § 2; 57 Del. Laws, c. 711, § 1; 57 Del. Laws, c. 739, §
166.)
§ 3903. Conservation districts.
The 3 soil and water conservation districts heretofore created under this chapter shall hereafter be known as the Kent Conservation
District, the New Castle Conservation District and the Sussex Conservation District, respectively, and the said districts shall continue to
exercise all the powers and duties prescribed for districts by this chapter.
(7 Del. C. 1953, § 3903; 54 Del. Laws, c. 188, § 2; 57 Del. Laws, c. 739, § 167; 59 Del. Laws, c. 561, § 1.)
§ 3904. Advisor to Department.
The Department may invite the Secretary of Agriculture of the United States of America to appoint 1 person to serve with the Department
in an advisory capacity.
(7 Del. C. 1953, § 3904; 54 Del. Laws, c. 188, § 2; 57 Del. Laws, c. 739, § 168.)
§ 3905. General powers and duties of Department.
(a) The Department shall:
(1) Formulate policies and general programs to be carried out by the Department and by soil and water conservation districts for
the prevention of erosion, floodwater and sediment damages and for the conservation, protection, development and utilization of the
State’s soil and water resources, including the impoundment and disposal of water, and removal of sediment from waterways, lakes,
ponds or other bodies of water;
(2) Exercise overall responsibility for administration and direction of the programs of the districts;
(3) Advise and assist any district in developing and carrying out its program for the prevention of erosion, floodwater and sediment
damages, and the conservation, protection, development and utilization of soil and water resources, including the impoundment and
disposal of water, and removal of sediment from waterways, lakes, ponds or other bodies of water;
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(4) Cooperate with and give such other assistance, financial and otherwise, as the Department may judge to be useful to any district
in the exercise of its powers and performance of its duties, including the entering into of such agreements as may be appropriate with
such district, with landowners, and with other state, federal, or local agencies, subject to such conditions as the Department deems
necessary to advance the purposes of this chapter;
(5) Receive and allocate or otherwise expend any funds appropriated by the General Assembly of this State, or received from any
other source, for the use or benefit of the Department or of the districts;
(6) Be the administrative agency to represent this State in all matters arising from this chapter;
(7) Keep a full and accurate record of all its proceedings and of all its resolutions, regulations and orders issued or adopted;
(8) Make an annual audit of all its accounts of receipts and disbursements;
(9) Formulate and establish rules and procedures for conducting elections of district supervisors, and for conducting all other local
referendums which may from time to time become necessary in order to give landowners an opportunity to reach majority conclusions
with respect to the programs of the district;
(10) Make such other rules and regulations as it deems necessary to carry out the purposes of this chapter;
(11) Make and execute contracts and other instruments, necessary or convenient to the exercise of its powers, with any federal, state
or local agency, or with any person; and
(12) Adopt rules and regulations for surface water impoundment; upon request by any landowner within the drainage area involved,
make hydrological and engineering studies to determine pertinent factors, including, but not limited to, the projected supply of available
water, the past use of said water and the contemplated water use, and on the basis of said factors to permit impoundment, subject to
the jurisdiction and authority of the Secretary and the Department of Natural Resources and Environmental Control to disapprove said
permit within 30 days of submission to them of the completed plans and permit by the Department. No action by the Department shall
establish any new permanent water rights nor substantially impair any existing rights to beneficial use of water.
(b) In addition to the above powers, and any other powers granted in other sections of this chapter, the Department may:
(1) Appoint such employees as it requires, within the limits of available funds, and determine their qualifications, duties and
compensation;
(2) Call upon the Attorney General of the State for such legal services as it requires;
(3) Conduct surveys, investigations and research relating to erosion, floodwater and sediment damages, and to the conservation,
protection, development and utilization of land and water resources, including impoundment and disposal of water, and removal of
sediment from waterways, lakes, ponds or other bodies of water, and the prevention and control measures and works of improvement
needed; publish the results of such surveys, investigations and research; disseminate information concerning such preventive and control
measures and works of improvement; except, that any agricultural research shall be in cooperation with the Delaware Agricultural
Experiment Station;
(4) Develop comprehensive plans for, and carry out, preventive and control measures and works of improvement for the prevention of
erosion, floodwater and sediment damages and for the conservation, protection, development and utilization of land and water resources,
including the impoundment and disposal of water, and removal of sediment from waterways, lakes, ponds or other bodies of water;
(5) Obtain or accept the cooperation and financial, technical or material assistance of the United States or any of its agencies, and
of this State or any of its agencies or subdivisions, or from any other source, for use in carrying out the functions of the Department
under this chapter;
(6) Obtain options upon and acquire by purchase, exchange, lease, gift, grant, bequest, devise or otherwise any property, real or
personal, or rights or interests therein; maintain, administer and improve any properties acquired; receive income from such properties
and expend such income in carrying out the purposes and provisions of this chapter; and sell, lease, or otherwise dispose of any of its
real or personal property or interests therein, in furtherance of the purposes and provisions of this chapter, including conveyances, with
or without consideration, of lands or interests therein to soil and water conservation districts for use in carrying out their authorized
purposes;
(7) Construct, improve, operate and maintain such structures as may be necessary or convenient for the performance of any of the
functions authorized in this chapter, and also, with the prior approval and agreement of the State Highway Department, which under
§ 131 of Title 17 has responsibility for the absolute care, management and control of public roads, causeways, highways and bridges
in the State, construct, improve, protect or repair public roads, causeways, highways or bridges in those cases where other works of
improvement authorized in this chapter affect such roads, causeways, highways or bridges;
(8) Cooperate, or enter into agreements with, and within the limits of available appropriations or other funds, furnish financial or
other aid to any agency, governmental or otherwise, or any landowner, in the carrying out of operations authorized by this chapter,
subject to such conditions as the Department may deem necessary to advance the purposes of this chapter;
(9) Appoint district supervisors in certain cases as in this chapter provided;
(10) Accept from tax ditches of the State in accordance with § 4161(10) of this title:
a. The responsibility for certain specified responsibilities for maintenance of the tax ditch;
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b. All rights-of-way assigned by court order to the tax ditch for construction and maintenance operations;
c. Any and all powers possessed by the tax ditch, or the managers thereof, related to obstruction of, or damage to said tax ditch,
or to the addition of territory to a tax ditch, or to the alteration of a tax ditch;
(11) Carry out specified responsibilities for maintenance of those tax ditches that choose to turn over such rights to the Department;
(12) Exercise all rights, under law, to utilize and protect the rights-of-way transferred to the Department by tax ditches for maintenance
purposes, including those rights pertaining to obstruction of, or damage to, a tax ditch in § 4186 of this title, except that such rightsof-way may be used by the Department or its agents for maintenance purposes only; and
(13) Cooperate with other agencies and departments of the State, federal agencies, or any other landowners for use of the state dredge
at the cost of the state agency and/or department, federal agency or the landowners requesting use of the state dredge. Cost for the use
of the state dredge shall be limited to actual project costs incurred by the Department plus an amount equal to 10 percent of the actual
project costs incurred for overhead expenses.
(7 Del. C. 1953, § 3906; 54 Del. Laws, c. 188, § 2; 55 Del. Laws, c. 456, §§ 2-6; 55 Del. Laws, c. 460; 57 Del. Laws, c. 739, §§
169, 170; 59 Del. Laws, c. 166; 60 Del. Laws, c. 183, §§ 1-4; 67 Del. Laws, c. 306, § 1.)
§ 3906. Boards of district supervisors; composition; term.
(a) There shall be a board of supervisors for each district, each board to consist of 4 elected supervisors, an optional supervisor who, in
Kent County shall be a member of the Levy Court, in Sussex County shall be a member of County Council, and in New Castle County,
shall be the County Executive or the County Executive’s designated representative, and 2 optional supervisors who shall not be farmers
and who may be appointed by the Secretary of the Department of Natural Resources and Environmental Control upon the request of the
district involved. The vote and authority of each supervisor shall be equal. The county agricultural agent shall serve as secretary to the
board but shall have no vote.
(b) The elected members of the Kent and Sussex districts shall be farmers residing in those respective counties. In New Castle County,
2 of the elected supervisors shall be farmers residing in the southern portion of the County, and the remaining 2 who shall not be farmers,
shall reside in the northern portion of the County, according to a division established by the Secretary of the Department of Natural
Resources and Environmental Control.
(c) The term of office of each elected supervisor shall be 4 years. The term of office of a supervisor appointed by the Secretary of
the Department of Natural Resources and Environmental Control shall be 3 years. An optional supervisor appointed by the Kent County
Levy Court and the Sussex County Council shall hold office during the pleasure of that body so long as that optional supervisor remains a
member of the appointing body. The Secretary of the Department of Natural Resources and Environmental Control may fill the vacancy
of any elected supervisor, or supervisor appointed by the Secretary of the Department of Natural Resources and Environmental Control
occurring otherwise than by expiration of term, by appointment of a qualified individual to serve the remainder of the unexpired term.
(44 Del. Laws, c. 212, § 6; 7 Del. C. 1953, § 3907; 54 Del. Laws, c. 188, § 2; 55 Del. Laws, c. 462, § 1; 57 Del. Laws, c. 739, §
171; 65 Del. Laws, c. 362, § 1; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 95, §§ 1, 2.)
§ 3907. Organization of board; quorum; expenses of district supervisors.
The board of district supervisors annually shall designate by election 1 of its members to be its chairperson, and shall designate future
chairpersons by the same means. A majority of the board shall constitute a quorum, but the concurrence of a majority of the entire board
on any matter within its duties shall be required for its determination, except as the board may invest any of its supervisors with power
to determine specified matters or to perform routine duties. The board shall be authorized, in its discretion, to reimburse supervisors for
their expenses, including travel expenses, necessarily incurred in the discharge of their duties as members of the board.
Any district supervisor may be removed from office by the Department of Natural Resources and Environmental Control, upon notice
and hearing, for neglect of duty or misconduct, but for no other reason.
(7 Del. C. 1953, § 3908; 54 Del. Laws, c. 188, § 2; 57 Del. Laws, c. 739, § 172; 70 Del. Laws, c. 186, § 1.)
§ 3908. Soil and water conservation district; governmental subdivision; powers.
A soil and water conservation district organized under this chapter shall constitute a governmental subdivision of this State, and such
district, and the board of supervisors thereof, shall have authority to exercise the following powers, in addition to others granted in
other sections of this chapter, subject to the responsibility of the Department of Natural Resources and Environmental Control for the
administration and direction of the programs of the districts:
(1) To develop comprehensive plans for, and carry out, preventive and control measures and works of improvement for the prevention
of erosion, floodwater and sediment damages, and the conservation, development and utilization of land and water resources, including
the disposal of water and removal of sediment from waterways, lakes, ponds or other bodies of water, within the district;
(2) To conduct, in cooperation with the Department of Natural Resources and Environmental Control surveys, investigations and
research relating to the prevention of erosion, floodwater and sediment damages, and the conservation, protection, development and
utilization of land and water resources, including the disposal of water, and removal of sediment from waterways, lakes, ponds or
other bodies of water;
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(3) To cooperate or enter into agreements with, and, within the limits of appropriations or other funds duly made available to it by
law, to provide aid to any agency, governmental or otherwise, or any landowner within the district, in carrying out the program of the
district, subject to such conditions as the board may deem necessary to carry out the purposes of this chapter;
(4) (a) To make available, on such terms as the board shall prescribe, to any landowners within the district, through existing agencies
if agreements with them seem feasible, or by such other means as the board shall prescribe, such services, materials and equipment as
will assist such landowners to carry on operations for any of the purposes of this chapter;
(b) To make available on request, and on such terms as the Board shall prescribe, to any cooperator who is a resident of the
State and who owns land in a neighboring state, services, materials and equipment for the benefit of such cooperator’s land in the
neighboring state;
(5) To construct, improve, operate and maintain such structures as may be necessary or convenient for the performance of any of
the operations authorized in this chapter;
(6) To obtain options upon and acquire by purchase, exchange, lease, gift, grant, bequest, devise or otherwise, any property, real
or personal, or rights or interests therein; to maintain, administer and improve any properties acquired; to receive income from such
properties and expend such income in carrying out the purposes and provisions of this chapter; and to sell, lease or otherwise dispose
of any of its real or personal property or interests therein, in furtherance of the purposes of the district;
(7) To accept the cooperation of, and financial, technical and material assistance from, the United States or any of its agencies, or
from this State or any of its agencies or subdivisions, or from any other source, for use in carrying out the purposes of the district;
(8) To sue and be sued in the name of the district; to make and execute contracts and other legal instruments, necessary or convenient
to the exercise of its powers, with any federal, state or local agency, or with any person; and to receive and expend funds; and
(9) To promote the conservation, protection, development and utilization of land and water resources through various informational
and educational activities as the Board may deem necessary in the furtherance of its duties under this chapter.
(7 Del. C. 1953, § 3909; 54 Del. Laws, c. 188, § 1; 57 Del. Laws, c. 711, § 2; 57 Del. Laws, c. 739, § 173; 60 Del. Laws, c. 183,
§§ 5, 6; 61 Del. Laws, c. 18, § 1.)
§ 3909. Cooperation.
Any 2 or more soil and water conservation districts organized under this chapter may cooperate with one another or with the State
or any agency or subdivision thereof in the exercise of all powers conferred upon such districts or any or all duties prescribed for such
districts by this chapter.
(44 Del. Laws, c. 212, § 9; 7 Del. C. 1953, § 3910; 54 Del. Laws, c. 188, § 1.)
§ 3910. Primary jurisdiction of Secretary and the Department of Natural Resources and Environmental
Control.
The Secretary and the Department of Natural Resources and Environmental Control shall have paramount jurisdiction over water use
in this State. In case of any conflict between this chapter and Part VII of this title, relating to water and air resources, Part VII shall prevail.
(7 Del. C. 1953, § 3911; 55 Del. Laws, c. 442, § 8; 57 Del. Laws, c. 739, § 174.)
§ 3911. Appeals.
Any owner of land within the drainage area of the watershed or tax ditch involved, aggrieved by the Department’s action, may appeal to
the Superior Court within 30 days after the date of the hearing. The sole grounds for reversal by the Court, sitting without a jury, shall be:
(1) Abuse of the Department’s discretion;
(2) Infringement of constitutional rights; or
(3) The impairment of vested rights of the complainant.
In the event of such appeal, the Department shall be represented by the Attorney General of the State.
(7 Del. C. 1953, § 3912; 55 Del. Laws, c. 456, § 7; 57 Del. Laws, c. 739, § 175.)
Subchapter II
State and County Appropriations to Districts
§ 3921. Annual appropriations to Division of Watershed Stewardship of Department of Natural Resources
and Environmental Control.
The General Assembly shall annually appropriate:
(1) To the Division of Watershed Stewardship for use in New Castle County, a sum not in excess of $75,000;
(2) To the Division of Watershed Stewardship for use in Kent County, a sum not in excess of $75,000;
(3) To the Division of Watershed Stewardship for use in Sussex County, a sum not in excess of $75,000.
(7 Del. C. 1953, § 3921; 55 Del. Laws, c. 414, § 2; 57 Del. Laws, c. 739, § 176; 57 Del. Laws, c. 749; 60 Del. Laws, c. 326, § 1;
62 Del. Laws, c. 68, § 101; 63 Del. Laws, c. 322, § 106; 69 Del. Laws, c. 291, § 239; 77 Del. Laws, c. 430, §§ 2, 3.)
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§ 3922. Appropriations by the several county governments.
The government of each county shall annually appropriate to the Division of Watershed Stewardship a sum equal to the annual
appropriation to the Division by the General Assembly, for use in the respective counties, pursuant to § 3921 of this title.
(7 Del. C. 1953, § 3922; 55 Del. Laws, c. 414, § 2; 57 Del. Laws, c. 739, § 177; 57 Del. Laws, c. 749; 77 Del. Laws, c. 430, § 4.)
§ 3923. Use of appropriated money in Sussex, Kent and New Castle Counties.
The money appropriated pursuant to § 3921 of this title shall be used by the Division of Watershed Stewardship to pay or assist in
paying all costs including personnel required for planning, construction, installation and maintenance of tax ditches, public group ditches,
highway ditches and resource conservation projects in Sussex, Kent and New Castle Counties, which tax ditches shall be organized under
Chapter 41 of this title; Article 2, Chapter 65, and Article 1, Chapter 105 of the 1935 Revised Code of Delaware; and which public group
ditches shall be ditches providing water management and drainage for groups of landowners and for landowners and portions of state
highways and for which necessary construction permits, easements or rights-of-way for construction and maintenance operations shall
have been acquired by this State or by Sussex, Kent or New Castle County, and which highway ditches shall be ditches maintained by
the public on state or county-owned easements or rights-of-way adjacent to the roads of Sussex, Kent or New Castle County, and which
resource conservation projects shall be defined in applications or project plans submitted to the Secretary of the United States Department
of Agriculture for Watershed Planning or Resource Conservation and Development assistance. The money appropriated shall be paid
from time to time by the State Treasurer and the governments of Sussex, Kent and New Castle Counties to the Division of Watershed
Stewardship, or to the Sussex Conservation District, the Kent Conservation District, or the New Castle Conservation District, or directly
to the contractors and suppliers furnishing work, labor, services and materials for such projects or to landowners for rights-of-way or
easements, or shall be paid or otherwise made available to other state agencies for work, labor, services and materials for certain portions
of such projects as shall be determined by the Division and upon certification by the Division that such payments are proper and for the
purposes authorized by this section.
(7 Del. C. 1953, § 3923; 55 Del. Laws, c. 414, § 2; 56 Del. Laws, c. 92; 57 Del. Laws, c. 739, § 178; 57 Del. Laws, c. 749; 59 Del.
Laws, c. 561, § 2; 59 Del. Laws, c. 562, § 1; 64 Del. Laws, c. 382, § 1; 77 Del. Laws, c. 430, § 5.)
§ 3925. Transfer of funds prohibited.
Funds appropriated for use by a particular district in a particular county shall only be used by that district in that county.
(7 Del. C. 1953, § 3925; 55 Del. Laws, c. 414, § 2; 57 Del. Laws, c. 749.)
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Part IV
Agricultural and Soil Conservation; Drainage and Reclamation of Lowlands
Chapter 40
Erosion and Sedimentation Control
§ 4001. Legislative findings and statement of policy.
(a) Legislative findings. — The General Assembly finds that erosion and sedimentation continue to present serious problems throughout
the State, and that the removal of a stable ground cover in conjunction with the decrease in the infiltration capability of soils resulting
from the creation of additional impervious areas such as roads and parking lots has accelerated the process of soil erosion and sediment
deposition resulting in pollution of the waters of the State. This damages domestic, agricultural, industrial, recreational, fish and wildlife
and other resource uses. The General Assembly further finds that accelerated stormwater runoff increases flood flows and velocities,
contributes to erosion, sedimentation, and degradation of water quality, overtaxes the carrying capacity of streams and storm sewers,
greatly increases the costs of public facilities in carrying and controlling stormwater, undermines flood plain management and flood
control efforts in downstream communities, reduces groundwater recharge, and threatens public health, welfare, and safety.
(b) Statement of policy. — In consideration of these legislative findings, it is declared to be the policy of this chapter to strengthen
and extend the present erosion and sediment control activities and programs of this State for both rural and urban lands and to provide
for control and management of stormwater runoff consistent with sound water and land use practices. These activities will reduce to the
extent possible any adverse effects of stormwater runoff on the water and lands of the State. This policy, to be carried out by establishing
and implementing by the Department of Natural Resources and Environmental Control, hereinafter referred to as the “Department,” in
cooperation with conservation districts, counties, municipalities and other local governments and subdivisions of this State, and other
public and private entities, a statewide comprehensive and coordinated erosion and sediment control and stormwater management program
to conserve and protect land, water, air and other resources of the State. This program shall be consistent with, and coordinated with other
environmental programs implemented by the Department such as wetlands protection and groundwater protection.
(61 Del. Laws, c. 522, § 1; 67 Del. Laws, c. 234, § 1.)
§ 4002. Definitions.
The following words, terms, and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except
where the context clearly indicates a different meaning:
(1) “Agricultural structure” means a structure, which is located on a farm, used exclusively in connection with producing, harvesting,
storing, drying, or raising agricultural commodities, including the raising of livestock. “Agricultural structure” does not include
structures used for human habitation, public use, or a place of employment where agricultural products are processed, treated, or
packaged.
(2) “Certified construction reviewer” means an individual who has passed a departmental sponsored or approved training course and
who provides on-site construction review for sediment control and stormwater management in accordance with regulations promulgated
under this chapter.
(3) “Designated watershed or subwatershed” means a watershed or subwatershed proposed by a conservation district, county,
municipality or state agency and approved by the Department. The Department may establish additional requirements due to existing
water quantity or water quality problems. These requirements shall be implemented on an overall watershed or subwatershed master
plan developed for water quality and/or water quantity protection.
(4) “Land disturbing activity” or “land disturbance” means any land change or construction activity for residential, commercial,
industrial, or institutional land use which may result in soil erosion from water or wind or movement of sediments or pollutants into
state waters or onto lands in the State, or which may result in accelerated stormwater runoff, including clearing, grading, excavating,
transporting, and filling of land. This paragraph does not apply to commercial forestry practices.
(5) “Person” means any state or federal agency, individual, partnership, firm, association, joint venture, public or private corporation,
trust, estate, commission board, public or private institution, utility, cooperative, municipality or other political subdivision of this
State, any interstate body, or any other legal entity.
(6) “Responsible personnel” means any foreperson or superintendent who is in charge of on-site clearing and land disturbing activities
for sediment and stormwater control associated with a construction project.
(7) “Sediment and stormwater management plan” or “plan” means a plan for the control of soil erosion, sedimentation, stormwater
quantity and water quality impacts which may result from any land disturbing activity.
(8) “Standard plan” means a set of predefined standards or specification for minor land disturbing activities that preclude the need
for the preparation of a detailed sediment and stormwater management plan under specific conditions established by regulation by the
Department under this chapter.
(9) “State waters” means any and all waters, public or private, on the surface of the earth which are contained within, flow through
or border upon the State or any portion thereof.
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(10) “Stormwater” means the runoff of water from the surface of the land resulting from any form of precipitation and including
snow or ice melt.
(11) “Stormwater management” means:
a. For water quantity control, a system of vegetative, structural, and other measures that controls the volume and rate of stormwater
runoff which may be caused by land disturbing activities or activities upon the land; and
b. For water quality control, a system of vegetative structural, and other measures that controls adverse effects on water quality
that may be caused by land disturbing activities or activities upon the land.
(12) “Stormwater utility” means the establishment of an administrative organization that has been created for the purposes of funding
sediment control, stormwater management or flood control planning, design, construction, maintenance, and overall resource needs
by authorized and imposed charges.
(61 Del. Laws, c. 522, § 1; 67 Del. Laws, c. 234, § 1; 69 Del. Laws, c. 350, §§ 1, 2; 70 Del. Laws, c. 186, § 1; 80 Del. Laws, c.
274, § 1; 81 Del. Laws, c. 316, §§ 1, 7.)
§ 4003. Duties of persons engaged in land disturbing activities.
(a) After July 1, 1991, unless exempted, no person shall engage in land disturbing activities without submitting a sediment and
stormwater management plan to the appropriate plan approval authority and obtaining a permit to proceed.
(b) Projects which do not alter stormwater runoff characteristics may be required to provide water quality enhancement even if the
predevelopment runoff characteristics are unchanged. Criteria will be detailed in the regulations regarding level of water quality control
and variance procedures.
(c) Each land developer shall certify, on the sediment and stormwater management plan submitted for approval, that all land clearing,
construction, development, and drainage will be done according to the approved plan.
(d) All approved land disturbing activities shall have associated therein at least 1 individual who functions as responsible personnel.
(61 Del. Laws, c. 522, § 1; 67 Del. Laws, c. 234, § 1.)
§ 4003A. Runoff Control near Mill Creek, Little Mill, Red Clay, White Clay Creek, Persimmon Creek and
Shellpot Creek.
All land development subject to this chapter in the Mill Creek, Little Mill Creek, Red Clay Creek, White Clay Creek, Persimmon Creek
and Shellpot Creek watersheds of New Castle County will, in addition to meeting all other requirements for stormwater management, be
required to demonstrate successful management of any increase in stormwater runoff volume from predevelopment land use conditions.
Successful management of increased stormwater volume shall include but not be limited to; recharge, infiltration and reuse where soils
and site conditions are applicable. For any increase in volume that cannot be recharged, infiltrated or reused, volume management may
be achieved by modifying the release rate for the increase in volume so as not to increase the flood elevation for all storms up to and
including the 100-year return period.
(75 Del. Laws, c. 433, § 1.)
§ 4004. Applicability.
(a) The provisions of this chapter shall not apply to agricultural land management practices unless the conservation district or the
Department 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.
(b) The Department shall adopt standard plans for the construction of agriculture structures and it shall not be necessary for any person
seeking approval to submit a sediment and stormwater management plan.
(c) Utility projects disturbing less than 5,000 square feet of land are not subject to the provisions of this chapter.
(d) Subject to sediment and erosion controls, land disturbing activities of 1 acre or less, excluding nonresidential properties, are not
subject to the provisions of this chapter.
(e) Land disturbing activities not subject to the land management practices set forth in subsection (a) of this section which are conducted
on 10 acres or less of agricultural lands for agricultural purposes shall be subject to standard plans adopted by the Department, and it shall
not be necessary for any person seeking approval to submit a detailed sediment and stormwater management plan.
(f) Subject to water quality management and sediment and erosion controls, nonerosive conveyances of stormwater discharges from
land disturbing activities which drain into tidal areas and tidal waters are not subject to the quantity management provisions of this chapter.
(g) Linear water and wastewater utility projects that have a maximum width of disturbance of 30 feet or less and with a maximum total
disturbance of 1 acre or less are: (i) subject to Erosion and Sediment Control regulations adopted by the Department, and (ii) exempt from
Stormwater Management regulation adopted by the Department. For the purposes of this section “erosion and sediment control” means
the control of solid material, both mineral and organic, during a land disturbing activity, to prevent its transport out of the disturbed area
by means of wind, water, gravity, or ice. For the purposes of this section “stormwater management” means:
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(1) For water quantity control, a system of vegetative, structural, and other measurers that controls the volume and rate of stormwater
runoff which may be caused by land disturbing activities upon the land; and
(2) For water quality control, a system of vegetative, structural, and other measures that controls adverse effects on water quality
that may be caused by land disturbing activities upon the land.
(h) [Expired.]
(61 Del. Laws, c. 522, § 1; 67 Del. Laws, c. 234, § 1; 80 Del. Laws, c. 274, § 2; 80 Del. Laws, c. 392, § 1; 81 Del. Laws, c. 316, §§
2, 7.)
§ 4005. Program funding and financial assistance.
(a) The Department, conservation districts, counties or municipalities are authorized to receive from federal, state, or other public
or private sources financial, technical or other assistance for use in accomplishing the purposes of this chapter. The Department may
allocate, as necessary or desirable, any funds received to conservation districts, counties or municipalities for the purpose of effectuating
this chapter.
(b) The conservation districts, counties and municipalities shall have authority to adopt a fee system to help fund program
implementation. That fee system shall be implemented by the designated plan approval agency to fund overall program management, plan
review, construction review, enforcement needs and maintenance responsibilities. In those situations where the Department becomes the
designated plan approval agency, the Department may assess a plan review and inspection fee. That fee shall not exceed $80 per disturbed
acre per project. There shall be no duplication of fees by the various implementing agencies for an individual land disturbing activity
and the fee schedule shall be based upon the costs to the Department, conservation districts, counties or municipalities to implement and
administer the program. In addition, the Department of Transportation is authorized to act as the designated plan approval agency in those
situations where a public utility engages in land-disturbing activity for which a permit is required because of a project initiated by the
Department of Transportation, subject to the following provisions:
(1) If the land-disturbing activity takes place on an existing right-of-way of the Department of Transportation, that Department is
permitted to assess and collect a fee for this purpose which shall not exceed $125 per acre, with a $250 minimum.
(2) If the land-disturbing activity takes place adjacent to but not upon an existing right-of-way of the Department of Transportation,
the fee contemplated by paragraph (b)(1) of this section is waived.
(c) Authority is also granted to the Department, conservation districts, counties or municipalities to establish a stormwater utility as
an alternative to total funding under the fee system. The stormwater utility shall be developed for the designated watersheds and may
fund such activities as long range watershed master planning, watershed retrofitting, and facility maintenance. This fee system shall be
reasonable and equitable so that each contributor of runoff to the system, including state agencies, shall pay to the extent to which runoff
is contributed. Criteria for the implementation of the stormwater utility shall be established in regulations promulgated under this chapter.
The implementation of a stormwater utility will necessitate the development of a local utility ordinance prior to its implementation.
(61 Del. Laws, c. 522, § 1; 67 Del. Laws, c. 234, § 1; 70 Del. Laws, c. 177, § 1.)
§ 4006. State management program.
(a) The Department shall, in cooperation with appropriate state and federal agencies, conservation districts, other governmental
subdivisions of the State, and the regulated community develop a state stormwater management program. This program shall take into
consideration both quantity and quality of water, and shall be integrated with, and made a part of the amended state erosion and sediment
control program to create a sediment and stormwater program.
(b) In carrying out this chapter, the Department shall have the authority to:
(1) Provide technical and other assistance to districts, counties, municipalities and state agencies in implementing this chapter;
(2) Develop and publish, as regulation components, minimum standards, guidelines and criteria for delegation of sediment and
stormwater program components, and model sediment and stormwater ordinances for use by districts, counties and municipalities;
(3) Review the implementation of all components of the statewide sediment and stormwater program that have been delegated to
either the conservation districts, counties, municipalities or other state agencies in reviews to be accomplished at least once every 5
years;
(4) Require that appropriate sediment and stormwater management provisions be included in all new erosion and sediment control
plans developed pursuant to this chapter;
(5) Cooperate with appropriate agencies of the United States or other states or any interstate agency with respect to sediment control
and stormwater management;
(6) Conduct studies and research regarding the causes, effects and hazards of stormwater and methods to control stormwater runoff;
(7) Conduct and supervise educational programs with respect to sediment control and stormwater management;
(8) Require the submission to the Department of records and periodic reports by conservation districts, tax ditch organization, county
and municipal agencies as may be necessary to carry out this chapter;
(9) Review and approve designated watersheds for the purpose of this chapter;
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(10) Establish a maximum life of 5 years for the validation of approved plans. The regulations shall specify variances which expand
this time limitation in specific situation; and
(11) Establish a means of communication, such as a newsletter, so that information regarding program development and
implementation can be distributed to interested individuals.
(c) The Department shall develop such regulations in conjunction with and with substantial concurrence of a regulatory advisory
committee, appointed by the Secretary, which shall include representatives of the regulated community and others affected by this chapter.
The Secretary shall appoint only 1 representative of the Department to the regulatory advisory committee and no legal representatives
of any of those serving on the committee shall be entitled to be a member of the committee. The recommendations of this committee
shall be presented at all public workshops and hearings related to the adoption of the regulations implementing this chapter. Prior to final
promulgation of regulations under this chapter, the Secretary shall explain, in writing, any differences between the advisory committee
recommendations and the final regulations. The regulations may include, but are not limited to, the following items:
(1) Criteria for the delegation of program elements;
(2) Types of activities consistent with the provisions of this chapter that require a sediment and stormwater management permit;
(3) Waivers, exemptions and variances;
(4) Sediment and stormwater plan approval fees and performance bonds;
(5) Criteria for distribution of funds collected by sediment and stormwater plan approval fees;
(6) Criteria for implementation of a stormwater runoff utility;
(7) Specific design criteria and minimum standards, and specifications, provided that any design criteria, standards and specifications
adopted shall be technologically feasible and uniformly capable of being satisfied;
(8) Permit application and approval requirements;
(9) Criteria for approval of designated watersheds;
(10) Criteria regarding attendance and completion of departmental sponsored or approved training courses in sediment and
stormwater control that will be required of certified construction reviewers and responsible personnel;
(11) Construction review; and
(12) Maintenance requirements for sediment control during construction and stormwater management structures after construction
is completed.
(d) (1) The Department may adopt, amend, modify or repeal rules and regulations after public hearing to effectuate the policy and
purposes of this chapter. The conduct of all hearings conducted pursuant to this chapter and the promulgation process shall be in accordance
with the relevant provisions of Chapter 60 of this title, and all other provisions of Delaware law. Notwithstanding the foregoing or any
other provision of Delaware law, the Department and any other approval authority shall, for purposes of approval, after June 24, 2016,
review required applications for land disturbing activities using the guidelines set forth herein until such time that the Department adopts
new regulations which become final pursuant to the requirements of this chapter. The guidelines to be used are as follows:
a. The Resource Protections Event Volume (RPv) is equal to a runoff volume generated by a 2.7" storm event. Treatment of a 1inch runoff from a RPv event with best management practices (BMPs) as set forth in the April 2016 Post Construction Stormwater
Management BMP Standards and Specifications or functional equivalents is required. If additional measures are necessary to manage
the remainder of runoff from the RPv to achieve the predevelopment runoff rate from the RPv, then additional BMPs shall be utilized
to achieve the predevelopment runoff rate and shall be considered sufficient for purposes of obtaining plan approval.
b. RPV compliance for redevelopment projects as defined herein must employ the same BMPs set forth above to reduce the
existing effective imperviousness by 15%.
c. Runoff rates for the 10-year and 100-year storm events must be managed in accordance with the referenced BMPs, exclusive
of volume requirements.
(2) In lieu of satisfying the guidelines in paragraphs (d)(1)a. and (d)(1)b. of this section, nothing shall preclude an applicant from
utilizing in whole or in part the 2016 emergency regulations and guidelines prior to the adoption of the referenced new regulations.
(3) The guidelines cited in paragraphs (d)(1)a. and (d)(1)b. of this section shall be included in the new regulations which are to
be adopted.
(e) A regulation promulgated by the Department under this chapter that provides for the use of a standard plan in lieu of a detailed
sediment and stormwater management plan shall provide that an agricultural structure construction project with a total land disturbance
of 10 acres or less is entitled to a standard plan.
(f) Notwithstanding subsections (a) through (c) of this section, in developing a state stormwater management program the Department
may not promulgate a regulation that relies on a stormwater runoff volume reduction approach.
(g) A regulation promulgated by the Department under this chapter shall comply with the Regulatory Flexibility Act, Chapter 104 of
Title 29, and shall include both a regulatory impact statement under § 10404A of Title 29 and a regulatory flexibility analysis under §
10404B of Title 29, even if such a statement or analysis would otherwise not be required by § 10404A(b)(1) or § 10404B(b)(1) of Title 29.
(h) The provisions of Chapter 60 of this title and of Chapter 101 and Chapter 104 of Title 29 with respect to the adoption of rules and
regulations shall not apply to regulatory guidance documents, interpretive rules, or general statements of policy adopted by the Department
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to support the regulations promulgated under this chapter. A regulatory guidance document, interpretive rule, or general statement of
policy shall not:
(1) Impose any new or additional requirements beyond those set forth in this chapter and the regulations promulgated by authority
of this chapter; or
(2) Be used by the Department as a substitute for the provisions of this chapter or the stormwater regulations for enforcement purposes.
(i) As used in this section, a "regulatory guidance document" means any technical manual, checklist, policy memorandum, form, BMP
standards and specifications, Delaware Sediment and Erosion Control Handbook or other similar document, used by the Department to
facilitate compliance with the provisions of this chapter and the regulations promulgated by authority of this chapter. Any changes to
regulatory guidance documents, as defined in this section, shall be adopted following public notice requirements in accordance with §
6004 of this title and shall be filed in the Register of Regulations pursuant to § 10113 of Title 29.
(61 Del. Laws, c. 522, § 1; 67 Del. Laws, c. 234, § 1; 80 Del. Laws, c. 274, §§ 3, 4; 81 Del. Laws, c. 316, §§ 3, 6.)
§ 4007. Local sediment and stormwater programs.
(a) Pursuant to regulations promulgated by the Department, each conservation district, county, municipality or state agency may adopt,
and submit to the Department for approval, 1 or more components of a sediment and stormwater program for the area within its jurisdiction.
(b) Requests for delegation of program elements shall be submitted within 6 months of the promulgation of state regulations, and by
January 1 of subsequent years if delegation is desired at a future date. The Secretary shall grant or deny such a request on or before April
1 of the year for which delegation is sought.
(c) Delegation, once applied for, shall become effective on July 1 and shall not exceed 5 years, at which time delegation renewal is
required.
(d) A district, county, municipality or state agency may develop the program in cooperation with any other governmental subdivisions.
(e) Initial consideration regarding delegation of program elements shall be given to the conservation districts, since the conservation
districts, having unique capabilities and areawide responsibilities, are in an ideal position to coordinate and implement local sediment
and stormwater programs.
(61 Del. Laws, c. 522, § 1; 67 Del. Laws, c. 234, § 1; 81 Del. Laws, c. 316, § 4.)
§ 4008. Interim program.
(a) Prior to July 1, 1991, requirements for sediment control shall be as provided in existing erosion and sediment control regulations
promulgated September 26, 1980. Also, until July 1, 1991, any state or locally developed regulation or criterion for stormwater
management shall remain in effect at the discretion of the implementing authority.
(b) Projects approved prior to July 1, 1991, but which are under construction after July 1, 1991, shall be subject to the penalty provisions
contained in § 4015 of this title.
(61 Del. Laws, c. 522, § 1; 67 Del. Laws, c. 234, § 1.)
§ 4009. Failure of conservation districts, counties, municipalities or state agencies to implement delegated
program elements.
(a) If, at any time, the Department finds that a conservation district, county, municipality or state agency has failed to implement
program elements that the Department has delegated, the Department shall provide written notice of violation to the conservation district,
county, municipality or state agency.
(b) Within 60 days of receipt of the notice of violation, the conservation district, county, municipality or state agency shall report to
the Department the action which it has taken to comply with the requirements set forth in the violation notice.
(c) If after 120 days of receipt of the notice of violation, the conservation district, county, municipality or state agency has failed to
comply satisfactorily with requirements set forth in the notice of violation, the Department may suspend or revoke the delegated authority.
(d) If at any time, a program element delegation is being considered for suspension or revocation, an opportunity for a hearing before
the Secretary or the Secretary’s designee shall be provided prior to such suspension or revocation.
(61 Del. Laws, c. 522, § 1; 67 Del. Laws, c. 234, § 1; 70 Del. Laws, c. 186, § 1.)
§ 4010. State and federal projects.
After July 1, 1991, a state or federal agency may not undertake any land clearing, soil movement, or construction activity unless the
agency has submitted a sediment and stormwater management plan to the Department and received its approval. The only variation to this
requirement shall be when delegation of the plan approval process has been granted by the Department to a specific state or federal agency.
(61 Del. Laws, c. 522, § 1; 67 Del. Laws, c. 234, § 1.)
§ 4011. Designated watersheds or subwatersheds.
(a) Watersheds or subwatersheds approved as designated watersheds or subwatersheds by the Department shall have the regulatory
requirements clearly specified through a watershed approach to nonpoint pollution control or flood control. The watershed approach
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shall result in a specific plan, developed or approved by the Department, for the designated watershed or subwatershed that contains the
following information:
(1) Stormwater quantity or quality problem identification;
(2) The overall needs of the watershed, not just the additional impacts of new development activities;
(3) Alternative approaches to address the existing and future problems;
(4) A defined approach which includes the overall costs and benefits;
(5) A schedule for implementation;
(6) Funding sources and amounts; and
(7) A public hearing process prior to departmental approval.
(b) Upon approval of the designated watershed or subwatershed plan, all projects undertaken in that watershed or subwatershed shall
have stormwater requirements placed upon them that are consistent with the designated watershed or subwatershed plan.
(67 Del. Laws, c. 234, § 1.)
§ 4012. Construction review and enforcement.
(a) With respect to approved sediment and stormwater plans, the agency responsible for construction review during and after
construction completion shall ensure that periodic reviews are undertaken, implementation is accomplished in accordance with the
approved plans, and the required measures are functioning in an effective manner. Notice of such right of construction review shall be
included in the sediment and stormwater management plan certification. The agency responsible for construction review may, in addition
to local enforcement options, refer a site violation to the Department for additional action.
(b) Referral of a site violation to the Department may initiate a departmental construction review of the site to verify site conditions.
That construction review may result in the following actions:
(1) Notification through appropriate means to the person engaged in a land disturbing activity and the contractor to comply with
the approved plan within a specified time frame.
(2) Notification of plan inadequacy, with a time frame for the person engaged in a land disturbing activity to submit a revised sediment
and stormwater plan to the appropriate plan approval agency and to receive its approval with respect thereto.
(c) Failure of the person engaged in the land disturbing activity or the contractor to comply with departmental requirements may result
in the following actions in addition to other penalties as provided in this chapter.
(1) The Department shall have the power to issue a cease and desist order to any person violating any provision of this chapter by
ordering such person to cease and desist from any site work activity other than those actions necessary to achieve compliance with
any administrative order.
(2) The Department may request that the appropriate plan approval agency refrain from issuing any further building or grading
permits to the person having outstanding violations until those violations have been remedied.
(61 Del. Laws, c. 522, § 1; 66 Del. Laws, c. 202, § 1; 67 Del. Laws, c. 234, § 1.)
§ 4013. Approval of certified construction reviewers.
(a) Based on criteria established by the Department through regulation and any additional criteria established by the agency
implementing the plan review and construction elements of the sediment and stormwater program, the person engaged in a land disturbing
activity may be required to provide for construction review by a certified construction reviewer.
(b) Individuals functioning as certified construction reviewers must attend and pass a departmental sponsored or approved construction
review training course. The Department will establish, through regulation, the length of time for which the certification will last and
procedure for renewal. The construction reviewers shall also function under the direction of a registered professional engineer licensed
to practice engineering in the State.
(c) The responsibility of the certified construction reviewer will be to ensure the adequacy of construction pursuant to the approved
sediment and stormwater management plan.
(d) The certified construction reviewer shall be responsible for the following items:
(1) Provision of a construction review of active construction sites on at least a weekly basis, as determined on a case-by-case basis
by the plan review and construction review agencies, or as required by regulations promulgated pursuant to this chapter;
(2) Within 5 calendar days, informing the person engaged in the land disturbing activity, and the contractor, by a written construction
review report of any violations of the approved plan or inadequacies of the plan. The plan approval agency shall be informed, if the
approved plan is inadequate, within 5 working days. In addition, the appropriate construction review agency shall receive copies of
all construction review reports; and
(3) Referral of the project to the Department for appropriate enforcement action if the person engaged in the land disturbing activity
fails to address the items contained in the written construction review report. Verbal notice shall be made to the Department within 2
working days and written notice shall be provided to the Department within 5 working days.
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(e) If the Secretary or the Secretary’s designee determines that a certified construction reviewer is not providing adequate site control
or is not referring problem situations to the Department, the Secretary or the Secretary’s designee may suspend or revoke the certification
of the construction reviewer.
(f) In any situation where a certified construction reviewer’s approval is being suspended or revoked, an opportunity for hearing before
the Secretary or the Secretary’s designee shall be provided. During any suspension or revocation, the certified construction reviewer shall
not be allowed to provide construction reviews pursuant to this chapter.
(g) The failure to assign a departmental approved certified construction reviewer to a land disturbing activity, when required by the
approved plan, will place that project in violation of this chapter and result in appropriate administrative and/or enforcement action.
(67 Del. Laws, c. 234, § 1; 70 Del. Laws, c. 186, § 1.)
§ 4014. Training of responsible personnel.
After July 1, 1991, any applicant seeking sediment and stormwater plan approval shall certify to the appropriate approval agency
that all responsible personnel involved in the construction project will have a certificate of attendance at a departmentally sponsored or
approved training course for the control of sediment and stormwater before initiation of any land disturbing activity. The certificate of
attendance shall be valid until the Department notifies the individual or announces in local newspapers that recertification is required
due to a change in course content.
(67 Del. Laws, c. 234, § 1.)
§ 4015. Penalties.
(a) Any person who violates any rule, regulation, order, condition imposed in an approved plan or other provision of this chapter shall
be fined not less than $200 or more than $2,000 for each offense. Each day that the violation continues shall constitute a separate offense.
The Justice of the Peace Courts shall have jurisdiction of offenses brought under this subsection.
(b) Any person who intentionally, knowingly, and after written notice to comply, violates or refuses to comply with any notice issued
pursuant to § 4012 of this title shall be fined not less than $500 or more than $10,000 for each offense. Each day the violation continues
shall constitute a separate offense. The Superior Court shall have jurisdiction of offenses brought under this subsection.
(61 Del. Laws, c. 522, § 1; 66 Del. Laws, c. 196, §§ 1, 2; 67 Del. Laws, c. 234, § 1; 69 Del. Laws, c. 349, § 1.)
§ 4016. Injunctions.
The Court of Chancery shall have jurisdiction to enjoin violations of this chapter. The appropriate program element authority, the
Department or any aggrieved person who suffers damage or is likely to suffer damage because of a violation or threatened violation of
this chapter may apply to the Chancery Court for injunctive relief. Among any other appropriate forms of relief, the Chancery Court may
direct the violator to restore the affected land or water impacted area to its original condition.
(61 Del. Laws, c. 522, § 1; 67 Del. Laws, c. 234, § 1.)
§ 4017. Redevelopment criteria.
(81 Del. Laws, c. 316, § 5; expired by operation of 81 Del. Laws, c. 316, § 7, eff. Feb. 10, 2019.)
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Part IV
Agricultural and Soil Conservation; Drainage and Reclamation of Lowlands
Chapter 41
Drainage of Lands and Management of Waters; Tax Ditches
Subchapter I
General Provisions
§ 4101. Declaration of policy.
It is declared that the drainage and the prevention of flooding of lands and the management of water for resource conservation shall be
considered a public benefit and conducive to the public health, safety and welfare.
(48 Del. Laws, c. 151, § 1; 7 Del. C. 1953, § 4101; 50 Del. Laws, c. 276, § 1; 70 Del. Laws, c. 246, §§ 2, 3.)
§ 4102. Purpose.
It is the purpose of this chapter in carrying out the policy declared in § 4101 of this title to provide a basis for a uniform system
for establishing, financing, administering, maintaining and dissolving tax ditch organizations in the State under the supervision of the
Department of Natural Resources and Environmental Control to the end that the conservation and management of the soil, water, wildlife,
forest and other resources of the State may be accomplished in a workable and practicable manner.
(48 Del. Laws, c. 151, § 2; 7 Del. C. 1953, § 4102; 57 Del. Laws, c. 739, § 180; 70 Del. Laws, c. 246, §§ 4, 5.)
§ 4103. Definitions.
For the purposes of this chapter, unless otherwise specifically defined, or another intention clearly appears, or the context requires a
different meaning:
(1) “Benefits” include, but shall not be limited to, the privilege of participating in a cooperative system for the management of water
from one’s lands by a tax ditch formed under this chapter.
(2) “Drainage” means water management, by drainage areas or watersheds, to safely remove or control both excess, surface flood
waters and damaging, excess subsurface waters.
(3) “Landowner” or “owner” means that person or group of persons in whom the entire title to a certain tract of land is vested.
(4) “Taxable” means any person entitled to vote under this chapter.
(5) “Flooding” means the occurrence of damaging, excess surface water. The occurrence of surface water for beneficial uses is a
component of water management, not flooding.
(6) “Water management” means the removal, storage, or application of water by intentional means, including but not limited to
management methods using drains, channels, culverts, structures for water level control and dams.
(48 Del. Laws, c. 151, § 3; 7 Del. C. 1953, § 4103; 50 Del. Laws, c. 276, § 2; 70 Del. Laws, c. 246, §§ 6, 7.)
§ 4104. Application; effect on previously established drainage organizations and on earlier drainage laws.
(a) Any landowner or owners in an area served by a drainage organization established prior to June 1, 1951, under any other law of
this State, or any landowner or owners who desire their lands to be drained or protected from flooding may, at any time, petition for the
establishment of a tax ditch under this chapter.
(b) In those cases, when an existing drainage organization becomes a tax ditch under this chapter, the present assets or liabilities of
said existing drainage organization may be transferred to the tax ditch provided that such assets or liabilities are declared by the tax ditch
commissioners in their report, and that the transfer of such assets or liabilities is approved by the affected taxables either by a referendum
held by board of ditch commissioners pursuant to § 4132 of this title or by a signed statement pursuant to § 4135 of this title.
(c) Article 2, Chapter 65, and Article 1, Chapter 105, of the 1935 Revised Code of Delaware shall remain in effect and shall apply
to drainage organizations established thereunder prior to June 1, 1951, unless such drainage organizations reform or reorganize under
this chapter.
(48 Del. Laws, c. 151, §§ 7, 69, 75; 7 Del. C. 1953, § 4104; 50 Del. Laws, c. 276, § 3; 56 Del. Laws, c. 312, § 1.)
§ 4105. Limitation of easement or right-of-way.
(a) Once a tax ditch has been constructed, any right-of-way for the construction and major maintenance of the tax ditch — provided
such has been created pursuant to this chapter — and including tax ditches where rights-of-way were previously defined as “adequate”
or “sufficient” — unless previously modified by a change to the court order, shall have the maximum extent defined as follows:
(1) Tax ditches with a designed 0#-4# bottom width — 80# from top of bank and to include the cross-section of the ditch; or the
existing construction right-of-way, whichever is less.
(2) Tax ditches with a designed 4#-10# bottom width — 120# from top of bank and to include the cross-section of the ditch; or the
existing construction right-of-way whichever is less.
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(3) Tax ditches with a designed bottom width greater than 10# — existing construction and major maintenance right-of-way as filed
in the original court order.
(b) No change to the minor maintenance right-of-way is necessary provided such has been otherwise created pursuant to this chapter.
(c) The reference point for all tax ditch rights-of-way that are established or modified as a result of 76 Del. Laws, c. 389 or future
actions is the nearest top of ditch bank. The “top of ditch bank” is the point where the side slope of the ditch intersects the existing grade
of the adjacent land. For ditch sections that have been piped, the point of references shall be the centerline of the pipe.
(d) An additional deferment of the timeline for the recordation process for certifying rights-of-way as set forth in amendments contained
in § 4195(b) of this title and as extended by SCR No. 27 of the 144th General Assembly shall be granted until January 13, 2009.
(e) For purposes of this chapter:
(1) “Construction and major maintenance right-of-way” means the right-of-way created by this chapter for the purpose of
construction/reconstruction of the tax ditch, to allow for the piling of debris and to allow spoil to be leveled as part of the construction
operations and major maintenance activities including “dipping out” and/or disposal of spoils.
(2) “Minor maintenance right-of-way” means the right-of-way created under this chapter for the purpose of maintenance activities that
include but are not limited to inspection, mowing, use of specialized equipment for vegetative management (i.e. herbicide applications),
removal of debris and obstructions, pipe repairs and installation of crossings for access.
(76 Del. Laws, c. 389, § 1.)
Subchapter II
Boards of Ditch Commissioners
§ 4106. Ditch commissioners; membership; qualifications; term; vacancies; secretary.
(a) A board of ditch commissioners, consisting of 3 ditch commissioners and 3 alternate ditch commissioners, is continued for each
county within the State. Upon the expiration of the terms of office of the present and all future commissioners, the resident judge for
each county shall appoint ditch commissioners and alternate ditch commissioners, who may be selected from lists of 10 or more names
submitted by the supervisors of the soil conservation district within the county. Each ditch commissioner and alternate ditch commissioner
shall be a resident landowner of the county from which the commissioner is appointed, shall have some knowledge of water management
including flood and drainage problems and their impacts to natural resources and shall be familiar with farming and with land values
within such county.
(b) The term of office for each ditch commissioner shall be 3 years. The term of office for the alternate ditch commissioners shall be
1 year each. A ditch commissioner or alternate ditch commissioner may be reappointed to succeed himself or herself. All appointments
shall be effective as of August 1 of each year.
(c) In the case of the death, resignation or removal from office of a ditch commissioner, the vacancy shall be filled by the appointment
of 1 of the alternate ditch commissioners to serve for the remainder of the term of the vacating ditch commissioner.
(d) Except in the case of death or removal from office, a ditch commissioner shall hold office until his or her successor has been
appointed.
(e) The Division of Watershed Stewardship shall serve as secretary, without voting authority, for each of the county boards of ditch
commissioners.
(48 Del. Laws, c. 151, § 4; 7 Del. C. 1953, § 4106; 50 Del. Laws, c. 276, § 4; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 186, § 1;
70 Del. Laws, c. 246, § 8; 76 Del. Laws, c. 213, § 1; 77 Del. Laws, c. 430, § 6.)
§ 4107. Disqualification of members.
In those cases where any member of the board of ditch commissioners owns lands within the boundary of a proposed tax ditch, such
member shall not serve as a member of said board on that particular tax ditch and an alternate ditch commissioner shall serve in the
member’s stead.
(48 Del. Laws, c. 151, § 4; 7 Del. C. 1953, § 4107; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 246, § 9.)
§ 4108. Chairperson; quorum; voting.
A chairperson of each board of ditch commissioners shall be designated by the members thereof and such designation may be changed
from time to time. A majority of the ditch commissioners of each board shall constitute a quorum and the concurrence of a majority in
any matter within their duties shall be required for its determination.
(48 Del. Laws, c. 151, § 4; 7 Del. C. 1953, § 4108; 70 Del. Laws, c. 186, § 1.)
§ 4109. Compensation; expenses and reimbursement.
(a) The ditch commissioners shall be entitled to receive reimbursement for their expenses necessarily incurred in the discharge of their
duty at a per diem rate set by the Secretary of the Department of Natural Resources and Environmental Control, not to exceed $50, plus
mileage reimbursement at the rate established in § 7102 of Title 29, as amended. The ditch commissioners shall be reimbursed for said
expenses by the landowners petitioning to have a tax ditch formed. Such reimbursement shall be made from funds deposited in advance
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by the petitioners at the time the petition is filed or from the first moneys collected by the tax ditch after it is organized, the manner to
be decided by the county soil conservation district pursuant to § 4120 of this title.
(b) Ditch commissioners will be reimbursed for their expenses incurred in the discharge of their duties in connection with the formation
of a tax ditch after the ditch order has become effective, or at such time as the Superior Court issues an order denying the petition for
the formation of the tax ditch.
(48 Del. Laws, c. 151, §§ 4, 5; 7 Del. C. 1953, § 4109; 50 Del. Laws, c. 276, § 5; 57 Del. Laws, c. 739, § 181; 64 Del. Laws, c.
136, § 1.)
§ 4110. Employment of qualified personnel.
The Department of Natural Resources and Environmental Control shall employ personnel, including a Registered Professional
Engineer, authorized to practice engineering in this State under Chapter 28 of Title 24, who is qualified by experience in hydraulic
engineering, drainage and soil work, to assist it in carrying out its functions under this chapter and to perform related duties within the
Division of Watershed Stewardship.
(48 Del. Laws, c. 151, § 6; 7 Del. C. 1953, § 4110; 58 Del. Laws, c. 312, § 2; 57 Del. Laws, c. 739, § 182; 59 Del. Laws, c. 560, §
1; 77 Del. Laws, c. 430, § 7.)
§ 4111. Employment of personnel; purchase of supplies and equipment.
The Department may employ such personnel and obtain by purchase or otherwise such supplies and equipment as are necessary to
carry out this chapter.
(48 Del. Laws, c. 151, § 6; 7 Del. C. 1953, § 4111.)
Subchapter III
Formation of Tax Ditch; Procedure
§ 4116. Nature of a tax ditch.
A tax ditch organized under this chapter shall constitute a governmental subdivision of this State and a public body, corporate and
politic, exercising public powers.
(48 Del. Laws, c. 151, § 43; 7 Del. C. 1953, § 4116.)
§ 4117. Petition for formation of a tax ditch; assistance of Division of Watershed Stewardship.
(a) Whenever 1 or more of the owners of any lands desire their lands to be drained or protected from flooding, or the waters of their
lands to be managed they may present a petition for the formation of a tax ditch to the Superior Court of the county in which all or the
major portion of the area involved is located, through the board of supervisors of the soil conservation district of the county.
(b) The services of the Division of Watershed Stewardship shall be available to assist the landowners in the preparation of such petitions.
(48 Del. Laws, c. 151, § 7; 7 Del. C. 1953, § 4117; 50 Del. Laws, c. 276, § 8; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, §§
10, 11; 77 Del. Laws, c. 430, §§ 8, 9.)
§ 4118. Form of petition.
A petition for the formation of a tax ditch shall be in the following form:
PETITION
To the Superior Court of .................................... County through the Board of Supervisors of the Soil Conservation District of
.................................... County:
Whereas
the
undersigned
(is)
(are)
the
owner(s)
of
certain
lands
subject
to
overflow
or
in need of water management situated in .................................... Hundred(s) .................................... County
(Counties),
and
the
State
of
Delaware,
said
lands
being
more
particularly
described
as
follows
.........................................................................................................................................................................................................................
.........................................................................................................................................................................................................................
.........................................................................................................................................................................................................................
......................................................................................................................................................................................................................... ;
and
Whereas the draining and the prevention of flooding of said lands, and/or the management of water for resource conservation on said
lands would be a public benefit and conducive to the public health, safety and welfare; and
Whereas the undersigned desire that a Tax Ditch be formed under the provisions of Chapter 41, Title 7 of the Delaware Code, said
Tax Ditch to be known as.................................... Tax Ditch;
The undersigned therefore request the Soil Conservation District of .................................... County to make the investigation required
under the above cited chapter and, if the findings thereon be favorable, to file this petition in the office of the Prothonotary of
.................................... County so that the Superior Court of said County may take the necessary steps required by law to issue an order
establishing .................................... Ditch.
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Dated this .........date day of ....................................month , .........year at ...................................., Delaware.
(Space for Signatures)
(48 Del. Laws, c. 151, § 8; 7 Del. C. 1953, § 4118; 70 Del. Laws, c. 246, §§ 12, 13.)
§ 4119. Name of tax ditch.
The name of any tax ditch established under this chapter shall not be the same as the name of any existing drainage organization within
the same county.
(48 Del. Laws, c. 151, § 71; 7 Del. C. 1953, § 4119.)
§ 4120. Deposit upon filing of petitions for tax ditch.
(a) The county soil conservation district shall require that a specified sum be deposited with it by the petitioners before the petition
is filed in the office of the prothonotary to cover filing fees, mailing and other necessary expenses. The amount of the deposit shall be
determined by the county soil conservation district and may vary according to the size of the area involved, the complexity of the problem,
and other pertinent factors. If the original deposit is not sufficient, the district shall require an additional deposit as soon as the need for
such becomes evident.
(b) The district shall keep an account of such deposits and shall return any unused portion thereof to the petitioners upon completion
of final action by the Superior Court. When such action is favorable, the petitioners shall be repaid, out of the first moneys collected by
the tax ditch, all expenses of formation charged to them by the county soil conservation district.
(c) From the funds deposited with it pursuant to this section, the county soil conservation district shall pay filing fees, mailing and other
necessary expenses incurred in the investigation and formation of a tax ditch.
(48 Del. Laws, c. 151, §§ 14, 15; 7 Del. C. 1953, § 4120.)
§ 4121. Duties of county soil conservation district upon receipt of petition.
The board of supervisors of the county soil conservation district shall, upon receipt of a petition for the formation of a tax ditch,
determine whether the petition is in the form set forth in § 4118 of this title and has been properly executed. If the petition is in the
prescribed form and has been properly executed, the board shall immediately notify the Division of Watershed Stewardship, and by virtue
of such action shall have made available to it the services of the Department of Natural Resources and Environmental Control to assist
it with the investigation concerning the possible formation of the tax ditch.
(48 Del. Laws, c. 151, § 9; 7 Del. C. 1953, § 4121; 57 Del. Laws, c. 739, § 183; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, §
14; 77 Del. Laws, c. 430, § 10.)
§ 4122. Investigation; hearing.
The county soil conservation district shall cause an investigation to be made by the Division of Watershed Stewardship in order to
ascertain the general location and approximate watershed boundaries of the proposed tax ditch, and to obtain other information to assist
the district to determine whether the formation of the tax ditch is practicable and feasible and is in the interest of the public health, safety
and welfare. The district may hold such hearings as it deems necessary in order to assist it in making such determination.
(48 Del. Laws, c. 151, § 10; 7 Del. C. 1953, § 4122; 50 Del. Laws, c. 276, § 7; 59 Del. Laws, c. 560, § 2; 77 Del. Laws, c. 430, §
11.)
§ 4123. Report of investigation by Division of Watershed Stewardship.
The Division of Watershed Stewardship shall make a formal report of its investigation to the county soil conservation district together
with its recommendations.
(48 Del. Laws, c. 151, § 11; 7 Del. C. 1953, § 4123; 57 Del. Laws, c. 739, § 184; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246,
§ 15; 77 Del. Laws, c. 430, § 12.)
§ 4124. Determination by county soil conservation district.
The county soil conservation district shall, upon the basis of the information obtained under this chapter, determine whether the
formation of the proposed tax ditch is practicable and feasible and is in the interest of the public health, safety and welfare.
(48 Del. Laws, c. 151, § 12; 7 Del. C. 1953, § 4124.)
§ 4125. Filing of petition and report; action by district when formation is found to be not practicable and
feasible.
(a) If the county soil conservation district determines that the formation of the proposed tax ditch is practicable, feasible and in the
interest of the public health, safety and welfare, it shall file the petition in the office of the prothonotary of the county in which all or the
major portion of the land involved is located, together with the report of the Division of Watershed Stewardship and such other relevant
information as the district deems appropriate.
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Title 7 - Conservation
(b) Where the county soil conservation district determines that the formation of the proposed tax ditch is not practicable and feasible
or is not in the interest of the public health, safety and welfare, it shall so notify all of the petitioners involved, and a new petition for the
formation of that tax ditch may not be refiled for a period of 1 year from the date of said notice.
(48 Del. Laws, c. 151, § 13; 7 Del. C. 1953, § 4125; 50 Del. Laws, c. 276, § 8; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, §
16; 77 Del. Laws, c. 430, § 13.)
§ 4126. Determinations to be made by board of ditch commissioners.
(a) Upon the filing of a petition for the formation of a tax ditch in the office of the prothonotary of a county, the board of ditch
commissioners of such county, acting as officers of the Court, shall, at the direction of the resident judge thereof, go upon the lands
that may be included in the tax ditch and determine the approximate sizes, grades and locations of the required drainage ditches; the
approximate sizes, locations and specifications for required dikes, levees, structures and other necessary works of improvement; the
location of public roads and railroads, and public utility installations within the proposed tax ditch; the exterior boundaries of the tax
ditch; the approximate boundaries of each farm, parcel or piece of land within the tax ditch; the location and extent of needed permanent
rights-of-way; the estimated total cost of all required tax ditch works of improvement; the damages to lands, if any, which will result
from the construction of the tax ditch; and an equitable basis, considering relative benefits to each landowner, for the distribution of costs.
The board of ditch commissioners shall obtain from the county soil conservation district such assistance and information as is needed
in making the required determinations.
(b) When all of the landowners involved, with the approval of the board of ditch commissioners and with the cooperation of the county
soil conservation district and the Division of Watershed Stewardship:
(1) Jointly make the determinations regularly assigned to the board of ditch commissioners in subsection (a) of this section and in
§ 4127 of this title, and
(2) Prepare the assessment list required by § 4129 of this title, and
(3) Supply any additional data necessary to complete the report of the board of ditch commissioners required by § 4130 of this
title, and
(4) Personally sign a statement to the effect that they approve the formation of the tax ditch,
the board of ditch commissioners shall prepare their report from said determinations and such data without going upon the lands
involved.
(48 Del. Laws, c. 151, § 16; 7 Del. C. 1953, § 4126; 50 Del. Laws, c. 276, § 9; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, §§
17-22; 77 Del. Laws, c. 430, § 14.)
§ 4127. Existing works of improvement; compensation for work done thereon.
The board of ditch commissioners may deem adequate any works of improvement already constructed, including but not limited to
ditches and structures and may incorporate these in the tax ditch, and may allow a fair compensation to landowners for work previously
done by them on such works of improvement.
(48 Del. Laws, c. 151, § 17; 7 Del. C. 1953, § 4127; 50 Del. Laws, c. 276, § 10.)
§ 4128. Factors in determination of cost.
(a) In determining the total cost of the proposed tax ditch works of improvement, the board of ditch commissioners shall include, among
other things, the estimated costs of construction, the estimated cost of forming the tax ditch, the amount of damages, if any, awarded
to landowners and the amount of compensation, if any, to be paid to landowners for works of improvement previously constructed and
deemed adequate under § 4127 of this title.
(b) The estimated cost of interest which will develop if the tax ditch borrows money to finance construction and the estimated cost of
annual maintenance shall not be included in the total cost of the proposed tax ditch works of improvement.
(48 Del. Laws, c. 151, § 18; 7 Del. C. 1953, § 4128; 50 Del. Laws, c. 276, § 11.)
§ 4129. Assessment list.
After determining the basis for distribution of costs among the landowners, the board of ditch commissioners shall prepare an assessment
list which shall show the names of all owners of property, wholly or partly within the watershed of the proposed tax ditch, together with
addresses and descriptions of those properties as currently recorded by the board of assessment of the county. The list shall also show,
for each property, that portion, expressed in acres, which is within the watershed or drainage area. The cost-sharing or assessment base,
expressed in dollars, for each of said properties shall also be shown. The sum of the individual property assessment bases shall be termed
the total assessment base which in all cases shall be equal to or greater than the total cost of the proposed tax ditch works of improvement.
The assessment list, as modified by the ditch order, described in § 4137 of this title, shall be the basis for all taxes levied under this chapter.
(48 Del. Laws, c. 151, § 19; 7 Del. C. 1953, § 4129; 50 Del. Laws, c. 276, § 12.)
§ 4130. Proposed report of board of ditch commissioners.
The board of ditch commissioners, with the assistance of the Division of Watershed Stewardship, shall prepare a proposed report
containing the following determinations and information:
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Title 7 - Conservation
(1) The name of the proposed tax ditch;
(2) The hundred and the county in which the proposed tax ditch is situated;
(3) A map, drawing or aerial photograph, to a suitable scale, on which the following is shown:
a. The main ditch, all prongs, all subprongs and other divisions of the proposed tax ditch;
b. All dikes, levees, structures and other works of improvement of the proposed tax ditch;
c. All railroads, public highways and all public utility installations near the points where such reach, cross or pass close to any
part of the proposed tax ditch;
d. The exterior boundaries of the tax ditch;
e. The approximate boundaries of each farm, parcel or piece of land within the proposed tax ditch, together with the identification
of each farm, parcel or piece of land by name or code number;
f. The location and extent of rights-of-way, including overhead and underground clearances where necessary, assigned to the tax
ditch for construction and maintenance operations;
(4) The estimated total cost of the proposed tax ditch works of improvement;
(5) The assessment list required under § 4129 of this title;
(6) Factors which influenced the determination of relative benefits and the basis for distribution of costs among the landowners,
and other pertinent information;
(7) The names of all landowners awarded damages or to be paid compensation for works of improvement previously constructed
and deemed adequate under § 4127 of this title; and the amount of damages or compensation to which each such landowner is entitled;
and factors which influenced the determination of the damages awarded and compensation to be paid;
(8) The number of ditch managers, not less than 2 nor more than 5, required to conduct the business affairs of the proposed tax ditch;
(9) In the case of a previously existent drainage organization, the amount of present assets to be turned over to, or liabilities to be
assumed by the proposed tax ditch.
(48 Del. Laws, c. 151, § 20; 7 Del. C. 1953, § 4130; 50 Del. Laws, c. 276, § 13; 56 Del. Laws, c. 312, § 3; 59 Del. Laws, c. 560, §
2; 70 Del. Laws, c. 246, §§ 23, 24; 77 Del. Laws, c. 430, § 15.)
§ 4131. Notice of hearing on establishment of tax ditch.
Upon completion of the proposed report required by § 4130 of this title, the board of ditch commissioners shall notify all owners of
property, wholly or partly within the watershed of the proposed tax ditch, of a hearing concerning the establishment of said tax ditch to be
held in the county in which all or the major portion of the lands involved is located. The notice shall be mailed by 1st-class mail at least
20 days prior to the hearing and shall designate the time and place thereof. It shall also state that the purpose of the hearing is to consider
the formation of a tax ditch which may affect the lands of the person notified and to hold a referendum among the affected landowners
concerning the establishment of a tax ditch. In addition, the notice shall state the place where a copy of the above proposed report of the
board of ditch commissioners will be open to inspection for at least 5 days, excepting Saturday and Sunday, prior to the hearing date.
(48 Del. Laws, c. 151, § 21; 7 Del. C. 1953, § 4131; 50 Del. Laws, c. 276, § 14; 70 Del. Laws, c. 246, §§ 25-27.)
§ 4132. Hearing; adoption of proposed report; right to adjourn hearing; referendum.
At the time and place designated in the notice, the board of ditch commissioners, with the assistance of the Division of Watershed
Stewardship, shall hold a hearing at which all persons interested shall have an opportunity to express their opinions on and objections to
the proposed report required by § 4130 of this title. The board of ditch commissioners shall make such changes in the proposed report
as it deems warranted from evidence presented at the hearing, and shall then adopt the report and declare it final. If, however, as a result
of the hearing, the board of ditch commissioners deems it advisable, it may adjourn the hearing in order to enable it to reexamine and
modify its report in the light of the opinions and objections expressed at the hearing. The hearing may be adjourned to a fixed future date
with no additional notification required or adjourned to an unspecified future date for which the notification and display procedures of
§ 4131 of this title will again apply. At the conclusion of the hearing, a referendum shall be held under the supervision of the board of
ditch commissioners and the Division of Watershed Stewardship. The referendum shall afford each landowner the opportunity to cast
a ballot for or against the formation of the proposed tax ditch in accordance with the final report of the board of ditch commissioners.
Each landowner shall be entitled to the same number of votes as the number of dollars shown as the assessment base for the lands by
the board of ditch commissioners.
(48 Del. Laws, c. 151, § 22; 7 Del. C. 1953, § 4132; 50 Del. Laws, c. 276, § 15; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 186, §
1; 70 Del. Laws, c. 246, §§ 28, 29; 77 Del. Laws, c. 430, § 16.)
§ 4133. Contents of report; filing.
After holding the hearing and supervising the referendum provided for in § 4132 of this title, the board of ditch commissioners shall
file the original and 2 copies of its final report in the office of the prothonotary of the county in which all or the major portion of the lands
involved is located, and shall attach to the report a certificate stating the results of the referendum and the place where and the time when
it was held. The board of ditch commissioners shall also prepare and attach to the report a statement showing:
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Title 7 - Conservation
(1) Whether the board of ditch commissioners has fully discharged the duties assigned to it as prescribed by law;
(2) Whether the proposed tax ditch is practicable and feasible and in the interest of the public health, safety and welfare;
(3) Whether in laying out the tax ditch, the lands of every landowner assessed are directly or indirectly affected by some part of
the proposed tax ditch;
(4) Any objections made to the report of the board of ditch commissioners which did not warrant further changes in the report and
the reasons therefor;
(5) Whether, in the opinion of the board of ditch commissioners, the benefits that will result from the construction of the proposed
tax ditch will exceed the total cost;
(6) Any other recommendations or information which the board of ditch commissioners deems pertinent.
(48 Del. Laws, c. 151, § 23; 7 Del. C. 1953, § 4133; 50 Del. Laws, c. 276, § 16; 70 Del. Laws, c. 246, §§ 30, 31.)
§ 4134. Signing of commissioners’ report; dissent.
The report of the board of ditch commissioners, including the statement required by § 4133 of this title, shall be signed by all of the
commissioners concurring therein. Any ditch commissioner who dissents therefrom shall attach to the report the reasons for his or her
dissent.
(48 Del. Laws, c. 151, § 24; 7 Del. C. 1953, § 4134; 70 Del. Laws, c. 186, § 1.)
§ 4135. Waiving of commissioners’ hearing and referendum.
In those cases, when all of the landowners involved, indicate by signed statement that they are familiar with the report of the board
of ditch commissioners and that they favor the formation of the tax ditch, the board of ditch commissioners shall not hold a hearing and
referendum, pursuant to § 4132 of this title, nor shall they give notice thereof as pursuant to § 4131 of this title, but they shall prepare
the statement required and file their report, pursuant to § 4133 of this title, without a certificate of referendum.
(48 Del. Laws, c. 151, § 25; 7 Del. C. 1953, § 4135; 50 Del. Laws, c. 276, § 17.)
§ 4136. Action by Superior Court; notice of final hearing.
(a) After the report and statement of the board of ditch commissioners have been filed in the office of the prothonotary of the appropriate
county, they shall be carefully reviewed by the Superior Court of the county.
(b) If the report of a majority of the board of ditch commissioners is opposed to the formation of the proposed tax ditch, or if the
certificate stating the results of the referendum shows that a majority of all votes cast were opposed to the formation of the tax ditch,
or if such report shows that the total cost of the construction of the tax ditch will exceed the benefits that will result therefrom, then the
Superior Court shall issue an order denying the petition for the formation of the tax ditch.
(c) If the report of a majority of the board of ditch commissioners is in favor of the formation of the proposed tax ditch, and if the
statement attached to said report indicates that the total benefits that will result from the tax ditch will exceed the total cost of the proposed
tax ditch works of improvement, and if the certificate stating the results of the referendum shows that a majority of all votes cast were
in favor of the formation of the tax ditch, then the Superior Court shall set a date for the final hearing on the petition and shall direct the
prothonotary to give notice of the hearing by publication in a newspaper of general circulation in each county in which any of the lands
involved are located and by posting a written or printed notice on the door of the courthouse of each such county, such publication and
posting to be made not less than 15 days before the time of the final hearing. Notice of the final hearing shall also be given to landowners
involved by first-class mail. This notice shall be mailed not less than 15 days before the time of the hearing. From the time the report
of the board of ditch commissioners is filed in the office of the prothonotary of the appropriate county it shall be open to inspection by
any interested person.
(d) In those cases, when all of the landowners involved have indicated by signed statement that they are familiar with the report of
the board of ditch commissioners and that they favor the formation of the tax ditch, and if the report of a majority of the board of ditch
commissioners is in favor of the formation of the proposed tax ditch, and if the statement attached to the report indicates that the total
benefits that will result from the tax ditch will exceed the total cost of the proposed tax ditch works of improvement, then the Superior
Court shall not hold a final hearing, nor give notice thereof, but shall confirm the report and issue an order granting the petition for the
formation of the proposed tax ditch, the order to become effective immediately, and to be known as the ditch order. The confirmed report
shall be considered a part of the ditch order.
(48 Del. Laws, c. 151, § 26; 7 Del. C. 1953, § 4136; 50 Del. Laws, c. 276, § 18; 67 Del. Laws, c. 188, § 1; 70 Del. Laws, c. 246,
§§ 32, 33.)
§ 4137. Final hearing; ditch order.
At least 10 days prior to the date set for the final hearing before the Superior Court, any interested person may file an objection in writing
to the report of the board of ditch commissioners. The Superior Court shall review the report of the board of ditch commissioners and
any objections filed thereto, and make, in consultation with the ditch commissioners, such changes as are necessary to render substantial
and equal justice to all interested persons. Damages to any 1 landowner shall not be grounds for denying the petition, but may be used to
adjust the assessment base of that property or the damages to be paid to that landowner and shall be considered as part of the total cost
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Title 7 - Conservation
of the proposed tax ditch. If the conditions set forth in § 4136(c) of this title, still exist after the objections have been considered and
the necessary changes have been made in the report of the board of ditch commissioners, the Superior Court shall confirm the report and
issue an order granting the petition for the formation of the proposed tax ditch, said order to be known as the ditch order. The confirmed
report shall be considered a part of said ditch order. If no objections are presented at the final hearing before the Superior Court the ditch
order shall become effective when issued.
(48 Del. Laws, c. 151, § 27; 7 Del. C. 1953, § 4137; 50 Del. Laws, c. 276, § 19; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 246,
§§ 34-36.)
§ 4138. Right to jury trial; procedure.
When objections to the report of the board of ditch commissioners are filed in writing with the Superior Court and when the party filing
feels aggrieved by the report of the board of ditch commissioners, such party may apply to the Superior Court, within 30 days after the
issuance of the ditch order, for an order in the nature of a writ of inquiry to ascertain by the verdict of a jury at the bar of the Court, the
full and true value of the relative benefits, damages, injury or loss which will result to the lands of such person from the construction
of the proposed tax ditch.
(48 Del. Laws, c. 151, § 28; 7 Del. C. 1953, § 4138; 50 Del. Laws, c. 276, § 20.)
§ 4139. Defense of contested ditch orders; Attorney General.
If the ditch order is contested, the board of ditch commissioners shall defend the order, and in conducting its defense, the board shall
be represented by the Attorney General of the State.
(48 Del. Laws, c. 151, § 29; 7 Del. C. 1953, § 4139.)
§ 4140. Notice of final action on ditch order.
When the ditch order has become effective because no objection has been filed, or because the right to appeal therefrom has expired,
the prothonotary shall notify the Division of Watershed Stewardship and the appropriate county soil conservation district accordingly,
and shall forward 2 certified copies of the ditch order to the Division of Watershed Stewardship.
(48 Del. Laws, c. 151, § 30; 7 Del. C. 1953, § 4140; 50 Del. Laws, c. 276, § 21; 59 Del. Laws, c. 560, § 2; 77 Del. Laws, c. 430, §
17.)
§ 4141. Permanent court record.
The ditch order, together with any amendment thereto, shall be a permanent court record and shall be kept in the office of the
prothonotary of the county wherein it was issued and copies of the ditch order shall be recorded in a Tax Ditch Volume in the office of the
recorder of deeds in the county where the tax ditch is located. A filing fee for all new tax ditch orders shall be charged by the office of the
recorder of deeds after the effective date of this legislation. It shall not be removed from that office except in cases where an emergency
so requires. The prothonotary shall make such docket entries of proceedings as directed by rule of court.
(48 Del. Laws, c. 151, § 31; 7 Del. C. 1953, § 4141; 50 Del. Laws, c. 276, § 22; 74 Del. Laws, c. 386, § 1.)
§ 4142. Employment of private engineer by landowners.
If the board of supervisors of the county soil conservation district in which all or the major portion of the area involved is located
determines that the formation of a tax ditch is practicable and feasible and is in the interest of the public health, safety and welfare, the
interested landowner or owners may at any time thereafter employ at their expense engineering personnel of their selection to assist the
Division of Watershed Stewardship.
(48 Del. Laws, c. 151, § 32; 7 Del. C. 1953, § 4142; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, § 37; 77 Del. Laws, c. 430, §
18.)
§ 4143. Exclusive procedure for determination of damages.
The determination, assessment or award of damages or other compensation to be paid to any landowner in connection with the formation
of a tax ditch shall be made under and in accordance with this chapter. Chapter 61 of Title 10 shall not be applicable to proceedings to
organize a tax ditch under this chapter.
(7 Del. C. 1953, § 4143.)
Subchapter IV
Powers of Tax Ditch
§ 4151. Meeting to organize tax ditch; notice.
(a) The Division of Watershed Stewardship, at its earliest convenience after the ditch order becomes final, shall call a meeting of the
taxables for the purpose of organizing the proposed tax ditch, including the election of ditch managers, as called for in the ditch order,
and a secretary-treasurer; the formulation of a plan for constructing, financing, administering and maintaining the proposed tax ditch; and
for levying taxes to cover the costs of construction and maintenance.
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Title 7 - Conservation
(b) The Division of Watershed Stewardship shall send a notice to every taxable, by first-class mail to that landowner’s address as
currently recorded by the board of assessment of the county, at least 10 days prior to that meeting, stating the time, place and object
of the meeting.
(c) A notice of the meeting shall be sent to the chairperson of the board of supervisors of the county soil conservation district.
(48 Del. Laws, c. 151, § 33; 7 Del. C. 1953, § 4151; 50 Del. Laws, c. 276, § 23; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 186, §
1; 77 Del. Laws, c. 430, § 19.)
§ 4152. Distribution of ditch order and this chapter; filing of assessment list.
(a) At the organization meeting of the tax ditch, the Division of Watershed Stewardship shall deliver to the managers, when elected, a
certified copy of the ditch order and a copy of this chapter, together with all effective amendments thereto.
(b) The Division of Watershed Stewardship shall deliver a copy of the assessment list prepared under § 4129 of this title, as modified
by the ditch order, to the board of assessment of the county, making such changes in the names of the owners thereon as are warranted
by transfers, to new owners, of lands assessed.
(48 Del. Laws, c. 151, § 34; 7 Del. C. 1953, § 4152; 50 Del. Laws, c. 276, § 24; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, §
38; 77 Del. Laws, c. 430, § 20.)
§ 4153. Representation at meeting.
In addition to the Division of Watershed Stewardship, the county soil conservation district may be represented at the organization
meeting by 1 member of the board of district supervisors.
(48 Del. Laws, c. 151, § 35; 7 Del. C. 1953, § 4153; 59 Del. Laws, c. 560, § 2; 77 Del. Laws, c. 430, § 21.)
§ 4154. Voting rights.
At all meetings, each landowner shall be entitled to the same number of votes as the number of dollars assessed against the land of
such owner in the ditch order. In the event that any lands are held by tenants in common or joint tenants, each such tenant in common
or joint tenant shall be entitled to the same number of votes as his or her fractional share of the total number of dollars assessed against
said lands. In the case of lands held by a husband and wife as tenants by the entirety, either the husband or wife may vote all the dollars
assessed against their lands.
(48 Del. Laws, c. 151, § 36; 7 Del. C. 1953, § 4154; 70 Del. Laws, c. 186, § 1.)
§ 4155. Voting by proxy.
Any person entitled to vote pursuant to § 4154 of this title may authorize another landowner within the tax ditch to cast his or her votes
in that person’s stead by executing a proxy. The proxy shall be signed, dated and notarized.
(48 Del. Laws, c. 151, § 37; 7 Del. C. 1953, § 4155; 70 Del. Laws, c. 186, § 1.)
§ 4156. Election of ditch managers and a secretary-treasurer; terms of office; vacancies.
(a) At the first meeting the taxables shall elect from their group the number of ditch managers specified in the ditch order, and a
secretary-treasurer.
(b) The term of office of each ditch manager and of the secretary-treasurer shall be 1 year. If the ditch managers and secretary-treasurer
first elected are elected prior to July 1 of any year, the time elapsing between said election and the first annual January meeting provided
for in § 4159 of this title shall be deemed to constitute the first year of their terms of office. However, if the ditch managers and secretarytreasurer first elected are elected on or after July 1 of any year, their terms of office shall not be deemed to begin until the said first annual
January meeting, although they shall assume the duties and responsibilities of their respective offices immediately upon election.
(c) In the event that any tax ditch officer dies, resigns, ceases to be 1 of the taxables, or is removed from office, the remaining ditch
officers shall within 60 days, appoint a taxable to serve the remainder of the term of such officer. However, except in the case of death
or removal from office, each tax ditch officer shall continue to serve until a successor has been appointed.
(48 Del. Laws, c. 151, § 38; 7 Del. C. 1953, § 4156; 50 Del. Laws, c. 276, § 25; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 246, §
39.)
§ 4157. Chairperson of ditch managers; duties.
Immediately after they are elected, the ditch managers shall designate 1 of their number to serve as chairperson. The chairperson shall
call meetings of the ditch managers and taxables and shall preside thereat.
(48 Del. Laws, c. 151, § 39; 7 Del. C. 1953, § 4157; 70 Del. Laws, c. 186, § 1.)
§ 4158. Compensation of ditch managers and secretary-treasurer.
Tax ditch managers and the secretary-treasurer may be entitled to receive compensation at a rate to be determined by a majority of the
eligible votes of those taxables present at the first meeting provided for in § 4159 of this title. The rate of compensation for the tax ditch
managers and secretary-treasurer may be revised only at a regular annual meeting of the taxables.
(48 Del. Laws, c. 151, § 40; 7 Del. C. 1953, § 4158.)
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§ 4159. Annual and other meetings of taxables; notice of meetings.
At the first meeting the taxables shall set a date for the regular annual meeting. This date may not be changed except by action of a
majority of the taxables present at a regular annual meeting. The chairperson of the ditch managers may call special meetings at such
times as the circumstances warrant. At least 10 days’ notice of all meetings shall be given by the ditch managers using either of the
following methods:
(1) By publishing in a newspaper of general circulation in the area of a tax ditch, and by posting at 5 conspicuous places in or near
the area of said tax ditch, a notice stating the time, place and object of the meeting; or
(2) By mailing to each affected taxable at the address currently shown on the records of the board of assessment of the county, a
notice stating the time, place and object of the meeting.
(48 Del. Laws, c. 151, § 41; 7 Del. C. 1953, § 4159; 50 Del. Laws, c. 276, § 26; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 246, §
40.)
§ 4160. Meetings of ditch managers; quorum.
The ditch managers shall meet as often as necessary to properly conduct the business of the tax ditch. At such meetings a majority
of the ditch managers shall constitute a quorum and the concurrence of a majority in any matter within their duties shall be required for
its determination.
(48 Del. Laws, c. 151, § 42; 7 Del. C. 1953, § 4160.)
§ 4161. Powers of a tax ditch.
A tax ditch organized under this chapter, being a governmental subdivision of this State and a public body, corporate and politic may
exercise public powers and, in addition to such other powers as usually pertain to corporations, may:
(1) Levy taxes;
(2) Sue and be sued in the name of the tax ditch, and suits against the tax ditch shall be governed by subchapter I of Chapter 40
of Title 10;
(3) Make and execute contracts and other instruments necessary or convenient to the exercise of its powers;
(4) Borrow money for the purpose of constructing, maintaining and administering the tax ditch;
(5) Acquire, by purchase, exchange, lease, gift, grant, bequest, devise or otherwise, any property, real or personal, or any rights or
interests therein;
(6) Cooperate, or enter into agreements with the state or federal governments or any agency or subdivision thereof;
(7) Exercise the power of eminent domain, in accordance with the condemnation procedure prescribed in Chapter 61 of Title 10,
with respect to lands outside the boundaries of the tax ditch which are needed for right-of-way or outlet purposes;
(8) Accept contributions from landowners assessed in the tax ditch, and disburse such funds for the purposes of performing certain
operations, such as, but not limited to, additional clearing or the installation of structures, which operations are authorized in the tax
ditch order, but which are not included in the original estimated construction requirements and costs;
(9) Call upon the Division of Watershed Stewardship for assistance with administrative and operations problems of the tax ditch;
(10) After initial construction has been completed, and with the prior approval of the Department of Natural Resources and
Environmental Control, and with written consent of more than one half of the landowners involved, owning more than 1/2 of the
drainage area assessed:
a. Transfer to the Department of Natural Resources and Environmental Control:
1. The responsibility for certain specified responsibilities for maintenance of the tax ditch;
2. All rights-of-way assigned by court order to the tax ditch for construction and maintenance operations;
3. Any and all powers possessed by the tax ditch, or the managers thereof, related to obstruction of, or damage to said tax ditch,
or to the addition of territory to a tax ditch, or to the alteration of a tax ditch.
b. Discontinue annual and other meetings of taxables and of tax ditch managers, except that when maintenance has been transferred
to the Department of Natural Resources and Environmental Control, that body shall call a meeting of the taxables upon a written
request from at least 3 of such taxables.
c. Discontinue tax ditch managers and secretary-treasurer as long as no meetings are being held.
(48 Del. Laws, c. 151, § 43; 7 Del. C. 1953, § 4161; 50 Del. Laws, c. 276, § 27; 55 Del. Laws, c. 461; 57 Del. Laws, c. 739, §§
185-187; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, § 41; 77 Del. Laws, c. 430, § 22.)
§ 4162. Duties of ditch managers.
In addition to the duties specified in other sections of this chapter, the ditch managers shall:
(1) Determine from the taxables the desired program of operations;
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(2) Determine the amount of taxes to be levied to carry out such desired program;
(3) Secure specific authority for borrowing money, in the name of the tax ditch, by a majority vote of the taxables present at a duly
called meeting of the tax ditch;
(4) At the first meeting, or within 30 days thereafter, prepare, with the assistance of the Division of Watershed Stewardship, a
comprehensive plan for carrying out the desired program, which plan shall include provisions for levying taxes and for financing the
program;
(5) Execute warrants, with the assistance of the Division of Watershed Stewardship, to the receiver of taxes and county treasurer
authorizing and requesting the collection of all tax ditch taxes other than maintenance taxes;
(6) Execute a warrant, with the assistance of the Division of Watershed Stewardship, to the receiver of taxes and county treasurer
authorizing and requesting the annual collection of a tax in the amount of 2 percent of the total assessment base, or in the amount of 2
percent of the total benefits for tax ditches previously formed under the original provisions of this chapter, said warrant to be marked
plainly as being for annual maintenance taxes, and to be issued simultaneously with the issuance of the first warrant for the collection
of taxes for construction purposes;
(7) Make a report, at the annual meeting, of their activities during the year preceding such annual meeting;
(8) Provide for construction work on the tax ditch;
(9) Provide for adequate maintenance of the tax ditch.
(48 Del. Laws, c. 151, § 47; 7 Del. C. 1953, § 4162; 50 Del. Laws, c. 276, § 28; 59 Del. Laws, c. 560, § 2; 77 Del. Laws, c. 430, §
23.)
§ 4163. Duties of secretary-treasurer of tax ditch.
In addition to any powers and duties set forth elsewhere in this chapter, the secretary-treasurer of the tax ditch shall:
(1) Keep accurate minutes of all meetings of the ditch managers and taxables, and such minutes shall be a part of the permanent
records of the tax ditch;
(2) Prepare a complete financial statement at the end of each calendar year, including therein an itemized report of all funds received,
all funds expended, all funds due from taxes not yet collected and all sums due and owing by the tax ditch, and this statement and
the records of the secretary-treasurer shall be audited annually by 2 qualified persons and shall become part of the permanent records
of the tax ditch;
(3) Provide for the safekeeping of any funds of the tax ditch which are placed in his or her custody;
(4) Attend all meetings of the ditch managers and taxables.
(48 Del. Laws, c. 151, § 52; 7 Del. C. 1953, § 4163; 70 Del. Laws, c. 186, § 1.)
§ 4164. Bond of secretary-treasurer.
The secretary-treasurer shall, before assuming the duties of his or her office and within 15 days after his or her election, furnish a
bond in favor of the tax ditch, in an amount satisfactory to the ditch managers and with a surety to be approved by the ditch managers,
conditioned for the faithful performance of his or her duties and for the payment to his or her successor of all tax ditch funds. If any
person elected secretary-treasurer neglects or refuses to give bond as aforesaid within the time specified, his or her right to hold such
office shall be terminated, and the ditch managers shall call a special meeting of the taxables to elect a new secretary-treasurer who shall
give bond and security as provided in this section.
(48 Del. Laws, c. 151, § 53; 7 Del. C. 1953, § 4164; 58 Del. Laws, c. 240, § 4; 70 Del. Laws, c. 186, § 1.)
§ 4165. Failure of ditch officer to perform duties; remedy; removal.
If any officer of a tax ditch fails to perform the duties imposed on him or her by this chapter, any taxable may petition the Superior Court
from which the ditch order was issued and request an order directing said officer to carry out his or her duties, and upon his or her failure
to comply with the order within the time stated therein, the taxable may further petition the Superior Court for the removal of the officer.
(48 Del. Laws, c. 151, § 63; 7 Del. C. 1953, § 4165; 70 Del. Laws, c. 186, § 1.)
§ 4166. Signatures on instruments issued by tax ditch.
Any note, bond, warrant or other instrument issued by a tax ditch pursuant to this chapter shall be signed by the chairperson of the ditch
managers and the chairperson’s signature shall be attested by the secretary-treasurer of the tax ditch.
(48 Del. Laws, c. 151, § 44; 7 Del. C. 1953, § 4166; 70 Del. Laws, c. 186, § 1.)
§ 4167. Liability of tax ditch officers.
No ditch manager or other officer of a tax ditch shall be held personally liable for the obligations of the tax ditch. The tax ditch shall
indemnify the ditch managers or other officers in accordance with § 4003 of Title 10 for all tort claims.
(48 Del. Laws, c. 151, § 45; 7 Del. C. 1953, § 4167; 70 Del. Laws, c. 246, § 42.)
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§ 4168. Limitation on borrowing power of tax ditch.
A tax ditch may borrow money pursuant to this chapter with the consent of a majority of the votes cast at a meeting duly called under
§ 4159 of this title. No tax ditch shall borrow money in excess of 90 percent of the total assessment base established by the ditch order.
(48 Del. Laws, c. 151, § 46; 7 Del. C. 1953, § 4168; 50 Del. Laws, c. 276, § 29.)
Subchapter V
Taxation
§ 4171. Duties of board of assessment; assessment book; assistance by Division of Watershed Stewardship.
(a) For tax ditches formed under this chapter, the board of assessment of the county shall transcribe the information shown on the
assessment list delivered to it pursuant to § 4162(4) of this title into a special assessment book and it shall keep the same as part of the
permanent records of its office. It shall also change the name of the owner shown therein from time to time as such changes are warranted
by transfers of the lands assessed, to new owners.
(b) The Division of Watershed Stewardship shall assist the various boards of assessment of all 3 counties, upon request, to make such
changes in their special ditch assessment books as are warranted by transfers of properties listed therein.
(48 Del. Laws, c. 151, § 48; 7 Del. C. 1953, § 4171; 49 Del. Laws, c. 220, § 2; 50 Del. Laws, c. 276, § 30; 59 Del. Laws, c. 560, §
2; 77 Del. Laws, c. 430, §§ 24, 25.)
§ 4172. Method of determining tax.
In determining the amount of any taxes to be levied against each owner’s lands under this chapter, the ditch managers shall determine
the same in accordance with the ratio which exists between the assessment base for each property and the total assessment base for the
tax ditch.
(48 Del. Laws, c. 151, § 49; 7 Del. C. 1953, § 4172; 50 Del. Laws, c. 276, § 31.)
§ 4173. Warrants by ditch companies for collection of taxes.
Each ditch company organized under the laws in effect prior to June 1, 1951, in each year after its assessment has been made and its
tax rate fixed, shall execute its warrant with a duplicate of the assessment list to the receiver of taxes and county treasurer, which warrant
shall be delivered not later than May 1 in each year.
(43 Del. Laws, c. 219, § 1; 7 Del. C. 1953, § 4173.)
§ 4174. Warrants by tax ditches for collection of taxes.
(a) For tax ditches formed under this chapter, warrants authorizing and requesting the collection of ditch taxes executed to the receiver
of taxes and county treasurer shall be signed by the chairpersons of the ditch managers and the secretary-treasurer or the tax ditch and
shall contain the following information:
(1) The name of tax ditch;
(2) The location by county and hundred;
(3) The date said warrant is delivered to the receiver of taxes and county treasurer;
(4) The date that tax ditch assessment list was filed with county assessor;
(5) Total of that assessment list;
(6) Tax rate based on that assessment list;
(7) Total tax to be collected;
(8) Method of payment, if by installments;
(9) Statement as to whether the warrant is for construction, special or maintenance taxes;
(10) Amount and terms of loans, if any, secured by said tax warrant;
(11) Person to be paid directly by receiver of taxes and county treasurer and amounts to be paid to him or her.
(b) When a tax ditch includes 2 or more counties, separate tax warrants shall be executed by the ditch managers to each receiver of
taxes and county treasurer thereof.
(48 Del. Laws, c. 151, § 50; 7 Del. C. 1953, § 4174; 70 Del. Laws, c. 186, § 1.)
§ 4175. Collection and disposition of taxes levied by ditch company.
All taxes levied by ditch companies organized under the laws in effect prior to June 1, 1951, shall be collected by the receiver of taxes
and county treasurer in the county wherein the district of such ditch company is situated, within a period of 90 days from the date of the
warrant referred to in § 4173 of this title, in the same manner as provided by law for the collection of taxes for other purposes. The money
collected, with respect to each ditch company, shall be deposited by the receiver of taxes and county treasurer in a bank in 1 or more
accounts as the receiver of taxes and county treasurer shall determine. But records shall be kept by the receiver of taxes and county treasurer
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shall keep records which list separately each ditch company and each deposit made by each ditch company. The moneys so collected and
deposited shall be withdrawn from the accounts only upon warrants drawn by the proper officer of the respective ditch companies.
(43 Del. Laws, c. 219, § 1; 7 Del. C. 1953, § 4175; 50 Del. Laws, c. 78, § 1; 59 Del. Laws, c. 39, §§ 1, 2; 70 Del. Laws, c. 186, §
1.)
§ 4176. Duties of receiver of taxes and county treasurer.
All taxes levied by any tax ditch organized under this chapter shall be collected by the receiver of taxes and county treasurer in the
county or counties wherein the lands taxed are located. The receiver of taxes and county treasurer shall accept tax warrants in proper form
from such tax ditches, shall refer to tax ditch assessment lists on file with the board of assessment of the county and shall collect such
taxes warranted annually, pursuant to the terms of the warrants in the same manner as provided by law for the collection of county taxes,
and money so collected shall be paid during the months of November, January and July to the receiver designated in the tax warrants.
Warrants received not later than May 1 of each year, by the receiver of taxes and county treasurer, shall be processed to be collected during
that same year. Tax warrants marked plainly as being for annual maintenance taxes shall be filed by the receiver of taxes and county
treasurer in a special binder and the same shall be maintained as part of the permanent records of that office. Such annual maintenance
taxes shall be deemed to have been levied by the tax ditch as of April 30 of each year, except the year in which the original or a revised
maintenance tax warrant is delivered to the receiver of taxes and county treasurer, in which case the levy shall be effective from and after
the date of the delivery of such warrant. Annual maintenance taxes, once warranted, shall be collected yearly by the receiver of taxes
and county treasurer, except that an annual maintenance tax shall not be collected during any tax year when another warrant, whether
for construction taxes or special taxes, for an identical portion of the tax ditch is in effect and is being collected. The receiver of taxes
and county treasurer shall accept original tax warrants for annual maintenance taxes signed by the chairperson of the ditch managers and
attested by the secretary-treasurer of the tax ditch. Such warrants may not be withdrawn and may not be revised except with the consent
of the county soil conservation district, pursuant to § 4181 of this title.
(48 Del. Laws, c. 151, § 51; 7 Del. C. 1953, § 4176; 50 Del. Laws, c. 276, § 32; 65 Del. Laws, c. 307, § 1; 70 Del. Laws, c. 186, §
1.)
§ 4177. Installment payment of taxes for construction; lien; amount of first installment.
(a) The ditch managers may order the tax levied for the cost of construction to be paid in annual installments and shall designate the
method of payment on the tax warrant when it is forwarded to the appropriate receiver of taxes and county treasurer.
(b) In the event that the ditch managers order the tax levied for the cost of construction to be paid in annual installments, the entire
tax shall, nevertheless, constitute a present lien on the lands against which it is levied, and the amount of the first installment shall not
be less than the sum of all payments for damages and compensation as set forth in the ditch order, plus the costs and expenses incurred
in the formation of a tax ditch.
(48 Del. Laws, c. 151, § 54; 7 Del. C. 1953, § 4177.)
§ 4178. Taxes as security for loans; notation on tax warrant.
A tax ditch may secure the payment of any loan made to it by entering on the tax warrant provided for in § 4162(5) of this title, a
statement setting forth the fact that the taxes shown on the tax warrants have been pledged to secure the payment of a certain designated
loan and, if a loan is so secured, by reciting the amount and terms of the loan and from whom it is being obtained, and by directing the
receiver of taxes and county treasurer to pay any such taxes collected by him or her directly to the creditor until the loan is repaid. Such
warrant may not be withdrawn and may not be altered or cancelled without the written consent of the creditor until the loan is repaid.
(48 Del. Laws, c. 151, § 55; 7 Del. C. 1953, § 4178; 70 Del. Laws, c. 186, § 1.)
§ 4179. Special tax.
A special tax to raise the funds necessary to carry into effect any of the provisions of this chapter and not otherwise provided for herein,
may be levied by the ditch managers in the same manner as provided in this chapter for levying taxes for original construction.
(48 Del. Laws, c. 151, § 56; 7 Del. C. 1953, § 4179.)
§ 4180. Lien of taxes; enforcement.
All taxes levied under this chapter shall constitute a first and paramount lien against the lands to which they apply from and after the
date of such levy, subject only to the lien for state and county taxes, which lien may be enforced by sale or otherwise in the same manner
as the lien for the county taxes. All such taxes shall be collected by the appropriate receiver of taxes and county treasurer as provided in §
4176 of this title. Penalties for failure to make payment by the due date shall apply to taxes levied under this chapter in the same manner
and amount as in the case of county taxes, and funds so received shall be credited to the tax ditch.
(48 Del. Laws, c. 151, § 57; 7 Del. C. 1953, § 4180.)
§ 4181. Adjustment of maintenance tax.
When in the opinion of the ditch managers the amount of the tax levied to defray the cost of annual maintenance is either insufficient
or excessive, they may raise or lower the same for the current and succeeding years with the consent of the county soil conservation
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district, acting upon the advice of the Division of Watershed Stewardship. If the annual maintenance tax is so raised or lowered, it shall
be apportioned to each landowner in accordance with § 4172 of this title and a new maintenance tax warrant shall be delivered to the
appropriate receiver of taxes and county treasurer.
(48 Del. Laws, c. 151, § 58; 7 Del. C. 1953, § 4181; 59 Del. Laws, c. 560, § 2; 77 Del. Laws, c. 430, § 26.)
§ 4182. Limitation on liability of landowner for taxes.
No landowner shall be liable in any manner for any taxes levied by the tax ditch against the lands of another owner.
(48 Del. Laws, c. 151, § 59; 7 Del. C. 1953, § 4182.)
Subchapter VI
General Provisions
§ 4185. Payment of damages and compensation.
The damages and compensation awarded by the terms of the ditch order shall be paid to the person entitled thereto out of the first funds
available to the tax ditch under this chapter, and no construction shall commence until said damages and compensation have been paid.
(48 Del. Laws, c. 151, § 60; 7 Del. C. 1953, § 4185.)
§ 4186. Obstruction of or damage to tax ditch; civil and criminal liability.
(a) If any person wilfully or negligently obstructs or damages any part of a tax ditch, and upon request of the ditch managers fails to
remove the obstruction or to repair the damage at the person’s own expense, the ditch managers shall see that the obstruction is removed
and that the damage is repaired.
(b) The person so obstructing or damaging the tax ditch shall be liable for all loss or injury caused thereby and the expenses or charges
for remedying the same, and said loss or injury, expenses or charges may be sued for and recovered by the ditch managers in the name
of the tax ditch before any justice of the peace in the county where the obstruction or damage occurred.
(c) Whoever wilfully obstructs or damages any part of a tax ditch, as specified in subsection (a) of this section, or wilfully interferes
in any way with tax ditch operations as provided for in this chapter or in a ditch order made pursuant to this chapter, shall be fined not
more than $100.
(d) As of July 17, 2008, if a permanent structure, whether existing or approved for construction, including but not limited to any
residential, agricultural, or commercial structure, or any associated permanent accessory structure or septic system, driveway or parking
area associated therewith still are found to be within a tax ditch right-of-way; that structure is exempt from the provisions of this chapter
as a “legal nonconforming use”.
(48 Del. Laws, c. 151, § 61; 17 Del. C. 1953, § 4186; 50 Del. Laws, c. 276, § 33; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 246,
§ 43; 76 Del. Laws, c. 389, § 2.)
§ 4187. Right of entry upon lands.
The Division of Watershed Stewardship, engineering personnel hired under § 4142 of this title, the soil conservation district
supervisors, the Department of Natural Resources and Environmental Control, the ditch commissioners, the ditch managers, or any of their
employees or agents, may enter upon any lands within the tax ditch at all reasonable times in order to carry out the purpose of this chapter.
(48 Del. Laws, c. 151, § 62; 7 Del. C. 1953, § 4187; 57 Del. Laws, c. 739, § 188; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246,
§ 44; 77 Del. Laws, c. 430, § 27.)
§ 4188. Addition of territory to a tax ditch.
(a) Any landowner who desires his or her lands to be included within a tax ditch formed under this chapter, may present a petition for
an amendment to the existing ditch order to include such lands, to the Superior Court of the county which issued said ditch order through
the board of supervisors of the soil conservation district of the same county, and the procedure shall be substantially the same as method
in § 4189(3) of this title, for amending a ditch order, except that, in addition to establishing an assessment base which will be the basis for
all future ditch taxes, for each parcel of land being included within the tax ditch, a special assessment, based generally on the approximate
total amount of taxes that would have been levied against such parcels of land since the tax ditch was formed, had such lands been within
the original boundaries of said tax ditch and other considerations, shall be determined by the board of ditch commissioners and payment
thereof prescribed in their report to the Superior Court.
(b) In those cases when any landowner, directly or indirectly, alters lands to utilize any part of a tax ditch to benefit land which is not
within the original boundary of the tax ditch as established in the ditch order and which was not assessed as part of the tax ditch, or which
was not assessed to the prong or part of the tax ditch utilized by the alteration, and when the landowner or owners have not secured an
amendment to the ditch order in accordance with the procedure set forth in subsection (a) of this section, it shall be assumed that such
landowner accepts the liability for payment of a special assessment and costs incurred in processing an amendment to the ditch order,
in addition to all future ditch taxes, and it shall be the duty of the ditch managers in the name of the tax ditch to present a petition for
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an amendment to the existing ditch order to include such lands, in the same manner as set forth in subsection (a) of this section and the
procedure shall be the same as outlined in that subsection, except that estimated costs of processing the amendment shall be added to the
special assessment which will be established by the board of ditch commissioners.
(c) In those cases when any landowner desires his or her lands to be included within a tax ditch and when agreement can be reached
on the part of the landowner and the tax ditch managers as to the special assessment to be paid and the assessment base to be established
as the basis for all future ditch taxes, then method (1) or method (2) of § 4189 of this title may be used to add the additional territory
to the tax ditch.
(48 Del. Laws, c. 151, § 64; 7 Del. C. 1953, § 4188; 50 Del. Laws, c. 276, § 34; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 246, §
45.)
§ 4189. Alteration of tax ditches; amendments to ditch orders.
If it becomes necessary to change any part of a tax ditch, such changes may be made in one of the following ways:
(1) The desired or required changes, justified in writing and including any necessary maps or drawings, shall be presented by the tax
ditch managers to the taxables at a regularly called tax ditch meeting. If a majority vote of the taxables present favors the changes, and
providing that such changes do not include any relocations of works of improvement, or of the construction area, or of the maintenance
right-of-way on the lands of any owner without the owner’s consent, the tax ditch managers shall present 3 copies of their request for
the changes, including the written justification and any necessary maps or drawings, and also including the results of the referendum,
to the Division of Watershed Stewardship for its approval. Should that approval be given, the change shall be effective at once, and
the Division of Watershed Stewardship shall file the original request with supporting papers in the office of the prothonotary of the
proper county, and return 1 copy to the tax ditch. Whenever changes are made which affect the tax ditch assessment list, the Division
of Watershed Stewardship shall notify the board of assessment of the proper county of such changes.
(2) a. When all landowners affected consent to changes of any part of a tax ditch, including the assessment list, they shall enter into
a written agreement to make such changes and present 3 copies of such agreement, together with any necessary maps or drawings,
to the Division of Watershed Stewardship for its approval. Should that approval be given, the change shall be effective at once, and
the Division of Watershed Stewardship shall file the original request with supporting papers in the office of the prothonotary of the
proper county, and return 1 copy to the tax ditch. Whenever changes are made which affect the tax ditch assessment list, the Division
of Watershed Stewardship shall notify the board of assessment of the proper county of such changes.
b. The Division of Watershed Stewardship shall be responsible for assuring that any change to a court order to a tax ditch or rightof-way pursuant to this chapter shall be recorded in the prothonotary’s office. The landowner of any property upon which a change
to a court order has been made to any tax ditch or right-of-way pursuant to this chapter shall be responsible for assuring that such
change is filed with the recorder of deeds in the county or counties where the parcel subject to the right-of-way is located.
(3) Any landowner within the boundaries of a tax ditch, or the tax ditch managers in the name of said tax ditch, may, at any time,
petition for the amendments of the ditch order that created the tax ditch. Such petition shall list the changes that are desired and shall
be presented to the Superior Court that issued the tax ditch order through the board of supervisors of the soil conservation district
of the same county. That board of supervisors shall require and handle a deposit from the petitioners in accordance with § 4120 of
this title, so far as that section is applicable. As soon as the deposit is received, the board of supervisors shall file the petition in the
office of the prothonotary of the proper county without further investigation. Upon the filing of a petition for amendments to a ditch
order in the office of the prothonotary of a county, the board of ditch commissioners of such county, shall, at the direction of the
resident judge thereof, go upon the lands of the tax ditch watershed, if necessary, review the existing ditch order, consider the changes
requested and make determinations regarding these. The board of ditch commissioners shall obtain from the county soil conservation
district such assistance and information as may be required. The board of ditch commissioners, with the assistance of the Division
of Watershed Stewardship, shall prepare a special proposed report in the nature of 1 or more proposed amendments to the existing
ditch order, together with any maps or drawings deemed necessary. Upon completion of that report, they shall give notice, and hold
a hearing and referendum in accordance with §§ 4131 and 4132 of this title so far as these are applicable. After holding the hearing
and supervising the referendum, the board of ditch commissioners shall file the original and 2 copies of its report in the office of the
prothonotary of the county in which all the major portion of the tax ditch is located and shall attach to the report a certificate showing
the results of the referendum and the place where, and the time when, it was held. The board of ditch commissioners shall also prepare
and attach to the report a statement showing:
a. The board of ditch commissioners has fully discharged the duties assigned to it as prescribed by law.
b. Any objections made to the report of the board of ditch commissioners which did not warrant further changes in the report
and the reasons therefor.
c. Any other recommendations or information which the board of ditch commissioners deems advisable including their
determination as to whether the petitioners or the tax ditch are liable for the costs of this action.
Action by the Superior Court shall follow §§ 4136, 4137, 4138, 4139, 4140, 4141 of this title so far as these sections are applicable.
(48 Del. Laws, c. 151, § 65; 7 Del. C. 1953, § 4189; 50 Del. Laws, c. 276, § 35; 57 Del. Laws, c. 739, § 189; 59 Del. Laws, c. 560,
§ 2; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 246, §§ 46-50; 76 Del. Laws, c. 389, § 3; 77 Del. Laws, c. 430, § 28.)
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§ 4190. Bridges and culverts.
If any public road crossed by any part of a tax ditch will be benefited so that the public should construct and maintain a bridge or culvert
at such crossing, the board of ditch commissioners shall so state in their report and upon establishment of the tax ditch such bridges or
culverts shall be constructed and maintained at the public charge from funds provided for that purpose.
(48 Del. Laws, c. 151, § 66; 7 Del. C. 1953, § 4190.)
§ 4191. Ditches near highways.
The Department of Transportation shall maintain the highway drainage system insofar as is possible in such manner as to prevent silt
from such system from obstructing any part of a tax ditch. If silt enters from the highway system and obstructs a tax ditch the Department
of Transportation shall remove the same within a reasonable time after being given notice of such obstruction by the ditch managers.
(48 Del. Laws, c. 151, § 67; 7 Del. C. 1953, § 4191; 60 Del. Laws, c. 503, § 21.)
§ 4192. Dissolution of tax ditch.
After a duly called meeting of the taxables at which a majority of all eligible votes have been cast in favor of dissolving a tax ditch,
created under this chapter, the ditch managers shall prepare a petition requesting such dissolution to the Superior Court through the
appropriate county soil conservation district. If the tax ditch has operated for at least 10 years, and if said district is of the opinion that the
dissolution of such tax ditch is in the public interest, it shall file the petition therefor, together with the recommendations of said district
in the office of the prothonotary of the county in which the original ditch order was issued. After a petition for dissolution has been so
filed, the Superior Court shall issue an order dissolving the tax ditch. No such order of dissolution shall be issued unless and until all
obligations of the tax ditch have been paid in full and all commitments of the tax ditch have been fulfilled.
(48 Del. Laws, c. 151, § 68; 7 Del. C. 1953, § 4192.)
§ 4193. Ditches in Kent County; transfer by Department of Transportation to tax ditch.
If any landowners in Kent County establish a tax ditch under this chapter, the Department of Transportation shall transfer to the tax
ditch all its right, title and interest in and to any existing ditch or ditches, within the boundaries of the new tax ditch, which have previously
been transferred to the Department under § 28 of Chapter 105 of the 1935 Revised Code of Delaware, and the Department shall delegate
to the new tax ditch all its powers and duties in connection with the existing ditch or ditches.
(48 Del. Laws, c. 151, § 70; 7 Del. C. 1953, § 4193; 60 Del. Laws, c. 503, § 21.)
§ 4194. Appropriations to Department of Natural Resources and Environmental Control.
An appropriation to the Department of Natural Resources and Environmental Control for purposes of planning, designing and
constructing tax ditches/public group ditches shall be included in the annual appropriation bill (budget bill) of the General Assembly.
(48 Del. Laws, c. 151, § 74; 7 Del. C. 1953, § 4194; 57 Del. Laws, c. 739, § 190; 67 Del. Laws, c. 359, § 1.)
§ 4195. Notice of right-of-way, or assessment.
(a) The Department of Natural Resources and Environmental Control shall certify and file with the prothonotary of each county a list
of all parcels by county tax parcel numbers and all owners of said parcels of real property located in that county which are subject to any
portion of a right-of-way or assessment as part of a tax ditch created by this chapter. The list shall be in alphabetical order by owner.
The Department shall also certify and similarly file a list of any changes of parcel numbers subject to such right-of-way or assessment
annually. Additionally, the Department shall certify and similarly file a list of any addition or deletion of a parcel or parcels subject to a
right-of-way or assessment immediately upon making any such addition or deletion.
(b) No later than 180 days after complying with subsection (a) of this section the Department shall certify and file with the prothonotary
of each county a list of all parcels by county tax parcel numbers and all owners of said parcels listed in alphabetical order and designating
which parcels are subject to a right-of-way and assessment, and which parcels are subject only to an assessment.
(c) The certified list submitted pursuant to subsection (a) or (b) of this section shall be confirmed by order of the Resident Judge of
Superior Court for each county, which order shall:
(1) State the name of the tax ditch;
(2) State the owner’s name or names and that owner’s county tax parcel number for each parcel subject to the right-of-way and
assessment and each parcel subject to an assessment only; and
(3) Direct that the order be recorded in the Office of the Recorder of Deeds in and for that county.
(d) There shall be no charge or fee to file the list required by subsection (a) of this section.
(e) There shall be no charge or fee to record the order pursuant to this subsection.
(75 Del. Laws, c. 321, § 1.)
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Part IV
Agricultural and Soil Conservation; Drainage and Reclamation of Lowlands
Chapter 42
Dam Safety
§ 4201. Purpose.
It is the purpose of this chapter to provide for the proper design, construction, operation, maintenance and inspection of dams in the
interest of public health, safety, and welfare, in order to reduce the risk of failure of dams and to prevent injuries to persons, damage to
downstream property and loss of reservoir storage.
(74 Del. Laws, c. 392, § 1.)
§ 4202. Definitions.
The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them except where the context
clearly indicates a different meaning:
(1) “Dam” shall mean any artificial barrier, including appurtenant works, with the ability to impound or divert water, wastewater,
or liquid-borne materials.
(2) “Department” shall mean the Department of Natural Resources and Environmental Control.
(3) “Emergency action plan” shall mean a plan prepared by the dam owner and approved by the Department which identifies
emergency conditions at a dam and specifies preplanned actions to minimize loss of life and property damage in the event of a potential
dam failure.
(4) “High hazard potential dam” shall mean any dam whose failure or misoperation will cause probable loss of human life.
(5) “Low hazard potential dam” shall mean any dam whose failure or misoperation is unlikely to cause loss of human life but may
cause minor economic and/or environmental losses.
(6) “Maximum storage elevation” shall mean the elevation of the lowest point of the top of dam independent of low points caused
by partial failure or collapse.
(7) “Owner” shall include any of the following who own, control, operate, maintain, manage, or propose to construct, reconstruct,
enlarge, repair, alter, remove or abandon a dam or reservoir: the State and its departments, institutions, agencies and political
subdivisions; every municipal or quasi-municipal corporation; every public utility; every district; every person; the duly authorized
agents, lessees, or trustees of any of the foregoing; and receivers or trustees appointed by any court for any of the foregoing.
(8) “Person” shall mean any person, firm, association, organization, partnership, business trust, corporation or company.
(9) “Reservoir” shall mean any basin that contains or will contain impounded water, wastewater, or liquid-borne materials by virtue
of its having been impounded by a dam.
(10) “Secretary” shall mean the Secretary of the Department of Natural Resources and Environmental Control.
(11) “Significant hazard potential dam” shall mean any dam whose failure or misoperation will cause possible loss of human life,
economic loss, environmental damage, disruption of lifeline facilities, or can impact other concerns.
(12) “State” shall mean the State of Delaware.
(13) “Supervising engineer” shall mean the design engineer who is responsible for conducting dam construction quality assurance
inspections in order to certify the construction has been completed in accordance with the approved plans and specifications.
(74 Del. Laws, c. 392, § 1.)
§ 4203. Application.
(a) This chapter shall apply to any dam which is owned by the State or any county in the State, or any municipality or any quasigovernmental agency of the State that is 25 feet or more in height from the natural bed of the stream or watercourse measured at the
downstream toe of the barrier or from the lowest elevation of the outside limit of the barrier, or if it is not across a stream channel or
watercourse, measured at maximum water storage elevation; or any dam having an impounding capacity, at maximum storage elevation,
of 50 acre-feet or more; or any dam that is deemed by the Secretary to be a significant or high hazard potential structure due to its location
or other physical characteristics.
(b) This chapter shall not apply to any dam that is not in excess of 6 feet in height regardless of storage capacity, or any dam having
a storage capacity at maximum water storage elevation not greater than 15 acre-feet regardless of height, or any low hazard potential
dam constructed prior to the effective date of this legislation, unless deemed by the Secretary to be a significant or high hazard potential
structure due to its location or other physical characteristics.
(c) This chapter shall not apply to any private owner of a dam unless such owner executes a document with the Department requesting
such coverage.
(74 Del. Laws, c. 392, § 1.)
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§ 4204. Construction of dams.
(a) No owner shall begin the construction of any dam to which this chapter applies without written approval from the Department.
Owners intending to construct any dam to which this chapter applies shall file with the Department a preliminary application which shall
include a dam break analysis, the dam height, the maximum impounding capacity, purpose, location and determination of hazard class,
and other information required by the Department. If on the basis of this information it is the opinion of the Department that the proposed
dam is exempt from the provisions of this chapter, it shall notify the owner that no approval from the Department is required. If on the
basis of the submitted information it is the opinion of the Department that the proposed dam is not exempt, the Department shall notify
the owner that construction shall not be commenced until a full application has been filed by the owner and such application approved
in accordance with §§ 4206 and 4209 of this title. The Department shall require emergency action plans and operation and maintenance
plans for high or significant hazard potential dams, and may also require of owners so notified the filing of any additional information it
deems necessary, including, but not limited to, streamflow and rainfall data, maps, plans, and specifications. Every owner applying for
approval of a dam subject to the provisions of this chapter shall also file with the Department a Certificate from a qualified professional
engineer, licensed in the State. The Certificate should state that the engineer is qualified and responsible for the design of the dam; that the
design is safe and adequate; and that the engineer shall be responsible for construction quality assurance to certify that the construction
has been completed in accordance with the approved plans.
(b) The Department shall send a copy of each completed application to the Delaware Emergency Management Agency and other state,
federal and local agencies it considers appropriate for review and comment.
(c) Upon receipt of a full application in proper form, the Secretary shall give notice in the form of an advertisement in a newspaper of
general circulation in the county in which the activity is proposed and in a daily newspaper of general circulation throughout the State:
(1) The fact that the application has been received;
(2) A brief description of the nature of the application;
(3) The place at which a copy of the application may be inspected; and
(4) Procedures to request a public hearing.
The Secretary shall hold a public hearing on an application, if the Secretary receives a request from any party whose interests are
substantially affected by the proposed application, as determined by the Secretary, if such request is received within 21 calendar days
of the public notice. Such notice shall also be sent by mail to any person who has requested such notification from the Department and
provides a name and address.
(74 Del. Laws, c. 392, § 1; 70 Del. Laws, c. 186, § 1.)
§ 4205. Repair, alteration, or removal of dams.
(a) Before commencing the repair, alteration or removal of any dam to which this chapter applies, application shall be made by the owner
for written approval by the Department, except as otherwise provided by this chapter. The application shall state the name and address
of the owner, shall adequately detail the changes it proposes to affect, impacts or modifications to plans of operation and maintenance
and emergency action plans, and shall be accompanied by maps, plans, and specifications setting forth such details and dimensions as
the Department requires. The Department may waive the requirements of this section for the repair or alteration of a dam if the proposed
action is determined to be minor as defined by the Department by regulation. The application shall give such other information concerning
the dam and reservoir required by the Department, such information concerning the safety of any change as it may require, and shall state
the proposed time of commencement and completion of the work. When the Department determines an application has been completed it
may be referred by the Department for agency review and report, as provided by § 4204 of this title in the case of original construction.
The application for repair, alteration or removal of the dam shall be subject to the public notice requirements.
(b) Upon receipt of a full application in proper form, the Secretary shall give notice in the form of an advertisement in a newspaper of
general circulation in the county in which the activity is proposed and in a daily newspaper of general circulation throughout the State:
(1) The fact that the application has been received;
(2) A brief description of the nature of the application;
(3) The place at which a copy of the application may be inspected; and
(4) Procedures to request a public hearing.
The Secretary shall hold a public hearing on an application, if the Secretary receives a request from any party whose interests are
substantially affected by the proposed application, as determined by the Secretary, if such request is received within 21 calendar days
of the public notice. Such notice shall also be sent by mail to any person who has requested such notification from the Department and
provides a name and address.
(c) When repairs are necessary to safeguard life and property they may be started immediately, but the Department shall be notified as
soon as practical but no longer than 24 hours after such repairs have commenced. The owner shall be required to submit as-built plans
and certification from a professional engineer, licensed in Delaware, demonstrating that the repairs comply with this chapter.
(74 Del. Laws, c. 392, § 1; 70 Del. Laws, c. 186, § 1.)
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§ 4206. Actions by the Department upon applications.
(a) Public notice of application shall consist of an advertisement in a newspaper of general circulation in the county in which the activity
is proposed and in a daily newspaper of general circulation throughout the State to include the fact that the application has been received,
a brief description of the nature of the application and the place at which a copy of the application may be inspected:
(b) Following the receipt of requested comments the Department shall approve, disapprove, or approve subject to conditions necessary
to ensure safety all applications pursuant to this chapter.
(c) A defective application shall not be rejected but notice of the defects shall be sent to the owner. If the owner fails to file a perfected
application within 30 days of the date of the notice the original shall be canceled unless further time is allowed.
(d) If the Department disapproves an application, 1 copy shall be returned with a statement of its objections. If an application is
approved, the approval shall be attached thereto, and a copy returned. Approval shall be granted under terms, conditions, and limitations
which the Department deems necessary to safeguard life and property.
(e) Construction shall be commenced within 2 years after the date of approval of the application and completed within 5 years of
commencement of construction or the approval is void. The Department upon written application and good cause shown may extend the
time for commencing construction or for completing the construction. Notice by registered or certified mail shall be given the Department
at least 10 days before construction is commenced.
(74 Del. Laws, c. 392, § 1.)
§ 4207. Fees.
(a) The Department may establish an application fee not to exceed $500.
(b) Any fees collected under this chapter are hereby appropriated to the Department to carry out the purposes of this chapter. The
Secretary shall report through the annual budget process the receipt, proposed use and disbursement of these funds.
(74 Del. Laws, c. 392, § 1.)
§ 4208. Rules.
The Secretary shall develop and adopt regulations and standards in conjunction with a regulatory advisory committee, appointed by
the Secretary, which include public and private dam owners, as well as appropriate state and federal agencies, conservation districts, and
other governmental subdivisions of the State. Dam safety regulations and standards shall include but not be limited to definitions, permitby-rule, general requirements and prohibitions, application procedures, dam classification, design criteria, construction requirements,
operation and maintenance requirements and inspection requirements.
(74 Del. Laws, c. 392, § 1.)
§ 4209. Supervision by qualified engineers; reports and modifications during work.
(a) Any project for which the Department’s approval is required under §§ 4204, 4205 and 4206 of this title and any project undertaken
pursuant to an order of the Department issued pursuant to this chapter or § 4212 of this title shall be designed and the construction
supervised by a licensed professional engineer in the State with related experience in dam design and construction.
(b) During the construction, enlargement, repair, alteration, or removal of any dam to which this chapter applies, the Department
may require such progress reports from the supervising engineer responsible for design and construction quality assurance, as it deems
necessary.
(c) If, based on inspection reports, construction inspections or other information, the Department finds that the work is not in compliance
with the provisions of the approval and the approved plans and specifications, it shall give written notice to the person who received the
approval and to the person in charge of construction of the dam. The notice shall state the particulars in which compliance has not been
made, and shall order immediate compliance with the terms of approval, and the approved plans and specifications. The Department may
order that no further construction work be undertaken until such compliance has been effected and approved by the Department. A failure
to comply with the approval and the approved plans and specifications shall render the approval revocable unless compliance is made
after notice as provided in this chapter.
(74 Del. Laws, c. 392, § 1.)
§ 4210. Notice of completion; certification of final approval.
(a) Within 7 days of completion of construction, reconstruction, enlargement, repair, alteration or removal of any dam to which this
chapter applies, notice of completion shall be given to the Department. Within 60 days thereafter supplementary drawings or descriptive
matter showing or describing the dam as actually constructed in compliance with the approval and the approved plans and specifications
shall be filed with the Department in such detail as the Department may require.
(b) Upon completion of the project, the supervising engineers, having inspected the work during construction and upon finding that
the work has been done as required and that the dam is safe, shall file with the Department a certificate and as-built plans demonstrating
that the work has been completed in accordance with the approved design plans, specifications, and other requirements. After review
of the supervising engineer’s certificate and as-built plans, unless the Department has reason to believe that the dam is unsafe or is not
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in compliance with any applicable rule or law, the Department shall grant final approval of the work in accordance with the certificate,
subject to such terms as it deems necessary for the protection of life and property.
(c) Pending issuance of the Department’s final approval, the dam shall not be filled except on written consent of the Department, subject
to conditions it may impose.
(74 Del. Laws, c. 392, § 1.)
§ 4211. Operation and maintenance of dams.
The Department shall require that dam owners and operators develop, use and update as necessary an operation and maintenance plan
which provides guidance and instruction to personnel for the proper operation and maintenance of any reservoir or dam to which this
chapter applies to safeguard life and property. The operation and maintenance plan shall be subject to the approval of the Department and
may be reviewed, modified or amended by the Department as deemed necessary to safeguard life and property. The Secretary may adopt,
amend, modify or repeal standards for the maintenance and operation of dams as may be necessary for the purposes of this section. The
Department may vary the standards applicable to the various dams giving due consideration to the type and location of the structure, the
hazards to which it may be exposed, and the peril of life and property in the event of a failure or misoperation of the dam.
(74 Del. Laws, c. 392, § 1.)
§ 4212. Inspection of dams.
The Department shall require regular inspection of any dam to which this chapter applies to safeguard life and property. The Secretary
may adopt, amend, modify or repeal standards for the inspection of dams as may be necessary for the purposes of this section. The
Department may vary the standards applicable to the various dams giving due consideration to the type and location of the structure, the
hazards to which it may be exposed, and the peril of life and property in the event that a dam fails to perform its function. The Department
shall inform the Delaware Emergency Management Agency of any dam presenting a risk of peril of life and property in the event that
the dam fails.
(74 Del. Laws, c. 392, § 1.)
§ 4213. Appeals.
(a) Except as otherwise provided in this chapter, any action or determination by the Department under this chapter shall be subject to
appeal to the Environmental Appeals Board in accordance with the provisions of § 6008 of this title.
(b) Appeals of decisions by the Environmental Appeals Board shall be conducted pursuant to § 6009 of this title.
(74 Del. Laws, c. 392, § 1.)
§ 4214. Investigations by the Department.
The Department shall make investigations and assemble such data as it deems necessary for a proper review and study of the design
and construction of any dams, reservoirs and appurtenances to which this chapter applies, and for such purposes the Department or its
agents may enter upon private property. The Department may employ or make such agreements with geologists, engineers, or other expert
consultants and such assistants, as it deems necessary to carry out the provisions of this chapter.
(74 Del. Laws, c. 392, § 1.)
§ 4215. Liability for damages.
No action shall be brought against the State, the Department, or any agent of the Department or any employee of the State or the
Department for damages sustained through the partial or total failure of any dam, misoperation or its maintenance by reason of any
supervision or other action taken pursuant to or under this chapter. Nothing in this chapter shall relieve an owner or operator of a dam
from the legal duties, obligations and liabilities arising from such ownership and operation.
(74 Del. Laws, c. 392, § 1.)
§ 4216. Enforcement procedures.
(a) Any person who violates any rule, regulation, order, or condition imposed in an approved document or other provision of this
chapter shall be fined not less than $200 or more than $2000 for each offense. Each day that the violation continues shall constitute a
separate offense. The Justice of the Peace Courts shall have jurisdiction of offenses brought under this subsection.
(b) Any person who intentionally, knowingly, and after written notice to comply, violates any rule, regulation, order, or condition
imposed in an approved document or other provision of this chapter shall be fined not less than $500 or more than $10,000 for each
offense. Each day the violation continues shall constitute a separate offense. The Superior Court shall have jurisdiction over offenses
brought under this subsection.
(74 Del. Laws, c. 392, § 1.)
§ 4217. Rights of investigation, entry, access, inspection and protective action.
(a) The Department shall have the right to direct the conduct of such investigations as it may reasonably deem necessary to carry out its
duties prescribed in this chapter and the Department shall have the right to conduct such investigations, and for the purpose of inspections
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Title 7 - Conservation
the employees of the Department and agents of the Department have the right to enter at reasonable times on any property, public or
private, for the purpose of investigating the condition, construction or operation of any dam or associated equipment facility or property,
and to require written statements or the filing of reports under oath, with respect to pertinent questions relating to the construction or
operation of any dam. No person shall refuse entry or access to any authorized representative of the Department who requests entry for
purposes of inspection, and who presents appropriate credentials, nor shall any person obstruct, hamper or interfere with any representative
while in the process of carrying out that representative’s official duties.
(b) Notwithstanding any other provisions of this chapter, the Department, upon receipt of information that any dam may present an
imminent and substantial hazard to the public health, safety or welfare, may take such actions as it determines to be necessary to protect
the public health, safety or welfare. The Department may direct the owner or custodian of the dam to take such actions as are necessary
to prevent, eliminate or reduce the hazard. In the event the owner or custodian fails to take such actions, the Department shall have the
right to take all appropriate or necessary action including, but not limited to, breaching or draining. The Department may initiate legal
proceedings to recover the emergency costs from the dam owner.
(74 Del. Laws, c. 392, § 1; 70 Del. Laws, c. 186, § 1.)
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Title 7 - Conservation
Part IV
Agricultural and Soil Conservation; Drainage and Reclamation of Lowlands
Chapter 43
Dredging and Management of Lagoons
Subchapter I
General Provisions
§ 4301. Declaration of policy.
It is declared that the removal of accumulated sediment from artificially constructed lagoons and the management of such lagoons for
navigational improvement shall be considered a public benefit and conducive to the public health, safety and welfare.
(73 Del. Laws, c. 389, § 1.)
§ 4302. Purpose.
It is the purpose of this chapter in carrying out the policy declared in § 4301 of this title to provide a basis for a uniform system
for establishing, financing, administering, maintaining and dissolving lagoon organizations in the State under the supervision of the
Department of Natural Resources and Environment Control to the end that the improvement and management of these waterways may
be accomplished in a workable and practicable manner.
(73 Del. Laws, c. 389, § 1.)
§ 4303. Definitions.
For the purposes of this chapter, unless otherwise specifically defined, or another intention clearly appears, or the context requires a
different meaning:
(1) “Benefits” include, but shall not be limited to, the privilege of participating in a cooperative system for the management of water
and sediment from one’s lands by a tax lagoon formed under this chapter.
(2) “Dredging” means water and sediment management by lagoon areas to safely remove accumulated sediment.
(3) “Lagoon” means a manmade body of water constructed for the purpose of residential housing and mooring of recreational boats
and directly connected to tidal waters.
(4) “Landowner” or “owner” means that person or group of persons in whom the entire title to a certain tract of land is vested.
(5) “Sediment management” means the removal, storage or application of sediment or earth by intentional means, including but not
limited to the dredging thereof of subaqueous lands.
(6) “Taxable” means any person entitled to vote under this chapter.
(7) “Water management” means the improvement of water by intentional means for the purpose of navigation.
(73 Del. Laws, c. 389, § 1.)
Subchapter II
Boards of Lagoon Management Commissioners
§ 4304. Lagoon management commissioners; membership; qualifications; term; vacancies; secretary.
(a) A board of lagoon management commissioners consisting of 3 lagoon management commissioners and 3 alternate lagoon
management commissioners is continued for each county within the State. Upon the expiration of the terms of office of the present
and all future management commissioners, the resident judge for each county shall appoint lagoon management commissioners and
alternate lagoon management commissioners, who may be selected from lists of 10 or more names submitted by the Division of Watershed
Stewardship. Each lagoon management commissioner and alternate lagoon management commissioner shall be a resident landowner of the
county from which that lagoon management commissioner or alternate is appointed, shall have some knowledge of lagoon management,
such as sedimentation problems and its impact on navigation, and shall be familiar with land values within such county.
(b) The term of office for each lagoon management commissioner shall be 3 years. The term of office for the alternate lagoon
management commissioners shall be 1 year each. A lagoon management commissioner or alternate lagoon management commissioner
may be reappointed to successive terms of office. All appointments shall be effective as of August 1 of each year.
(c) In the case of the death, resignation or removal from office of a lagoon management commissioner, the vacancy shall be filled by
the appointment of one of the alternate lagoon management commissioners to serve for the remainder of the term of the vacating lagoon
management commissioner.
(d) Except in the case of death or removal from office, a lagoon management commissioner shall hold office until a successor has
been appointed.
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Title 7 - Conservation
(e) The Division of Watershed Stewardship shall serve as secretary, without voting authority, for each of the county boards of lagoon
management commissioners.
(73 Del. Laws, c. 389, § 1; 70 Del. Laws, c. 186, § 1; 76 Del. Laws, c. 213, § 2; 77 Del. Laws, c. 430, § 29.)
§ 4305. Disqualification of members.
In those cases where any member of the board of lagoon management commissioners owns lands within the boundary of a proposed
tax lagoon, such member shall not serve as a member of said board on that particular tax lagoon, and an alternate lagoon management
commissioner shall serve in the member’s stead.
(73 Del. Laws, c. 389, § 1.)
§ 4306. Chairperson; quorum; voting.
A chairperson of each board of lagoon management commissioners shall be designated by the members thereof and such designation
may be changed from time to time. A majority of the lagoon management commissioners of each board shall constitute a quorum and the
concurrence of a majority in any matter within their duties shall be required for its determination.
(73 Del. Laws, c. 389, § 1; 70 Del. Laws, c. 186, § 1.)
§ 4307. Compensation; expenses and reimbursement.
(a) The lagoon management commissioners shall be entitled to receive reimbursement for their expenses necessarily incurred in the
discharge of their duty at a per diem rate set by the Secretary of the Department of Natural Resources and Environmental Control, not to
exceed $50, plus mileage reimbursement at the rate established in § 7102 of Title 29, as amended. The lagoon management commissioners
shall be reimbursed for said expenses by the landowners petitioning to have a tax lagoon formed. Such reimbursement shall be made from
funds deposited in advance by the petitioners at the time the petition is filed or from the first moneys collected by the tax lagoon after it
is organized, the manner to be decided by the Division of Watershed Stewardship.
(b) Lagoon management commissioners will be reimbursed for their expenses incurred in the discharge of their duties in connection
with the formation of a tax lagoon after the lagoon order has become effective, or at such time as the Superior Court issues an order
denying the petition for the formation of the tax lagoon.
(73 Del. Laws, c. 389, § 1; 77 Del. Laws, c. 430, § 30.)
§ 4308. Employment of qualified personnel.
The Department of Natural Resources and Environmental Control shall employ personnel qualified by experience in structural
engineering, bulk heading, dredging and soil work to assist it in carrying out its functions under this chapter and to perform related duties
within the Division of Watershed Stewardship.
(73 Del. Laws, c. 389, § 1; 77 Del. Laws, c. 430, § 31.)
§ 4309. Employment of personnel; purchase of supplies and equipment.
The Department may employ such personnel and obtain by purchase or otherwise such supplies and equipment as are necessary to
carry out this chapter.
(73 Del. Laws, c. 389, § 1.)
Subchapter III
Formation of Tax Lagoon; Procedure
§ 4310. Nature of a tax lagoon.
A tax lagoon organized under this chapter shall constitute a governmental subdivision of this State and a public body, corporate and
politic, exercising public powers.
(73 Del. Laws, c. 389, § 1.)
§ 4311. Petition for formation of a tax lagoon; assistance by Division of Watershed Stewardship.
(a) Whenever 1 or more of the owners of any lands desire their lagoons to be dredged or managed, they may present a petition for the
formation of a tax lagoon to the Superior Court of the county in which all or the major portion of the area involved is located through
the Division of Watershed Stewardship.
(b) The services of the Division of Watershed Stewardship shall be available to assist the landowners in the preparation of such petitions.
(73 Del. Laws, c. 389, § 1; 77 Del. Laws, c. 430, §§ 32, 33.)
§ 4312. Form of petition.
A petition for the formation of a tax lagoon shall be in the following form:
PETITION
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To the Superior Court of .................................... County through the Division of Watershed Stewardship:
Whereas the undersigned (is)(are) the owner(s) of subaqueous lands within lagoon areas subject to
sedimentation or in need of water management situated in .................................... Hundred(s) ....................................
County (Counties), and the State of Delaware, said lands being more particularly described as follows
.....................................................................................................................................................................................................................
.........................................................................................................................................................................................................................
.........................................................................................................................................................................................................................
......................................................................................................................................................................................................................... ;
and
Whereas the dredging and the prevention of sedimentation of said subaqueous lands within lagoons would be a public benefit and
conducive to the public health, safety and welfare; and
Whereas the undersigned desire that a tax lagoon be formed under the provisions of Chapter 43 of Title 7 of the Delaware Code,
said tax lagoon to be known as .................................... Tax Lagoon;
The undersigned therefore request the Division of Watershed Stewardship to make the investigation required under the above cited
chapter and, if the findings thereon be favorable, to file this petition in the office of the Prothonotary of .................................... County so
that the Superior Court of said county may take the necessary steps required by law to issue an order establishing ....................................
Tax Lagoon.
Dated this .........date day of ..................month , .........year , at ...................................., Delaware.
(Space for Signatures)
(73 Del. Laws, c. 389, § 1; 77 Del. Laws, c. 430, § 34.)
§ 4313. Name of tax lagoon.
The name of any tax lagoon established under this chapter shall not be the same as the name of any existing tax lagoon management
organization within the same county.
(73 Del. Laws, c. 389, § 1.)
§ 4314. Deposit upon filing of petitions for tax lagoon.
(a) The Division of Watershed Stewardship shall require that a specified sum be deposited with it by the petitioners before the petition
is filed in the office of the prothonotary to cover filing fees, mailing and other necessary expenses. The amount of the deposit shall be
determined by the Division of Watershed Stewardship and may vary according to the size of the area involved, the complexity of the
problem, and other pertinent factors. If the original deposit is not sufficient, the Division of Watershed Stewardship shall require an
additional deposit as soon as the need for such becomes evident.
(b) The Division of Watershed Stewardship shall keep an account of such deposits and shall return any unused portion thereof to the
petitioners upon completion of final action by the Superior Court. When such action is favorable, the petitioners shall be repaid out of the
first moneys collected by the tax lagoon all expenses of formation charged to them by the Division of Watershed Stewardship.
(c) From the funds deposited with it pursuant to this section, the Division of Watershed Stewardship shall pay filing fees, mailing and
other necessary expenses incurred in the investigation and formation of a tax lagoon.
(73 Del. Laws, c. 389, § 1; 77 Del. Laws, c. 430, § 35.)
§ 4315. Duties of the Division of Watershed Stewardship upon receipt of petition.
The board of supervisors of the county soil conservation district, upon receipt of a petition for the formation of a tax lagoon, shall
determine whether the petition is in the form set forth in § 4312 of this title and has been properly executed. If the petition is in the
prescribed form and has been properly executed, the board shall immediately notify the Division of Watershed Stewardship and by virtue
of such action shall have made available to it the services of the Department of Natural Resources and Environmental Control to assist
it with the investigation concerning the possible formation of the tax lagoon.
(73 Del. Laws, c. 389, § 1; 77 Del. Laws, c. 430, § 36.)
§ 4316. Investigation; hearing.
The Division of Watershed Stewardship shall cause an investigation to be made in order to ascertain the general location and
approximate boundaries of the proposed tax lagoon and to obtain other information to determine whether the formation of the tax lagoon
is practicable and feasible and is in the interest of the public health, safety and welfare. The Division of Watershed Stewardship may hold
such hearings as it deems necessary in order to assist it in making such determination.
(73 Del. Laws, c. 389, § 1; 77 Del. Laws, c. 430, § 37.)
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§ 4317. Filing of petition and report; action by district when formation is found to be not practicable and
feasible.
(a) If the Division of Watershed Stewardship determines that the formation of the proposed tax lagoon is practicable, feasible and in
the interest of the public health, safety and welfare, it shall file the petition in the office of the prothonotary of the county in which all
or the major portion of the land involved is located.
(b) Where the Division of Watershed Stewardship determines that the formation of the proposed tax lagoon is not practicable and
feasible or is not in the interest of the public health, safety and welfare, it shall so notify all of the petitioners involved, and a new petition
for the formation of that tax lagoon may not be refiled for a period of 1 year from the date of said notice.
(73 Del. Laws, c. 389, § 1; 77 Del. Laws, c. 430, § 38.)
§ 4318. Determinations to be made by board of lagoon management commissioners.
(a) Upon the filing of a petition for the formation of a tax lagoon in the office of the prothonotary of a county, the board of lagoon
management commissioners of such county, acting as officers of the court, shall, at the direction of the resident judge thereof, go upon
the lands that may be included in the tax lagoon and determine the approximate dimensions and volume of the required dredging; the
approximate sizes, locations and specifications for required disposal facilities and other necessary works of improvement; the location
of public roads and railroads and public utility installations within the proposed tax lagoon; the exterior boundaries of the tax lagoon;
the approximate boundaries of each parcel or piece of land within the tax lagoon; the location and extent of needed permanent rightsof-way; the estimated total cost of all required tax lagoon works of improvement; the damages to lands, if any, which will result from
the dredging of the tax lagoon; and an equitable basis, considering relative benefits to each landowner, for the distribution of costs. The
board of lagoon management commissioners shall obtain from the Division of Watershed Stewardship such assistance and information
as is needed in making the required determinations.
(b) When all of the landowners involved, with the approval of the board of lagoon management commissioners and with the cooperation
of the Division of Watershed Stewardship:
(1) Jointly make the determinations regularly assigned to the lagoon management commissioners in subsection (a) of this section
and in § 4319 of this title;
(2) Prepare the assessment list required by § 4321 of this title;
(3) Supply any additional data necessary to complete the report of the board of lagoon management commissioners required by §
4322 of this title; and
(4) Personally sign a statement to the effect that they approve the formation of the tax lagoon;
The board of lagoon management commissioners shall prepare their report from said determinations and such data without going
upon the lands involved.
(73 Del. Laws, c. 389, § 1; 77 Del. Laws, c. 430, § 39.)
§ 4319. Existing works of improvement; compensation for work done thereon.
The board of lagoon management commissioners may deem adequate any works of improvement already performed, including but not
limited to dredging, and may allow a fair compensation to landowners for work previously done by them on such works of improvement.
(73 Del. Laws, c. 389, § 1.)
§ 4320. Factors in determination of cost.
(a) In determining the total cost of the proposed tax lagoon works of improvement, the board of lagoon management commissioners
shall include, among other things, the estimated costs of dredging, the estimated cost of forming the tax lagoon, the amount of damages,
if any, awarded to landowners, and the amount of compensation, if any, to be paid to landowners for works of improvement previously
performed and deemed adequate under § 4319 of this title.
(b) The estimated cost of interest which will develop if the tax lagoon borrows money to finance the dredging of the lagoon shall not
be included in the total cost of the proposed tax lagoon works of improvement.
(73 Del. Laws, c. 389, § 1.)
§ 4321. Assessment list.
After determining the basis for distribution of costs among the landowners, the board of lagoon management commissioners shall
prepare an assessment list which shall show the names of all owners of property whom it deems will benefit from the proposed tax lagoon,
together with addresses and descriptions of those properties as currently recorded by the board of assessment of the county. The list shall
also show if the properties are located on the tax lagoon. The cost-sharing or assessment base, expressed in dollars, for each of said
properties shall also be shown. The sum of the individual property assessment bases shall be termed the total assessment base, which in
all cases shall be equal to or greater than the total cost of the proposed tax lagoon works of improvement. The assessment list, as modified
by the lagoon order described in § 4329 of this title, shall be the basis for all taxes levied under this chapter.
(73 Del. Laws, c. 389, § 1.)
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§ 4322. Proposed report of board of lagoon management commissioners.
The board of lagoon management commissioners, with the assistance of the Division of Watershed Stewardship, shall prepare a
proposed report containing the following determinations and information:
(1) The name of the proposed tax lagoon;
(2) The hundred and the county in which the proposed tax lagoon is situated;
(3) A map, drawing or aerial photograph, to a suitable scale, on which the following is shown:
a. The main lagoon, all prongs, all subprongs and other divisions of the proposed tax lagoon;
b. All dikes, levees, structures and other works of improvement of the proposed tax lagoon;
c. All railroads, public highways and public utility installations near the points where such reach, cross or pass close to any part
of the proposed tax lagoon;
d. The exterior boundaries of the tax lagoon;
e. The approximate boundaries of each parcel or piece of land within the proposed tax lagoon, together with the identification of
each parcel or piece of land by name or code number; and
f. The location and extent of rights-of-way, including overhead and underground clearances where necessary, assigned to the tax
lagoon for dredging operations;
(4) The estimated total cost of the proposed tax lagoon works of improvement;
(5) The assessment list required under § 4321 of this title;
(6) Factors which influenced the determination of relative benefits and the basis for distribution of costs among the landowners,
and other pertinent information;
(7) The names of all landowners awarded damages or to be paid compensation for works of improvement previously constructed
and deemed adequate under § 4319 of this title, the amount of damages or compensation to which each such landowner is entitled, and
factors which influenced the determination of the damages awarded and compensation to be paid; and
(8) The number of lagoon managers, not less than 2 nor more than 5, required to conduct the business affairs of the proposed tax
lagoon.
(73 Del. Laws, c. 389, § 1; 77 Del. Laws, c. 430, § 40.)
§ 4323. Notice of hearing on establishment of tax lagoon.
Upon completion of the proposed report required by § 4322 of this title, the board of lagoon management commissioners shall notify
all owners of property in the proposed tax lagoon area of a hearing concerning the establishment of said tax lagoon to be held in the county
in which all or the major portion of the lands involved is located. The notice shall be mailed by first class mail at least 20 days prior to
the hearing and shall designate the time and place thereof. It shall also state that the purpose of the hearing is to consider the formation of
a tax lagoon which may affect the lands of the person notified and to hold a referendum among the affected landowners concerning the
establishment of a tax lagoon. In addition, the notice shall state the place where a copy of the above proposed report of the board of lagoon
management commissioners will be open to inspection for at least 5 days, excepting Saturday and Sunday, prior to the hearing date.
(73 Del. Laws, c. 389, § 1.)
§ 4324. Hearing; adoption of proposed report; right to adjourn hearing; referendum.
At the time and place designated in the notice, the board of lagoon management commissioners, with the assistance of the Division
of Watershed Stewardship, shall hold a hearing at which all persons interested shall have an opportunity to express their opinions on
and objections to the proposed report required by § 4322 of this title. The board of lagoon management commissioners shall make such
changes in the proposed report as it deems warranted from evidence presented at the hearing, and shall then adopt the report and declare it
final. If, however, as a result of the hearing, the board of lagoon management commissioners deems it advisable, it may adjourn the hearing
in order to enable it to reexamine and modify its report in the light of the opinions and objections expressed at the hearing. The hearing
may be adjourned to a fixed future date with no additional notification required or adjourned to an unspecified future date for which the
notification and display procedures of § 4323 of this title will again apply. At the conclusion of the hearing, a referendum shall be held
under the supervision of the board of lagoon management commissioners and the Division of Watershed Stewardship. The referendum
shall afford each landowner the opportunity to cast a ballot for or against the formation of the proposed tax lagoon in accordance with
the final report of the board of lagoon management commissioners. Each landowner shall be entitled to the same number of votes as
the number of dollars shown as the assessment base for the lands by the board of lagoon management commissioners. A referendum to
approve a proposed tax lagoon shall be adopted only if passed by a three-fourths majority.
(73 Del. Laws, c. 389, § 1; 77 Del. Laws, c. 430, § 41.)
§ 4325. Contents of report; filing.
After holding the hearing and supervising the referendum provided for in § 4324 of this title, the board of lagoon management
commissioners shall file the original and 2 copies of its final report in the office of the prothonotary of the county in which all or the
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major portion of the lands involved is located and shall attach to the report a certificate stating the results of the referendum and the
place where and the time when it was held. The board of lagoon management commissioners shall also prepare and attach to the report
a statement showing:
(1) Whether the board of lagoon management commissioners has fully discharged the duties assigned to it as prescribed by law;
(2) Whether the proposed tax lagoon is practicable and feasible and in the interest of the public health, safety and welfare;
(3) Whether in laying out the tax lagoon, the lands of every landowner assessed are directly or indirectly affected by some part of
the proposed tax lagoon;
(4) Any objections made to the report of the board of lagoon management commissioners which did not warrant further changes
in the report and the reasons therefor;
(5) Whether, in the opinion of the board of lagoon management commissioners, the benefits that will result from the construction
of the proposed tax lagoon will exceed the total cost; and
(6) Any other recommendations or information which the board of lagoon management commissioners deems pertinent.
(73 Del. Laws, c. 389, § 1.)
§ 4326. Signing of lagoon management commissioners’ report; dissent.
The report of the board of lagoon management commissioners, including the statement required by § 4325 of this title, shall be signed
by all of the lagoon management commissioners concurring therein. Any lagoon management commissioner who dissents therefrom shall
attach to the report the reasons for that commissioner’s dissent.
(73 Del. Laws, c. 389, § 1; 70 Del. Laws, c. 186, § 1.)
§ 4327. Waiving of lagoon management commissioners’ hearing and referendum.
In those cases when all of the landowners involved indicate by signed statement that they are familiar with the report of the board of
lagoon management commissioners and that they favor the formation of the tax lagoon, the board of lagoon management commissioners
shall not hold a hearing and referendum pursuant to § 4324 of this title, nor shall they give notice thereof as pursuant to § 4323 of this
title, but they shall prepare the statement required and file their report, pursuant to § 4325 of this title, without a certificate of referendum.
(73 Del. Laws, c. 389, § 1.)
§ 4328. Action by Superior Court; notice of final hearing.
(a) After the report and statement of the board of lagoon management commissioners have been filed in the office of the prothonotary
of the appropriate county, they shall be carefully reviewed by the Superior Court of the county.
(b) If the report of a majority of the board of lagoon management commissioners is opposed to the formation of the proposed tax lagoon,
or if the certificate stating the results of the referendum shows that a majority of all votes cast were opposed to the formation of the tax
lagoon, or if such report shows that the total cost of the construction of the tax lagoon will exceed the benefits that will result therefrom,
then the Superior Court shall issue an order denying the petition for the formation of the tax lagoon.
(c) If the report of a majority of the board of lagoon management commissioners is in favor of the formation of the proposed tax lagoon,
and if the statement attached to said report indicates that the total benefits that will result from the tax lagoon will exceed the total cost of
the proposed tax lagoon works of improvement, and if the certificate stating the results of the referendum shows that a 3/4 majority of all
votes cast were in favor of the formation of the tax lagoon, then the Superior Court shall set a date for the final hearing on the petition and
shall direct the prothonotary to give notice of the hearing by publication in a newspaper of general circulation in each county in which
any of the lands involved are located and by posting a written or printed notice on the door of the courthouse of each such county, such
publication and posting to be made not less than 15 days before the time of the final hearing. Notice of the final hearing shall also be
given to landowners involved by first class mail. This notice shall be mailed not less than 15 days before the time of the hearing. From
the time the report of the board of lagoon management commissioners is filed in the office of the prothonotary of the appropriate county
it shall be open to inspection by any interested person.
(d) In those cases when all of the landowners involved have indicated by signed statement that they are familiar with the report of the
board of lagoon management commissioners and that they favor the formation of the tax lagoon, and if the report of a majority of the
board of lagoon management commissioners is in favor of the formation of the proposed tax lagoon, and if the statement attached to the
report indicates that the total benefits that will result from the tax lagoon will exceed the total cost of the proposed tax lagoon works of
improvement, then the Superior Court shall not hold a final hearing, nor give notice thereof, but shall confirm the report and issue an
order granting the petition for the formation of the proposed tax lagoon, the order to become effective immediately and to be known as
the lagoon order. The confirmed report shall be considered a part of the lagoon order.
(73 Del. Laws, c. 389, § 1.)
§ 4329. Final hearing; lagoon order.
At least 10 days prior to the date set for the final hearing before the Superior Court, any interested person may file an objection in
writing to the report of the board of lagoon management commissioners. The Superior Court shall review the report of the board of lagoon
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management commissioners and any objections filed thereto, and make, in consultation with the lagoon management commissioners,
such changes as are necessary to render substantial and equal justice to all interested persons. Damages to any 1 landowner shall not
be grounds for denying the petition, but may be used to adjust the assessment base of that property or the damages to be paid to that
landowner and shall be considered as part of the total cost of the proposed tax lagoon. If the conditions set forth in § 4328(c) of this
title still exist after the objections have been considered and the necessary changes have been made in the report of the board of lagoon
management commissioners, the Superior Court shall confirm the report and issue an order granting the petition for the formation of the
proposed tax lagoon, said order to be known as the lagoon order. The confirmed report shall be considered a part of said lagoon order. If
no objections are presented at the final hearing before the Superior Court the lagoon order shall become effective when issued.
(73 Del. Laws, c. 389, § 1.)
§ 4330. Right to jury trial; procedure.
When objections to the report of the board of lagoon management commissioners are filed in writing with the Superior Court and when
the party filing feels aggrieved by the report of the board of lagoon management commissioners, such party may apply to the Superior
Court, within 30 days after the issuance of the lagoon order, for an order in the nature of a writ of inquiry to ascertain by the verdict of a
jury at the bar of the Court, the full and true value of the relative benefits, damages, injury or loss which will result to the lands of such
person from the improvements to the proposed tax lagoon.
(73 Del. Laws, c. 389, § 1.)
§ 4331. Defense of contested lagoon orders; Attorney General.
If the lagoon order is contested, the board of lagoon management commissioners shall defend the order, and in conducting its defense,
the board shall be represented by the Attorney General of the State.
(73 Del. Laws, c. 389, § 1.)
§ 4332. Notice of final action on lagoon order.
When the lagoon order has become effective because no objection has been filed or because the right to appeal therefrom has expired,
the prothonotary shall notify the Division of Watershed Stewardship and shall forward 2 certified copies of the lagoon order to the Division
of Watershed Stewardship.
(73 Del. Laws, c. 389, § 1; 77 Del. Laws, c. 430, § 42.)
§ 4333. Permanent court record.
The lagoon order, together with any amendment thereto, shall be a permanent court record and shall be kept in the office of the
prothonotary of the county wherein it was issued. It shall not be removed from that office except in cases where an emergency so requires.
The prothonotary shall make such docket entries of proceedings as directed by rule of court.
(73 Del. Laws, c. 389, § 1.)
§ 4334. Employment of private engineer by landowners.
If the board of supervisors of the county soil conservation district in which all or the major portion of the area involved is located
determines that the formation of a tax lagoon is practicable and feasible and is in the interest of the public health, safety and welfare,
the interested landowner or owners may at any time thereafter employ at their expense engineering personnel of their selection to assist
the Division of Watershed Stewardship.
(73 Del. Laws, c. 389, § 1; 77 Del. Laws, c. 430, § 43.)
§ 4335. Exclusive procedure for determination of damages.
The determination, assessment or award of damages or other compensation to be paid to any landowner in connection with the formation
of a tax lagoon shall be made under and in accordance with this chapter. Chapter 61 of Title 10 shall not be applicable to proceedings
to organize a tax lagoon under this chapter.
(73 Del. Laws, c. 389, § 1.)
Subchapter IV
Powers of Tax Lagoon
§ 4341. Meeting to organize tax lagoon; notice.
(a) The Division of Watershed Stewardship, at its earliest convenience after the lagoon order becomes final, shall call a meeting of
the taxables for the purpose of organizing the proposed tax lagoon, including the election of lagoon managers, as called for in the lagoon
order, and a secretary-treasurer; the formulation of a plan for dredging the proposed tax lagoon; and levying taxes to cover the costs of
construction and maintenance.
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(b) The Division of Watershed Stewardship shall send a notice to every taxable by first class mail to that landowner’s address as currently
recorded by the board of assessment of the county at least 10 days prior to that meeting stating the time, place and object of the meeting.
(c) A notice of the meeting shall be sent to the chairperson of the board of supervisors of the county soil conservation district.
(73 Del. Laws, c. 389, § 1; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 430, § 44.)
§ 4342. Distribution of lagoon order and this chapter; filing of assessment list.
(a) At the organization meeting of the tax lagoon, the Division of Watershed Stewardship shall deliver to the managers, when elected,
a certified copy of the lagoon order and a copy of this chapter, together with all effective amendments thereto.
(b) The Division of Watershed Stewardship shall deliver a copy of the assessment list prepared under § 4321 of this title, as modified
by the lagoon order, to the board of assessment of the county, making such changes in the names of the owners thereon as are warranted
by transfers to new owners of lands assessed.
(73 Del. Laws, c. 389, § 1; 77 Del. Laws, c. 430, § 45.)
§ 4343. Voting rights.
At all meetings, each landowner shall be entitled to the same number of votes as the number of dollars assessed against the land of
such owner in the lagoon order. In the event that any lands are held by tenants in common or joint tenants, each such tenant in common
or joint tenant shall be entitled to the same number of votes as the tenant’s fractional share of the total number of dollars assessed against
said lands. In the case of lands held by a husband and wife as tenants by the entirety, either the husband or wife may vote all the dollars
assessed against their lands.
(73 Del. Laws, c. 389, § 1; 70 Del. Laws, c. 186, § 1.)
§ 4344. Voting by proxy.
Any person entitled to vote pursuant to § 4343 of this title may authorize another landowner within the tax lagoon to cast the authorizing
landowner’s votes in that landowner’s stead by executing a proxy. The proxy shall be signed, dated and notarized.
(73 Del. Laws, c. 389, § 1; 70 Del. Laws, c. 186, § 1.)
§ 4345. Election of lagoon managers and a secretary-treasurer; terms of office; vacancies.
(a) At the first meeting the taxables shall elect from their group the number of lagoon managers specified in the lagoon order, and
a secretary-treasurer.
(b) The term of office of each lagoon manager and of the secretary-treasurer shall be 1 year. If the lagoon managers and secretarytreasurer first elected are elected prior to July 1 of any year, the time elapsing between said election and the first annual January meeting
provided for in § 4348 of this title shall be deemed to constitute the first year of their terms of office. However, if the lagoon managers and
secretary-treasurer first elected are elected on or after July 1 of any year, their terms of office shall not be deemed to begin until the said first
annual January meeting, although they shall assume the duties and responsibilities of their respective offices immediately upon election.
(c) In the event that any tax lagoon officer dies, resigns, ceases to be 1 of the taxables, or is removed from office, the remaining lagoon
officers shall, within 60 days, appoint a taxable to serve the remainder of the term of such officer. However, except in the case of death
or removal from office, each tax lagoon officer shall continue to serve until a successor has been appointed.
(73 Del. Laws, c. 389, § 1.)
§ 4346. Chairperson of lagoon managers; duties.
Immediately after they are elected, the lagoon managers shall designate 1 of their number to serve as chairperson. The chairperson
shall call meetings of the lagoon managers and taxables and shall preside thereat.
(73 Del. Laws, c. 389, § 1; 70 Del. Laws, c. 186, § 1.)
§ 4347. Compensation of lagoon managers and secretary-treasurer.
Tax lagoon managers and the secretary-treasurer may be entitled to receive compensation at a rate to be determined by a majority of
the eligible votes of those taxables present at the first meeting provided for in § 4348 of this title. The rate of compensation for the tax
lagoon managers and secretary-treasurer may be revised only at a regular annual meeting of the taxables.
(73 Del. Laws, c. 389, § 1.)
§ 4348. Annual and other meetings of taxables; notice of meetings.
At the first meeting the taxables shall set a date for the regular annual meeting. This date may not be changed except by action of a
majority of the taxables present at a regular annual meeting. The chairperson of the lagoon managers may call special meetings at such
times as the circumstances warrant. At least 10 days’ notice of all meetings shall be given by the lagoon managers using either of the
following methods:
(1) By publishing in a newspaper of general circulation in the area of a tax lagoon, and by posting at 5 conspicuous places in or near
the area of said tax lagoon, a notice stating the time, place and object of the meeting; or
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(2) By mailing to each affected taxable at the address currently shown on the records of the board of assessment of the county a
notice stating the time, place and object of the meeting.
(73 Del. Laws, c. 389, § 1.)
§ 4349. Meetings of lagoon managers; quorum.
The lagoon managers shall meet as often as necessary to properly conduct the business of the tax lagoon. At such meetings a majority
of the lagoon managers shall constitute a quorum, and the concurrence of a majority in any matter within their duties shall be required
for its determination.
(73 Del. Laws, c. 389, § 1.)
§ 4350. Powers of a tax lagoon.
A tax lagoon organized under this chapter, being a governmental subdivision of this State and a public body, corporate and politic, may
exercise public powers, and in addition to such other powers as usually pertain to corporations, may:
(1) Levy taxes;
(2) Sue and be sued in the name of the tax lagoon; and suits against the tax lagoon shall be governed by subchapter I of Chapter
40 of Title 10;
(3) Make and execute contracts and other instruments necessary or convenient to the exercise of its powers;
(4) Borrow money for the purpose of dredging management and administering the tax lagoon;
(5) Acquire, by purchase, exchange, lease, gift, grant, bequest, devise or otherwise, any property, real or personal, or any rights or
interests therein;
(6) Cooperate or enter into agreements with the state or federal governments or any agency or subdivision thereof;
(7) Exercise the power of eminent domain in accordance with the condemnation procedure prescribed in Chapter 61 of Title 10 with
respect to lands outside the boundaries of the tax lagoon which are needed for right-of-way or outlet purposes;
(8) Accept contributions from landowners assessed in the tax lagoon and disburse such funds for the purposes of performing certain
operations, such as, but not limited to, dredging, which operations are authorized in the tax lagoon order but which are not included
in the original estimated costs; and
(9) Call upon the Division of Watershed Stewardship for assistance with administrative and operations problems of the tax lagoon.
(73 Del. Laws, c. 389, § 1; 77 Del. Laws, c. 430, § 46.)
§ 4351. Duties of lagoon managers.
In addition to the duties specified in other sections of this chapter, the lagoon managers shall:
(1) Determine from the taxables the desired program of operations;
(2) Determine the amount of taxes to be levied to carry out such desired program;
(3) Secure specific authority for borrowing money in the name of the tax lagoon by a majority vote of the taxables present at a duly
called meeting of the tax lagoon;
(4) At the first meeting, or within 30 days thereafter, prepare, with the assistance of the Division of Watershed Stewardship, a
comprehensive plan for carrying out the desired program, which plan shall include provisions for levying taxes and for financing the
program;
(5) Execute warrants, with the assistance of the Division of Watershed Stewardship, to the receiver of taxes and county treasurer
authorizing and requesting the collection of all tax lagoon taxes other than maintenance taxes;
(6) Execute a warrant, with the assistance of the Division of Watershed Stewardship, to the receiver of taxes and county treasurer
authorizing and requesting the annual collection of a tax in the amount of 2 percent of the total assessment base or in the amount of 2
percent of the total benefits for tax lagoons previously formed under the original provisions of this chapter, said warrant to be marked
plainly as being for annual maintenance taxes and to be issued simultaneously with the issuance of the first warrant for the collection
of taxes for construction purposes;
(7) Make a report, at the annual meeting, of their activities during the year preceding such annual meeting;
(8) Provide for work on the tax lagoon; and
(9) Provide for adequate maintenance of the tax lagoon.
(73 Del. Laws, c. 389, § 1; 77 Del. Laws, c. 430, § 47.)
§ 4352. Duties of secretary-treasurer of tax lagoon.
In addition to any powers and duties set forth elsewhere in this chapter, the secretary-treasurer of the tax lagoon shall:
(1) Keep accurate minutes of all meetings of the lagoon managers and taxables; and such minutes shall be a part of the permanent
records of the tax lagoon;
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(2) Prepare a complete financial statement at the end of each calendar year, including therein an itemized report of all funds received,
all funds expended, all funds due from taxes not yet collected, and all sums due and owing by the tax lagoon; and this statement and
the records of the secretary-treasurer shall be audited annually by 2 qualified persons and shall become part of the permanent records
of the tax lagoon;
(3) Provide for the safekeeping of any funds of the tax lagoon which are placed in the secretary-treasurer’s custody; and
(4) Attend all meetings of the lagoon managers and taxables.
(73 Del. Laws, c. 389, § 1; 70 Del. Laws, c. 186, § 1.)
§ 4353. Bond of secretary-treasurer.
The secretary-treasurer shall, before assuming the duties of office and within 15 days after election, furnish a bond in favor of the tax
lagoon, in an amount satisfactory to the lagoon managers and with a surety to be approved by the lagoon managers, conditioned on the
faithful performance of duties and for the payment to the secretary-treasurer’s successor of all tax lagoon funds. If any person elected
secretary-treasurer neglects or refuses to give bond as aforesaid within the time specified, such person’s right to hold such office shall be
terminated, and the lagoon managers shall call a special meeting of the taxables to elect a new secretary-treasurer who shall give bond
and security as provided in this section.
(73 Del. Laws, c. 389, § 1; 70 Del. Laws, c. 186, § 1.)
§ 4354. Failure of lagoon officer to perform duties; remedy; removal.
If any officer of a tax lagoon fails to perform the duties imposed on such officer by this chapter, any taxable may petition the Superior
Court from which the lagoon order was issued and request an order directing said officer to carry out the duties of such office, and upon
failure to comply with the order within the time stated therein, the taxable may further petition the Superior Court for the removal of
the officer.
(73 Del. Laws, c. 389, § 1; 70 Del. Laws, c. 186, § 1.)
§ 4355. Signatures on instruments issued by tax lagoon.
Any note, bond, warrant or other instrument issued by a tax lagoon pursuant to this chapter shall be signed by the chairperson of the
lagoon managers, and the chairperson’s signature shall be attested by the secretary-treasurer of the tax lagoon.
(73 Del. Laws, c. 389, § 1; 70 Del. Laws, c. 186, § 1.)
§ 4356. Liability of tax lagoon officers.
No lagoon manager or other officer of a tax lagoon shall be held personally liable for the obligations of the tax lagoon. The tax lagoon
shall indemnify the lagoon managers or other officers in accordance with § 4003 of Title 10 for all tort claims.
(73 Del. Laws, c. 389, § 1.)
§ 4357. Limitation on borrowing power of tax lagoon.
A tax lagoon may borrow money pursuant to this chapter with the consent of a majority of the votes cast at a meeting duly called under
§ 4348 of this title. No tax lagoon shall borrow money in excess of 90 percent of the total assessment base established by the lagoon order.
(73 Del. Laws, c. 389, § 1.)
Subchapter V
Taxation
§ 4361. Duties of board of assessment; assessment book; assistance by Division of Watershed Stewardship.
(a) For tax lagoons formed under this chapter, the board of assessment of the county shall transcribe the information shown on the
assessment list delivered to it pursuant to § 4351(4) of this title into a special assessment book, and it shall keep the same as part of the
permanent records of its office. It shall also change the name of the owner shown therein from time to time as such changes are warranted
by transfers of the lands assessed to new owners.
(b) The Division of Watershed Stewardship shall assist the various boards of assessment of all 3 counties, upon request, to make such
changes in their special lagoon assessment books as are warranted by transfers of properties listed therein.
(73 Del. Laws, c. 389, § 1; 77 Del. Laws, c. 430, §§ 48, 49.)
§ 4362. Method of determining tax.
In determining the amount of any taxes to be levied against each owner’s lands under this chapter, the lagoon managers shall determine
the same in accordance with the ratio which exists between the assessment base for each property and the total assessment base for the
tax lagoon.
(73 Del. Laws, c. 389, § 1.)
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§ 4363. Warrants by tax lagoons for collection of taxes.
(a) For tax lagoons formed under this chapter, warrants authorizing and requesting the collection of lagoon taxes executed to the receiver
of taxes and county treasurer shall be signed by the chairpersons of the lagoon managers and the secretary-treasurer of the tax lagoon
and shall contain the following information:
(1) The name of the tax lagoon;
(2) The location by county and hundred;
(3) The date said warrant is delivered to the receiver of taxes and county treasurer;
(4) The date that the tax lagoon assessment list was filed with the county assessor;
(5) Total of that assessment list;
(6) Tax rate based on that assessment list;
(7) Total tax to be collected;
(8) Method of payment, if by installments;
(9) Statement as to whether the warrant is for construction, special or maintenance taxes;
(10) Amount and terms of loans, if any, secured by said tax warrant; and
(11) Person to be paid directly by receiver of taxes and county treasurer and amounts to be paid to such person.
(b) When a tax lagoon includes 2 or more counties, separate tax warrants shall be executed by the lagoon managers to each receiver
of taxes and county treasurer thereof.
(73 Del. Laws, c. 389, § 1; 70 Del. Laws, c. 186, § 1.)
§ 4364. Warrants by tax lagoons for collection of taxes — Duties of receiver of taxes and county treasurer.
All taxes levied by any tax lagoon organized under this chapter shall be collected by the receiver of taxes and county treasurer in the
county or counties wherein the lands taxed are located. The receiver of taxes and county treasurer shall accept tax warrants in proper form
from such tax lagoons, shall refer to tax lagoon assessment lists on file with the board of assessment of the county, and shall collect such
taxes warranted annually, pursuant to the terms of the warrants, in the same manner as provided by law for the collection of county taxes,
and money so collected shall be paid during the months of November, January and July to the receiver designated in the tax warrants.
Warrants received not later than May 1 of each year by the receiver of taxes and county treasurer shall be processed to be collected during
that same year. Tax warrants marked plainly as being for annual maintenance taxes shall be filed by the receiver of taxes and county
treasurer in a special binder, and the same shall be maintained as part of the permanent records of that office. Such annual maintenance
taxes shall be deemed to have been levied by the tax lagoon as of April 30 of each year, except the year in which the original or a revised
maintenance tax warrant is delivered to the receiver of taxes and county treasurer, in which case the levy shall be effective from and after
the date of the delivery of such warrant. Annual maintenance taxes, once warranted, shall be collected yearly by the receiver of taxes
and county treasurer, except that an annual maintenance tax shall not be collected during any tax year when another warrant, whether for
construction taxes or special taxes, for an identical portion of the tax lagoon is in effect and is being collected. The receiver of taxes and
county treasurer shall accept original tax warrants for annual maintenance taxes signed by the chairperson of the lagoon managers and
attested by the secretary-treasurer of the tax lagoon. Such warrants may not be withdrawn and may not be revised except with the consent
of the county soil conservation district, pursuant to § 4369 of this title.
(73 Del. Laws, c. 389, § 1; 70 Del. Laws, c. 186, § 1.)
§ 4365. Installment payment of taxes for construction; lien; amount of first installment.
(a) The lagoon managers may order the tax levied for the cost of dredging to be paid in annual installments and shall designate the
method of payment on the tax warrant when it is forwarded to the appropriate receiver of taxes and county treasurer.
(b) In the event that the lagoon managers order the tax levied for the cost of construction to be paid in annual installments, the entire
tax shall, nevertheless, constitute a present lien on the lands against which it is levied, and the amount of the first installment shall not
be less than the sum of all payments for damages and compensation as set forth in the lagoon order, plus the costs and expenses incurred
in the formation of a tax lagoon.
(73 Del. Laws, c. 389, § 1.)
§ 4366. Taxes as security for loans; notation on tax warrant.
A tax lagoon may secure the payment of any loan made to it by entering on the tax warrant provided for in § 4351(5) of this title a
statement setting forth the fact that the taxes shown on the tax warrants have been pledged to secure the payment of a certain designated
loan, and if a loan is so secured, by reciting the amount and terms of the loan and from whom it is being obtained, and by directing the
receiver of taxes and county treasurer to pay any such taxes collected directly to the creditor until the loan is repaid. Such warrant may
not be withdrawn and may not be altered or cancelled without the written consent of the creditor until the loan is repaid.
(73 Del. Laws, c. 389, § 1; 70 Del. Laws, c. 186, § 1.)
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§ 4367. Special tax.
A special tax to raise the funds necessary to carry into effect any of the provisions of this chapter and not otherwise provided for herein
may be levied by the lagoon managers in the same manner as provided in this chapter for levying taxes for original dredging.
(73 Del. Laws, c. 389, § 1.)
§ 4368. Lien of taxes; enforcement.
All taxes levied under this chapter shall constitute a first and paramount lien against the lands to which they apply from and after the
date of such levy, subject only to the lien for state and county taxes, which lien may be enforced by sale or otherwise in the same manner
as the lien for the county taxes. All such taxes shall be collected by the appropriate receiver of taxes and county treasurer as provided in §
4364 of this title. Penalties for failure to make payment by the due date shall apply to taxes levied under this chapter in the same manner
and amount as in the case of county taxes, and funds so received shall be credited to the tax lagoon.
(73 Del. Laws, c. 389, § 1.)
§ 4369. Adjustment of maintenance tax.
When in the opinion of the lagoon managers the amount of the tax levied to defray the cost of maintenance is either insufficient
or excessive, they may raise or lower the same for the current and succeeding years with the consent of the Division of Watershed
Stewardship. If the annual maintenance tax is so raised or lowered, it shall be apportioned to each landowner in accordance with § 4362
of this title and a new maintenance tax warrant shall be delivered to the appropriate receiver of taxes and county treasurer.
(73 Del. Laws, c. 389, § 1; 77 Del. Laws, c. 430, § 50.)
§ 4370. Limitation on liability of landowner for taxes.
No landowner shall be liable in any manner for any taxes levied by the tax lagoon against the lands of another owner.
(73 Del. Laws, c. 389, § 1.)
Subchapter VI
General Provisions
§ 4381. Payment of damages and compensation.
The damages and compensation awarded by the terms of the tax lagoon order shall be paid to the person entitled thereto out of the
first funds available to the tax lagoon under this chapter, and no construction shall commence until said damages and compensation have
been paid.
(73 Del. Laws, c. 389, § 1.)
§ 4382. Obstruction of or damage to tax lagoon; civil and criminal liability.
(a) If any person wilfully or negligently obstructs or damages any part of a tax lagoon and upon request of the lagoon managers fails
to remove the obstruction or to repair the damage at the person’s own expense, the lagoon managers shall see that the obstruction is
removed and that the damage is repaired.
(b) The person so obstructing or damaging the tax lagoon shall be liable for all loss or injury caused thereby and the expenses or charges
for remedying the same, and said loss or injury, expenses or charges may be sued for and recovered by the lagoon managers in the name
of the tax lagoon before any justice of the peace in the county where the obstruction or damage occurred.
(c) Whoever wilfully obstructs or damages any part of a tax lagoon, as specified in subsection (a) of this section, or wilfully interferes
in any way with tax lagoon operations as provided for in this chapter or in a tax lagoon order made pursuant to this chapter shall be
fined not more than $100.
(73 Del. Laws, c. 389, § 1.)
§ 4383. Right of entry upon lands.
The Division of Watershed Stewardship, engineering personnel hired under § 4334 of this title, the Department of Natural Resources
and Environmental Control, the lagoon management commissioners, the lagoon managers, or any of their employees or agents may enter
upon any lands within the tax lagoon at all reasonable times in order to carry out the purpose of this chapter.
(73 Del. Laws, c. 389, § 1; 77 Del. Laws, c. 430, § 52.)
§ 4384. Addition of territory to a tax lagoon.
(a) Any landowner who desires that landowner’s own lands to be included within a tax lagoon formed under this chapter may present a
petition for an amendment to the existing lagoon order to include such lands to the Superior Court of the county which issued said lagoon
order through the board of supervisors of the soil conservation district of the same county, and the procedure shall be substantially the
same as the method in § 4385(3) of this title for amending a lagoon order, except that in addition to establishing an assessment base
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which will be the basis for all future lagoon taxes, for each parcel of land being included within the tax lagoon, a special assessment,
based generally on the approximate total amount of taxes that would have been levied against such parcels of land since the tax lagoon
was formed had such lands been within the original boundaries of said tax lagoon and other considerations, shall be determined by the
board of lagoon commissioners and payment thereof prescribed in their report to the Superior Court.
(b) In those cases when any landowner, directly or indirectly, alters lands to utilize any part of a tax lagoon to benefit land which is not
within the original boundary of the tax lagoon as established in the lagoon order and which was not assessed as part of the tax lagoon,
or which was not assessed to the prong or part of the tax lagoon utilized by the alteration, and when the landowner or owners have not
secured an amendment to the lagoon order in accordance with the procedure set forth in subsection (a) of this section, it shall be assumed
that such landowner accepts the liability for payment of a special assessment and costs incurred in processing an amendment to the lagoon
order, in addition to all future lagoon taxes, and it shall be the duty of the lagoon managers in the name of the tax lagoon to present a
petition for an amendment to the existing lagoon order to include such lands, in the same manner as set forth in subsection (a) of this
section, and the procedure shall be the same as outlined in that subsection, except that estimated costs of processing the amendment shall
be added to the special assessment, which will be established by the board of lagoon management commissioners.
(c) In those cases when any landowner desires that landowner’s own lands to be included within a tax lagoon and when agreement
can be reached on the part of the landowner and the tax lagoon managers as to the special assessment to be paid and the assessment base
to be established as the basis for all future lagoon taxes, then § 4385(1) or (2) of this title may be used to add the additional territory
to the tax lagoon.
(73 Del. Laws, c. 389, § 1; 70 Del. Laws, c. 186, § 1.)
§ 4385. Alteration of tax lagoons; amendments to lagoon orders.
If it becomes necessary to change any part of a tax lagoon, such changes may be made in one of the following ways:
(1) The desired or required changes, justified in writing and including any necessary maps or drawings, shall be presented by the tax
lagoon managers to the taxables at a regularly called tax lagoon meeting. If a majority vote of the taxables present favors the changes,
and providing that such changes do not include any relocations of works of improvement, or of the dredge area, or of the maintenance
right-of-way on the lands of any owner without the owner’s consent, the tax lagoon managers shall present 3 copies of their request for
the changes, including the written justification and any necessary maps or drawings, and also including the results of the referendum,
to the Division of Watershed Stewardship for its approval. Should that approval be given, the change shall be effective at once, and the
Division of Watershed Stewardship shall file the original request with supporting papers in the office of the prothonotary of the proper
county and return 1 copy to the tax lagoon. Whenever changes are made which affect the tax lagoon assessment list, the Division of
Watershed Stewardship shall notify the board of assessment of the proper county of such changes.
(2) When all landowners affected consent to changes of any part of a tax lagoon, including the assessment list, they shall enter into
a written agreement to make such changes and present 3 copies of such agreement, together with any necessary maps or drawings, to
the Division of Watershed Stewardship for its approval. Should that approval be given, the change shall be effective at once, and the
Division of Watershed Stewardship shall file the original request with supporting papers in the office of the prothonotary of the proper
county and return 1 copy to the tax lagoon. Whenever changes are made which affect the tax lagoon assessment list, the Division of
Watershed Stewardship shall notify the board of assessment of the proper county of such changes.
(3) Any landowner within the boundaries of a tax lagoon or the tax lagoon managers in the name of said tax lagoon may, at any
time, petition for the amendments of the lagoon order that created the tax lagoon. Such petition shall list the changes that are desired
and shall be presented to the Superior Court that issued the tax lagoon order through the board of supervisors of the soil conservation
district of the same county. That board of supervisors shall require and handle a deposit from the petitioners in accordance with § 4314
of this title, so far as that section is applicable. As soon as the deposit is received, the board of supervisors shall file the petition in
the office of the prothonotary of the proper county without further investigation. Upon the filing of a petition for amendments to a
lagoon order in the office of the prothonotary of a county, the board of lagoon management commissioners of such county shall, at the
direction of the resident judge thereof, go upon the lands of the tax lagoon watershed, if necessary, review the existing lagoon order,
consider the changes requested, and make determinations regarding these. The board of lagoon management commissioners shall obtain
from the Division of Watershed Stewardship such assistance and information as may be required. The board of lagoon management
commissioners, with the assistance of the Division of Watershed Stewardship, shall prepare a special proposed report in the nature of 1
or more proposed amendments to the existing lagoon order, together with any maps or drawings deemed necessary. Upon completion
of that report, they shall give notice and hold a hearing and referendum in accordance with §§ 4323 and 4324 of this title, so far as
these are applicable. After holding the hearing and supervising the referendum, the board of lagoon management commissioners shall
file the original and 2 copies of its report in the office of the prothonotary of the county in which all the major portion of the tax lagoon
is located and shall attach to the report a certificate showing the results of the referendum and the place where and the time when it
was held. The board of lagoon management commissioners shall also prepare and attach to the report a statement showing:
a. The board of lagoon management commissioners has fully discharged the duties assigned to it as prescribed by law;
b. Any objections made to the report of the board of lagoon management commissioners which did not warrant further changes
in the report and the reasons therefor; and
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c. Any other recommendations or information which the board of lagoon management commissioners deems advisable, including
their determination as to whether the petitioners or the tax lagoon are liable for the costs of this action.
Action by the Superior Court shall follow §§ 4328, 4329, 4330, 4331, 4332 and 4333 of this title, so far as these sections are
applicable.
(73 Del. Laws, c. 389, § 1; 77 Del. Laws, c. 430, § 51.)
§ 4386. Lagoons near highways.
The Department of Transportation shall maintain the highway drainage system insofar as is possible in such manner as to prevent
silt from such system from obstructing any part of a tax lagoon. If silt enters from the highway system and obstructs a tax lagoon, the
Department of Transportation shall remove the same within a reasonable time after being given notice of such obstruction by the lagoon
managers.
(73 Del. Laws, c. 389, § 1.)
§ 4387. Dissolution of tax lagoon.
After a duly called meeting of the taxables at which a majority of all eligible votes have been cast in favor of dissolving a tax lagoon
created under this chapter, the lagoon managers shall prepare a petition requesting such dissolution to the Superior Court through the
Division of Watershed Stewardship. If the tax lagoon has operated for at least 10 years and if the Division of Watershed Stewardship
is of the opinion that the dissolution of such tax lagoon is in the public interest, it shall file the petition therefor, together with the
recommendations of the Division of Watershed Stewardship in the office of the prothonotary of the county in which the original lagoon
order was issued. After a petition for dissolution has been so filed, the Superior Court shall issue an order dissolving the tax lagoon. No
such order of dissolution shall be issued unless and until all obligations of the tax lagoon have been paid in full and all commitments
of the tax lagoon have been fulfilled.
(73 Del. Laws, c. 389, § 1; 77 Del. Laws, c. 430, § 53.)
§ 4388. Appropriations to Department of Natural Resources and Environmental Control.
An appropriation to the Department of Natural Resources and Environmental Control for purposes of planning, designing and
constructing tax lagoons shall be included in the annual appropriation bill (budget bill) of the General Assembly.
(73 Del. Laws, c. 389, § 1.)
§ 4389. Notice of right-of-way, or assessment.
(a) The Department of Natural Resources and Environmental Control shall certify and file with the prothonotary of each county a list
of all parcels with county tax parcel numbers and all owners of said parcels of real property located in that county which are subject to
any portion of a right-of-way or assessment as part of a tax lagoon created by this chapter. The list shall be in alphabetical order by owner.
The Department shall also certify and similarly file a list of any change of parcel numbers subject to such a right-of-way or assessment
annually. Additionally, the Department shall certify and similarly file a list of any addition or deletion of a parcel or parcels subject to a
right-of-way or assessment immediately upon making any such addition or deletion.
(b) No later than 180 days after complying with subsection (a) of this section the Department shall certify and file with the prothonotary
of each county a list of all parcels with county tax parcel numbers and all owners of said parcels listed in alphabetical order and designating
which parcels are subject to a right-of-way and assessment and which parcels are subject only to an assessment.
(c) The certified list submitted pursuant to subsection (a) or (b) of this section shall be confirmed by order of the Resident Judge of
Superior Court for each county, which order shall:
(1) State the name of the tax lagoon;
(2) State the owner’s name(s) and that owner’s county tax parcel number for each parcel subject to the right-of-way and assessment
and each parcel subject to an assessment only; and
(3) Direct that the order be recorded in the Office of the Recorder of Deeds in and for that county.
(d) There shall be no charge or fee to file the list required by subsection (a) of this section.
(e) There shall be no charge or fee to record the order pursuant to this subsection.
(75 Del. Laws, c. 321, § 2.)
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Part IV
Agricultural and Soil Conservation; Drainage and Reclamation of Lowlands
Chapter 44
Flood Mitigation Standards
§ 4401. Purpose.
It is the purpose of this chapter to: promote the public health, safety and general welfare, and to: protect human life, health and welfare;
encourage the utilization of appropriate construction practices in order to prevent or minimize flood damage in the future; minimize
flooding of water supply and sanitary sewage disposal systems; maintain natural drainage; reduce financial burdens imposed on the State,
local community, its governmental units and its residents, by discouraging unwise design and construction of development in areas subject
to flooding; minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general
public; minimize prolonged business interruptions; minimize damage to public facilities and other utilities such as water and gas mains,
electric, telephone and sewer lines, streets and bridges; reinforce that those who build in and occupy special flood hazard areas should
assume responsibility for their actions; minimize the impact of development on adjacent properties within and near flood prone areas;
provide that the flood storage and conveyance functions of the floodplain are maintained; minimize the impact of development on the
natural and beneficial functions of the floodplain; prevent floodplain uses that are either hazardous or environmentally incompatible; and
improve drainage standards to reduce threats to community welfare.
(78 Del. Laws, c. 183, § 1.)
§ 4402. Definitions.
The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them except where the context
clearly indicates a different meaning:
(1) “Department” shall mean the Department of Natural Resources and Environmental Control.
(2) “Federal Emergency Management Agency” (“FEMA”): the federal agency with the overall responsibility for administering the
National Flood Insurance Program.
(3) “Flood” or “flooding”: a general and temporary condition of partial or complete inundation of normally dry land areas from the
overflow of inland or tidal waters, and/or the unusual and rapid accumulation or runoff of surface waters from any source.
(4) “Secretary” shall mean the Secretary of the Department of Natural Resources and Environmental Control.
(5) “State” shall mean the State of Delaware.
(78 Del. Laws, c. 183, § 1.)
§ 4403. Rules.
The Secretary shall, by May 17, 2012, develop guidance and minimum standards for improved floodplain management and drainage
within the state after consultation with a Floodplain and Drainage Advisory Committee (Committee) appointed by the Secretary, to include
public and private interests, as well as appropriate state, federal and municipal agencies, and governmental subdivisions of the State.
Floodplain and drainage standards shall include, but not be limited to definitions, general requirements and criteria for consideration by
local governments within the State. The Committee will consider nationally recognized standards and best practices. The Committee
may also evaluate the capacity of local governments to implement standards and may make recommendations to the Secretary as
appropriate, including, but not limited to the development of model ordinances. The Committee shall also examine the adequacy of existing
requirements, policies and practices associated with notification to prospective property purchasers of existing flooding or drainage issues.
Prior to finalizing such standards the Department shall offer an opportunity for the public to comment on the proposed standards and
will consider all relevant comments.
The Committee shall consist of the following members:
(1) One member of the Senate appointed by the President Pro Tempore of the Senate and 1 member of the House of Representatives
appointed by the Speaker of the House of Representatives;
(2) One member of the Delaware Farm Bureau appointed by the President of the Delaware Farm Bureau;
(3) One representative of the Delaware Association of Conservation Districts, appointed by the President of the Delaware Association
of Conservation Districts;
(4) One representative of the Delaware State Bar Association Real and Personal Property Section, appointed by the President of the
Delaware State Bar Association;
(5) One representative of the Delaware Association of Realtors, appointed by the President of the Delaware Association of Realtors;
(6) One representative from the Federal Emergency Management Agency National Flood Insurance Program;
(7) One representative from the Delaware Hazard Mitigation Council appointed by the Director of the Delaware Emergency
Management Agency.
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(8) One representative of the Home Builders Association of Delaware appointed by the President of the Home Builders Association
of Delaware.
(9) Three representatives of the Delaware League of Local Governments appointed by the President of the Delaware League of
Local Governments.
(10) One representative of the Sussex County Association of Towns.
(11) One representative of the Committee of 100 appointed by the President of the Committee of 100.
(12) One representative of the Delaware Insurance Commissioner’s Office appointed by the Delaware Insurance Commissioner.
(13) One representative of the American Council of Engineering Companies appointed by the President of the American Council
of Engineering Companies.
(14) One representative of the Delaware Department of Transportation appointed by the Secretary of the Department of
Transportation.
(15) Three representatives of the Delaware Association of Counties, 1 from each county, appointed by the President of the Delaware
Association of Counties.
(16) Two representatives of the Division of Watershed Stewardship, appointed by the Secretary of the Department of Natural
Resources and Environmental Control (DNREC).
The Chair of the Committee shall be selected by the Secretary of the Department of Natural Resources and Environmental Control.
The Committee shall organize and hold its first meeting by September 16, 2011, and shall be staffed by DNREC.
(78 Del. Laws, c. 183, § 1.)
§ 4404. Review of standards.
(a) Within 6 months of the adoption of minimum standards, the 3 county governments and all municipal governments as appropriate
shall review and prepare comments regarding their individual codes and ordinances to determine if they are consistent with the minimum
standards. Such review and comments shall identify areas where existing requirements meet or exceed these recommendations and
standards, do not comply with the standards or are functionally equivalent.
(b) The review and comments from local governments will also identify areas where implementation of these standards would represent
a hardship to the local government, and what impediments to adoption of these standards have been identified. The Committee shall
develop the framework for conducting such a review and Department of Natural Resources and Environmental Control (DNREC) shall
provide technical assistance to local governments in conducting such analysis when requested.
(c) DNREC shall compile the results of the review, develop a draft report, reconvene the Committee to review the draft report and
solicit feedback and deliver the final report to the General Assembly no later than March 15, 2013.
(78 Del. Laws, c. 183, § 1.)
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Part V
Public Lands, Parks and Memorials
Chapter 45
Public Lands
§ 4501. Land warrants.
All general warrants for locating vacant land without specification, which were not located by survey prior to January 23, 1843, are
vacated and void; and all warrants for locating land issued by any recorder since January 11, 1798, are illegal and void.
(Code 1852, § 11; Code 1915, § 11; Code 1935, § 11; 7 Del. C. 1953, § 4501.)
§ 4502. Cessions of public land to United States.
All cessions of public land, which have been made to the United States for public purposes, are recognized and ratified according to
the terms thereof.
(Code 1852, § 14; Code 1915, § 14; Code 1935, § 14; 7 Del. C. 1953, § 4504.)
§ 4503. Location and payment for grants of public lands.
All grants of public land made shall be located and paid for within 1 year from the grant, or they shall be void.
(Code 1852, § 15; Code 1915, § 15; Code 1935, § 15; 7 Del. C. 1953, § 4505.)
§ 4504. Supervision and control of public lands by Department of Natural Resources and Environmental
Control; public beaches; penalty.
(a) The public lands of this State, as ascertained in regard to location, surveyed and plotted under the supervision and direction of
the Public Lands Commission, created in accordance with Chapter 5, Volume 27, Laws of Delaware, shall be under the supervision and
control of the Department of Natural Resources and Environmental Control which Department may care for the public lands. All powers
given to said Public Lands Commission shall be exercised by the Department of Natural Resources and Environmental Control.
(b) It shall be unlawful to place, dump or throw rubbish, garbage, refuse, trash or other debris of any kind within any public beach of
this State, except in such receptacles as are provided for such purpose. Whoever violates this provision shall be fined not less than $50 nor
more than $100, together with costs of prosecution, and in default of payment of the fine and costs shall be subject to § 4105 of Title 11.
All law-enforcement agencies, to include Environmental Protection Officers of the Department of Natural Resources and Environmental
Control, shall have equal authority to enforce this section. Justices of the peace shall have jurisdiction of offenses under this section.
(36 Del. Laws, c. 2, § 1; Code 1935, § 5742; 7 Del. C. 1953, § 4506; 57 Del. Laws, c. 617; 59 Del. Laws, c. 417, § 1.)
§ 4505. Survey of public lands.
The Department of Natural Resources and Environmental Control may survey such of the public lands that have not been surveyed,
plotted and recorded in the office of the recorder of deeds in the county in which any such lands may lie; and may survey and lay off such
public highways through any such lands as it deems advisable and for the public good.
(36 Del. Laws, c. 2, § 2; Code 1935, § 5743; 7 Del. C. 1953, § 4507; 57 Del. Laws, c. 617.)
§ 4506. Sale of public lands and products.
(a) The Department of Natural Resources and Environmental Control may supervise the sale of any material, product or thing which
grows or may be grown upon any public lands; divide the public lands into tracts of 50 acres, or less; and sell such tracts, or any part
thereof, as deemed advisable to sell.
(b) Any public land sold shall be sold only at public auction after at least 10 days prior public notice. Such public notice shall be given
in all 3 counties of this State. Notice in each county shall be given in the same manner required for county tax sales in each respective
county, including publication and posting of handbills. Any land so sold shall be sold only to the highest bidder at the sale for the amount
of that highest bid.
(36 Del. Laws, c. 2, § 2; Code 1935, § 5743; 7 Del. C. 1953, § 4508; 50 Del. Laws, c. 644; 57 Del. Laws, c. 617.)
§ 4507. Delivery of deeds; restrictions therein.
The Department of Natural Resources and Environmental Control, together with the Governor of this State, may execute and deliver
a good and sufficient deed to any part of the public lands of this State, and may place upon the sale of such lands a restriction requiring
the expenditure by any person purchasing the same of a certain amount of money upon any tract sold to them, or may require any other
conditions which the Department of Natural Resources and Environmental Control deems advisable for the public good.
(36 Del. Laws, c. 2, § 4; Code 1935, § 5745; 7 Del. C. 1953, § 4509; 57 Del. Laws, c. 617.)
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§ 4508. Forfeiture of public lands to State.
Whoever purchases any of the public lands under any restriction or condition imposed by the Department of Natural Resources and
Environmental Control, and fails for a period of 5 years to comply with the restrictions or conditions mentioned in the deed of grant from
the Department, forfeits such lands to the State, and the title to such lands shall thereafter rest in the State.
(36 Del. Laws, c. 2, § 4; Code 1935, § 5745; 7 Del. C. 1953, § 4510; 57 Del. Laws, c. 617.)
§ 4509. Improvement of public lands.
(a) The Department of Natural Resources and Environmental Control may make improvements to and on any public lands of this State
and may expend any sums appropriated therefor on such lands.
(b) The Department of Natural Resources and Environmental Control may lease or grant concessions for any such improvements.
(c) All funds collected from such rentals or concessions shall be treated in the same manner as income received from public lands as
provided in § 4515 of this title.
(Code 1935, § 5746B; 46 Del. Laws, c. 233, § 1; 7 Del. C. 1953, § 4511; 57 Del. Laws, c. 617.)
§ 4510. Lease of public lands; forfeiture of lease.
The Department of Natural Resources and Environmental Control together with the Governor of this State, may execute and deliver, in
proper form, a lease of any part of the public lands of this State, which public lands are under the supervision and control of the Department
of Natural Resources and Environmental Control by virtue of this chapter. The demise and lease of such lands may be upon such conditions
and for such rentals as the Department of Natural Resources and Environmental Control deems advisable for the public good. Whoever
leases any of the lands under any restrictions or conditions of the Department of Natural Resources and Environmental Control and fails to
comply with the restrictions or conditions mentioned in the lease from the Department forfeits the leasehold interest granted by the lease.
(Code 1935, § 5746A; 45 Del. Laws, c. 272, § 1; 7 Del. C. 1953, § 4512; 57 Del. Laws, c. 617.)
§ 4511. Lease of mineral rights in public lands; utility rights.
The power granted to the Department of Natural Resources and Environmental Control to lease the public lands shall include the right
of the Department, together with the Governor of this State, to execute and deliver, in proper form, a lease for the exclusive right of
mining, exploring by geophysical and other methods, and operating for and producing therefrom, oil, gas, casing head gas, casing head
gasoline, laying pipelines, telephone and telegraph lines and building tanks, power stations, gasoline plants, ponds and roadways, and the
exclusive right of injecting water, brine and other fluids into the subsurface strata of the public lands so demised.
(Code 1935, § 5746A; 45 Del. Laws, c. 272, § 1; 7 Del. C. 1953, § 4513; 57 Del. Laws, c. 617.)
§ 4512. Rent from lease of public lands.
All funds received as rent in connection with the leasing of public lands under §§ 4510 and 4511 of this title shall be payable to the
State Treasurer and kept by him or her in a special account known as the “Department of Natural Resources and Environmental Control
Public Lands Account,” and such funds shall not become a part of the General Fund of the State except as hereinafter provided. The
Department may expend money payable out of the special account for the protection, improvement or restoration of lands demised or
of lands adjacent to any public lands demised. Any balance remaining from the rentals of any public land in the special account and
unencumbered at the end of any fiscal year reverts to the General Fund. Such funds shall not be encumbered for any purpose whatsoever
except for the purposes hereinabove provided.
(Code 1935, § 5746A; 45 Del. Laws, c. 272, § 1; 7 Del. C. 1953, § 4514; 57 Del. Laws, c. 617; 70 Del. Laws, c. 186, § 1.)
§ 4513. Prohibitions against leasing of oyster beds.
Nothing in this chapter shall be construed as authorizing or empowering the Department of Natural Resources and Environmental
Control to lease any land which is used as an oyster plantation, oyster bed or oyster bottom, nor shall the Department demise any land,
the use of which would affect any adjacent oyster plantation, bed or bottom in the planting, propagation, catching or taking of oysters.
(Code 1935, § 5746A; 45 Del. Laws, c. 272, § 1; 7 Del. C. 1953, § 4515; 57 Del. Laws, c. 617.)
§ 4514. Highways through public lands.
The Department of Natural Resources and Environmental Control may construct any roads leading to or through any public lands
which are under the supervision and control of the Department; may make plans and specifications for the construction of such roads and
secure bids for the construction of the same; may enter into contracts for the construction of such roads as are deemed wise; and may
pay the costs of the plans, specifications and construction work incident to the building of such roads out of any moneys to the credit
of the Department in the State Treasury.
(36 Del. Laws, c. 2, § 3; Code 1935, § 5744; 7 Del. C. 1953, § 4516; 57 Del. Laws, c. 617.)
§ 4515. Credit of moneys for Department of Natural Resources and Environmental Control.
In order that the Department of Natural Resources and Environmental Control may carry out this chapter, all moneys, other than
appropriated by the General Assembly, realized from the care and supervision of public lands of this State shall be deposited with the
State Treasurer for the use of the Department in carrying out this chapter.
(36 Del. Laws, c. 2, § 5; Code 1935, § 5746; 7 Del. C. 1953, § 4517; 57 Del. Laws, c. 617.)
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§ 4516. Public money expended for roads.
No public money shall be expended under this chapter on any roads leading to or through any public lands of this State with privately
owned lands abutting thereon unless and until the owners of the abutting lands have reached or entered into an agreement with the
Department as to whether or not a contribution toward the cost of such roads shall be made by said owner of such lands.
(36 Del. Laws, c. 2, § 5; Code 1935, § 5746; 7 Del. C. 1953, § 4518.)
§ 4517. Power of Department of Natural Resources and Environmental Control.
(a) Nothing contained in this chapter shall prohibit or limit in any way the power and authority granted unto the Department of Natural
Resources and Environmental Control to develop, establish and maintain state parks on the public lands of the State in Sussex County
bordering on the Atlantic Ocean as such power and authority is set forth in Chapter 47 of this title.
(b) Anything contained in this chapter to the contrary notwithstanding, the Department of Natural Resources and Environmental Control
shall not convey, lease or extend or renew any lease of lands upon which the Department of Natural Resources and Environmental Control
has established a state park, except with the approval of the Department of Natural Resources and Environmental Control.
(Code 1935, § 5746A; 47 Del. Laws, c. 287, § 1; 7 Del. C. 1953, § 4519; 57 Del. Laws, c. 617; 57 Del. Laws, c. 739, § 121.)
§ 4518. Sale of public lands.
(a) All lands to which this State directly or indirectly holds title, whether legal, equitable or both, shall be deemed public lands within
the meaning of this chapter, except lands purchased or held by the State Housing Department for improvement and/or redevelopment
and resale.
(b) The State Highway Department shall not exercise any power vested in it by this chapter over public lands which are under the
supervision and control of any other agency of this State, without first obtaining the consent of such agency, any other section of this
chapter to the contrary notwithstanding, except that nothing in this section shall affect the power of condemnation held by the State
Highway Department. Except as limited by subsection (c) of this section, every agency of this State may exercise as before its authority
over public lands under its supervision and control.
(c) Nothing in this section shall be construed to prohibit the Division of Highways and Transportation, its successor or successors from
selling, transferring, conveying, trading or leasing lands which it no longer needs for highway purposes as is provided in §§ 137, 175
and 608(g) [repealed] of Title 17.
(d) No public lands, except as hereinabove set forth and except lands or buildings for which title is held by a reorganized school district,
shall be transferred or conveyed to or otherwise placed under the control of any person or persons, state, county, or municipality or any
governmental agency, whether foreign or domestic, having the power to sell or lease such lands unless the General Assembly specifically
approves the same and unless done in conformity with the requirements of this chapter.
(7 Del. C. 1953, § 4520; 57 Del. Laws, c. 332, § 1; 58 Del. Laws, c. 246; 63 Del. Laws, c. 209, § 1.)
§ 4519. Title or interest in public lands obtainable only by deed, conveyance or written instrument.
No title or other interest in real property belonging to the State shall be acquired by adverse possession, presumed grant or any means
other than by a deed or conveyance or other written instrument of transfer executed by a duly authorized official of the State pursuant
to state law.
(63 Del. Laws, c. 401, § 1.)
§ 4520. Liability for costs and expenses incurred by State in defeating claims to public lands.
(a) Any person who asserts a claim to any interest in any part of the public lands of the State for which a plot or description has been
recorded with the Recorder of Deeds in and for the county in which the lands are situate shall, if the State is successful in defeating such
claim or any part thereof through any judicial proceeding, be liable for all costs and expenses of the State incurred in defeating the claim
or any part thereof, including, without limitation, investigative costs, administrative costs, salaries of state employees, surveying costs,
engineering costs, title search fees, attorneys’ fees of privately retained counsel and attorneys of the Department of Justice, consultant
fees and contract costs; provided however, that such cost and expense recovery should not be provided if the claim has substantial merit.
(b) For purposes of this section, the term “person” shall include any individual, group of individuals, firm, association, partnership,
company, corporation, joint-venture, trust, estate or other legal entity. Any liability for costs and expenses imposed under this section on
any corporation shall also be imposed jointly and severally on the officers and directors of such corporation in their individual capacities.
(c) In order to recover costs and expenses under this section, the State shall, within 45 days of the entry of the final order or judgment,
file a petition with the court which exercised jurisdiction over the matter, which petition shall set forth a statement of the costs and
expenses incurred by the State.
(66 Del. Laws, c. 239, § 1.)
§ 4521. Zoning and use.
Notwithstanding any provision of this chapter to the contrary, no state park, or any part thereof, open space as defined in § 7504 of
this title, or other area acquired primarily for recreational use, shall be rezoned, neither shall there be a change in the use of any such
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lands requiring a variance or subdivision approval, except upon 45 days prior notice to all elected members of the General Assembly in
whose district such lands, or any part thereof, lie.
(72 Del. Laws, c. 156, § 3.)
§ 4522. Resident curatorship agreements
The Department of Natural Resources and Environmental Control, may execute and deliver an agreement that creates a nontransferrable
life estate for individuals, or an agreement of up to 30 years in length for corporate or governmental entities, to any historic structure
on the public lands of this State, for the renovation, use, and ongoing maintenance of said structure and may place upon the use of such
structure any restriction requiring specific commitments or expenditures or may require any other conditions which the Department of
Natural Resources and Environmental Control deems advisable for the public good.
(1) The agreement may include use of the curtilage or other areas around the historic structure, including any accessory buildings,
sheds, or garages, as may be necessary to properly use the historic structure for its intended purpose.
(2) The structure must be restored to the applicable National Park Service Secretary of Interior Standards where it is deemed feasible
by the Department of Natural Resources and Environmental Control.
(3) Chapter 53 of Title 25 of the Delaware Code shall not apply to agreements executed under this section.
(4) Any qualifying expenditures in excess of the fair market value of the rent of the structure and grounds over the expected life of
the agreement shall be eligible for land and historic resource tax credits under Chapter 18 of Title 30.
(5) Any interest in the structure created by and agreement under this section shall be insurable up to the total value of the expenditures
on the structure, pro-rated for the expected life of the agreement.
(6) The Department of Natural Resources and Environmental Control shall adopt any necessary rules and regulations to implement
this section.
(81 Del. Laws, c. 309, § 1.)
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Part V
Public Lands, Parks and Memorials
Chapter 47
State Parks
Subchapter I
General Provisions
§ 4701. Powers and duties [For applicability of this section, see 83 Del. Laws, c. 182, § 2].
(a) The Department of Natural Resources and Environmental Control may do all of the following:
(1) Select and acquire by gift, devise, bequest, purchase, and through the exercise of the power of eminent domain, such lands as are
desirable to be utilized chiefly for recreation, and to develop and maintain such areas.
(2) Expend for such acquisition, development, and maintenance, such funds as are appropriated for such purposes, or received as
earnings from the operation of such areas, or received from any other source.
(3) Employ such administrative and technical assistance as is, in the opinion of the Department, necessary in order to plan, develop,
and maintain the areas which it administers.
(4) Make and enforce regulations relating to the protection, care, and use of the areas it administers.
(5) a. Establish and collect such user charges, which shall approximate and reasonably reflect all costs necessary to defray the
expenses of the Department for the use of the facilities and services it provides in areas it administers. The Department shall, in addition,
establish and impose a schedule of fees for entrance to state parks and for surf fishing vehicles and snowmobiles on said lands, with the
concurrence and approval of the General Assembly. The Secretary of the Department of Natural Resources and Environmental Control
shall establish the period and areas on which park fees and user charges shall be imposed. The Secretary shall annually prepare a schedule
of park entrance and surf fishing vehicle and snowmobile fees under this section and submit the same as part of the Department’s
annual operating budget proposal. All of the fees collected under this section shall be deposited in the General Fund of this State and
designated solely for park operations and maintenance; provided, however, that no fee shall be imposed on any recognized veteran’s
service organization for the use of any state park or portion thereof for purposes of patriotic or memorial services, provided that advance
written notification of not less than 15 days is given to the agency and does not conflict with other previously scheduled activities
within the park.
b. 1. Delaware residents who are 62 years of age or older and who own a motor vehicle validly registered in Delaware may pay
an annual fee of not less than 1/2 of the annual fee established for Delaware residents under paragraph (a)(5)a. of this section for
each such registered motor vehicle which shall permit such vehicle entrance to any state park or recreation area during the calendar
year for which the fee was paid. Persons who are 62 years of age or older and who own a motor vehicle validly registered in another
state may pay an annual fee of not less than 1/2 of the annual fee established for out-of-state registered vehicles under paragraph (a)
(5)a. of this section for each such registered motor vehicle which shall permit the vehicle entrance to any state park or recreation
area during the calendar year for which the fee was paid. Each applicant under this paragraph shall furnish proof of age, vehicle
ownership, and vehicle registration at the time such application is made. Annual permits issued under this paragraph will be valid
for any day excluding holidays. No annual permit issued under this paragraph will be honored on any day unless the owner of the
vehicle for which such permit is issued is the operator of the vehicle at the time of entrance to the state park or recreation area to
which admission is sought. All the fees collected under the authority of this section shall be deposited in the General Fund, and
designated solely for park operations and maintenance.
2. A Delaware resident who is 65 years of age or older may pay a 1-time fee of $45, which will permit the resident to enter any
state park or recreation area for the lifetime of the resident, so long as the resident is the operator of or a passenger in a Delawareregistered vehicle at the time of entrance to the state park or recreation area to which admission is sought. An applicant for a lifetime
permit must furnish proof of age and Delaware residency at the time application for the permit is made. All fees collected under
the authority of this paragraph must be deposited in the General Fund and designated solely for park operations and maintenance.
c. Delaware residents who are disabled, and who hold a valid and current Gold Access Passport Card, as issued by the National
Park Service of the United States Department of the Interior, shall be exempted from the annual or daily entrance fees required by
this section.
d. Any resident who has served honorably for 90 or more consecutive days on active duty in the armed forces of the United States,
including service as member of the Delaware National Guard, in military actions in Southwest Asia associated with Operation Iraqi
Freedom or Operation Enduring Freedom may, for the first 12 months following the date the resident was honorably discharged or
removed from active status, receive a pass granting the resident free admission to any state park in this State without charge.
e. Any resident, who does not qualify for free admission under paragraph (a)(5)d. of this section, who has honorably served or is
honorably serving in the armed forces of the United States, including service as a member of the Delaware National Guard, and who
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owns a motor vehicle validly registered in Delaware may pay an annual fee of 1/2 of the annual fee established for Delaware residents
under paragraph (a)(5)a. of this section for each such registered motor vehicle which shall permit such vehicle entrance to any state
park or recreation area during the calendar year for which the fee was paid. Each applicant under this paragraph shall furnish proof
of service in the armed forces of the United States, vehicle ownership, and vehicle registration at the time such application is made.
All the fees collected under the authority of this paragraph shall be designated solely for park operations and maintenance.
f. A resident who is an active Delaware volunteer firefighter, an active Delaware volunteer emergency medical technician (EMT),
or a life-member of a Delaware volunteer fire department is entitled to receive annually, without charge, either a surf fishing vehicle
permit or an annual permit to enter state parks and recreation areas. A firefighter, EMT, or life-member who volunteers in Delaware
but lives out of state is entitled to receive annually, at the Delaware resident rate, either a surf fishing vehicle permit or an annual
permit to enter state parks and recreation areas.
1. “Active Delaware volunteer firefighter” means a person who is a member of a Delaware volunteer fire department and who
responds to at least 20% of the department’s annual alarms or crew calls as a nonpaid firefighter.
2. “Active volunteer emergency medical technician” or “EMT” means a person who is a member of a Delaware volunteer fire
department or a Delaware volunteer ambulance company and who responds to at least 20% of the department’s or company’s
annual emergency medical service calls as a nonpaid EMT, EMT-C, or EMT-P, as described in § 9701(11), (12), and (13)
respectively of Title 16.
3. “Life-member of a Delaware volunteer fire department” means a person who is a member of a Delaware volunteer fire
department and who has been awarded life membership status by that department.
4. To qualify without charge for a surf fishing vehicle permit or annual permit to enter state parks and recreation areas
under this paragraph, the firefighter, EMT, or life-member must submit annually to the Department an original letter on official
fire department or ambulance company letterhead, signed by the fire department’s or ambulance company’s president and
authenticated by the president of the Delaware Volunteer Firefighter’s Association. The letter must explain how the person
qualifies for a surf fishing vehicle permit or annual permit to enter state parks and recreation areas under this paragraph.
5. One surf fishing vehicle permit or annual permit to enter state parks and recreation areas may be issued annually to a vehicle
registered to the qualifying active Delaware Volunteer Firefighter, active emergency medical technician (EMT), or life member
in accordance with procedures established by the Department.
g. 1. The Department is authorized to administer a program for the issuance of numbered surf fishing and state park specialty
vehicle plates. A state park specialty vehicle plate shall serve as an annual permit. The Department will establish fees, rules, and
regulations for the purchase, replacement, transfer, renewal, nonrenewal, and forfeiture of such plates managed through this voluntary
program. The Department may charge a fee for surf fishing and state park specialty vehicle plates not to exceed $500 per plate or
may auction surf fishing and state park specialty plates under paragraph (a)(5)g.2. of this section in which case the amount charged
shall be based upon interest and demand for such plates as determined by auction.
2. The Secretary is hereby authorized to establish, implement, and manage an auction program to sell surf fishing and state
park specialty vehicle plates as provided for in paragraph (a)(5)g.1. of this section. Any auction of such vehicle plates shall be
conducted in accordance with accepted auction practices and shall require valid vehicle registration as proof of eligibility, limit
individuals to acquiring 1 vehicle plate per licensed vehicle, and ensure that the highest bid from an eligible individual is the
successful bid. Vehicle plates numbered 1 through 200 shall be limited to vehicles registered in Delaware.
(6) Make on its own motion or in cooperation with other agencies of the State, studies of the recreational facilities now available in
the State, and of the recreational needs of the State, and determine what areas not now available for public recreation should be acquired.
(7) Enter into agreements with proper persons or corporations for periods not to exceed 25 years for operation of services on the
areas it administers.
(8) Employ and fix the salaries of such personnel as it deems proper for the enforcement of its rules and regulations. Enforcement
personnel may arrest with a warrant for any violation of the Department of Natural Resources and Environmental Control rules and
regulations, or without a warrant for any such violation committed in their presence. Enforcement personnel, with respect to the
enforcement of the Department of Natural Resources and Environmental Control rules and regulations, shall have all the powers of
investigation, detention, and arrest conferred by law on peace officers or constables.
(9) Grant, with the written approval of the Cabinet Committee on State Planning Issues, easements, for either private or public
purpose over or under any public lands which it administers, for the purpose of transmission lines, such as: Telephone and telegraph
lines, electric power lines, gas pipelines, and water and sewage pipelines and appurtenances. The term of any such easement together
with the amount of any fee charged therefor shall be determined by the Department of Natural Resources and Environmental Control
acting with approval of the Cabinet Committee on State Planning Issues, and any funds received for the grant of such easements shall
be deposited by the Department of Natural Resources and Environmental Control with the State Treasurer.
(10) Select and obtain, by lease or agreement with the owners thereof and upon such terms and conditions as the Department of
Natural Resources and Environmental Control, with the approval of the Cabinet Committee on State Planning Issues, shall determine,
such lands as the Department of Natural Resources and Environmental Control deems appropriate and desirable for park and recreation
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use and purposes, and to improve, develop, operate, and maintain such lands for such purposes. The Department of Natural Resources
and Environmental Control may only exercise the powers granted in this paragraph by lease or agreement entered into with the federal
government or with a municipality, agency, or political subdivision of this State.
(11) Enter into an agreement with the Barcroft Company of Lewes, Delaware, for a period not to exceed 25 years, for the use of
land presently leased to Barcroft, as well as an adjoining triangular-shaped property containing approximately .76 of an acre; provided,
however, that the funds received from such agreement shall be appropriated to the Department of Natural Resources and Environmental
Control to be used to rebuild and maintain, for the use of the public, a fishing pier located in the breakwater at Cape Henlopen State Park.
(12) Employ and fix the salaries of such personnel to be known as “seasonal patrol officers” who shall assist the Department of
Natural Resources and Environmental Control’s park rangers and other peace officers employed under § 8003(13) of Title 29 to enforce
the Division of Parks and Recreation’s rules and regulations. The Director of the Division of Parks and Recreation, or the Director’s
designee, shall establish qualifications and provide training as deemed necessary and desirable for seasonal patrol officers.
a. Except as otherwise provided in paragraph (a)(12)c. of this section, seasonal patrol officers have the power to do all of the
following:
1. Issue civil summonses for civil violations.
2. Issue summonses for class D environmental violations, except for violations concerning persons actively engaged in surf
fishing.
3. Issue written and verbal warnings.
4. Report any observed or suspected illegal activity to a park ranger or other peace officer.
b. Summonses and warnings issued by a seasonal patrol officer under paragraph (a)(12)a. of this section have the same force and
effect as summonses and warnings issued by a park ranger or other peace officer under § 8003A of Title 29.
c. The Director of the Division of Parks and Recreation or authorized designee shall establish a policy pertaining to seasonal
patrol officers that specifies the class D environmental violations and the civil violations for which seasonal patrol officers may issue
summonses pursuant to paragraphs (a)(12)a.1. and (a)(12)a.2.
(b) The Department of Natural Resources and Environmental Control may establish state parks on any or all portions of state lands in
Sussex County bordering on the Atlantic Ocean which have been or may hereafter be acquired and may administer them directly.
(c) The Department of Natural Resources and Environmental Control shall plan, develop and maintain all areas entrusted to its
administration as to preserve in every reasonable degree the scenic, historic, scientific, prehistoric and wildlife values of such areas.
(d) All state parks and other areas acquired primarily for recreational use shall, from the date of their establishment as such, come
under the jurisdiction of the Department of Natural Resources and Environmental Control and shall be closed to hunting, except in areas
designated by the Department of Natural Resources and Environmental Control for such purpose.
(e) The Department of Natural Resources and Environmental Control shall establish an advance reservation system to allow disabled
persons to reserve accessible campsites for the disabled at state parks.
(41 Del. Laws, c. 259, § 2; 7 Del. C. 1953, c. 4703; 53 Del. Laws, c. 111; 56 Del. Laws, c. 86; 56 Del. Laws, c. 102; 56 Del. Laws,
c. 407; 57 Del. Laws, c. 578; 57 Del. Laws, c. 734; 57 Del. Laws, c. 739, § 124; 60 Del. Laws, c. 243, § 1; 61 Del. Laws, c. 299, §
1; 61 Del. Laws, c. 389, §§ 1-4; 62 Del. Laws, c. 1, § 1; 62 Del. Laws, c. 44, §§ 1, 2; 63 Del. Laws, c. 191, § 4(i); 66 Del. Laws,
c. 138, § 1; 68 Del. Laws, c. 86, §§ 1, 2; 69 Del. Laws, c. 85, § 1; 72 Del. Laws, c. 260, § 1; 72 Del. Laws, c. 381, § 1; 74 Del.
Laws, c. 290, § 1; 74 Del. Laws, c. 291, § 2; 78 Del. Laws, c. 266, § 13; 78 Del. Laws, c. 300, § 1; 78 Del. Laws, c. 362, § 1; 79
Del. Laws, c. 30, § 1; 79 Del. Laws, c. 443, § 1; 82 Del. Laws, c. 140, § 1; 83 Del. Laws, c. 182, § 1.)
§ 4702. Violations of rules and regulations; penalties.
(a) Any person convicted of violating any rule or regulation promulgated by the Department of Natural Resources and Environmental
Control pursuant to this chapter shall be:
(1) Fined not less than $50 nor more than $100, plus the costs of prosecution and court costs, for any rule or regulation designated
by the Department of Natural Resources and Environmental Control as a class D environmental violation. Any person convicted of a
class D environmental violation within 5 years of a prior conviction for a class D environmental violation shall be fined not less than
$100 nor more than $500, plus the costs of prosecution and court costs.
(2) Fined not less than $50 nor more than $250, plus the costs of prosecution and court costs, or imprisoned not more than 10 days,
or both, for any rule or regulation designated by the Department of Natural Resources and Environmental Control as an unclassified
misdemeanor.
(3) Fined under subsection (k) of this section for parking violations contained in subsection (k) of this section.
(b) If an offense designated as a class D environmental violation or an unclassified misdemeanor under subsection (a) of this section
involves the failure to acquire a surf fishing vehicle permit or failure to pay an entrance fee required under this chapter, the violator shall
be assessed the cost of the permit, or fee, in addition to the fines and costs imposed under subsection (a) of this section.
(c) In addition to any fines, costs, or imprisonment imposed under subsection (a) of this section, any person who is convicted of any
offense involving damaging, destroying, or removing state park property shall be required to make restitution to the Department of Natural
Resources and Environmental Control for replacement or restoration of such property. Furthermore, in lieu of, or in addition to any fines,
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costs, or imprisonment imposed under subsection (a) of this section or any restitution imposed under this subsection, the Court may order
violators convicted of any offense involving damaging, destroying, or removing state park property to perform work projects in state parks.
(d) Any fine imposed for any violation pursuant to this chapter shall not be suspended to any amount less than the minimum prescribed
fine.
(e) Any conviction of a class D environmental violation, for a first offense, shall not be reported on criminal history records provided
by the State Bureau of Identification for employment purposes under § 8513(c) of Title 11. This provision shall not apply to a subsequent
conviction of a class D environmental violation within 5 years, and any such subsequent conviction shall be reported on a criminal history
record provided by the State Bureau of Identification for employment purposes under § 8513(c) of Title 11.
(f) This section shall not be construed as authorizing the Department of Natural Resources and Environmental Control to change any
penalty for violating any rule or regulation of the Department of Natural Resources and Environmental Control.
(g) All rules and regulations of the Department of Natural Resources and Environmental Control promulgated pursuant to this chapter
shall have the effect of law and shall be published in at least 2 newspapers of general circulation in the territory to be affected, at least 30
days prior to the time the rule or regulation becomes effective, except in case of an emergency when the Department of Natural Resources
and Environmental Control shall give such advance notice as it deems necessary or desirable.
(h) The Justice of the Peace Court shall have jurisdiction over violations of the rules and regulations of the Department of Natural
Resources and Environmental Control promulgated pursuant to this chapter with the condition that any person arrested for such violation
shall either be taken before the closest available justice of the peace in the county where such violation is alleged to have occurred or be
provided a voluntary assessment form in accordance with § 1311 of this title.
(i) Notwithstanding subsection (h) of this section, an arresting officer may issue a summons to any person arrested for any violation
delineated in this chapter to have said person appear at a subsequent date at the Justice of the Peace Court which is the nearest available
Justice of the Peace Court to the place of the arrest, during the regularly scheduled hours of said Court. For the purpose of this section, the
summons for later appearance shall be sufficient to grant jurisdiction over the offense to the said nearest available justice of the peace.
(j) For the purpose of this section, a justice of the peace is available when he or she is present at court.
(k) Notwithstanding subsection (h) of this section, a summons in the appropriate form to be adopted by the Department of Natural
Resources and Environmental Control may be attached to an unattended vehicle found in violation of any rule or regulation for parking
in state parks by an authorized officer.
(1) The Department of Natural Resources and Environmental Control may adopt a schedule of civil penalties, between a minimum
of $10 and a maximum of $25, for all violations delineated by its rules and regulations for parking in state parks. No court costs or
other administrative fee shall be assessed if a civil penalty is paid by voluntary assessment.
(2) Any violation of this subsection shall be subject to a civil penalty only. Such violations shall not be classified as a criminal
offense and shall not qualify as a prior conviction for purposes of § 4218(c)(1)f. of Title 11, whether or not such violation occurred
prior to July 10, 2006.
(3) The process for disposition of a summons attached to an unattended vehicle shall be as follows:
a. Payment by voluntary assessment. — An owner or operator shall pay the amount on the summons to the voluntary assessment
center listed on the summons, which center may be either a voluntary assessment center established by the Department of Natural
Resources and Environmental Control or the Justice of the Peace Court Voluntary Assessment Center. In lieu of payment, an owner
or operator may notify the applicable voluntary assessment center, within the time period specified on the summons, that the owner
or operator requests a hearing in the Justice of the Peace Court. No court costs or other administrative fee shall be assessed if a civil
penalty is paid by voluntary assessment. The penalty assessment pursuant to the Delaware Victim Compensation law, Chapter 90 of
Title 11, shall not be assessed on civil penalties pursuant to this subsection. Moneys received either through voluntary assessment
or after a hearing shall be disbursed in accordance with § 1307 of this title.
b. Presumptions. — 1. If any vehicle found to be in violation of this subsection is unattended at the time the violation is discovered
and the identity of the operator is not otherwise apparent, the person in whose name such vehicle is registered as the owner shall be
held responsible for such violation, unless the owner can furnish evidence that the vehicle was, at the time of the violation, in the
care, custody, or control of another person. Such presumption shall be rebutted if the owner does 1 of the following:
A. Furnishes to the voluntary assessment center, prior to the due date, 1 of the following:
I. An affidavit stating that the owner was not the operator of the vehicle at the time of the alleged violation and provides the
name and address of the person or company who leased, rented, or otherwise had the care, custody, or control of the vehicle.
II. A certified copy of a police report showing that the vehicle or license plate or plates thereof had been reported to the
police as stolen prior to the time of the alleged violation.
B. Provides proof in court that the owner was not the operator of the vehicle at the time of the alleged violation.
2. A summons may be issued by the prosecuting agency to a person identified by affidavit or evidence in Court as the actual
operator of the vehicle shown to have violated this subsection. There shall be a presumption that the person so identified was the
driver. The presumption may be rebutted as described in this subsection.
c. Procedure for contesting. — 1. A request for a hearing must be made no later than the due date indicated on the summons,
which date shall not be sooner than 20 days from the date the summons was issued.
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2. The voluntary assessment center shall notify the Justice of the Peace Court when a hearing is requested. Such notification
shall be in accordance with policies and procedures developed by the Justice of the Peace Court.
d. Failure to pay or contest the violation. — 1. The Justice of the Peace Court may, upon motion, enter a default judgment against
an owner or operator who does 1 of the following:
A. Fails to respond to the summons on or before the due date in any of the manners permitted by this section.
B. Requests a hearing and fails to appear.
2. When the default judgment is sought under paragraph (k)(3)d.1.A. of this section, no default judgment shall be entered until
notice by first class mail is sent by the Justice of the Peace Court to such owner or operator providing the owner or operator with
10 days to pay the civil penalty to the Justice of the Peace Court or request a hearing to contest the charge. The applicable city
county, or State agency may seek execution on any judgment entered by the Justice of the Peace Court.
e. Referral to the Division of Motor Vehicles. — In addition, the voluntary assessment center or Justice of the Peace Court may
forward to the Division of Motor Vehicles the name and address of any owner or operator who fails to respond to the summons
in a timely manner, who requests a hearing and fails to appear, or who is found responsible and fails to pay in accordance with
the order of the Court. The Division of Motor Vehicles may refuse to register or deny the renewal of the registration of any of the
vehicles of such owner or operator.
(4) After payment of a civil penalty pursuant to this subsection is received by the Department of Natural Resources and Environmental
Control or a Justice of the Peace Court, the Department or the Court shall mail a receipt indicating the payment of such civil penalty if
the person paying such civil penalty makes a written request for a receipt and encloses a self-addressed envelope with proper postage
affixed thereon.
(5) Any violation of this subsection shall be subject to a civil penalty only. Such violation shall not be classified as a criminal offense
and shall not qualify as a prior conviction for purposes of § 4218(c)(1)f. of Title 11, whether or not such violation occurred prior to
July 10, 2006.
(41 Del. Laws, c. 259, § 3; 7 Del. C. 1953, § 4705; 56 Del. Laws, c. 85; 57 Del. Laws, c. 739, § 125; 62 Del. Laws, c. 213, § 2; 63
Del. Laws, c. 304, §§ 1-4; 68 Del. Laws, c. 182; 69 Del. Laws, c. 394, §§ 1-4; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 405, §§
1-6; 76 Del. Laws, c. 403, § 1; 80 Del. Laws, c. 161, § 1.)
§ 4703. Fort Delaware State Park.
(a) Pea Patch Island is declared to be a state park under the name of Fort Delaware State Park.
(b) The Department of Natural Resources and Environmental Control shall repair Fort Delaware and shall thereafter maintain the same
in a condition fit for visitation by the general public, and shall arrange and provide transportation facilities for such purpose.
(c) The Department of Natural Resources and Environmental Control shall establish and collect reasonable fees and charges for
transportation to the said park and visitation therein; all such fees and charges received by the said Department of Natural Resources and
Environmental Control and any other funds received by it, except state appropriations, for the support of Fort Delaware State Park shall
be paid to the State Treasurer, who shall retain the same in a special fund, to be expended upon proper vouchers of the Department of
Natural Resources and Environmental Control only for the purpose of carrying out this section.
(d) The officers of the Fort Delaware Society are named as an advisory board to the Department of Natural Resources and Environmental
Control to make such recommendations for the care and maintenance of Fort Delaware State Park as they see fit.
(48 Del. Laws, c. 373, §§ 1, 2; 7 Del. C. 1953, § 4723; 50 Del. Laws, c. 402, § 1; 57 Del. Laws, c. 739, § 127.)
§ 4704. Trap Pond Project.
The Department of Natural Resources and Environmental Control shall supervise and maintain the area known as the Trap Pond Project,
located in Sussex County, consisting of approximately 1,000 acres, as a state park.
(48 Del. Laws, c. 360, §§ 1, 2; 7 Del. C. 1953, § 4724; 57 Del. Laws, c. 739, § 128.)
§ 4705. Licensing agents; service charge; regulations.
(a) The Department may authorize as many qualified persons as licensing agents as it deems necessary to effectuate the efficient
distribution of state park permits.
(b) Licensing agents may add a service charge to the required fee for a state park permit, provided the service charge does not exceed
$0.50 cents for an annual permit or daily permit book or $0.75 cents for a surf fishing vehicle permit. Such service charges, if imposed,
shall be posted by the licensing agent and shall be clearly visible to prospective purchasers.
(c) The Secretary may adopt, amend, modify or repeal rules and regulations to effectuate the policy and purpose of this section.
(71 Del. Laws, c. 443, § 5.)
§ 4706. Zoning and use.
Notwithstanding any provision of this chapter to the contrary, no state park, or any part thereof, or other area acquired primarily for
recreational use, shall be rezoned, neither shall there be a change in the use of any such lands requiring a variance or subdivision approval,
except upon 45 days prior notice to all elected members of the General Assembly in whose district such lands, or any part thereof, lie.
(72 Del. Laws, c. 156, § 1.)
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Subchapter II
The Fort DuPont Redevelopment and Preservation Act
§ 4730. Short title.
This subchapter shall be known, and may be cited, as “The Fort DuPont Redevelopment and Preservation Act.”
(79 Del. Laws, c. 361, § 1.)
§ 4731. Declaration of purpose.
The General Assembly declares the following to be the policy and purpose of this subchapter:
(1) The Fort DuPont Complex, located along the Delaware River adjacent to Delaware City, is currently underutilized but has
enormous potential as a sustainable, mixed-use community;
(2) To preserve and protect the historical and recreational amenities within the Fort DuPont Complex and to expand economic
opportunities therein, additional capital will be required to improve infrastructure, renovate certain historic structures, and make
additional improvements to said Complex;
(3) Redevelopment and renovation of the Fort DuPont Complex is both desirable and necessary, provided that:
a. The Fort DuPont Complex will remain a public destination, with its historic, natural, and recreational resources maintained
for public enjoyment;
b. Fort DuPont’s National Register status (where applicable) will be maintained, and historic building and landscape resources
will be rehabilitated and reused to the extent possible;
c. Redevelopment and infill will be concentrated within several defined areas, and will be complementary to existing historic
buildings and landscapes;
d. Fort DuPont and Delaware City will grow together as “one city” with strong physical and visual connections and complementary
land uses;
e. Diverse land and building uses will be supported at Fort DuPont to achieve a shared vision for a “live-work-learn-play-andvisit” community; and
f. Community engagement will continue to be a key component for ongoing planning for Fort DuPont’s future.
(4) In light of the foregoing, it is in the best interest of the State to enable the creation of an entity to manage, oversee, and implement
the redevelopment and preservation of the Fort DuPont Complex in accordance with the Redevelopment Plan and the provisions of
this subchapter.
(79 Del. Laws, c. 361, § 1.)
§ 4732. Definitions.
When used in this subchapter:
(1) “Board” means the Board of Directors of the Fort DuPont Redevelopment and Preservation Corporation.
(2) “Corporation” means the Fort DuPont Redevelopment and Preservation Corporation to be established pursuant to § 4733 of
this title.
(3) “Department” means the Department of Natural Resources and Environmental Control.
(4) “Fort DuPont Complex” or “Fort DuPont” means such real property, as well as such facilities, personal property, buildings, and
fixtures located thereon, owned by the State along the Delaware River bounded by the Chesapeake and Delaware Canal on the south,
and a branch canal, currently separating it from Delaware City, on the north, which includes the Fort DuPont State Park, the Governor
Bacon Health Center, and surrounding lands, formerly tax parcel numbers 1202300020, 1202300021, 1203000001, and 1203000002.
(5) “Redevelopment plan” means the draft master plan for the redevelopment of the Fort DuPont complex dated October 2013, as
may be amended from time to time by the Board, which is intended to guide the redevelopment of the Fort DuPont Complex.
(79 Del. Laws, c. 361, § 1; 82 Del. Laws, c. 72, § 1.)
§ 4733. Fort DuPont Redevelopment and Preservation Corporation.
(a) There shall be established within the Department a body corporate and politic, with corporate succession, constituting a public
instrumentality of the State, and created for the purpose of exercising essential governmental functions, which is to be known as the Fort
DuPont Redevelopment and Preservation Corporation. The Corporation shall be a membership corporation with the Department as the
sole member and shall have a certificate of incorporation and bylaws consistent with this subchapter. The Board of Directors is hereby
authorized to file a certificate of incorporation with the Secretary of State pursuant to Chapter 1 of Title 8. The certificate of incorporation
of the Corporation shall provide for approval of the Delaware General Assembly in order to amend the certificate of incorporation or to
effect a merger or dissolution of the Corporation.
(b) The powers and management of the Corporation shall be vested in a board of directors consisting of 15 members. Each director
shall have general expertise relevant to the implementation of the Redevelopment Plan, which may include expertise in the fields of land
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use, historic preservation, economic development (including without limitation real estate, redevelopment, and real estate financing),
environmental protection, parks and recreation, and tourism. The Board shall be comprised of the following directors:
(1) One director appointed by the Governor to serve as Chair;
(2) The Secretary of the Department of Natural Resources and Environmental Control;
(3) The Controller General;
(4) The Secretary of the Department of Health and Social Services;
(5) The Secretary of State;
(6) The Director of the Office of Management and Budget;
(7) The Director of the Office of State Planning Coordination;
(8) Four directors appointed by the Mayor of the City of Delaware City and approved by City Council of Delaware City;
(9) The City Manager of the City of Delaware City; and
(10) Three directors that shall be elected and appointed by the Board and shall to the extent possible have expertise in 1 or more
fields or areas set forth in this subsection.
Directors serving by virtue of their position may appoint a designee to serve in their stead. All appointed Directors shall serve at the
pleasure of the appointing authority.
(c) Any vacancy created by the resignation or early departure of a director shall be filled by the appointing authority within 60 days.
(d) A majority of the total number of directors shall constitute a quorum of the Board, and all action by the Board shall require the
affirmative vote of a majority of the directors present and voting.
(e) The Board shall adopt bylaws that provide for operating procedures such as election of officers, conflicts of interest, appointment
of committees, conduct of meetings, and other matters that will promote the efficient operation of the Board in the performance of its
duties under this subchapter.
(f) Pursuant to subsection (a) of this section, the Board of Directors is provided express authority to file an amended and restated
certificate of incorporation for the Fort DuPont Redevelopment and preservation Corporation consistent with 82 Del. Laws, c. 72.
(79 Del. Laws, c. 361, § 1; 70 Del. Laws, c. 186, § 1; 82 Del. Laws, c. 72, § 1, 2.)
§ 4734. Subcommittees.
(a) The Board may create subcommittees as needed to assist the Corporation in fulfilling its purposes and obligations. Each
subcommittee shall have a Director of the Board serve as Chair and may include persons that are not directors of the Board. Subcommittees
may assist the Board in any of the following ways:
(1) Developing plans to implement recommendations from the redevelopment plan and tracking ongoing implementation efforts.
(2) Reviewing and providing recommendations on proposals for the purchase, sale, lease or disposition of lands or buildings.
(3) Providing guidance on updates to the redevelopment plan upon request by the Board or the executive director.
(4) Providing recommendations on infrastructure improvement plans, budgets, or any other matters referred by the Board or the
executive director.
(5) Recommending rules, regulations and policies to the Board.
(6) [Repealed.]
(b)-(d) [Repealed.]
(79 Del. Laws, c. 361, § 1; 82 Del. Laws, c. 72, § 1.)
§ 4735. Powers of the Corporation.
The Corporation shall have on July 23, 2014, and upon its creation as provided for herein the powers listed in this section. The
Corporation shall be empowered, without limitation and notwithstanding any other laws to:
(1) Adopt bylaws, rules, regulations, and procedures;
(2) Act generally in a planning and development capacity, and in connection therewith, to hold, own, preserve, develop, improve,
construct, rent, lease, sell, or otherwise acquire or dispose of any real property, including without limitation any real property comprising
the Fort DuPont Complex or any portion thereof transferred to the Corporation;
(3) Employ an executive director and such deputies and assistants as may be necessary or desirable, and to retain by contract such
legal counsel, engineers, advisors, and other providers of professional services;
(4) Borrow moneys or accept contributions, grants, or other financial assistance from the federal government, the State, any locality
or political subdivision, any agency or instrumentality thereof, or any source, public or private, for or in aid of any project of the
Corporation, and to these ends, to comply with such conditions and enter into such mortgages, trust indentures, leases, or other contracts
and agreements as may be necessary or desirable;
(5) Have and exercise any and all powers available to a corporation organized pursuant to Chapter 1 of Title 8, the Delaware General
Corporation Law;
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(6) Take such other lawful actions that are consistent with the purposes of this subchapter as may be necessary or desirable to oversee,
manage, and implement the redevelopment and preservation of the Fort DuPont Complex in accordance with the redevelopment plan
and the provisions of this subchapter; and
(7) Recover costs for the use of, or the benefit derived from, the services or facilities provided, owned, operated, or financed by the
Corporation benefiting property within the Fort DuPont Complex.
(79 Del. Laws, c. 361, § 1.)
§ 4736. Powers and duties of executive director.
An executive director shall be selected by a majority vote of the Board. The executive director shall exercise such powers and duties
relating to the Corporation as may be delegated to him or her by the Board. Compensation of the executive director shall be established
by the Board, and the executive director shall serve at the pleasure of the Board.
(79 Del. Laws, c. 361, § 1; 70 Del. Laws, c. 186, § 1.)
§ 4737. Initial duties of Corporation.
On or before June 30, 2015, the Corporation shall, at a minimum:
(1) Select and hire a qualified executive director;
(2) Perform or have performed such tests, studies, examinations, and evaluations upon the lands of the Fort DuPont Complex as
may be desirable or necessary to permit such property to be transferred to the Corporation and to evaluate economic development
opportunities and the historical and other resources to be preserved; and
(3) To develop such feasibility, sales, and marketing plans as may be required to preserve and redevelop the Fort DuPont Complex
in accordance with this subchapter.
(79 Del. Laws, c. 361, § 1.)
§ 4738. Liberal construction of subchapter.
This subchapter, being necessary for the prosperity and welfare of the State and its citizens, shall be liberally construed to effect the
purposes hereof.
(79 Del. Laws, c. 361, § 1.)
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Part V
Public Lands, Parks and Memorials
Chapter 49
Maintenance and Construction of Memorials in the Town of Lewes
§ 4901. Properties under jurisdiction of Department of State.
The Department of State shall have the full and complete care and supervision of the DeVries Monument, at Lewes, Delaware, the
Zwaanendael Museum, at Lewes, Delaware, and such other buildings, memorials or parks as come under the jurisdiction of the Department
of State. The Department of State shall keep the property in its custody in proper condition at all times; and shall cause reasonable and
necessary repairs to be made.
(Code 1935, § 6225; 45 Del. Laws, c. 295, § 2; 7 Del. C. 1953, § 4902; 57 Del. Laws, c. 608, § 2B.)
§ 4902. Memorial to sailors.
(a) The Department of State may have constructed in the Town of Lewes a memorial to sailors which may be either a building,
monument, park or other appropriate construction, and which shall be given an official name by the Department of State, when it is
completed.
(b) The Department of State may prepare plans, specifications and drawings and employ such needed assistants as are necessary,
including an architect or architects; advertise for bids; require bidders to give proper bonds; reject any and all bids for reasons deemed
sufficient to said Department of State; enter into agreements and contracts necessary to carry on the work of constructing the proposed
memorial including contracts for services, labor and materials needful or proper for the purposes aforesaid or any of them; call upon any
other department or agency of the state government for advice and assistance in planning the proposed memorial and to further the work
of construction when necessary plans have been completed.
(Code 1935, § 6226; 45 Del. Laws, c. 295, § 3; 7 Del. C. 1953, § 4903; 57 Del. Laws, c. 608, § 2B; 70 Del. Laws, c. 186, § 1.)
§ 4903. Funds and appropriations; expenditures.
Any funds received from other than state appropriations may be paid to the Secretary of Finance who shall keep the same in a separate
fund or account, and such funds shall be used only for the purpose of carrying out this chapter.
(Code 1935, § 6227; 45 Del. Laws, c. 295, § 4; 7 Del. C. 1953, § 4904; 57 Del. Laws, c. 608, §§ 2A, 2C.)
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Part V
Public Lands, Parks and Memorials
Chapter 51
Unknown Sailors’ Cemetery
§ 5101. Memorial cemetery.
The public lands hereinafter described are set aside and designated as a memorial cemetery for the burial of sailors and shall be
maintained solely for that purpose. The cemetery shall be known as the Unknown Sailors’ Cemetery and shall include the following
described lands:
Beginning at a point on the north edge of the State Highway leading from the Town of Lewes towards the old Henlopen Lighthouse
Reservation, said point being 171 feet east from the lines of Lewes Coast Guard Station and corner for lands in possession of Louis
L. Paynter, and thence running along and with one line of said lands 577 feet to a point at high water mark on Delaware Bay, thence
along the high water mark of said Bay southeast 350 feet to a point corner for land leased to the Lewes Fertilizer Company, now in
possession of Smith Meal Company, thence along and with one line of said lands southwest 568 feet to a point in the north edge of the
above described highway, thence along and with the north edge of said Highway 385 feet home to the place of beginning.
(42 Del. Laws, c. 2, § 1; 7 Del. C. 1953, § 5101.)
§ 5102. Agency in charge of cemetery; powers.
The Delaware Society for the Preservation of Antiquities, a corporation of the State, is the state agency or authority of the State
designated to carry out this chapter. The Society shall provide for the care and maintenance and the reconstruction and restoration of the
Unknown Sailors’ Cemetery, and may make application to any federal department, board or agency for the performance of any necessary
work and may accept any grant which is available to it as such state agency or to the State for the purpose of the reconstruction and
restoration of the cemetery.
(42 Del. Laws, c. 2, § 2; 7 Del. C. 1953, § 5102.)
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Part VI
Archaeological and Geological Resources
Chapter 53
Archaeological Resources in the State
Subchapter I
General Provisions
§ 5301. Duties of the Department of State.
The duties of the Department of State relative to archaeology within the State are as follows:
(1) To sponsor, engage in and direct archaeological research in this State and to encourage and coordinate archaeological research
undertaken by any archaeological society, institution, agency or association of the State;
(2) To encourage cooperation among State agencies in the preservation, protection and excavation of archaeological resources which
have or may come into the custody of any other agency of this State;
(3) To protect and encourage the preservation of archaeological resources located on privately owned lands in this State;
(4) To recover and preserve archaeological resources discovered during the course of any public construction in this State, when
deemed appropriate by the Director of the Division of Historical and Cultural Affairs of the Department of State, and when the discovery
is not subject to federal laws or other state laws that may require an archaeological investigation be conducted;
(5) To cooperate with and assist the University of Delaware and other public institutions of this State in the preservation and protection
of archaeological resources;
(6) To furnish materials and objects to the Delaware State Museum, and/or other museums in the State, suitable for demonstrating
and interpreting the State’s history and heritage;
(7) To furnish exhibits and/or other materials to public and private schools of this State, and to assist in the instruction of students
on the State’s history and heritage, and the discipline of archaeology;
(8) To cooperate with similar agencies and institutions of other states and the federal government for the general purpose of preserving
archaeological resources of this State, and to ensure that all such activity of agencies and institutions is in the best interest of the State;
(9) To publish or otherwise disseminate information resulting from archaeological research conducted in this State;
(10) To enforce the laws regulating archaeological resources situated on state-owned or state-controlled lands, including subaqueous
lands.
(75 Del. Laws, c. 153, § 2.)
§ 5302. Rules, regulations and guidelines.
The Division of Historical and Cultural Affairs, with the approval of the Department of State, may formulate and adopt such rules,
regulations, standards and guidelines as it deems necessary for the effective execution of its purposes under this chapter.
(75 Del. Laws, c. 153, § 2.)
Subchapter II
Archaeological Resources in or on State Lands
§ 5303. Purposes.
(a) The General Assembly finds that:
(1) Archaeological resources in or on state lands are an integral and irreplaceable part of the State’s heritage;
(2) Archaeological resources are valued as nonrenewable resources that provide educational, scientific, social and economic benefits
for all citizens;
(3) These resources are increasingly endangered because of their commercial attractiveness and the effects of natural forces and
human intervention;
(4) Existing state laws do not provide adequate protection to prevent the loss and destruction of these archaeological resources
resulting from such causes; and
(5) There is a wealth of archaeological information which has been legally obtained by private individuals for noncommercial
purposes and which could voluntarily be made available to professional archaeological institutions to further the educational, scientific,
social and economic benefits for all citizens.
(b) The purpose of this subchapter is to secure, for the present and future benefit of the people of Delaware, the protection of
archaeological resources which are in or on state lands, including subaqueous lands, to increase awareness and encourage meaningful
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stewardship of the State’s archaeological heritage, and to foster increased cooperation and exchange of information among governmental
authorities, the professional archaeological community, and private individuals having collections of archaeological resources and data.
(75 Del. Laws, c. 153, § 2.)
§ 5304. Definitions.
(a) “Abandoned shipwreck” means any shipwreck to which title has been voluntarily given up by the owner or by the owner not taking
action after a wreck incident to claim title.
(b) “Archaeological investigation” means any surface collection, subsurface tests, excavation, or other activity that results in the
disturbance or removal of archaeological resources.
(c) “Archaeological resource” means any artifact or material remains of past human life or activities which are at least 50 years old
and are of archaeological interest, including but not limited to pottery, basketry, whole or fragmentary tools, implements, containers,
weapons, weapon projectiles, by-products resulting from manufacture or use of human-made or natural materials, surface or subsurface
structures or portions thereof, earthworks, fortifications, ceremonial structures or objects, cooking pits, refuse pits, hearths, kilns, post
molds, middens, and shipwrecks; the site, location, or context in which such artifacts or material remains are situated; and any portion
or piece of any of the foregoing.
(d) “Department” means the Department of State.
(e) “Director” means the Director of the Division of Historical and Cultural Affairs of the Department of State.
(f) “Division” means the Division of Historical and Cultural Affairs of the Department of State.
(g) “Embedded” means firmly affixed in the subaqueous lands such that the use of tools of excavation is required in order to move
bottom sediments to gain access to a shipwreck, its cargo and any part thereof, or to any other archaeological resource.
(h) “Historic shipwreck” means a shipwreck that is listed in or eligible for listing in the National Register of Historic Places.
(i) “National Register of Historic Places” means the nation’s official list of districts, sites, buildings, structures, and objects significant in
American history, architecture, archaeology, engineering, and culture maintained by the United States National Park Service, Department
of the Interior.
(j) “Of archaeological interest” means capable of providing scientific or humanistic understandings of past human behavior, cultural
adaptation, and related topics through the application of scientific or scholarly techniques such as controlled observation, contextual
measurement, controlled collection, analysis, interpretation and explanation.
(k) “Ordinary high water mark” means, for nontidal waters, the line at which the presence and action of water are so continuous in
all ordinary years so as to leave a distinct mark on a bank either by erosion or destruction of terrestrial (nonaquatic) vegetation, or that
can be determined by other physical or biological means.
(l) “Person” means an individual, corporation, partnership, trust, institution, association, or any other private entity or any officer or
employee, agent, department, or instrumentality of the United States or of any state or political subdivision thereof.
(m) “Qualified person” means a person meeting the United States Secretary of the Interior’s Professional Qualification Standards for
Archeology (48 FR 44716; 36 C.F.R. Part 61), as determined by the Director.
(n) “Secretary” means the Secretary of State.
(o) “Shipwreck” means a vessel or wreck, its cargo and other contents.
(p) “State lands” means any lands owned or controlled by the State of Delaware, including subaqueous lands.
(q) “Subaqueous lands” means submerged lands and tidelands.
(r) “Submerged lands” means:
(1) Lands lying below the line of mean low tide in the beds of all tidal waters within the boundaries of the State;
(2) Lands lying below the plane of the ordinary high water mark of nontidal rivers, streams, lakes, ponds, bays and inlets within the
boundaries of the State as established by law; and
(3) Specific manmade lakes or ponds as designated by the Secretary of the Department of Natural Resources and Environmental
Control.
(s) “Terrestrial lands” means lands owned or controlled by the State lying above the line of mean low tide.
(t) “Tidelands” means lands lying between the line of mean high water and the line of mean low water.
(75 Del. Laws, c. 153, § 2.)
§ 5305. Authority to enhance, preserve and protect archaeological resources.
(a) The title to all archaeological resources in or on State lands, including those in or on subaqueous lands, is hereby declared to be
under the exclusive domain and control of the State. Further, as provided for under the Abandoned Shipwreck Act (Pub. L. 100-298; 43
U.S.C. §§ 2101-2106), and Guidelines therefore (55 FR 50115, 55 FR 51528), 56 FR 7875:
(1) The State has title to all shipwrecks embedded in subaqueous lands of this State; and
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(2) The State has title to every shipwreck located on the State’s subaqueous lands, if the shipwreck is listed in or determined eligible
for listing in the National Register of Historic Places (16 U.S.C. § 470a; [former] 33 C.F.R. Part 63 [repealed]; 36 C.F.R. Part 60).
(b) The State’s authority to enhance, preserve and protect archaeological resources in or on state lands is vested solely in the Department.
(c) Notwithstanding the jurisdictional provisions of § 7203 of this title, the Department is the custodian of archaeological resources in
or on the State’s subaqueous lands, including but not limited to shipwrecks to which the State has title under § 5305(a) of this title.
(75 Del. Laws, c. 153, § 2.)
§ 5306. Jurisdiction and inter-agency cooperation.
(a) When an archaeological resource is located within the jurisdiction of another state agency, the Division shall coordinate the review
and evaluation of permit applications issued pursuant to § 5309 of this title to ensure conformance with all applicable laws and regulations.
(b) Any agency whose activities may affect state-owned shipwrecks shall consult with the Division, provide the Division the opportunity
to review and comment on the proposed activity, and take into account the effects of the activity on such resources. This review will not
substitute for consultation under Section 106 of the National Historic Preservation Act [16 U.S.C. § 470f] or Section 307 of the Coastal
Zone Management Act [16 U.S.C. § 1456], if applicable.
(c) The Division may enter into agreements with state land managing agencies for the purposes of enhancing, preserving, protecting
and promoting good stewardship of archaeological resources located in or on State lands managed by those agencies.
(d) All state land managing agencies shall cooperate with the Division in implementing the provisions of this chapter.
(e) All state and local law-enforcement agencies and officers are hereby empowered to, and shall assist the Division in carrying out
its duties under this chapter.
(75 Del. Laws, c. 153, § 2.)
§ 5307. Restriction or closure of public access.
(a) The Division may temporarily restrict or close public access to any archaeological resource and its surrounding location or context
in or on State lands, including subaqueous lands, and including public beaches notwithstanding the jurisdictional provisions of § 6803
of this title, whenever:
(1) In the judgment of the Director a condition constituting an imminent threat to an archaeological resource exists, which may
cause harm to the qualities that make the resource of archaeological interest. Such threats may be due to the effects of natural forces
or human intervention;
(2) The Director finds that an archaeological investigation is needed to determine if a resource is of archaeological interest; and/or
(3) The Director has issued a permit for archaeological investigation of an archaeological resource under § 5309 of this title, or the
Division is conducting an archaeological investigation of an archaeological resource.
(b) The Director shall consult with the state land managing agency with jurisdiction over the lands in or on which the archaeological
resource is located to define: the area to be restricted or closed; the anticipated period of the restriction or closure; how the restriction
or closure will be posted to provide public notice; how the restriction or closure will be monitored or enforced; and, if the restriction or
closure occurs pursuant to paragraph (a)(1) of this section, the steps that the Director and the other state land managing agency must take
to alleviate the threat to the archaeological resource.
(c) The period of a restriction or closure under this section may not exceed 90 days, unless occurring pursuant to paragraph (a)(3) of
this section, in which case the period of the restriction or closure is the term of the permit. The Director may, with the approval of the
Secretary of State, extend a period of restriction or closure.
(1) The Director shall first consult with the state land managing agency in or on which the archaeological resource is located, as
to the need for extending the period; and
(2) When occurring pursuant to paragraph (a)(1) of this section, the Director shall hold a public hearing; the Director shall take into
account the comments provided at the public hearing, and within 15 days notify local governments and the public of the Director’s
decision on whether or not to extend the restriction or closure of access. The Director shall publish that decision in a daily newspaper
of statewide circulation and in a newspaper of general circulation in the county in which the restriction or closure will occur.
(d) The Director may, with the approval of the Secretary of State, indefinitely restrict access to and recovery of certain shipwrecks to
which the State holds title or terrestrial sites in or on state lands that have particular archaeological and/or environmental values.
(e) The Director may permit public access to certain shipwrecks to which the State holds title with appropriate restrictions to protect
their archaeological and/or environmental values.
(f) Any person whose interest is substantially affected may appeal a decision of the Division made pursuant to this subsection regarding
access to an archaeological resource. The appeal must be made to the Secretary, and filed with the Secretary within 60 days from the
issuance of the Division’s decision. The appeal must be conducted in accordance with the Administrative Procedures Act, § 10101 et seq.
of Title 29. If an appellant exhausts all administrative remedies, the appellant is entitled to judicial review in accordance with subchapter
V of the Administrative Procedures Act [§ 10141 et seq. of Title 29].
(75 Del. Laws, c. 153, § 2; 70 Del. Laws, c. 186, § 1.)
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§ 5308. Permit required.
No person may excavate, collect, salvage, recover, remove, damage, or otherwise alter or deface any archaeological resource or its
surrounding location or context, located in or on state lands, including subaqueous lands, without first having obtained a permit from
the Division.
(39 Del. Laws, c. 11, § 2; 7 Del. C. 1953, § 5302; 64 Del. Laws, c. 138, §§ 4-6; 69 Del. Laws, c. 430, § 2; 70 Del. Laws, c. 186, §
1; 75 Del. Laws, c. 153, § 2.)
§ 5309. Permit application.
(a) Any qualified person may apply to the Division for a permit to conduct archaeological investigations on state lands. The application
must contain information that the Division considers necessary, including information concerning the time, scope, location, specific
purpose of the proposed work, and proposed disposition of recovered materials and associated records.
(b) The Division shall issue a permit pursuant to an application under subsection (a) of this section if the Division finds that:
(1) The applicant is qualified to carry out the permitted activity;
(2) The proposed activity is undertaken for the purpose of furthering archaeological knowledge in the public interest;
(3) The archaeological resources which are excavated or removed from state lands, including subaqueous lands, will remain the
property of the State. Those resources and copies of associated archaeological records and data will be preserved by a qualified
university, museum, or other scientific or educational institution, except as may be provided for under a shipwreck management program
established pursuant to § 5316 of this title;
(4) The activity pursuant to the permit is not inconsistent with any management plan applicable to the state lands concerned; and
(5) The proposed activity will not interfere with archaeological investigations being conducted or planned by the Division.
(c) A permit may contain any terms, conditions, or limitations which the Division considers necessary to achieve the intent of the
chapter in the best interest of the State. A permit must identify the person responsible for carrying out the archaeological investigation.
The Division may set reasonable permit fees that approximate and reasonably reflect the costs necessary to defray the expenses of the
Division for its services. Any fees collected by the Division under this section are hereby appropriated to the Division to carry out the
purposes of this chapter.
(d) The Division may renew a permit upon or prior to expiration, upon such terms as the applicant and the Division may mutually
agree. Holders of permits are responsible for obtaining permission of any federal agencies having jurisdiction, including but not limited
to the United States Coast Guard, the United States Department of the Navy and the United States Army Corps of Engineers, and of
state agencies having jurisdiction, including but not limited to the Department of Natural Resources and Environmental Control, prior to
conducting any archaeological investigation on subaqueous or terrestrial state lands.
(e) The Division may suspend a permit issued under this chapter upon the determination that the permit holder has violated any provision
of § 5312(a), (b), (c) or (d) of this title. The Division may revoke a permit upon the assessment of a civil penalty under § 5312(e) of this
title against the permit holder, or upon the permit holder’s conviction under § 5312(f) of this title. The Division may suspend or revoke
a permit if the permit holder has not substantially commenced or is not diligently pursuing the archaeological investigation.
(f) Any permit applicant or permit holder may appeal the denial, suspension, or revocation of a permit by the Division. An appeal must
be made to the Secretary and filed with the Secretary within 60 days from the issuance of the Division’s decision. The appeal must be
conducted in accordance with the Administrative Procedures Act, § 10101 et seq. of Title 29. If an appellant exhausts all administrative
remedies, the appellant is entitled to judicial review in accordance with subchapter V of the Administrative Procedures Act [§ 10141
et seq. of Title 29].
(75 Del. Laws, c. 153, § 2.)
§ 5310. Qualified repositories.
The University of Delaware and the Division of Historical and Cultural Affairs are designated as properly qualified repositories within
the meaning of this chapter.
(39 Del. Laws, c. 11, § 2; 48 Del. Laws, c. 219, § 1; 7 Del. C. 1953, § 5303; 64 Del. Laws, c. 138, § 7; 75 Del. Laws, c. 153, § 2.)
§ 5311. Repository of artifacts or material remains.
All artifacts or material remains found in or on state lands, including subaqueous lands, and related records resulting from research,
surveys and excavation conducted under a permit must be deposited for permanent preservation in either the University of Delaware
Department of Anthropology or the Division of Historical and Cultural Affairs, or in a qualified repository approved by the Director,
except as may be provided for under a shipwreck management program established pursuant to § 5316 of this title.
(39 Del. Laws, c. 11, § 3; 43 Del. Laws, c. 194, § 1; 48 Del. Laws, c. 219, § 2; 7 Del. C. 1953, § 5304; 64 Del. Laws, c. 138, §§
8-11; 75 Del. Laws, c. 153, § 2.)
§ 5312. Prohibited acts, criminal and civil penalties.
(a) A person may not excavate, collect, salvage, recover, remove, damage, or otherwise alter or deface any archaeological resource,
or its surrounding location or context, located on State lands, including subaqueous lands, unless such activity is pursuant to a permit
issued under § 5309 of this title.
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(b) A person may not sell, transfer, exchange, transport, purchase, receive or offer to sell, transfer, exchange, transport, purchase or
receive any archaeological resource as defined in § 5303 of this title, unless the Division specifically allows for such activity under a
permit issued pursuant to § 5309 of this title and/or as may be provided for under a shipwreck management program established pursuant
to § 5316 of this title.
(c) A person may not possess, use, or employ on lands owned or controlled by the State, including subaqueous lands, tools or devices
designed, modified or commonly used for the excavation, collection, salvage, recovery or removal of archaeological resources or otherwise
designed or modified for activities prohibited by this chapter, excluding individuals permitted or authorized to possess such tools and
devices in accordance with the requirements of this chapter.
(d) A person may not knowingly make a false statement, representation or certification in any application for permits granted under
this chapter.
(e) Whoever violates or counsels, procures, solicits, or employs another to violate:
(1) Any prohibition contained in this chapter;
(2) Any condition or limitation in a permit issued pursuant to this chapter; or
(3) Any rule or regulation promulgated under this chapter
shall, upon conviction, be sentenced to pay a fine of not less than $1000 but not exceeding $10,000, or to imprisonment of up to 30
days, or both. Each day of excavation, alteration, destruction, injury or other violation is considered a separate offense and is punishable
as such. Unauthorized tools or devices seized from violators of subsection (c) of this section may be ordered forfeited to the State without
compensation. Further, restitution may be ordered to compensate the State for the cost of remedying or remediating any violation of this
chapter. The Superior Court has jurisdiction of offenses under this chapter.
(f) Whoever violates or counsels, procures, solicits or employs another person to violate:
(1) Any prohibition contained in this chapter;
(2) Any condition or limitation in a permit issued pursuant to this chapter; or
(3) Any rule or regulation promulgated hereunder
shall be assessed a civil penalty of not less than $1000 but not exceeding $10,000. The Superior Court shall have jurisdiction of a
violation in which a civil penalty is sought.
(g) Any expenses or civil penalties collected by the Division under this section may be allocated to the Division, subject to the approval
of the Department, to carry out the purposes of this chapter.
(39 Del. Laws, c. 11, §§ 1, 5; 7 Del. C. 1953, §§ 5301, 5306; 64 Del. Laws, c. 138, §§ 2, 3, 14; 69 Del. Laws, c. 430, §§ 1, 3-5; 75
Del. Laws, c. 153, § 2.)
§ 5313. Exemptions.
(a) The provisions of §§ 5308, 5309, and 5312(c) of this title do not apply to activities of State agencies which are:
(1) Already subject to federal laws or regulations relating to archaeological resources, or
(2) Not intended as archaeological activities, such as, but not limited to, surveying, environmental remediation, soil testing,
construction, or property maintenance. State agencies are encouraged to advise the Division of any archaeological resources found
during the course of such activities, pursuant to the letter or spirit of § 5306 of this title.
(b) This chapter does not apply to public use areas on lands along the Atlantic coast from Cape Henlopen south to the state line, situated
between the mean low water line and the base of the primary dune, unless otherwise restricted or closed by the Director under the authority
of § 5307 of this title.
(69 Del. Laws, c. 430, § 6; 75 Del. Laws, c. 153, § 2.)
§ 5314. Confidentiality.
If the Director has reason to believe that disclosure of the exact location or nature of an archaeological resource would lead to vandalism,
pilferage, damage, or otherwise pose a risk of harm to the resource or to the site at which the resource is located, regardless of ownership
of the property, the Director may:
(1) Elect not to disclose such information to the public;
(2) Provide the public with only general information about the resource and/or its location, when notifying the public of a restriction
or closure of access to a state archaeological resource under § 5307 of this title, or under provisions applicable to shipwrecks to which
the State has title.
(75 Del. Laws, c. 153, § 2.)
§ 5315. Cooperation with private individuals.
(a) The Division shall take any action necessary and consistent with the purposes of the chapter to foster and improve the
communication, cooperation, and exchange of information between the Division and:
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(1) Private individuals having collections of archaeological resources and data which were obtained through legal means;
(2) Professional archaeologists and associations of professional archaeologists concerned with the archaeological resources of
Delaware and of the United States.
(b) In order to protect and preserve archaeological resources which are found on privately owned lands in this State, it is a declaration
and statement of legislative intent that archaeological excavations on privately owned lands are discouraged, except in accordance with and
pursuant to the spirit and policy of this chapter; and persons having knowledge of the location of archaeological resources in Delaware are
encouraged to communicate such information to the Director or to the Chairperson of the Department of Anthropology of the University
of Delaware.
(39 Del. Laws, c. 11, § 4; 43 Del. Laws, c. 194, § 2; 48 Del. Laws, c. 219, § 3; 7 Del. C. 1953, § 5305; 64 Del. Laws, c. 138, §§
12, 13; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 153, § 2.)
§ 5316. Shipwreck Management Program.
The Division may establish a Shipwreck Management Program, in cooperation with other state and federal agencies experienced in
the management of subaqueous lands and resources, to encourage the identification, protection, and, where appropriate, the recovery
and disposition of abandoned shipwrecks embedded in or located on state-owned or state-controlled subaqueous lands. The Division is
authorized to establish a professional staff for the purpose of implementing the Program.
(75 Del. Laws, c. 153, § 2.)
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Part VI
Archaeological and Geological Resources
Chapter 54
Unmarked Human Burials and Human Skeletal Remains
§ 5401. Purpose.
The purposes of this chapter are:
(1) To help provide adequate protection for unmarked human burials and human skeletal remains found anywhere within the State,
including subaqueous lands, but excluding those found anywhere on federal land.
(2) To provide adequate protection for unmarked human burials and human skeletal remains not within the jurisdiction of the Medical
Examiner that are encountered during archaeological excavation, construction, or other ground disturbing activities.
(3) To provide for adequate skeletal analysis of remains removed or excavated from unmarked human burials.
(4) To provide for the dignified and respectful reinterment or other disposition of Native American, African American, and all other
skeletal remains, including those of enslaved individuals and individuals of undetermined cultural affiliation.
(66 Del. Laws, c. 38, § 1; 75 Del. Laws, c. 153, §§ 4, 5; 83 Del. Laws, c. 142, § 1.)
§ 5402. Definitions.
As used in this chapter:
(1) “Committee” means a body of stakeholders that inform the treatment and disposition of unmarked human burials and skeletal
remains:
a. When burials or remains are determined to be Native American, the Committee shall be chaired by the Director or the Director’s
designee, and consist of the Chief of the Nanticoke Indian Tribe and the Chief of the Lenape Indian Tribe of Delaware, or the Chiefs’
designees, 2 members appointed by each Chief, the Director of the Division of Historical and Cultural Affairs of the Department of
State or the Director’s designee, 1 member appointed by the Director, and a ninth member from the private sector appointed by the
Governor. Governor’s appointee shall serve 1-year, renewable terms. This is a standing committee.
b. When burials or remains are determined to be other than Native American, an ad hoc committee shall be formed. The committee
shall include individuals well suited to ensure treatment and disposition of the human burial and skeletal remains furthers the goal
of providing for the dignified and respectful reinterment or other disposition including recognition of the special consideration for
African Americans, including enslaved persons, and for persons of undetermined cultural affiliation. The Committee shall be chaired
by the Director or the Director’s designee, and consist of 1 member of the private sector appointed by the Governor who shall serve
1-year renewable terms and 7 members appointed by the Director, representing interested parties, which may include any of the
following:
1. Known or presumed lineal descendants.
2. Individuals or organizations with a likely cultural affiliation to the remains.
3. The landowner.
4. A professional archaeologist.
5. An historian or person of similar expertise.
(2) “Director” means the Director of the Division of Historical and Cultural Affairs, Department of State.
(3) “Human skeletal remains” or “remains” means any part of the body of a deceased human being in any stage of decomposition.
(4) “Lineal descendant” means any individual tracing their ancestry directly or by proven kinship.
(5) “Medical Examiner” means as defined in Chapter 47 of Title 29.
(6) “Person” means an individual, corporation, partnership, trust, institution, association, or any other private entity or any officer or
employee, agent, department, or instrumentality of the United States or of any state or political subdivision thereof.
(7) “Professional archaeologist” means a person having all of the following qualifications:
a. A graduate degree in archaeology, anthropology, history, or another related field with a specialization in archaeology.
b. A minimum of 1 year’s experience in conducting basic archaeological field research, including the excavation and removal
of human skeletal remains.
c. Has designed and executed an archaeological study and presented written results and interpretations of such study.
(8) “Proven kinship” means the relationship among individuals that exists because of genetic descent, which includes racial descent.
(9) “Skeletal analyst” means any individual having all of the following qualifications:
a. A graduate degree in a field involving the study of the human skeleton such as skeletal biology, forensic osteology, or other
relevant aspects of physical anthropology or medicine.
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b. A minimum of 1 year’s experience in conducting laboratory reconstruction and analysis of skeletal remains, including the
differentiation of the physical characteristics denoting cultural or biological affinity.
c. Has designed and executed a skeletal analysis and presented the written results and interpretations of such analysis.
(10) “Unmarked human burial” means any interment of human skeletal remains for which there exists no grave marker or any other
historical documentation providing information as to the identity of the deceased.
(66 Del. Laws, c. 38, § 1; 75 Del. Laws, c. 153, § 4; 83 Del. Laws, c. 142, § 1.)
§ 5403. Avoidance, protection, and preservation of remains.
All persons are encouraged to undertake due diligence to identify, demarcate, and preserve in situ, unmarked human burials to avoid
encountering skeletal remains; and to share information with the Division of Historical and Cultural Affairs, including reports or studies
undertaken for these purposes.
(83 Del. Laws, c. 142, § 1.)
§ 5404. Discovery of remains and notification of authorities.
(a) Any person knowing or having reasonable grounds to believe that unmarked human burials or human skeletal remains are being
encountered shall notify immediately the Medical Examiner or the Director.
(b) When any person encounters unmarked burials or human skeletal remains as a result of construction, agricultural, or any other
ground-disturbing activities, the person shall cease the ground-disturbing activity immediately upon discovery and notify the Medical
Examiner or the Director of the discovery.
(c) Human burials or human skeletal remains which are encountered by a professional archaeologist as a result of survey or excavations
must be reported to the Director. Excavation and other activities may resume after written approval is provided by the Director. The
treatment, analysis, and disposition of the remains shall conform to the provisions of this chapter.
(d) The Director shall notify the Chief Medical Examiner of any reported human skeletal remains discovered by a professional
archaeologist.
(66 Del. Laws, c. 38, § 1; 75 Del. Laws, c. 153, § 4; 83 Del. Laws, c. 142, § 1.)
§ 5405. Jurisdiction over remains.
(a) Subsequent to notification of the discovery of an unmarked human burial or human skeletal remains, the Medical Examiner shall
certify in writing to the Director, as soon as possible, whether the remains come under the Medical Examiner’s jurisdiction.
(b) If the Medical Examiner determines that the remains come under the Medical Examiner’s jurisdiction, the Medical Examiner will
immediately proceed with an investigation pursuant to Chapter 47 of Title 29.
(c) All those remains determined to be not within the jurisdiction of the Medical Examiner shall be within the jurisdiction of the Director.
(66 Del. Laws, c. 38, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 153, § 4; 83 Del. Laws, c. 142, § 1.)
§ 5406. Archaeological investigation of human skeletal remains.
All excavations not under the jurisdiction of the Medical Examiner shall be either conducted by, or under the supervision of, a
professional archaeologist and shall be subject to permission from the landowner. All permissible excavations shall be conducted in
accordance with the regulations promulgated for this chapter.
(66 Del. Laws, c. 38, § 1; 75 Del. Laws, c. 153, § 4; 83 Del. Laws, c. 142, § 1.)
§ 5407. Consultation, analysis, and disposition.
(a) The Director shall notify the Committee of all skeletal remains determined to be Native American within 5 days of learning of the
discovery of human burials or skeletal remains pursuant to § 5404 of this title. The Director shall provide the Committee with a written
plan for the proposed treatment and ultimate disposition of the skeletal remains within 60 days of making the notification.
(b) For all non-Native American burials or skeletal remains, the director shall begin forming the Committee within 5 days of learning
of the discovery pursuant to § 5404 of this title. The Director shall publish notice of all discoveries of human skeletal remains other than
Native American on the Division’s website, and at least once per week for 2 successive weeks in a newspaper of general circulation in
the county where the burials or skeletal remains were situated, in an effort to determine the identity or lineal descendants or both of the
deceased. Lineal descendants shall have 30 days after the last published notice to notify the Director of their ancestry or proven kinship
to the skeletal remains. Within 60 days of the end of the notification period the Director shall convene the Committee to develop a written
plan for treatment and disposition of human skeletal remains. Treatment and ultimate disposition of the skeletal remains shall be subject
to the written permission of the lineal descendants or shall be determined by the Director if no lineal descendant is identified.
(c) All skeletal analysis conducted pursuant to this chapter shall be undertaken only by a skeletal analyst.
(d) Any previously excavated skeletal remains of Native Americans of the State which are on display or remain uncovered as of June
5, 1987, shall be reinterred within 1 year. Treatment and disposition of all Native American remains discovered after enactment shall
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be determined by the Committee or, if direct descent can be determined, by a lineal descendant. In any event, Native American skeletal
remains discovered after enactment shall be reinterred within 90 days unless an extension or other disposition is granted by the Committee.
(e) All reasonable efforts shall be made to maintain burials and skeletal remains in situ if that is the consensus of the Committee. Any
person which is responsible, either directly or indirectly, for the unearthing of human remains deemed to be under the jurisdiction of the
Division of Historical and Cultural Affairs shall be responsible for the cost of research to determine the identity, delineation of the burial
ground, excavation, and reinternment, and providing a suitable marker for those remains.
(66 Del. Laws, c. 38, § 1; 68 Del. Laws, c. 290, § 84; 75 Del. Laws, c. 153, §§ 4, 7; 83 Del. Laws, c. 142, § 1.)
§ 5408. Prohibited acts.
No person, unless acting pursuant to Chapter 47 of Title 29, shall:
(1) Knowingly acquire any human skeletal remains removed from unmarked burials in Delaware, except in accordance with this title.
(2) Knowingly sell any human skeletal remains acquired from unmarked burials in Delaware.
(3) Knowingly exhibit human skeletal remains.
(4) Knowingly fail to notify the Medical Examiner or the Director of a discovery of unmarked human burials or skeletal remains
pursuant to § 5404 of this title.
(66 Del. Laws, c. 38, § 1; 75 Del. Laws, c. 153, § 4; 83 Del. Laws, c. 142, § 1.)
§ 5409. Exceptions.
(a) Human skeletal remains acquired from commercial biological supply houses or through medical means are not subject to this chapter.
(b) Human skeletal remains determined to be within the jurisdiction of the Medical Examiner are not subject to the prohibitions
contained in this chapter.
(c) Human skeletal remains acquired through archaeological excavations under the supervision of a professional archaeologist are not
subject to the prohibitions as provided in § 5408(1) of this title.
(d) Remains discovered within the known boundaries of a marked cemetery under the purview of the Department of Health and Social
Services pursuant to Chapter 79A of Title 29 are not subject to this chapter.
(66 Del. Laws, c. 38, § 1; 75 Del. Laws, c. 153, §§ 4, 8; 83 Del. Laws, c. 142, § 1.)
§ 5410. Criminal penalties.
Any person who violates § 5408 of this title shall upon conviction be sentenced to pay a fine of not less than $1,000 nor more than
$10,000 or be imprisoned not more than 2 years or both. The Superior Court shall have jurisdiction of offenses under this chapter.
(66 Del. Laws, c. 38, § 1; 75 Del. Laws, c. 153, §§ 4, 6, 9; 83 Del. Laws, c. 142, § 1.)
§ 5411. Rules, regulations, standards, and guidelines.
The Division of Historical and Cultural Affairs may, with the approval of the Department of State, formulate and adopt such rules,
regulations, standards, and guidelines as it considers necessary for the effective execution of its purposes under this chapter.
(75 Del. Laws, c. 153, § 10; 83 Del. Laws, c. 142, § 1.)
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Part VI
Archaeological and Geological Resources
Chapter 55
Geological Survey
§ 5501. Delaware Geological Survey; purposes.
The Delaware Geological Survey shall have the following purposes and objectives:
(1) The systematic investigation of the geologic structure of the State, the nature and composition of the igneous, sedimentary and
metamorphic rocks, their areal extent and thickness, and other features that may lead to a better understanding of the geology of the State;
(2) The systematic exploration and examination of all minerals, rock materials, water and other earth resources which are, or may
become in the foreseeable future, of importance to the economic development of the State, or to the defense of the State or the United
States;
(3) The examination of the physiographic features of the State, with special reference to their practical bearing upon the State’s
economic life;
(4) The preparation of reports, with necessary illustrations and maps, which shall embrace both a general and detailed description
of the geology and earth resources of the State;
(5) The preparation of the special geologic maps to illustrate the earth resources of the State;
(6) The consideration of such other scientific questions in the field of geology, as is deemed of value to the people of the State;
(7) The recommendation and preliminary drafting of such new state laws as are deemed advisable or necessary for regulating the
optimum utilization and equitable administration of the State’s geological resources.
(48 Del. Laws, c. 173, § 3; 7 Del. C. 1953, § 5502; 66 Del. Laws, c. 154, § 1.)
§ 5502. Management of Delaware Geological Survey.
The University of Delaware shall have general charge of the Survey and shall direct its operations.
(48 Del. Laws, c. 173, § 2; 7 Del. C. 1953, § 5503; 55 Del. Laws, c. 442, § 6.)
§ 5503. Superintendent; appointment; qualifications; compensation.
The University shall appoint as superintendent of the Survey a State Geologist and shall determine his or her compensation. The State
Geologist shall be a member of the technical or professional staff of the University of Delaware, and 1/2 of his or her salary shall be paid
from appropriations to the Survey and the other 1/2 shall be paid by the University of Delaware out of its instructional budget.
(48 Del. Laws, c. 173, § 2; 7 Del. C. 1953, § 5504; 70 Del. Laws, c. 186, § 1.)
§ 5504. Assistants and employees.
The University of Delaware shall appoint such assistants and employees as are necessary to carry out the purposes of this chapter and
shall determine the compensation of such persons.
(48 Del. Laws, c. 173, § 2; 7 Del. C. 1953, § 5505.)
§ 5505. Responsibilities and duties of State Geologist.
The State Geologist and the Acting State Geologist shall have the following responsibilities and duties:
(1) The State Geologist or the Acting State Geologist shall hereby be required to evaluate all activities related to oil, gas and
geothermal energy exploration or development on land or water within the State and report his or her findings and recommendations
promptly to the appropriate and affected agencies and officials of the State. In order to receive and consider the report of the State
Geologist, any agency or official of the State approached to allow, permit or otherwise provide for such activities shall promptly notify
the State Geologist, providing details of the contact and requesting a report and recommendations.
(2) The Delaware Geological Survey may receive by appropriation or transfer funds for cooperative programs with its counterpart
federal agencies, including the United States Geological Survey, the United States Bureau of Mines and the United States Minerals
Management Service and shall be the only agency of the State to enter into agreements with those federal agencies.
(3) The State Geologist shall serve as the representative of the State to the River Master of the Delaware River in accordance with
the Supreme Court Decree of 1954 [New Jersey v. New York, 347 U.S. 995, 74 S. Ct. 842; 98 L. Ed. 1127 (1954)].
(4) The State Geologist or the Acting State Geologist shall prepare reports to the General Assembly showing the progress and
conditions of the Survey together with such other information as it deems necessary and useful. Any reports, maps or other literature
prepared and printed by the Survey shall be distributed or sold as the interest of the State and of science demand. All material collected
after having served the purposes of the Survey shall be distributed to the educational institutions of the State or the whole or part of
such material shall be put on public exhibition.
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(5) Responsibility for matters relating to water quality, geologic hazards, seismicity and cartographic information.
(48 Del. Laws, c. 173, § 4; 7 Del. C. 1953, § 5506; 55 Del. Laws, c. 442, § 7; 66 Del. Laws, c. 154, § 2; 70 Del. Laws, c. 186, §
1.)
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Part VI
Archaeological and Geological Resources
Chapter 57
Disaster Relief and Assistance
§ 5701. Declaration of policy and intent.
(a) It is the policy and purpose of the State to obtain from the federal government all available relief and assistance to alleviate suffering
and damage resulting from major disasters, such as flood, storm, hurricane, fire, drought or other catastrophe, in any part of the State,
and to repair or restore essential public facilities that have been damaged or destroyed by a major disaster, and, to that end, to cooperate
fully with the federal government and its agencies.
(b) It is the policy and purpose of the State to obtain from the federal government all available assistance for the improvement and
maintenance of the natural resources of the State, and to that end, to cooperate fully with the federal government and its agencies.
(7 Del. C. 1953, § 5701; 53 Del. Laws, c. 345; 54 Del. Laws, c. 152, §§ 1, 2.)
§ 5702. Authority of Governor or designated representative to act for State.
(a) The Governor, or such officer, agency or department of the State as shall be designated in writing by the Governor to act as the State’s
representative, may enter into such agreements with the federal government, or an agency thereof, as the Governor or such designated
representative shall deem necessary to obtain available aid, assistance and relief from the federal government, or its agencies, and do all
other acts or things necessary or convenient to obtain such aid and assistance or to carry out the powers expressly granted by this chapter
and to effectuate its purpose, including the power to act in the acquisition of lands or interests in lands privately owned.
(b) Neither the Governor nor such designated representative shall commit the State to any financial obligation except to the extent of
available appropriations; provided, however, that any such agreement authorized by subsection (a) of this section may specify:
(1) That the State will agree to hold and save the United States and its agents free from any claim for damages which may arise
out of the performance of such works and projects to be undertaken by the federal government or its agencies pursuant to any such
agreement, other than claims arising from the tortious acts of agents or employees of the federal government;
(2) That the State will furnish or provide, free of cost to the United States, all lands, easements, rights-of-way, and other areas or
interests in land within this State required for or in connection with the performance of the work or project to be undertaken by the
federal government, or its agencies, in respect of such agreement, and for the maintenance thereafter of such work or project; and
(3) That the State will furnish or provide free of cost to the United States such things as may be required by the federal government
in connection with the improvement or maintenance thereof.
(7 Del. C. 1953, § 5702; 53 Del. Laws, c. 345; 54 Del. Laws, c. 152, §§ 3-5.)
§ 5703. Costs and expense; fund to be charged.
Such sums as may be required, whether in payment of the costs of necessary legal proceedings, as compensation to property owners,
or in furtherance of any agreement authorized by § 5702 of this title, shall be charged against any special or emergency appropriation
made by the General Assembly in connection with the work or project which is the subject matter of the agreement with the federal
government or its agencies.
(7 Del. C. 1953, § 5703; 53 Del. Laws, c. 345.)
§ 5704. Powers of Governor and Secretary of State.
(a) The Governor and the Secretary of State may do all things necessary and proper to provide for disaster recovery and rehabilitation.
(b) The Governor may receive and disburse on vouchers signed by the Secretary of State, sums of money from the United States federal
government for disaster recovery and rehabilitation.
(7 Del. C. 1953, § 5704; 53 Del. Laws, c. 342, §§ 3, 4.)
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Part VI
Archaeological and Geological Resources
Chapter 58
[Reserved].
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Title 7 - Conservation
Part VI
Archaeological and Geological Resources
Chapter 59
Public Recreation on Private Lands
§ 5901. Purpose.
The purpose of this chapter is to encourage owners of land to make land and water areas available to the public for recreational purposes
by limiting their liability toward persons entering thereon for such purposes, whether such persons entered upon the land of the owner
with or without consent of the owner.
(7 Del. C. 1953, § 5901; 55 Del. Laws, c. 449; 67 Del. Laws, c. 107, § 1.)
§ 5902. Definitions.
As used in this chapter:
(1) “Charge” means the admission price or fee asked in return for invitation or permission to enter or go upon the land.
(2) “Land” means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached
to the realty.
(3) “Owner” means the possessor of a fee interest, tenant, lessee, occupant or person in control of the premises.
(4) “Recreational purpose” includes, but is not limited to, any of the following, or any combination thereof: Hunting, fishing,
swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, winter sports, and viewing or enjoying
historical, archaeological, scenic or scientific sites.
(7 Del. C. 1953, § 5902; 55 Del. Laws, c. 449.)
§ 5903. Limitation on duty of owner.
Except as specifically recognized by or provided in § 5906 of this title, an owner of land owes no duty of care to keep the premises
safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure or activity on
such premises to persons entering for such purposes. The limitation of duty of the owner granted by this section applies whether such
persons entered upon the land of the owner with or without consent of the owner.
(7 Del. C. 1953, § 5903; 55 Del. Laws, c. 449; 67 Del. Laws, c. 107, § 2.)
§ 5904. Use of land without charge; limits of liability.
(a) Except as specifically recognized by or provided in § 5906 of this title, an owner of land who either directly or indirectly invites
or permits without charge any person to use such property for recreational purposes does not thereby:
(1) Extend any assurance that the premises are safe for any purpose;
(2) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed;
(3) Assume responsibility, or incur liability, for any injury to person or property caused by an act of omission of such persons.
(b) The limits of liability of an owner as set forth under this section shall apply whether the person entered upon the land of the owner
with or without consent of the owner.
(7 Del. C. 1953, § 5904; 55 Del. Laws, c. 449; 67 Del. Laws, c. 107, § 3.)
§ 5905. Written waivers.
Unless otherwise agreed in writing, §§ 5903 and 5904 of this title shall be applicable to the duties and liability of an owner of land
leased to the State, or any subdivision thereof, for recreational purposes.
(7 Del. C. 1953, § 5905; 55 Del. Laws, c. 449.)
§ 5906. Limitations on exemption from liability.
Nothing in this chapter limits in any way any liability which otherwise exists:
(1) For wilful or malicious failure to guard or warn against a dangerous condition, use, structure or activity;
(2) For injury suffered in any case where the owner of land charges the person or persons who enter or go on the land for the
recreational use thereof, except that in the case of land leased to the State or a subdivision thereof, any consideration received by the
owner for such lease shall not be deemed a charge within the meaning of this section.
(7 Del. C. 1953, § 5906; 55 Del. Laws, c. 449.)
§ 5907. Exemptions.
Nothing in this chapter shall be construed to:
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(1) Create a duty of care, or ground of liability, for injury to persons or property;
(2) Relieve any person using the land of another for recreational purposes from any obligation which he or she may have in the
absence of this chapter to exercise care in his or her use of such land and in his or her activities thereon, or from the legal consequences
of failure to employ such care.
(7 Del. C. 1953, § 5907; 55 Del. Laws, c. 449; 70 Del. Laws, c. 186, § 1.)
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Title 7 - Conservation
Part VII
Natural Resources
Chapter 60
Environmental Control
Subchapter I
General Provisions
§ 6001. Findings, policy and purpose.
(a) Findings. — The General Assembly hereby makes the following findings concerning the development, utilization and control of
the land, water, underwater and air resources of the State:
(1) The development, utilization and control of the land, water, underwater and air resources of the State are vital to the people in
order to assure adequate supplies for domestic, industrial, power, agricultural, recreational and other beneficial uses;
(2) The development and utilization of the land, water, underwater and air resources must be regulated to ensure that the land, water,
underwater and air resources of the State are employed for beneficial uses and not wasted;
(3) The regulation of the development and utilization of the land, water, underwater and air resources of the State is essential to
protect beneficial uses and to assure adequate resources for the future;
(4) The land, water, underwater and air resources of the State must be protected and conserved to assure continued availability for
public recreational purposes and for the conservation of wildlife and aquatic life;
(5) The land, water, underwater and air resources of the State must be protected from pollution in the interest of the health and
safety of the public;
(6) The land, water, underwater and air resources of the State can best be utilized, conserved and protected if utilization thereof is
restricted to beneficial uses and controlled by a state agency responsible for proper development and utilization of the land, water,
underwater and air resources of the State;
(7) Planning for the development and utilization of the land, water, underwater and air resources is essential in view of population
growth and the expanding economic activity within the State.
(b) Policy. — In view of the rapid growth of population, agriculture, industry and other economic activities, the land, water and air
resources of the State must be protected, conserved and controlled to assure their reasonable and beneficial use in the interest of the people
of the State. Therefore, it is the policy of this State that:
(1) The development, utilization and control of all the land, water, underwater and air resources shall be directed to make the
maximum contribution to the public benefit; and
(2) The State, in the exercise of its sovereign power, acting through the Department should control the development and use of the
land, water, underwater and air resources of the State so as to effectuate full utilization, conservation and protection of the water and
air resources of the State.
(c) Purpose. — It is the purpose of this chapter to effectuate state policy by providing for:
(1) A program for the management of the land, water, underwater and air resources of the State so directed as to make the maximum
contribution to the interests of the people of this State;
(2) A program for the control of pollution of the land, water, underwater and air resources of the State to protect the public health,
safety and welfare;
(3) A program for the protection and conservation of the land, water, underwater and air resources of the State, for public recreational
purposes, and for the conservation of wildlife and aquatic life;
(4) A program for conducting and fostering research and development in order to encourage maximum utilization of the land, water,
underwater and air resources of the State;
(5) A program for cooperating with federal, interstate, state, local governmental agencies and utilities in the development and
utilization of land, water, underwater and air resources;
(6) A program for improved solid waste storage, collection, transportation, processing and disposal by providing that such activities
may henceforth be conducted only in an environmentally acceptable manner pursuant to a permit obtained from the Department.
(7 Del. C. 1953, § 6001; 59 Del. Laws, c. 212, § 1.)
Subchapter II
Powers and Duties of Secretary and Department
§ 6002. Definitions.
The following words and phrases shall have the meaning ascribed to them in this chapter unless the context clearly indicates otherwise:
(1) “Activity” means construction, or operation, or use of any facility, property, or device.
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(2) “Air contaminant” means particulate matter, dust, fumes, gas, mist, smoke or vapor or any combination thereof, exclusive of
uncombined water.
(3) “Air pollution” means the presence in the outdoor atmosphere of 1 or more air contaminants in sufficient quantities and of such
characteristics and duration as to be injurious to human, plant or animal life or to property, or which unreasonably interferes with the
enjoyment of life and property within the jurisdiction of this State, excluding all aspects of employer-employee relationships as to
health and safety hazards.
(4) “At cost” means the expense to the government to conduct tests and analyses. No added service fee, or other fees and charges,
may be included in this cost.
(5) “Board” means the Environmental Appeals Board.
(6) “Boat docking facility” shall mean a place where vessels may be secured to a fixed or floating structure or to the shoreline or
shoreline structure.
(7) “Borrow pit” means any excavation into the subsurface for the purpose of extraction of earth products with the exception of
excavation for utility or road construction, agricultural or highway drainage, or dredging operations under the jurisdiction of the U.S.
Army Corps of Engineers.
(8) “Categorical pretreatment standard” means a pretreatment standard which applies to industrial users in a specific industrial
subcategory.
(9) “Commercial landfill” means a waste disposal facility available for use by the general public and which accepts waste for disposal
for profit.
(10) “Debris disposal area” means an excavation, pit or depression into which land clearing debris, along with small amounts of
construction or demolition waste incidental to construction, has been placed and which is not a permitted or approved waste management
facility.
(11) “Dedicated pumpout facility” means a semi-permanent connection made to a vessel for the purpose of removing sewage from
the vessel on a continuous basis or automatic intermittent basis to an approved disposal facility.
(12) “Delineation” shall mean the process of defining and/or mapping a boundary that approximates the areas that contribute water
to a particular water source used as a public water supply.
(13) “Department” means the Department of Natural Resources and Environmental Control.
(14) “Direct vessel sewage pumpout connection” shall mean a semipermanent connection made to a vessel for the purpose of
removing vessel sewage from the vessel holding tank or head on a continuous or automatic intermittent basis to an approved sewage
disposal facility.
(15) “Discharge or indirect discharge” means the discharge or the introduction of pollutants from any nondomestic source into a
POTW.
(16) “Domestic wastewater” means the liquid and water-borne human and/or household type waste derived from residential,
industrial, institutional or commercial sources.
(17) “Dump station” means a type of pumpout facility that receives vessel sewage from portable marine sanitation devices and
delivers that sewage to an approved sewage disposal facility.
(18) “Earth products” means any solid material, aggregate or substance of commercial value, whether consolidated or loose, found
in natural deposits on or in the earth, including, but not limited to clay, silt, diatomaceous earth, sand, gravel, stone, metallic ores,
shale and soil.
(19) “Environmental release” means any spillage, leakage, emission, discharge or delivery into the air or waters or on or into the lands
of this State of any sewage of 10,000 gallons or more oil, industrial waste, liquid waste, hydrocarbon chemical, hazardous substance,
hazardous waste, restricted chemical material, vessel discharge, air contaminant, pollutant, regulated biological substance or other
wastes reportable pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 [42 U.S.C. §
9601 et seq.], as amended, or regulations enacted pursuant to § 6028 of this title.
(20) “Excellent ground-water recharge potential area” shall mean any area where soils and sedimentary deposits of the most coarse
grained nature have the best ability to transmit water vertically through the unsaturated zone to the water table as mapped by the
methods described in the Delaware Geological Survey Open File Report No. 34, “Methodology For Mapping Ground-Water Recharge
Areas in Delaware’s Coastal Plain” (August 1991), and as depicted on a series of maps prepared by the Delaware Geological Survey.
An excellent ground-water recharge potential area shall constitute a critical area as defined under Chapter 92 of Title 29.
(21) “Garbage” shall mean any putrescible solid and semisolid animal and/or vegetable wastes resulting from the production,
handling, preparation, cooking, serving or consumption of food or food materials.
(22) “Graywater” means galley, bath and shower water.
(23) “Ground water” means any water naturally found under the surface of the earth.
(24) “Hydrocarbon chemical” means any compound composed of carbon and hydrogen.
(25) “Incinerator,” “incinerator structure or facility,” and “waste incinerator” include any structure or facility operated for the
combustion (oxidation) of solid waste, even if the by-products of the operation include useful products such as steam and electricity.
“Incinerator” shall not include:
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a. Crematoriums;
b. The disposal of the bodies of animals through incineration;
c. The burning of poultry waste or poultry manure at the same site where the waste or manure was generated, which shall include
the burning of poultry waste or poultry manure generated upon an adjacent farm;
d. The disposal of all materials used in the discovery, development, and manufacture of veterinary products, medicines and
vaccines; or
e. The disposition of mortalities from poultry operations in facilities approved by the Delaware Department of Natural Resources
and Environmental Control which comply with United States Department of Agricultural Natural Resources Conservation Service
Interim Conservation Practice Standard Incinerator 769 or any successor standard.
(26) “Industrial landfill” means a landsite at which industrial waste is deposited on or into the land as fill for the purpose of permanent
disposal. “Industrial landfill” does not mean a facility approved for any of the following:
a. The disposal of hazardous waste under § 6307 of this title.
b. A sanitary landfill under § 6010 of this title.
(27) “Industrial user” means a source of indirect discharge. The term “industrial user” shall include, but not be limited to, the original
source of the indirect discharge as well as the owners or operators of any intervening connections, other than those owned or operated
by the receiving POTW, which convey the indirect discharge to the POTW.
(28) “Industrial waste” means any water-borne liquid, gaseous, solid or other waste substance or a combination thereof resulting
from any process of industry, manufacturing, trade or business, or from the development of any agricultural or natural resource.
(29) “Liquid waste” means any industrial waste or sewage or other wastes or any combination thereof which may potentially alter
the chemical, physical or biological integrity of water from its natural state.
(30) “Liquid waste hauler” means any person who engages in the removal of liquid wastes from septic tanks, cesspools, seepage
pits, holding tanks or other such devices and conveys such liquid waste to a location removed from the point of acceptance.
(31) “Liquid waste treatment plant operator” means any person who has direct responsibility for the operation of a liquid waste
treatment plant.
(32) “Live-aboard vessel” shall mean:
a. A vessel used principally as a residence;
b. A vessel used as a place of business, professional or other commercial enterprise and, if used as a means of transportation,
said transportation use is a secondary or subsidiary use; this definition shall not include commercial fishing boats which do not fall
under paragraph (32)a. of this section; or
c. Any other floating structure used for the purposes stated under paragraph (32)a. or b. of this section.
(33) “Marinas” are those facilities adjacent to the water which provide for mooring, berthing, or storage of boats, and which include
any or all of the related ancillary structures and functions of marinas, such as docks, piers, boat storage areas, boat ramps, anchorages,
breakwaters, channels, moorings, basins, boat repair services, boat sales, sales of supplies which are normally associated with boating
such as fuel, bait and tackle, boat rentals and parking areas for users of the marina.
(34) “Marine Sanitation Device (MSD)” includes any equipment on board a vessel which is designed to receive, retain, treat or
discharge sewage, and any process to treat such sewage. Marine sanitation devices are classified as:
a. “Type I marine sanitation device” means a device that produces an effluent having a fecal coliform bacteria count not greater
than 1,000 per 100 milliliters and no visible floating solids.
b. “Type II marine sanitation device” means a device that produces an effluent having a fecal coliform bacteria count of not greater
than 200 per 100 milliliters and suspended solids not greater than 150 milligrams per liter.
c. “Type III marine sanitation device” means a device that is certified to a no-discharge standard. Type III devices include
recirculating and incinerating MSDs and holding tanks.
(35) “Oil” means oil of any kind and in any form, including but not limited to, petroleum products, sludge, oil refuse, oil mixed with
other wastes and all other liquid hydrocarbons regardless of specific gravity.
(36) “Open dump” means any facility or site where solid waste is disposed which is not a sanitary landfill and which is not a facility
for disposal for hazardous waste.
(37) “Other wastes” means garbage, refuse, decayed wood, sawdust, shavings, bark, sand, lime cinders, ashes, offal, oil, tar, dyestuffs, acids, chemicals and all discarded substances other than sewage or industrial wastes.
(38) “Persons” means any individual, trust, firm, joint stock company, federal agency, partnership, corporation (including a
government corporation), association, state, municipality, commission, political subdivision of a state or any interstate body.
(39) “Pollutant” means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes,
biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, hydrocarbons, oil, and product
chemicals, and industrial, municipal and agricultural waste discharged into water.
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(40) “POTW pretreatment program” means a program administered by a POTW for the purpose of enforcing pretreatment standards
in accordance with the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251 et seq. and regulations promulgated
thereunder.
(41) “Pretreatment standard” means any pollutant discharge limit promulgated by the Administrator of the United States
Environmental Protection Agency in accordance with § 307(b) and (c) of the Federal Water Pollution Control Act, as amended, 33
U.S.C. § 1317(b) and (c), or by the Secretary, which applies to industrial users.
(42) “Public drinking water system” shall mean a community, noncommunity or non-transient non-community water system which
provides piped water to the public for human consumption. The system must have at least 15 service connections or regularly serve
at least 25 individuals daily for at least 60 days.
(43) “Publicly owned treatment works” or “POTW” means either:
a. A treatment works which is owned by a city, town, county, district or other public body created by or pursuant to the laws
of the State; or
b. Any such public body which has jurisdiction over the discharges to such treatment works.
(44) “Pumpout facility” means a mechanical device which is temporarily connected to a vessel for the purpose of removing sewage
from a vessel to an approved sewage disposal facility.
(45) “Refuse” means any putrescible or nonputrescible solid waste, except human excreta, but including garbage, rubbish, ashes,
street cleanings, dead animals, offal and solid agricultural, commercial, industrial, hazardous and institutional wastes and construction
wastes resulting from the operation of a contractor.
(46) “Restricted chemical material” means:
a. Any halogenated hydrocarbon chemical (aliphatic or aromatic) including but not limited to trichloroethane, tetrachloroethylene,
methylene chloride, halogenated benzenes and carbon tetrachloride; or
b. Any aromatic hydrocarbon chemical including, but not limited to, benzene, toluene and naphthalene; or
c. Any halogenated phenol derivative in which a hydroxide group and 2 or more halogen atoms are substituted onto aromatic
carbons of a benzene ring including, but not limited to, trichlorophenol and pentachlorophenol; or
d. Similar materials including but not limited to acrolein, acrylonitrile or benzidene.
(47) “Rubbish” means any nonputrescible solid waste, excluding ashes, such as cardboard, paper, plastic, metal or glass food
containers, rags, waste metal, yard clippings, small pieces of wood, excelsior, rubber, leather, crockery and other waste materials.
(48) “Sanitary landfill” means a facility for the disposal of solid waste which meets the criteria promulgated under § 6010(g)(1)
of this title.
(49) “Secretary” means the Secretary of the Department of Natural Resources and Environmental Control or the Secretary’s duly
authorized designee.
(50) “Sewage” means water-carried human or animal wastes from septic tanks, water closets, residences, buildings, industrial
establishments, or other places, together with such ground water infiltration, subsurface water, admixtures of industrial wastes or other
wastes as may be present.
(51) “Sewage system” means any part of a wastewater disposal system including, but not limited to, all toilets, urinals, piping, drains,
sewers, septic tanks, distribution boxes, absorption fields, seepage pits, cesspools and dry wells.
(52) “Sewage system cleanser” means: (i) Any solid or liquid material intended or used primarily for the purpose of cleaning, treating
or unclogging any part of a sewage system, or (ii) any solid or liquid material intended or used primarily for the purpose of continuously
or automatically deodorizing or disinfecting any part of a sewage system including, but not limited to, solid cakes or devices placed
in plumbing fixtures. Excluded from this definition are products intended or used primarily in the manual surface cleaning, scouring,
treating, deodorizing or disinfecting, of common plumbing fixtures.
(53) “Slip” means a place where a boat may be secured to a fixed or floating structure, including, but not limited to a dock, pier,
mooring or anchorage. Slips may be wet (in the water) or dry (in a rack or other device on land).
(54) “Solid waste” means any garbage, refuse, refuse-derived fuel, demolition and construction waste wood, sludge from a waste
treatment plant, water supply treatment plant or air pollution control facility and other discarded material, including solid, liquid,
semisolid or contained gaseous material resulting from industrial, commercial, mining and agricultural operations, and from community
activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved material in irrigation return flows
or industrial discharges which are point sources subject to permits under this chapter, as amended, or source, special nuclear or byproduct material as defined by the Atomic Energy Act of 1954 [42 U.S.C. § 2011 et seq.], as amended. By-products of a uniform and
known composition produced as a result of a production process are not solid wastes when incinerated onsite. All incinerators under
state permit as of March 1, 2000, and renewal permit applications for these incinerators shall not come under the provisions of this
section and § 6003 of this title.
(55) “Source water” shall mean any aquifer or surface water body from which water is taken either periodically or continuously by
a public drinking water system for drinking or food-processing purposes.
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(56) “Source water assessment” shall mean the identification and evaluation of the sources of water within the State that are used by
public drinking water systems in an effort to determine the susceptibility of those sources to contamination.
(57) “Source water assessment area” shall mean the delineated area which contributes water to a public water supply system. This is
called a wellhead protection area for a well and a watershed or basin for a surface water intake. A source water assessment area shall
constitute a critical area as defined under Chapter 92 of Title 29.
(58) “Source water assessment plan” shall mean the October 1999 U.S. EPA-approved plan for evaluating the sources of public
drinking water in Delaware for their vulnerability and susceptibility to contamination.
(59) “Source Water Protection Citizens Technical Advisory Committee” shall mean a group to advise the Secretary of the Department
of Natural Resources and Environmental Control, including, but not limited to, representatives of the following organizations or
municipalities: DNREC, Department of Health and Social Services, Department of Agriculture, the Delaware Nature Society, the
Delaware Public Health Association, the American Association of Retired Persons, the United States Geological Survey, the Christina
River Conservancy, the Water Resources Agency of the University of Delaware, the Council of Farm Organizations, the Delaware
Rural Water Association, the League of Women Voters, the Friends of Herring Creek, the Civic League of New Castle County, the
Delaware Geological Survey, the Committee of 100, the City of Dover, the City of Lewes, the New Castle County Department of Land
Use, Kent County Levy Court, Sussex County Council, the League of Local Governments, the Sussex County Association of Towns,
the Homebuilders Association of Delaware, the Commercial Industrial Realty Council, and the Delaware Association of Professional
Engineers; and public water suppliers.
(60) “Surface water” means water occurring generally on the surface of the earth.
(61) “Treatment works” means any device and system used in the storage, treatment, recycling and reclamation of municipal
sewage, or industrial wastes of a liquid nature, or necessary to recycle or reuse water at the most economical cost over the estimated
life of the works, including intercepting sewers, outfall sewers, sewage collection systems, pumping, power and other equipment,
and their appurtenances, extensions, improvements, remodeling, additions and alterations thereof; elements essential to provide a
reliable recycled supply such as standby treatment units and clear well facilities and improvements to exclude or minimize inflow
and infiltration.
(62) “Variance” means a permitted deviation from an established rule or regulation, or plan, or standard or procedure.
(63) “Vessel” shall mean and include every description of watercraft, boat, houseboat or other form of artificial contrivance used, or
capable of being used, whether or not capable of self-propulsion, for navigation on the waters of the State.
(64) “Vessel discharge” includes, but is not limited to, any spilling, leaking, pumping, pouring, emitting, emptying or dumping.
(65) “Vessel sewage” shall mean human body wastes and wastes from toilets and other receptacles intended to receive or retain
human body wastes.
(66) “Vessel sewage pumpout station” shall mean a mechanical device which is temporarily connected to a vessel for the purpose
of removing vessel sewage from its holding tank or head to an approved sewage disposal facility.
(67) “Water facility” means any well, dam, reservoir, surface water intake or waterway obstruction.
(68) “Water pollution” means the human-made or human-induced alteration of the chemical, physical, biological or radiological
integrity of water.
(69) “Water supply system” means all plants, systems, facilities or properties used or useful, or having the present capacity for future
use, in connection with the supply or distribution of water, and any integral part thereof, including water distribution systems, mains,
laterals, pumping stations, stand pipes, filtration plants, purification plants, hydrants, meters, valves and equipment, appurtenances and
all properties, rights, easements and franchises relating thereto and deemed necessary or convenient by the authority for the operation
thereof. Except as otherwise provided in this chapter, the term “water supply system” shall not mean a dam, reservoir, surface water
intake, water obstruction or well.
(70) “Water utility” shall mean any person or entity operating within this State any water service, system, plant or equipment for
public use.
(71) “Water well contractor” means any person engaged in the business of contracting for the construction of water wells and/or
installation of pumping equipment in or for wells.
(72) “Well” means any excavation that is drilled, cored, bored, washed, driven, dug, jetted or otherwise constructed when the intended
use of such excavation is for the location, testing, acquisition or artificial recharge of underground water, and where the depth is greater
than the diameter or width.
(73) “Wellhead protection area” shall mean the surface and subsurface area surrounding a water well or wellfield supplying a public
water system through which contaminants are likely to reach such a well or wellfield. A Wellhead Protection Area shall constitute a
critical area as defined under Chapter 92 of Title 29.
(74) “Wellhead protection plan” shall mean the March 1990 U.S. EPA-approved plan for protecting the quality of drinking water
derived from public water supply wells in Delaware.
(7 Del. C. 1953, § 6002; 59 Del. Laws, c. 212, § 1; 61 Del. Laws, c. 315, § 1; 62 Del. Laws, c. 412, §§ 1, 2; 62 Del. Laws, c. 414,
§ 3; 63 Del. Laws, c. 248, § 1; 64 Del. Laws, c. 146, § 4; 64 Del. Laws, c. 370, § 1; 64 Del. Laws, c. 479, §§ 4, 5; 65 Del. Laws,
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c. 144, § 1; 66 Del. Laws, c. 275, § 1; 67 Del. Laws, c. 353, § 2; 68 Del. Laws, c. 124, § 3; 68 Del. Laws, c. 137, §§ 1, 2; 68 Del.
Laws, c. 403, §§ 1, 2; 69 Del. Laws, c. 302, § 6; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 418, § 1; 72 Del. Laws, c. 289, §§ 1,
6, 7; 73 Del. Laws, c. 67, § 1; 73 Del. Laws, c. 117, § 1; 82 Del. Laws, c. 234, § 1.)
§ 6003. Permit — Required.
(a) No person shall, without first having obtained a permit from the Secretary, undertake any activity:
(1) In a way which may cause or contribute to the discharge of an air contaminant; or
(2) In a way which may cause or contribute to discharge of a pollutant into any surface or ground water; or
(3) In a way which may cause or contribute to withdrawal of ground water or surface water or both; or
(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; or
(5) To construct, maintain or operate a pipeline system including any appurtenances such as a storage tank or pump station; or
(6) To construct any water facility; or
(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.
(b) No person shall, without first having obtained a permit from the Secretary, construct, install, replace, modify or use any equipment
or device or other article:
(1) Which may cause or contribute to the discharge of an air contaminant; or
(2) Which may cause or contribute to the discharge of a pollutant into any surface or ground water; or
(3) Which is intended to prevent or control the emission of air contaminants into the atmosphere or pollutants into surface or ground
waters; or
(4) Which is intended to withdraw ground water or surface water for treatment and supply; or
(5) For disposal of solid waste.
(c) The Secretary shall grant or deny a permit required by subsection (a) or (b) of this section in accordance with duly promulgated
regulations provided all of the following:
(1) No permit may be granted unless the county or municipality having jurisdiction has first approved the activity by zoning
procedures provided by law.
(2) No permit may be granted to any incinerator unless all of the following apply:
a. The property on which the incinerator is or would be located is within an area which is zoned for heavy industrial activity
and shall be subject to such process rules, regulations or ordinances as the county, municipality or other government entity shall
require by law, such as a conditional use, so that conditions may be applied regarding the health, safety and welfare of the citizens
within the jurisdiction.
b. Every point on the property boundary line of the property on which the incinerator is or would be located is all of the following:
1. At least 3 miles from every point on the property boundary line of any residence.
2. At least 3 miles from every point on the property boundary line of any residential community.
3. At least 3 miles from every point on the property boundary line of any church, school, park, or hospital.
(3) No permit or modification to a permit may be granted for an industrial landfill that authorizes a maximum height, including the
cap and cover vegetation, of more than 140 feet above the mean sea level of the area.
(d) A county which requests authority to administer a system for granting or denying a septic tank permit, and which satisfies the
Secretary that it has the capability, including but not limited to regulations and enforcement authority, may be authorized by the Secretary,
for a term stated, to administer such a system for him or her within that county. In the event of such authorization, an applicant for a septic
tank permit in that county shall not be bound by subsections (a) and (b) of this section.
(e) The Secretary may, after public hearings, publish a list of activities which do not require a permit.
(f) The Secretary may establish fees for permits issued pursuant to this section with the concurrence and approval of the General
Assembly. The Secretary shall annually prepare a schedule of fees for permits issued pursuant to this section and submit the same as part
of the Department’s annual operating budget proposal.
(g) No county, municipality or other governmental entity shall issue any building, placement, storage or occupancy permit or license
until the property owner has obtained from the Department any necessary permits for underground discharge of wastewater and withdrawal
of groundwater.
(h) The Secretary may reduce the amount of any fee charged for any permit or license issued pursuant to the provisions of this title
for particular types of permits or classes or categories of permittees.
(i) No county, municipality or other governmental entity shall issue any building, placement, storage or occupancy permit or license
to any person intending to operate an incinerator unless:
(1) The property on which the incinerator is or would be located is within an area which is zoned for heavy industrial activity and
shall be subject to such process rules, regulations or ordinances as the county, municipality or other government entity shall require
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by law, such as a conditional use, so that conditions may be applied regarding the health, safety and welfare of the citizens within
the jurisdiction; and
(2) Every point on the property boundary line of the property on which the incinerator is or would be located is:
a. At least 3 miles from every point on the property boundary line of any residence;
b. At least 3 miles from every point on the property boundary line of any residential community; and
c. At least 3 miles from every point on the property boundary line of any church, school, park or hospital.
(j) For any industrial landfill not approved by the Department to accept waste as of February 20, 2020, the Secretary shall grant or deny
a permit for an industrial landfill under subsection (a) or (b) of this section in accordance with duly promulgated regulations and:
(1) The county, municipality, or other governmental entity having jurisdiction is satisfied that all the following have been established:
a. The property on which the industrial landfill is or would be located is within an area which is zoned for heavy industrial activity.
b. The property on which the industrial landfill is or would be located is subject to such process rules, regulations, or ordinances
as the county, municipality, or other government entity shall require by law.
c. The necessary conditions may be applied in order to ensure the health, safety, and welfare of citizens within the jurisdiction.
d. Every point on the property boundary line of the property on which the industrial landfill is or will be located is at least a ¼
mile from all of the following property boundary lines:
1. Any residence, school, park, and hospital.
2. Any residential community.
3. Any wetlands.
(2) No permit or modification to a permit may be granted by the Secretary for an industrial landfill that authorizes a maximum height,
including the cap and cover vegetation of more than 140 feet above the mean sea level of the area.
(7 Del. C. 1953, § 6003; 59 Del. Laws, c. 212, § 1; 65 Del. Laws, c. 344, § 1; 68 Del. Laws, c. 86, § 3; 68 Del. Laws, c. 89; 68
Del. Laws, c. 348, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 289, §§ 2-5; 82 Del. Laws, c. 234, § 2.)
§ 6004. Permit — Application; hearing; extension.
(a) Any person desiring to obtain a permit required by § 6003 of this title or a variance or an application to establish a redemption
center or a certificate of public convenience and necessity required by subchapter V of this chapter shall submit an application therefor
in such form and accompanied by such plans, specifications and other information as required by applicable statute or regulation.
(b) Except as otherwise provided in subsection (c) of this section, upon receipt of an application in proper form, the Secretary shall
advertise in a newspaper of general circulation in the county in which the activity is proposed and in a daily newspaper of general
circulation throughout the State:
(1) The fact that the application has been received;
(2) A brief description of the nature of the application; and
(3) The place at which a copy of the application may be inspected.
The Secretary shall hold a public hearing on an application, if he or she receives a meritorious request for a hearing within a reasonable
time as stated in the advertisement. A public hearing may be held on any application if the Secretary deems it to be in the best interest
of the State to do so. Such notice shall also be sent by mail to any person who has requested such notification from the Department by
providing the name and mailing address. The reasonable time stated shall be 15 days, unless federal law requires a longer time, in which
case the longer time shall be stated. A public hearing request shall be deemed meritorious if it exhibits a familiarity with the application
and a reasoned statement of the permit’s probable impact. The applicant shall be responsible for the cost of any such advertisements and
notices made by the Department as required by this section, not to exceed $500.
(c) The advertisement and notice requirements set forth in subsection (b) of this section may not apply to a permit application received
by the Department whenever the subject matter of said application relates to the following:
(1) Air quality control permit applications for open burning, or for the construction or operation of emission control equipment on
an existing gasoline dispensing facility, a delivery vessel or a dry cleaning facility;
(2) Water quality control permit applications for a sewage system for 3 or fewer families, a municipal or publicly owned or operated
sewage collection system that does not have a pump or lift station, or, a commercial septic system that is used to treat and dispose of
500 gallons or less per day of domestic wastewater only;
(3) Water well construction permit applications for any well from which the Department determines that the withdrawal under normal
operations will not exceed 1,000,000 gallons per day.
The Secretary may act without public notice on any permit application that is specified in this subsection.
(d) Advertisements required under subsection (b) of this section may be placed by persons desiring to obtain a permit under § 6003 of
this title, provided the advertisement meets the requirements contained in subsection (b) of this section and any additional requirements
as may be specified by the Department.
(e) (1) The Secretary may renew or extend the term of a construction permit issued under § 6003(b)(1) of this title for up to 2 additional
years, and in either case, may forgo the process set forth in subsections (a) through (d) of this section if all of the following apply:
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a. There has been no previous renewal or extension.
b. The permit holder certifies to the Secretary that there have been no material changes to the plans, specifications, and other
information set forth in the application previously submitted that would lead to a net adverse environmental impact.
c. The permit holder submits a written request for renewal or extension to the Secretary within 3 years of the date the permit
was granted.
d. There are no other circumstances that, in the sole discretion of the Secretary, warrant conditioning the grant of a renewal or
extension on compliance with one or more of subsections (a) through (d) of this section.
(2) An extension or renewal granted under this subsection is final and is not appealable under § 6008 of this title.
(7 Del. C. 1953, § 6004; 59 Del. Laws, c. 212, § 1; 59 Del. Laws, c. 537, § 1; 61 Del. Laws, c. 503, § 3; 64 Del. Laws, c. 146, §§
1-3; 64 Del. Laws, c. 472, § 1; 68 Del. Laws, c. 124, § 4; 70 Del. Laws, c. 53, § 1; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c.
117, § 2; 78 Del. Laws, c. 185, § 1; 81 Del. Laws, c. 273, § 1.)
§ 6005. Enforcement; civil and administrative penalties; expenses.
(a) The Secretary shall enforce this chapter.
(b) Whoever violates this chapter or any rule or regulation duly promulgated thereunder, or any condition of a permit issued pursuant
to § 6003 of this title, or any order of the Secretary, shall be punishable as follows:
(1) If the violation has been completed, by a civil penalty imposed by Superior Court of not less than $1,000 nor more than $10,000
for each completed violation. Each day of continued violation shall be considered as a separate violation. The Superior Court shall have
jurisdiction of a violation in which a civil penalty is sought. If the violation has been completed and there is a substantial likelihood that it
will reoccur, the Secretary may also seek a permanent or preliminary injunction or temporary restraining order in the Court of Chancery.
(2) If the violation is continuing, the Secretary may seek a monetary penalty as provided in paragraph (b)(1) of this section. If the
violation is continuing or is threatening to begin, the Secretary may also seek a temporary restraining order or permanent injunction in
the Court of Chancery. In his or her discretion, the Secretary may endeavor by conciliation to obtain compliance with all requirements
of this chapter. Conciliation shall be giving written notice to the responsible party:
a. Specifying the complaint;
b. Proposing a reasonable time for its correction;
c. Advising that a hearing on the complaint may be had if requested by a date stated in the notice; and
d. Notifying that a proposed correction date will be ordered unless a hearing is requested.
If no hearing is requested on or before the date stated in the notice, the Secretary may order that the correction be fully implemented
by the proposed date or may, on his or her own initiative, convene a hearing, in which the Secretary shall publicly hear and consider
any relevant submission from the responsible party as provided in § 6006 of this title.
(3) In his or her discretion, the Secretary may impose an administrative penalty of not more than $10,000 for each day of violation.
Prior to assessment of an administrative penalty, written notice of the Secretary’s proposal to impose such penalty shall be given to the
violator, and the violator shall have 30 days from receipt of said notice to request a public hearing. Any public hearing, if requested,
right of appeal and judicial appeal shall be conducted pursuant to §§ 6006-6009 of this title. Assessment of an administrative penalty
shall be determined by the nature, circumstances, extent and gravity of the violation, or violations, ability of violator to pay, any
prior history of such violations, the degree of culpability, economic benefit or savings (if any) resulting from the violation and such
other matters as justice may require. Simultaneous violations of more than 1 pollutant or air contaminant parameter or of any other
limitation or standard imposed under this chapter shall be treated as a single violation for each day. In the event of nonpayment of the
administrative penalty after all legal appeals have been exhausted, a civil action may be brought by the Secretary in Superior Court
for collection of the administrative penalty, including interest, attorneys’ fees and costs, and the validity, amount and appropriateness
of such administrative penalty shall not be subject to review.
(c) (1) Whenever the Secretary determines that any person has violated this chapter, or a rule, or regulation, or condition of a permit
issued pursuant to § 6003 of this title, or an order of the Secretary, said person shall be liable for all expenses incurred by the Department:
a. In abating the violation; or
b. Controlling a pollution incident related to the violation; or
c. Cleanup and restoration of the environment; or
d. The costs incurred by the Department in recovering such expenses.
Such expenses shall include, but not be limited to, the costs of investigation, legal fees and assistance, public hearings, materials,
equipment, human resources, contractual assistance and appropriate salary and overtime pay for all state employees involved in the
effort notwithstanding merit system laws, regulations or rules to the contrary. The Secretary shall submit a detailed billing of expenses
to the liable person.
(2) In the event the liable person desires to challenge the detailed billing submitted by the Secretary, such person shall, within 20
days of receipt of the detailed billing request an administrative hearing before the Secretary. Testimony at the administrative hearing
shall be under oath and shall be restricted to issues relating to:
a. The finding of violation; and
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b. The billing of expenses submitted by the Secretary.
A verbatim transcript of testimony at the hearing shall be prepared and shall, along with the exhibits and other documents introduced
by the Secretary or other party, constitute the record. The Secretary shall make findings of fact based on the record, and enter an order
which shall contain reasons supporting the decision. An appeal of the decision of the Secretary may be perfected to Superior Court
within 30 days of the decision of the Secretary. In lieu of holding an administrative hearing on the detailed billing, or in the event a
liable person fails or refuses to pay any of the expenses listed in the detailed billing, the Secretary may seek to compel payment through
the initiation of a civil action in any court of competent jurisdiction within the State of Delaware. This subsection shall not be affected
by the appeal provisions of § 6008 of this title.
(d) Any expenses and 75 percent of civil or administrative penalties collected by the Department under this section are hereby
appropriated to the Department to carry out the purposes of this chapter; however any expenditure or transfer must be approved by the
Director of the Office of Management and Budget and the Controller General. The Department shall submit quarterly reports on the
progress of the expenditures and/or projects. All expenditures must be recommended by the Department and approved by the Secretary.
All penalty funds will be deposited in the Penalty Fund Account. All of the penalty fund expenditures made by the Department of Natural
Resources and Environmental Control shall be reported annually to the Joint Finance Committee in the Department’s annual budget
presentation. Included in this presentation shall be an explanation of the process used to select the recipients of penalty fund money.
(e) Penalties or fines created by this section may be tripled with respect to any person or entity that was designated a chronic violator
pursuant to § 7904 of this title at the time that the act leading to the penalty or fine occurred.
(7 Del. C. 1953, § 6005; 59 Del. Laws, c. 212, § 1; 59 Del. Laws, c. 537, §§ 2, 3; 66 Del. Laws, c. 163, §§ 1, 2; 70 Del. Laws,
c. 186, § 1; 73 Del. Laws, c. 318, § 2; 74 Del. Laws, c. 37, § 1; 74 Del. Laws, c. 203, § 1; 75 Del. Laws, c. 88, § 21(4); 75 Del.
Laws, c. 357, § 1; 78 Del. Laws, c. 177, § 18; 81 Del. Laws, c. 58, § 239.)
§ 6006. Public hearings.
Any public hearing held by the Secretary concerning any regulation or plan, permit application, alleged violation or variance request
shall be conducted as follows:
(1) For any hearing on an application for a permit or an alleged violation or variance request, notification shall be served upon the
applicant or alleged violator as summonses are served or by registered or certified mail not less than 20 days before the time of said
hearing. Not less than 20 days’ notice shall also be published in a newspaper of general circulation in the county in which the activity
is proposed or the alleged violation has occurred and in a daily newspaper of general circulation throughout the State.
(2) For a hearing on a regulation or plan proposed for adoption, notification shall be published in a newspaper of general circulation
in each county and in a newspaper of general circulation in the State. Such notification shall include:
a. A brief description of the regulation or plan;
b. Time and place of hearing; and
c. Time and place where copies of the proposed regulation may be obtained and a copy of the plan is available for public scrutiny.
Such notice shall also be sent to any persons who have requested such notification from the Department by providing the name
and mailing address.
(3) The permit applicant or the alleged violator or party requesting a variance may appear personally or by counsel at the hearing
and produce any competent evidence in his or her behalf. The Secretary or his or her duly authorized designee may administer oaths,
examine witnesses and issue, in the name of the department, notices of hearings or subpoenas requiring the testimony of witnesses and
production of books, records or other documents relevant to any matter involved in such hearing; and subpoenas shall also be issued at
the request of the applicant or alleged violator or party requesting a variance. In case of contumacy or refusal to obey a notice of hearing
or subpoena under this section, the Superior Court in the county in which the hearing is held shall have jurisdiction upon application
of the Secretary, to issue an order requiring such person to appear and testify or produce evidence as the case may require.
(4) A record from which a verbatim transcript can be prepared shall be made of all hearings and shall, also with the exhibits and
other documents introduced by the Secretary or other party, constitute the record. The expense of preparing any transcript shall be
borne by the person requesting it. The Secretary shall make findings of fact based on the record. The Secretary shall then enter an
order that will best further the purpose of this chapter, and the order shall include reasons. The Secretary shall promptly give written
notice to the persons affected by such order.
(5) The Secretary may establish a fee schedule for applications and hearings, and may collect from the applicant or from a violator
finally adjudged guilty, the necessary expenses of the Department for conducting the hearing, or a reasonable fee for processing an
application, or both. Any fees collected under this chapter are hereby appropriated to the Department to carry out the purposes of this
chapter. The Secretary shall report through the annual budget process the receipt, proposed use and disbursement of these funds.
(7 Del. C. 1953, § 6006; 59 Del. Laws, c. 212, § 1; 63 Del. Laws, c. 322, § 105(a); 64 Del. Laws, c. 62, § 1; 68 Del. Laws, c. 148,
§ 1; 70 Del. Laws, c. 186, § 1.)
§ 6007. Establishment of Environmental Appeals Board.
(a) There is hereby created an Environmental Appeals Board which shall consist of 7 Delaware residents, appointed by the Governor
with the advice and consent of the Senate. The Chairperson shall be appointed by the Governor and serve at the Governor’s pleasure.
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Each county shall be represented by 2 members. Registered members of either major political party shall not exceed the other major
political party by more than 1. The term of each member appointed shall be 3 years. Vacancies in Board membership shall be filled by
the Governor for the remainder of the unexpired term.
(b) The Board is a quasi-judicial review board which is constituted in order to hear appeals of decisions of the Secretary. The Board
or its designee may issue subpoenas by certified mail for witnesses or evidence, administer oaths to witnesses and conduct prehearing
conferences for the simplification of issues by consent, for the disposal of procedural requests or disputes and to regulate and expedite
the course of the hearing.
(c) A simple majority of the Board shall constitute a quorum. A simple majority of those members of the Board present shall be required
to override the decision of the Secretary. The Board shall schedule, but not necessarily conduct, a hearing within 30 days following the
receipt of the appeal. In any event, the Board shall conduct, but not necessarily complete, the hearing within 180 days following the receipt
of the appeal unless the parties agree otherwise. The Board may verbally announce the decision at the conclusion of the hearing. A written
decision shall be mailed to the parties by certified mail within 90 days after the completion of the hearing. If the Board fails to conduct
the hearing or to issue the written opinion as required, the decision of the Secretary shall be a final decision for the purposes of appeal.
(d) Any member of the Board with a personal or private financial interest in the outcome of an appeal before the Board shall disqualify
himself or herself from any consideration of that matter and shall inform the Chairperson who shall note such interest on the record of
the hearing.
(e) Each Board member shall be compensated for such reasonable expenses as travel and meals for each meeting and hearing attended.
(f) The Environmental Appeals Board shall adopt such rules and regulations as are necessary to provide procedures to implement the
terms of §§ 6007-6009 of this title, which shall apply to appeals to the Environmental Appeals Board. Prior to adopting any such rules
and regulations, the Board shall designate a day, time and place for a public hearing on such proposed rules or for any amendments to
existing or proposed rules and regulations. The Board shall give 20 days’ notice of such hearing by publication in a newspaper of general
circulation in the State and shall make copies of such proposed regulations available to the public upon request. The public hearing on
such regulations shall be consistent with the provisions of Chapter 101 of Title 29.
(g) In any appeal to the Board there shall be required a reasonable fee, as established by the General Assembly, to cover such costs as are
incurred during the appeal. The fees charged by the Environmental Appeals Board shall be deposited in a special account in the name of
the Environmental Appeals Board and shall be used solely for the costs and expenses of that Board in holding its hearings and proceedings.
(7 Del. C. 1953, § 6007; 59 Del. Laws, c. 212, § 1; 60 Del. Laws, c. 201, § 1; 68 Del. Laws, c. 86, § 4; 68 Del. Laws, c. 148, § 1;
70 Del. Laws, c. 186, § 1.)
§ 6008. Appeals to Board.
(a) Any person whose interest is substantially affected by any action of the Secretary may appeal to the Environmental Appeals Board
within 20 days after receipt of the Secretary’s decision or publication of the decision. The Board shall conduct a public hearing for all
appeals in accordance with Chapter 101 of Title 29. Deliberations of the Board may be conducted in executive session. Each member
who votes shall indicate the nature of his or her vote in the written decision.
(b) Whenever a final decision of the Secretary concerning any case decision, including but not limited to any permit or enforcement
action is appealed, the Board shall hold a public hearing in accordance with Chapter 101 of Title 29. The record before the Board shall
include the entire record before the Secretary. All parties to the appeal may appear personally or by counsel at the hearing and may produce
any competent evidence in their behalf. The Board may exclude any evidence which is plainly irrelevant, immaterial, insubstantial,
cumulative or unduly repetitive, and may limit unduly repetitive proof, rebuttal and cross-examination. The burden of proof is upon the
appellant to show that the Secretary’s decision is not supported by the evidence on the record before the Board. The Board may affirm,
reverse or remand with instructions any appeal of a case decision of the Secretary.
(c) Appeals of regulations shall be on the record before the Secretary. The Board may hear new evidence if it is relevant to or
clarifies those issues in the record before the Secretary. The Board may exclude any new evidence which is plainly irrelevant, immaterial,
insubstantial, cumulative or unduly repetitive. Regulations will be presumed valid, and the burden will be upon the appellant to show
that the regulations are arbitrary and capricious, or adopted without a reasonable basis in the record. The Board shall take due account of
the Secretary’s experience and specialized competence and of the purposes of this chapter in making its determination. The board may
affirm, reverse or remand any appeal of regulations promulgated by the Secretary.
(d) The decision of the Board shall be signed by all members who were present at the hearing.
(e) There shall be no appeal of a decision by the Secretary to deny a permit on any matter involving state-owned land including
subaqueous lands, except an appeal shall lie on the sole ground that the decision was discriminatory in that the applicant, whose
circumstances are like and similar to those of other applicants, was not afforded like and similar treatment.
(f) No appeal shall operate to stay automatically any action of the Secretary, but upon application, and for good cause, the Secretary
or the Court of Chancery may stay the action pending disposition of the appeal.
(g) At any time after the appeal to the Board, the parties may, by stipulation, proceed directly to Superior Court, in which case the
Court may affirm, reverse or remand the Secretary’s decision based on the record before the Secretary and the Board and whatever other
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evidence the parties may submit by stipulation. The standard of review for such an appeal shall be governed by subsections (b) and (c)
of this section.
(h) In those circumstances in which the Board concludes that an immediate and expedited review of a decision of the Secretary is
appropriate or necessary, the Board may hold a public hearing on the appeal at the earliest possible time and issue a decision on such
appeal. In such a case, the notice requirements of this section and Chapter 101 of Title 29 do not apply, and the Board shall give advance
notice of the hearing only to the extent reasonably possible.
(7 Del. C. 1953, § 6008; 59 Del. Laws, c. 212, § 1; 59 Del. Laws, c. 537, § 4; 67 Del. Laws, c. 377, § 1; 68 Del. Laws, c. 148, § 1;
70 Del. Laws, c. 186, § 1.)
§ 6009. Appeal from the Board’s decision.
(a) Any person or persons, jointly or severally, or any taxpayer, or any officer, department, board or bureau of the State, aggrieved by
any decision of the Board, may appeal to the Superior Court in and for the county in which the activity in question is wholly or principally
located by filing a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the
illegality. Any such appeal shall be perfected within 30 days of the receipt of the written opinion of the Board.
(b) The Court may affirm, reverse or modify the Board’s decision. The Board’s findings of fact shall not be set aside unless the Court
determines that the records contain no substantial evidence that would reasonably support the findings. If the Court finds that additional
evidence should be taken, the Court may remand the case to the Board for completion of the record.
(c) No appeal shall operate to stay automatically any action of the Secretary, but upon application, and for good cause, the Board or
the Court of Chancery may stay the action pending disposition of the appeal.
(7 Del. C. 1953, § 6009; 59 Del. Laws, c. 212, § 1; 59 Del. Laws, c. 537, §§ 5, 6; 68 Del. Laws, c. 148, § 1.)
§ 6010. Rules and regulations; plans.
(a) The Secretary may adopt, amend, modify or repeal rules or regulations, or plans, after public hearing, to effectuate the policy
and purposes of this chapter. No such rule or regulation shall extend, modify or conflict with any law of this State or the reasonable
implications thereof.
(b) The Secretary shall formulate, amend, adopt and implement, after a public hearing, a statewide comprehensive water plan for the
immediate and long-range development and use of the water resources of the State.
(c) The Secretary may formulate, amend, adopt and implement, after public hearing, a statewide air resources management plan to
achieve the purpose of this chapter and comply with applicable federal laws and regulations. Any implementation plan in effect at the
time of enactment of this chapter shall continue to be in effect unless amended or repealed by the Secretary.
(d) The Secretary may formulate, amend, adopt and implement, after public hearing, a statewide water pollution management plan to
achieve the purposes of this chapter and comply with applicable federal laws and regulations. Any implementation plan in effect at the
time of the enactment of this chapter shall continue to be in effect unless amended or repealed by the Secretary.
(e) The Secretary shall formulate, amend, develop and implement, after public hearing, a State solid waste plan in accordance with the
requirements of subtitle D of the Resource Conservation and Recovery Act of 1976 (P.L. 94-580) as amended [42 U.S.C. § 6941 et seq.],
and any regulations thereunder, hereafter referred to as RCRA: Provided, however, that such plan shall be formulated in coordination with
the Delaware Solid Waste Authority and shall include provisions of the statewide solid waste management plan adopted by the Delaware
Solid Waste Authority pursuant to § 6403(j) of this title which reflect the applicable functions and activities of the Delaware Solid Waste
Authority under Chapter 64 of this title.
(f) The Secretary:
(1) Shall approve the allocation and use of water in the State on the basis of equitable apportionment;
(2) Shall approve all new plans and designs of all impounding water facilities by any state, county, municipal, public or private water
user within the State pursuant to subchapter V of this chapter; and
(3) May require reports from all Delaware water users as to a description of their water facilities, and past and present records of
water use.
(g) (1) The Secretary, after notice and public hearing, shall promulgate regulations containing criteria for determining which facilities
shall be classified as sanitary landfills and which shall be classified as open dumps within the meaning of this chapter. At a minimum
such criteria shall provide that a facility may be classified as a sanitary landfill and not an open dump only if there is no reasonable
probability of adverse effects on health or the environment from disposal of solid waste at such facility. Such regulations may provide
for the classification of the types of sanitary landfills.
(2) On the date as determined under paragraph (g)(3) of this section below, the open dumping of solid waste or hazardous waste
and the establishment of new open dumps is prohibited and all solid waste, including solid waste originating in other states but not
including hazardous waste, shall be utilized for resource recovery or disposed of in sanitary landfills, within the meaning of this chapter,
or otherwise disposed of in an environmentally sound manner, except in the case of any practice or disposal of solid waste under a
timetable or schedule for compliance established under paragraph (g)(5) of this section below.
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(3) Except as provided in paragraphs (g)(4) and (5) of this section below, the prohibition contained in paragraph (g)(2) of this section
above shall take effect on the date of promulgation of regulations containing criteria under paragraph (g)(1) of this section or on the
date of approval of the state solid waste plan under § 4007 of RCRA [42 U.S.C. § 6947], whichever is later.
(4) To assist in the formulation of the state solid waste plan, the Secretary, utilizing the criteria adopted pursuant to paragraph (g)(1)
of this section above, shall develop and publish an inventory of all disposal facilities or sites in Delaware which are open dumps within
the meaning of this chapter. With respect to any active disposal facilities or sites the Secretary shall coordinate the development of
the inventory with the Delaware Solid Waste Authority. Prior to publication of the inventory the Secretary shall provide written notice
of the proposed open dump designation to the owner and operator of the disposal facility or site which notice shall contain a detailed
statement of deficiencies under the criteria adopted pursuant to paragraph (g)(1) of this section above. Upon receipt of notification the
owner or operator shall, within 30 days, be entitled to request a public hearing before the Secretary pursuant to § 6006 of this title to
challenge the designation; otherwise, the designation shall become a final decision of the Secretary. With 60 days of publication of
the open dump inventory, the owner or operator of a disposal facility or site may apply to the Secretary for a timetable or schedule
for compliance or closure under paragraph (g)(5) of this section below. During the pendency of any such application and prior to final
action and disposition thereon the prohibition set forth in paragraph (g)(3) of this section above shall not apply with respect to that site.
Upon application by the owner or operator, a site or facility may be removed from the open dump inventory after a determination by
the Secretary that the basis upon which the site was designated as an open dump no longer exists. Any such application to remove a
site or facility from the inventory shall be advertised in accordance with § 6004(b) of this title.
(5) All existing disposal facilities or sites for solid waste which are open dumps listed in the inventory under paragraph (g)(4) of this
section shall comply with such measures as may be required by the Secretary, consistent with the requirements of RCRA [42 U.S.C.
§ 6901 et seq.], for closure or upgrading. The Secretary shall establish a timetable or schedule for compliance for such practice or
disposal of solid waste which specifies a schedule of remedial measures, including an enforceable sequence of actions or operations,
leading to compliance with the prohibition on open dumping of solid waste within a reasonable time (not to exceed 5 years) from the
date of publication of criteria under paragraph (g)(1) of this section.
(h) (1) Subject to subsection (f) of this section, the Secretary shall establish procedures for the issuance of water allocation permits
which shall be granted concurrently with any license or permit to construct, extend or operate an irrigation well or surface water intake
on any farm or farmland in the State. A water allocation permit issued pursuant to this subsection shall reserve the right of the person to
whom the permit is issued to utilize up to 20 acre-inches per year, but not more than 10 acre-inches per month.
(2) For the purposes of this subsection:
a. An “acre-inch” of water is the amount of water required to cover 1 acre of land to a depth of 1 inch and is equal in volume
to 27,154 gallons of water.
b. An “irrigation well” is an agricultural well which is used exclusively for the watering of lands or crops other than household
lawns and gardens.
(i) The Secretary shall waive the requirements of § 6004(b) of this title for irrigation wells if:
(1) The permit application is submitted between and April 1 and October 1, inclusive;
(2) The permit application is to replace an existing irrigation well;
(3) The existing well has a valid allocation permit; and
(4) The replacement well will not exceed allocation permitted amounts.
(j) An emergency circumstance is deemed to exist if a well will replace an existing well and if the Department of Agriculture and/or
the Department of Natural Resources and Environmental Control determines that the lack of water or delay in obtaining water poses an
immediate and significant danger to the health or welfare of persons or their property, or if 1 or both of the Departments have determined
that other exceptional circumstances exist. Verbal approval must be given for the installation of a well if an emergency circumstance
exists, provided that:
(1) Within 72 hours after the verbal issuance of a permit number under emergency circumstances, the applicant submits to the
Department a well permit application and well completion report, which must include the permit number.
(2) All wells constructed under emergency circumstances must be constructed in conformance with all applicable regulations and
officially established policies.
(k) If an emergency circumstance exists when State offices are closed, a well may be constructed, providing that it replaces an existing
well and that the Department is notified verbally on the first working day following such action. A well permit application, including the
well permit number, the appropriate application fee, and a well completion report must be submitted within 72 hours after notification.
(l) The following persons shall serve on an advisory committee that oversees the agriculture irrigation well procedures:
(1) The Secretary of Agriculture, or the Secretary’s designee;
(2) The Secretary of the Department of Natural Resources and Environmental Control, or the Secretary’s designee;
(3) One person to represent the Delaware Farm Bureau;
(4) One person to represent the Fruit and Vegetable Growers Association of Delaware;
(5) One person who is an irrigation dealer;
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(6) One person who is a commercial irrigation well driller;
(7) One person from the University of Delaware Water Resources Agency; and
(8) One person from the Delaware Geological Survey.
The Secretary of Agriculture and the Secretary of the Department of Natural Resources and Environmental Control shall determine
that the committee members meet the above descriptions. The Secretary of Agriculture, or the Secretary’s designee, shall serve as the
chairperson of the advisory oversight committee.
(7 Del. C. 1953, § 6010; 59 Del. Laws, c. 212, § 1; 60 Del. Laws, c. 288, § 2; 63 Del. Laws, c. 248, §§ 2-4; 67 Del. Laws, c. 344, §
4; 68 Del. Laws, c. 124, § 5; 73 Del. Laws, c. 191, § 1; 78 Del. Laws, c. 185, § 2.)
§ 6011. Variance.
(a) The Secretary may, upon application of a person (except an application concerning (1) a source of water or a sewerage facility for 3
or fewer families or (2) open burning, on which the Secretary may act without public notification), grant a variance to that person from any
rule or regulation promulgated pursuant to this chapter after following the notice and hearing procedure set forth in § 6004 of this title.
(b) The variance may be granted if the Secretary finds that:
(1) Good faith efforts have been made to comply with this chapter;
(2) The person applying is unable to comply with this chapter because the necessary technology or other alternative methods of
control are not available or have not been available for a sufficient period of time or the financial cost of compliance by using available
technology is disproportionately high with respect to the benefits which continued operation would bestow on the lives, health, safety
and welfare of the occupants of this State and the effects of the variance would not substantially and adversely affect the policy and
purposes of this chapter;
(3) Any available alternative operating procedure or interim control measures are being or will be used to reduce the impact of such
source on the lives, health, safety and/or welfare of the occupants of this State; and
(4) The continued operation of such source is necessary to national security or to the lives, health, safety or welfare of the occupants
of this State.
(c) The Secretary shall publish his or her decision, except a decision involving (1) a source of water or a sewerage facility for 3 or
fewer families or (2) open burning, and the nature of the variance, if granted, and the conditions under which it was granted. The variance
may be made effective immediately upon publication.
(d) Any party may appeal a decision of the Secretary on a variance request to the Environmental Appeals Board under § 6008 of this
title within 15 days after the Secretary publishes his or her decision.
(e) No variance can be in effect longer than 1 year but may be renewed after another hearing pursuant to this section.
(f) The granting of a variance shall not in any way limit any right to proceed against the holder for any violation of the variance. This
chapter, or any rule, or regulation, which is not incorporated in the variance provisions, shall remain in full effect.
(g) Notwithstanding other provisions of this section, the Secretary is not authorized to approve requests for fundamentally different
factor variances from categorical pretreatment standards promulgated by the Administrator of the United States Environmental Protection
Agency pursuant to § 307(b) or (c) of the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1317(b) or (c). The Secretary
is authorized to accept and review such variance requests, and, upon review, deny such request or recommend that the Administrator of
the United States Environmental Protection Agency approve such a variance request.
(7 Del. C. 1953, § 6011; 59 Del. Laws, c. 212, § 1; 59 Del. Laws, c. 537, §§ 8, 9; 62 Del. Laws, c. 414, § 1; 70 Del. Laws, c. 186,
§ 1.)
§ 6012. Temporary emergency variances.
(a) Notwithstanding § 6011 of this title, other than subsection (g) of that section, the Secretary may grant a variance to any rules or
regulations promulgated pursuant to this chapter, for a period not to exceed 60 days. The request for a temporary emergency variance
shall be submitted in writing, setting forth the reasons for the request.
(b) A temporary emergency variance may be granted only after a finding of fact by the Secretary that:
(1) Severe hardship would be caused by the time period involved in obtaining variances pursuant to § 6011 of this title;
(2) The emergency was of such an unforeseeable nature so as to preclude, because of time limitations, an application under § 6011
of this title;
(3) The conditions set forth in § 6011(b)(1)-(4) of this title are satisfied.
(c) Temporary emergency variances granted pursuant to this section may not be extended more than once.
(d) The granting of any temporary emergency variance shall be published within 5 days of the granting of said variance.
(7 Del. C. 1953, § 6012; 59 Del. Laws, c. 212, § 1; 59 Del. Laws, c. 537, § 10; 62 Del. Laws, c. 414, § 2.)
§ 6013. Criminal penalties.
(a) Any person who wilfully or negligently:
(1) Violates § 6003 of this title, or violates any condition or limitation included in a permit issued pursuant to § 6003 of this title,
or any variance condition or limitation, or any rule or regulation, or any order of the Secretary; or
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(2) Violates any requirements of a statute or regulation respecting monitoring, recording and reporting of a pollutant or air
contaminant discharge; or
(3) Violates a pretreatment standard or toxic effluent standard with respect to introductions of pollutants into publicly owned treatment
works
shall be punished by a fine of not less than $2,500 nor more than $25,000 for each day of such violation.
(b) Any person who intentionally, knowingly, or recklessly:
(1) Makes any false statement, representation or certification in any application, record, report, plan or other document filed or
required to be maintained under this chapter, or under any permit, rule, regulation or order issued under this chapter; or
(2) Who falsifies, tampers with or renders inaccurate any monitoring device or method required to be maintained under this chapter,
shall upon conviction be punished by a fine of not less than $500 nor more than $10,000 or by imprisonment for not more than 6
months, or both.
(c) Any person who intentionally or knowingly:
(1) Violates § 6003 of this title, or violates any condition or limitation included in a permit issued pursuant to § 6003 of this title,
or any variance condition or limitation, or any rule or regulation, or any order of the Secretary; or
(2) Violates any requirements of a statute or regulation respecting monitoring, recording and reporting of a pollutant or air
contaminant discharge; or
(3) Violates a pretreatment standard or toxic effluent standard with respect to introductions of pollutants into publicly owned treatment
works,
and who causes serious physical injury to another person or serious harm to the environment as one result of such conduct, shall be
guilty of a class D felony and shall, upon conviction, be sentenced in compliance with the sentencing guidelines established for class
D felonies in § 4205 of Title 11.
(d) Any person:
(1) Who intentionally or knowingly makes any false statement, representation or certification in any application, record, report, plan
or other document filed or required to be maintained under this chapter, or under any permit, rule, regulation or order issued under
this chapter; or
(2) Who falsifies, tampers with or intentionally or knowingly causes to be rendered inaccurate any monitoring device or method
required to be maintained under this chapter,
and who causes serious physical injury to another person or serious harm to the environment as 1 result of such conduct, shall be
guilty of a class D felony and shall, upon conviction, be sentenced in compliance with the sentencing guidelines established for class
D felonies in § 4205 of Title 11.
(e) Any officer of any corporation, manager of any limited liability company, or general partner of any limited partnership conducting
business in the State who intentionally or knowingly authorizes or directs said business entity or its employees or agents to:
(1) Falsify or conceal any material fact required to be disclosed to the Department;
(2) Destroy, conceal or alter any records that the corporation is required by this title, the Department’s regulations, or an order of
the Department to maintain; or
(3) Commit any act in violation of this title or rules promulgated by the Department;
shall upon conviction be punished by a fine of not less than $500 nor more than $10,000 or by imprisonment for not more than 6
months, or both. If an act described in this subsection causes serious physical injury to another person or serious harm to the environment
as one result of such an act, the officer, manager or general partner committing the act shall be guilty of a class D felony and shall, upon
conviction be sentenced in compliance with the sentencing guidelines established for class D felonies in § 4205 of Title 11. Nothing
in this subsection shall be read to establish any additional elements for conviction of the criminal offenses described in subsections (a)
through (d) of this section.
(f) Each day of violation with respect to acts or omissions described in this section shall be considered as a separate violation.
(g) The Superior Court shall have exclusive jurisdiction over prosecutions brought pursuant to subsections (a)-(e) of this section.
Prosecutions pursuant to subsection (h) of this section may be brought in the jurisdiction of the Courts of the Justices of the Peace.
(h) Whoever violates this chapter, or any rule or regulation promulgated thereunder, or any rule or regulation in effect as of July 26,
1974, or any permit condition, or any order of the Secretary, shall:
(1) For the first conviction, be fined not less than $100 nor more than $500 for each day of violation;
(2) For a subsequent conviction for the same offense within a 10-year period, be fined not less than $500 nor more than $1,500 for
each day of violation; and
(3) In addition to the penalties provided in paragraphs (h)(1) and (h)(2) of this section, if the offense involves the failure to acquire
a permit as required under this chapter, the offender shall be assessed the cost of the permit, plus a 25 percent surcharge, in addition
to the fine.
(i) Any person prosecuted pursuant to subsection (h) of this section shall not be prosecuted for the same offense under subsections
(a)-(e) of this section.
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(j) The terms “intentionally,” “knowingly,” “recklessly,” “negligently,” and “serious physical injury,” as used in this section, shall have
the meanings assigned to them by Chapter 2 of Title 11.
(k) The term “serious harm to the environment” shall mean damage to the air, water or soil which has or will, beyond a reasonable
doubt, cause serious physical injury to any persons working at the facility in question or persons within the State.
(l) It is an affirmative defense to a prosecution that the specific conduct charged was freely and knowingly consented to by the person
endangered and that the danger and conduct charged were reasonably foreseeable hazards of:
(1) An occupation, a business or a profession; or
(2) Medical treatment or medical or scientific experimentation conducted by professionally approved methods and such other person
had been made aware of the risks involved prior to giving consent.
The defendant may establish an affirmative defense under this subsection by a preponderance of the evidence. The provisions of this
subsection are subject to the restrictions enumerated at § 453 of Title 11.
(m) All general defenses affirmative defenses, and bars to prosecution that may apply with respect to other criminal offenses may
apply under this section.
(7 Del. C. 1953, § 6013; 59 Del. Laws, c. 212, § 1; 59 Del. Laws, c. 537, §§ 11-13; 69 Del. Laws, c. 366, § 1; 71 Del. Laws, c.
140, § 1; 74 Del. Laws, c. 170, §§ 2, 3; 75 Del. Laws, c. 275, §§ 1-5; 76 Del. Laws, c. 403, §§ 2, 3.)
§ 6014. Regulatory and compliance information, facility performance and public information.
(a) The Department shall develop an Environmental Information System that will include general information about facilities and sites
under the Department’s regulatory jurisdiction as defined by Chapters 40, 60, 62, 63, 66, 70, 72, 74, 77, 78, and 91 of this title and Chapter
63 of Title 16. The Environmental Information System shall include information on all such facilities and sites related to permitting
requirements, emissions and discharge monitoring and reporting data, compliance inspections, violations and enforcement actions. The
System shall provide the public with information that indicates when a facility has been inspected, what violations are detected, when the
facility comes into compliance, and any enforcement action that results from violations at the facility.
(b) The Secretary shall create or contract with a third party to create a central unified notification system to notify the public in a timely
manner of environmental releases. That system shall be designed in a such a manner as to ensure the notification, within 12 hours after
the Department is informed of an environmental release, of:
(1) The State Representative and State Senator in whose district the release occurred;
(2) Any community or civic group the majority of whose membership lives within 5 miles of the reporting facility that has identified
itself to the Department as an entity wishing to receive notice pursuant to this subsection; and
(3) Any individual who lives within 5 miles of the reporting facility and who has identified himself or herself to the Department as
a person wishing to receive notice pursuant to this subsection.
(c) The facility from which an environmental release has occurred shall pay to the Department the cost of the Department’s notification
under subsection (b) of this section. Such cost shall include a prorated share of the annual fixed costs incurred by the Department for the
maintenance of the notification system created pursuant to subsection (b) of this section, and a prorated share of the initial development
costs of the notification system to be equally distributed over the first 5 years of the system’s existence, both to be determined in the
sole discretion of the Department. The facility shall make payment under this subsection within 30 days of receiving written notice of the
amount of payment due. Failure to make payment pursuant to this subsection in a timely fashion shall constitute a violation punishable
under § 6005 of this title. For purposes of this section facility shall mean any building, structure, installation, equipment, pipe or pipeline
(including any pipe into a sewer or publicly owned treatment works), wastewater treatment plant, pit, pond, lagoon, impoundment, landfill,
storage container, or any site or area where an environmental release has occurred.
(d) Any records, reports or information obtained pursuant to this chapter and any permits, permit applications and related documentation
shall be available to the public for inspection and copying; provided, that upon a showing satisfactory to the Secretary by any person that
such records, reports, permits, permit applications, documentation or information, or any part thereof (other than effluent data) would, if
made public, divulge methods or processes entitled to protection as trade secrets of such person, the Secretary shall consider, treat and
protect such record, report or information, or part thereof, as confidential; provided further, however:
(1) That any such record, report or information accorded confidential treatment may be disclosed or transmitted to other officers,
employees or authorized representatives of this State or of the United States concerned with carrying out this chapter or when relevant
in any proceeding to effectuate the purpose of this chapter; and
(2) That any report environmental release, air contaminant or water pollutant emissions may be made available to the public as
reported and as correlated with any applicable emission standards or limitations.
(7 Del. C. 1953, § 6014; 59 Del. Laws, c. 212, § 1; 59 Del. Laws, c. 537, § 14; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 117, §
4.)
§ 6015. Interference with Department personnel.
No person shall obstruct, hinder, delay or interfere with, by force or otherwise, the performance by Department personnel of any duty
under this chapter, or any rule or regulation or order or permit or decision promulgated or issued thereunder.
(7 Del. C. 1953, § 6015; 59 Del. Laws, c. 212, § 1.)
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§ 6016. Departmental investigations; witnesses; oaths; attendance.
In furtherance of the policy and purposes of this chapter, the Secretary may make or cause to be made any investigation or study which
is, in his or her opinion, necessary for the purpose of enforcing this chapter. For such purposes the investigative officer designated by the
Secretary may subpoena witnesses and the production of documents and compel their testimony. Testimony received at a Departmental
investigation shall be under oath and open to the public. Findings of these investigations or studies shall be made public.
(7 Del. C. 1953, § 6016; 59 Del. Laws, c. 212, § 1; 70 Del. Laws, c. 186, § 1.)
§ 6017. Sealing noncomplying equipment.
(a) The Department may seal, after consultation with the Attorney General, any source required to have a permit which is installed,
altered, used or operated without such a permit or which is in violation of a cease and desist order.
(b) If the equipment is sealed, no person shall tamper with or remove the seal from any equipment so sealed. Violation of this provision
shall make the violator upon conviction liable to punishment as provided in § 6005 of this title.
(c) A seal may be removed from equipment only upon receipt of written authorization from the Department. The Department shall
order removal of the seal after the reason(s) which caused the sealing has been corrected.
(7 Del. C. 1953, § 6017; 59 Del. Laws, c. 212, § 1.)
§ 6018. Cease and desist order.
The Secretary shall have the power to issue an order to any person violating any rule, regulation or order or permit condition or provision
of this chapter to cease and desist from such violation; provided, that any cease and desist order issued pursuant to this section shall
expire (1) after 30 days of its issuance, or (2) upon withdrawal of said order by the Secretary, or (3) when the order is suspended by an
injunction, whichever occurs first.
(7 Del. C. 1953, § 6018; 59 Del. Laws, c. 212, § 1.)
§ 6019. Voluntary compliance.
Nothing in this chapter shall prevent the Department from making efforts to obtain voluntary compliance by way of warning, notice
or other educational means; this section does not, however, require that such voluntary methods be used before proceeding by way of
compulsory enforcement.
(7 Del. C. 1953, § 6019; 59 Del. Laws, c. 212, § 1.)
§ 6020. Liberal construction.
This chapter, being necessary for the welfare of the State and its inhabitants, shall be liberally construed in order to preserve the land,
air and water resources of the State.
(7 Del. C. 1953, § 6020; 59 Del. Laws, c. 212, § 1.)
§ 6021. Federal aid; other funds.
The Department may cooperate with and receive moneys from the federal government, any state or local government or any industry or
other source. Such moneys received are appropriated and made available for the study and preservation of land, water and air resources.
(7 Del. C. 1953, § 6021; 59 Del. Laws, c. 212, § 1.)
§ 6022. Temporary limits and procedures for hazardous operations.
Where no rule or regulation has been promulgated which sets specific limits for the use, emission or discharge, or operating procedure
for hazardous operations, the Secretary may set temporary limits or operating procedure; provided, that the temporary limits or orders
shall not be effective for more than 6 months unless adopted into permanent rules and regulations within that period. The affected parties
shall be given a hearing before the Department within 30 days, if requested, on any action taken under this section.
(7 Del. C. 1953, § 6022; 59 Del. Laws, c. 212, § 1.)
§ 6023. Licensing of water well contractors, pump installer contractors, drillers, drivers, pump installers,
septic tank installers, liquid waste treatment plant operators and liquid waste haulers.
(a) No person shall:
(1) Engage in the drilling, boring, coring, driving, digging, construction, installation, removal or repair of a water well or water
test well; or
(2) Install, maintain or repair pumping equipment in or from a well without a license issued by the Department, except (i) as, or
under the supervision of, a licensed plumber, or (ii) an agricultural well on land owned or leased by the person installing, maintaining
or repairing the pumping equipment. For the purpose of this paragraph “agricultural well” shall mean a well used for irrigation of crops,
for the watering of livestock or poultry, for aquaculture uses, or for other on-farm purposes where the water is not to be used for human
consumption or to service a residential dwelling.
(b) No person shall engaged in the construction, repair, installation or replacement of a septic tank system or any part thereof except
as or under the supervision of a licensed septic tank installer.
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(c) No person shall operate any liquid waste treatment system without a duly licensed liquid waste treatment plant operator.
(d) No person shall haul, convey or transport any liquid waste in any container without a license issued by the Department.
(e) Any person requiring a license for any activity specified in subsections (a)-(d) of this section shall file an application with the
Secretary in such form and accompanied by such information as the Secretary may require by regulation.
(f) The Secretary shall have the exclusive power to grant or deny any license required under subsections (a), (b), (c) and (d) of this
section. The Secretary shall adopt regulations setting forth requirements, including an acceptable performance or an examination for
obtaining and retaining any such license.
(7 Del. C. 1953, § 6023; 59 Del. Laws, c. 212, § 1; 59 Del. Laws, c. 537, § 15; 60 Del. Laws, c. 288, § 3; 64 Del. Laws, c. 472, §
2; 71 Del. Laws, c. 187, § 1.)
§ 6024. Right of entry.
The Secretary, or the Secretary’s duly authorized designee, in regulating water pollution, air pollution, solid waste disposal or any other
matter over which he or she has jurisdiction pursuant to this chapter, may enter, at reasonable times, upon any private or public property
for the purpose of determining whether a violation exists of a statute or regulation enforceable by him or her, upon given verbal notice,
and after presenting official identification to the owner, occupant, custodian or agent of said property.
(7 Del. C. 1953, § 6024; 59 Del. Laws, c. 212, § 1; 70 Del. Laws, c. 186, § 1.)
§ 6025. Solid waste.
(a) The Secretary shall have exclusive authority to effectuate the purposes of this chapter concerning solid waste, set forth in § 6001(c)
(6) of this title notwithstanding any authority heretofore conferred upon or exercised by any other state agency, but any regulations
heretofore duly adopted by any other state agency shall remain in effect and be enforceable by the Secretary unless repealed, amended
or modified by the Secretary. Chapter 64 of this title shall not be interpreted to be in conflict with either the purposes of this chapter
concerning solid waste as set forth in § 6001(c)(6) of this title, or any regulation promulgated thereunder.
(b) No person shall cause or contribute to the disposal or discharge of solid waste anywhere in the State including any surface or
ground water, except:
(1) Through municipal or private solid waste collection systems which have received a permit from the Department; or
(2) In solid waste disposal facilities which have received a permit from the Department; or
(3) In containers specially provided for solid waste collection by any state or municipal agency or private or public group,
organization, agency or company which has received a permit from the Department.
(c) Any person charged with violation of subsection (b) of this section, upon conviction, shall be fined not less than $500 nor more than
$1500 for each violation and there shall be no suspension of the fine. Each day of continued violation or part thereof shall be considered
as a separate offense. The court shall, in addition to levying the fine, order the person convicted to remove or cause to be removed any
improperly disposed solid waste. In addition to the fine, the sentencing judge may order community service directed to the removal of solid
waste illegally disposed of in the State, and may order restitution for costs incurred in remediation of the solid waste illegally disposed
of in the State. The Courts of the Justices of the Peace shall have jurisdiction of offenses under this section.
(d) In the event a motor vehicle is used during or in aid of the disposal or discharge of solid waste in violation of subsection (b) of
this section, and the identity of the offender is not otherwise apparent, there shall be a rebuttable presumption that the registered owner
of the motor vehicle caused or contributed to such disposal or discharge. The rebuttable presumption set forth in this section shall not
apply to operators of buses carrying 9 or more persons.
(e) Any person, who causes or contributes to the disposal or discharge of solid waste anywhere in the State including any surface or
ground water, except:
(1) Through municipal or private solid waste collection systems which have received a permit from the Department; or
(2) In solid waste disposal facilities which have received a permit from the Department; or
(3) In containers specially provided for solid waste collection by any state or municipal agency or private or public group,
organization, agency or company which has received a permit from the Department,
shall be civilly liable to the owner or person in possession of the real property upon which the solid waste is disposed or discharged,
for any property damage sustained, for costs incurred by the owner or person in possession for clean up and proper disposal of the solid
waste, and for reasonable attorneys’ fees. This cause of action is in addition to any other causes of action, rights and/or remedies the
owner or person in possession may have.
(7 Del. C. 1953, § 6025; 59 Del. Laws, c. 212, § 1; 59 Del. Laws, c. 537, §§ 16, 17; 60 Del. Laws, c. 288, § 4; 76 Del. Laws, c.
403, §§ 4-7.)
§ 6026. License fees.
(a) (1) The Secretary may establish fees, subject to approval by the General Assembly, for granting any license to any percolation
tester, system designer, site evaluator, system inspector, well water contractor, pump installer contractor, well driver, well driller, pump
installer, septic tank system installer, liquid waste hauler and liquid waste treatment plant operator.
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(2) Notwithstanding any other provisions of law to the contrary, the General Assembly hereby authorizes and approves the following
schedule of license fees to be imposed by the Department effective July 1, 2003: Percolation Tester, $40 annual fee; System Designer,
$40 annual fee; Site Evaluator, $40 annual fee; System Inspector, $40 annual fee; Septic Tank System Installer, $40 annual fee; and
Liquid Waste Hauler; $40 annual fee.
(3) Any fees collected under this subsection are hereby appropriated to the Department to carry out the purposes of this chapter.
(b) The Secretary may establish fees for conveyance of oil and hazardous substance through pipeline after holding public hearings
on such a fee schedule.
(c) Any fee collected under this subsection is hereby appropriated to the Department to carry out the purposes of this chapter.
(7 Del. C. 1953, § 6026; 59 Del. Laws, c. 212, § 1; 60 Del. Laws, c. 288, § 5; 64 Del. Laws, c. 472, § 3; 74 Del. Laws, c. 139, §
1.)
§ 6027. Change of authority.
The word “Secretary” shall be substituted wherever the words “Water and Air Resources Commission” or “Commission” appear in
the Delaware Code and any authority vested in the “Water and Air Resources Commission” or “Commission” is hereby delegated to the
Secretary without qualification.
(7 Del. C. 1953, § 6027; 59 Del. Laws, c. 212, § 1.)
§ 6028. Report of discharge of pollutant or air contaminant.
(a) Any person who causes or contributes to an environmental release or to the discharge of an air contaminant into the air, or a
pollutant, including petroleum substances, into surface water, groundwater or on land, or disposal of solid waste in excess of any reportable
quantity specified under either regulations implementing § 102 of the Federal Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended [42 U.S.C. § 9602], § 311 of the Clean Water Act of 1980, as amended [33 U.S.C. § 1321], or
Department regulations, whichever restriction is most stringent, shall report such an incident to the Department as soon as the person
has knowledge of said environmental release or discharge and activating their emergency site plan if appropriate unless circumstances
exist which make such notification impossible. Such initial notification shall be made in person or by telephone to a number specifically
assigned by the Department for this purpose and shall include, to the maximum extent practicable, the following information:
(1) The facility name and location of release;
(2) The chemical name or identity of any substance involved in the release;
(3) An indication of whether the substance is an extremely hazardous substance;
(4) An estimate of the quantity of any such substance that was released into the environment;
(5) The time and duration of the release;
(6) The medium or media into which the release occurred;
(7) Any known or anticipated acute or chronic health risks associated with the emergency and, where appropriate, advice regarding
medical attention necessary for exposed individuals;
(8) Proper precautions to take as a result of the release, including evacuation (unless such information is readily available to the
community emergency coordination pursuant to the emergency plan);
(9) The names and telephone number of the person or persons to be contacted for further information; and
(10) Such other information as the Department may require.
This information shall be made available to the public by posting on the Department’s internet web site no later than 1 business day
after the release is reported. Discharges in compliance with a validly issued state permit or in compliance with other state and federal
regulations are exempt from the reporting requirement.
(b) The Department shall adopt regulations revising the list, referred to in subsection (a) of this section, of pollutants environmental
releases or air contaminants and their reportable quantities which are to be reported to the Department.
(c) The reporting requirements under this section are in addition to and not in lieu of, any other discharge reporting requirements found
in any other state, federal, county or local government permits, regulations or ordinances.
(d) At the Department’s discretion, the Department may require said person to file a written report with the Department describing in
detail the facts and circumstances of the discharge and measures proposed to prevent such discharge from occurring in the future.
(e) Discharges of an air contaminant or pollutant (including petroleum substances) that are wholly contained within a building are
exempt from the reporting requirements.
(f) Any person who violates this section or any rule or regulation duly promulgated hereunder shall be punishable in accordance with
the enforcement provisions of this chapter.
(7 Del. C. 1953, § 6028; 59 Del. Laws, c. 212, § 1; 59 Del. Laws, c. 537, § 18; 65 Del. Laws, c. 507, § 1; 66 Del. Laws, c. 221, §
1; 67 Del. Laws, c. 288, § 1; 73 Del. Laws, c. 117, § 3.)
§ 6029. Limitations on scope of chapter.
This chapter shall not apply to or change the existing law in respect to:
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(1) The landowner’s right to place a dam across a gully on his or her property or across a stream that originates on that landowner’s
property where provision is made for continued established average minimum flow occurring for 7 consecutive days within the lowest
flow year of record; or
(2) The right to build and maintain a dam or construct a pond and divert water from any stream on any stream having a minimum
flow of not more than 1/2 million gallons of water per day, and utilize up to 360 acre inches of the impounded water per year so long
as such action does not affect the established average minimum flow in the stream below the dam at any time; or
(3) Ponds not larger than 60,000 square feet constructed for purposes of conservation, recreation, propagation and protection of fish
and wildlife, watering of stock or fire protection; or
(4) Linear water and wastewater utility projects that have a maximum width of disturbance of 30 feet or less and with a maximum
total disturbance of 1 acre or less are: (i) subject to Erosion and Sediment Control regulations adopted by the Department, and (ii)
exempt from Stormwater Management regulation adopted by the Department. For the purposes of this section “erosion and sediment
control” means the control of solid material, both mineral and organic, during a land disturbing activity, to prevent its transport out of
the disturbed area by means of wind, water, gravity, or ice. For the purposes of this section “stormwater management” means:
a. For water quantity control, a system of vegetative, structural, and other measurers that controls the volume and rate of Stormwater
runoff which may be caused by land disturbing activities upon the land; and
b. For water quality control, a system of vegetative, structural, and other measures that controls adverse effects on water quality
that may be caused by land disturbing activities upon the land.
(7 Del. C. 1953, § 6029; 59 Del. Laws, c. 212, § 1; 70 Del. Laws, c. 186, § 1; 80 Del. Laws, c. 392, § 2.)
§ 6030. Approval of water use.
No increase in the amount of water used shall be made by a user without prior approval of the Department.
(7 Del. C. 1953, § 6030; 59 Del. Laws, c. 212, § 1.)
§ 6031. Obligation of recipients of water allocations.
(a) The Secretary shall, when the use of water pursuant to an allocation granted under § 6010(f) of this title causes the depletion or
exhaustion of an existing use of water, require as a condition of such allocation that the recipient of such allocation take 1 or more of
the following actions:
(1) To provide free of charge to the affected person a complete water supply connection to a water supply distribution system and
to provide water to the affected person for a term of 3 years in an amount not to exceed 100,000 gallons per year. Water used by
the affected person which exceeds 100,000 gallons per year shall be paid for by the affected person on a quarterly basis at the rates
established by the Public Service Commission as applicable to the supply of public water in the area in question; and/or
(2) To provide free of charge to the affected person an alternative source of water supply at least equal in quality and quantity to
that existing at the time of the granting of the allocation.
(b) The Secretary shall, when an allocation granted pursuant to § 6010(f) of this title causes the depletion or exhaustion of an existing
use of water, require as a condition of such allocation that the person receiving such allocation provide free of charge to the affected
person an interim water supply which is adequate to meet such person’s need. The Secretary shall determine the level of interim water
supply sufficient to meet the needs of the affected person and shall further determine the dates on which the interim water supply will
commence and terminate.
(c) The Secretary shall, upon receipt of a verified petition setting forth factual allegations that an allocation granted pursuant to §
6010(f) of this title caused the depletion or exhaustion of petitioner’s existing use of water, schedule and conduct a hearing to consider
the petition. Prior to a hearing under this subsection the Secretary shall give at least 20 days’ notification of the date of the hearing to the
petitioner and the person granted the allocation. The petitioner or the person granted the allocation may appear personally or by counsel at
the hearing and produce any competent evidence. The Secretary or the Secretary’s designee may administer oaths, examine witnesses and
issue in the name of the Department subpoenae when requested by a petitioner or a person granted an allocation. A verbatim transcript
of testimony at the hearing shall be prepared and shall, along with the exhibits and other documents introduced into evidence, constitute
the record. The Secretary or the Secretary’s designee shall make findings of fact based on the record and issue an order to effectuate such
findings and further the purposes of this subsection. Any person whose interest is substantially affected by any order of the Secretary may
appeal to the Environmental Appeals Board as provided in § 6008 of this title.
(61 Del. Laws, c. 123, § 1; 70 Del. Laws, c. 186, § 1.)
§ 6032. Licensing of site evaluators, percolation testers and on-site system designers and contractors.
(a) No person shall conduct percolation tests or soil evaluations or design, inspect or install on-site wastewater treatment and disposal
systems without first having obtained a license from the Secretary. As a prerequisite of licensing, the Secretary may require the person
to demonstrate familiarity with test procedures and applicable regulations, and to sign a statement under penalty of perjury that he or she
will abide by all statutes and regulations governing the design, inspection and installation of on-site wastewater treatment and disposal
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systems. In addition, the Secretary may require each licensee or class of licensees to show proof of surety to cover liability for such risks
and in such amounts as the Secretary may establish by regulation after public notice in accordance with § 6006 of this title.
(b) Any license by the Secretary shall be for a fixed term not to exceed 3 years and shall be renewable upon application.
(c) The Secretary shall adopt such other regulations after public notice and hearing in accordance with § 6006 of this title as necessary
to accomplish the purposes of this title.
(d) The license requirements shall not apply in a county which has been delegated authority to issue septic tank permits pursuant to
§ 6003(d) of this title.
(61 Del. Laws, c. 264, § 1; 65 Del. Laws, c. 361, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 139, § 2.)
§ 6033. Pretreatment program.
(a) The Secretary shall develop, implement and enforce, and may amend, modify and repeal, a state pretreatment program in compliance
with the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251 et seq. and regulations promulgated thereunder. In addition to
any other authority which the Secretary may exercise for this purpose under this chapter or other chapters of this Code, the Secretary may:
(1) Require any POTW to develop, submit for approval to the Secretary, administer and enforce a POTW pretreatment program;
(2) Review, approve and deny requests for approval of POTW pretreatment programs submitted by a POTW to the Secretary;
(3) Require any POTW, whether or not such POTW is required to develop and enforce a POTW pretreatment program, to develop,
submit for approval to the Secretary and enforce specific limits on or prohibitions against discharges of pollutants by industrial users
of such POTW to prevent interference with such POTW;
(4) Incorporate conditions into new or existing permits issued to POTWs, such as, but not limited to, compliance schedules,
modification clauses, the elements of an approved pretreatment program and specific limits on or prohibitions against discharges by
industrial users into such POTW;
(5) Review, approve and deny requests from POTWs required to develop POTW programs to modify categorical pretreatment
standards to reflect removals achieved by such POTW;
(6) Require any POTW or industrial user to submit reports, monitor activities and maintain records to assure compliance with this
section and regulations hereunder;
(7) Require compliance by industrial users with pretreatment standards, and discharge limits and prohibitions;
(8) Adopt, amend, modify or repeal rules or regulations to effectuate this section and comply with federal laws and regulations
respecting pretreatment. Such rules and regulations shall be adopted, after public hearing, in accordance with § 6010 of this title;
provided, however, that the Secretary may incorporate into state regulations without a public hearing a categorical pretreatment standard
which has previously been promulgated by regulation by the Administrator of the United States Environmental Protection Agency.
Prior to incorporating any such categorical pretreatment standard without a public hearing, the Secretary shall comply with §§ 10115,
10116 and 10118 of Title 29.
(b) The Secretary may seek any relief authorized by this chapter against any industrial user even if a POTW has acted or will act to
seek such relief.
(62 Del. Laws, c. 414, § 4.)
§ 6034. Sewage system cleansers and additives.
(a) No person shall distribute, sell, offer or expose for sale in this State any sewage system cleanser or additive containing any restricted
chemical materials in excess of 1 part per hundred by weight. The penalty for an initial violation of this subsection shall be a formal
written warning by the Secretary for the first offense; and for any subsequent violation a fine of $500 shall be imposed.
(b) No person shall use, introduce or apply, or cause any other person to use, introduce or apply in any sewage system, surface waters
or groundwaters in this State any sewage system cleanser or additive containing any restricted chemical material or any combination
thereof, in excess of 1 part per hundred. The penalty for violating this subsection shall be a fine of $100 for the first offense and $1,000
for each subsequent offense.
(c) No person shall serve water, or a product containing water, to the public from a well ordered closed due to the presence of restricted
chemical materials. The penalty for each such violation shall be a fine of not less than $1,000 nor more than $10,000. Any subsequent
violation of this subsection by a violator shall result in the closing of the facility until a new and safe source of water is found and is
operative in the facility.
(d) The Courts of the Justices of the Peace shall have jurisdiction over offenses under this section.
(e) The Secretary, with assistance from the Division of Public Health, shall:
(1) Conduct a public education program by utilizing mass-media instruments within 90 days of July 17, 1984;
(2) Thereafter, conduct random spot checks in appropriate business concerns to insure that no restricted chemical materials are on
sale; and
(3) Take appropriate enforcement action for violations of the sale or use of restricted chemical materials as provided in subsections
(a) and (b) of this section.
(64 Del. Laws, c. 370, § 2.)
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§ 6035. Vessel sewage discharge.
(a) 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 or toilets or Type III marine sanitation device or devices (MSD), shall provide convenient access, as
determined by the Department, to an approved, fully operable and well maintained pumpout facility or facilities and/or dump station or
stations for the removal of sewage from said vessels to a Department approved sewage disposal system.
(b) (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).
(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 or vessels with a Type III marine sanitation device or devices, 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-abroad vessel on a continuous or automatic, intermittent basis to a Department approved sewage disposal system.
(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 is prohibited.
(4) All vessels while on waters of the State shall comply with 33 U.S.C. § 1322, as amended February 4, 1987.
(5) The Secretary shall have authority to adopt reasonable rules and regulations to implement this section.
(66 Del. Laws, c. 275, § 2; 68 Del. Laws, c. 137, § 3; 68 Del. Laws, c. 403, §§ 3-6.)
§ 6036. Projects of state significance.
The Department shall adopt objective standards and criteria to identify “projects of state significance” which standards and criteria
shall be used by the Department in evaluating projects in the State requiring the review or approval of the Department. The process to be
followed by the Department in the adoption of said objective standards and criteria shall include the following:
(1) In making the determination of whether any proposed project is a project of state significance, the Department shall consider,
without limitation, the following factors:
a. Environmental impact, including, without limitation, probable air, land and water pollution likely to be generated by the proposed
use under normal operating conditions and as the result of mechanical malfunction and human error; likely destruction of wetlands
and flora and fauna; impact and effect of site preparation and facility operations on land erosion, drainage of the area in question,
especially as it relates to flood control, and the quality and quantity of surface and ground water resources, such as the use of water for
processing, cooling, effluent removal and other purposes; and the likelihood of generation of glare, heat, noise, vibration, radiation,
electromagnetic interference and obnoxious odors.
b. Economic effect, including, without limitation, 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.
c. Effect on neighboring land uses including, without limitation, effect on public access to all state surface waters, effect on
recreational areas and effect on adjacent residential and agricultural areas.
(2) The Secretary shall further elaborate on the definition of “heavy industry” in accordance with § 7005(c) of this title. The Secretary
shall delineate “heavy industry of state significance” as part of this process, which shall be a subcategory of projects of state significance.
Heavy industry uses of any kind, including heavy industry of state significance, not in operation on June 28, 1971, shall be prohibited
in the coastal zone and no permits may be issued therefor.
(3) All agencies of state government shall assist the Department in developing objective standards and criteria to identify projects of
state significance and shall provide such information as the Department requests. The Department shall develop regulations specifying
the objective standards and criteria which are to be used to identify projects of state significance and shall make such regulations
available for public review no later than 9 months after the effective date of this legislation. The Department shall hold a public hearing
on said regulations and shall announce such hearing by publication in a newspaper of general circulation in each county of the State.
The Department shall adopt regulations specifying the objective standards and criteria for identifying projects of state significance, with
exception of heavy industry of state significance, no later than 13 months after the effective date of this legislation. The Department
shall submit to the State Coastal Zone Industrial Control Board standards and criteria for identifying heavy industry of state significance
for adoption no later than 11 months after the effective date of this legislation. The State Coastal Zone Industrial Control Board shall
adopt said standards and criteria no later than 13 months after the effective date of this legislation.
(67 Del. Laws, c. 253, § 2.)
§ 6037. Obligation of persons who contaminate drinking water supplies.
(a) (1) The Secretary shall develop and publish the necessary forms to be used by any person who believes his or her drinking water
supply has been contaminated to petition for an alternative water supply, said petition will include, at a minimum, the following:
a. Well information including a valid DNREC well permit number, or other certified documentation as to how and when the well
or other water intake was constructed; and
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b. The contaminant and its concentration in the form of a signed analytical report from a certified drinking water laboratory which
identifies the sample, the contaminant, its concentration and the analytical method detection limit; and
c. The date the sample was collected, the name of the person collecting the sample, a description of the sample container, and
the preservation techniques used, if any.
(2) The form shall be notarized and certified as being true and factual by the petitioner. Failure to provide all relevant information,
or providing false information, will be grounds to reject a petition.
(b) Upon the Secretary’s receipt of a certified petition that sets forth allegations that a discharge of a substance into a drinking water
supply has affected a petitioner’s use of an existing drinking supply well or other drinking water intake through any activity, the Secretary
shall notify all potentially responsible parties who shall be given 30 days in which to either respond to the petition, propose remedial
action or request a hearing on the merits of the petition.
(c) After evaluating all available information in his or her possession, the Secretary will issue an order either verifying or rejecting the
contentions contained in the petition. The Secretary’s decision to verify the petition and grant relief must be based on findings of fact
contained in the certified petition and other scientifically conclusive evidence in his or her possession, which at a minimum establishes that:
(1) A state or federal drinking water standard has been exceeded; and
(2) A source, due to its nature, proximity, and hydrogeologic connection to the affected water supply is the likely cause of the
contamination provided that the activity does not contain a valid state or federal permit with which the permittee has fully complied
and provided that the permit did not anticipate the contamination of the drinking water supply.
(d) Upon verification of a petition as set forth in subsection (c) of this section, the Secretary shall require that if any activity results
in the contamination of an existing drinking water supply by contaminants other than bacteria, viruses, nitrate or pesticides, which have
been applied according to the manufacturer’s instructions, then the person(s) who is responsible for the contamination shall complete 1
of the following activities which is deemed to be the most cost effective:
(1) Provide at no cost to each person who has had his or her existing drinking water supply contaminated, the installation of an
alternative water supply of at least equal quantity and quality to said person’s water supply that existed on the date the water supply
was contaminated; or
(2) Provide at no cost to each person who has had his or her existing drinking water supply contaminated, a complete water supply
connection to a water supply distribution system, and provide water to said person for a term of up to 3 years in an amount not to
exceed 100,000 gallons per year. Said 3-year term shall commence on the first day water is supplied to said person by the person who
contaminated the drinking water supply. Water used by said person that exceeds 100,000 gallons per year shall be paid by said person
at a rate that is established by the appropriate rate setting body taking into consideration the rate charged for the supply of public water
in the water supply area before it was contaminated, or the rate charged in a similar area; or
(3) Provide at no cost the treatment system necessary to maintain the water supply as an adequate drinking water supply and provide
the costs of operation and maintenance of the system for a period of 3 years.
(e) In addition to the provisions of subsection (d) of this section, the Secretary may require that the person who has caused the
contamination of a person’s drinking water supply by contaminates other than bacteria, viruses, nitrate or pesticides, shall provide at no
cost to each person who has had his or her 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 on a case-by-case basis. In addition, the Secretary shall determine the
dates on which the interim water supply shall commence and be terminated.
(f) Any affected party may appeal a decision by the Secretary concerning a replacement water supply petition to the Environmental
Appeals Board in accordance with § 6008 of this title.
(g) Any hearing that may be conducted pursuant to the provisions of this section shall be done according to procedures as set forth
in § 6006 of this title.
(h) For the purposes of this section, “contamination” means the human alteration of the chemical, physical, biological or radiological
integrity of water which violates federal or state drinking water standards.
(67 Del. Laws, c. 406, § 1; 70 Del. Laws, c. 186, § 1.)
§ 6037B. Recreational water.
(a) The Secretary shall provide for the sanitary control of natural swimming and bathing places.
(b) The Secretary shall consult with the Director of the Division of Public Health prior to making any recommendations on swimming
or bathing conditions that pose a significant risk to the public health.
(69 Del. Laws, c. 302, § 8.)
§ 6038. Borrow pits.
(a) The Secretary shall develop, implement and enforce, and may amend, modify and repeal, after notice and public hearing, a program
to protect the waters of the State from adverse environmental impacts relating to the operation of borrow pits. In addition to any other
authority which the Secretary may exercise for the purpose under this chapter or other chapters of the Delaware Code, the Secretary may:
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(1) Require borrow pit owners/operators to obtain operating permits from the Department of Natural Resources and Environmental
Control;
(2) Require reclamation of abandoned pits by owners/operators;
(3) Require borrow pit owners/operators to secure the borrow pit premises from illegal dumping, disposal of wastes or vandalism; and
(4) Adopt, amend, modify or repeal rules or regulations to effectuate this section.
(b) Fees may be collected or charged for permits to be issued under this section in an amount determined by the issuing authority,
which fee shall not exceed the sum of $80 per disturbed acre, per year, per project.
(c) The Secretary may delegate all or part of the program to any county having rules or regulations governing borrow pits which, upon
a finding by the Secretary, are at least equivalent to state requirements.
(67 Del. Laws, c. 353, § 1.)
§ 6039. Debris disposal area remediation.
(a) The Secretary may develop, implement and administer a program for the identification, investigation, assessment, mitigation and
remediation of debris disposal areas created as part of the construction of residential or subdivision developments. Any person who
caused or contributed to the creation or use of a debris disposal area on or after December 8, 1988, shall be subject to enforcement for
illegal disposal and may be required by order from the Department to remove and properly dispose of such material. The Department is
authorized to develop policies, procedures and guidelines and may establish, amend, modify and repeal, after notice and public hearing,
such regulations as may be necessary to effectuate the purposes of this section. The Department may establish an application fee not to
exceed $250 for homeowners to participate in the remediation program. The money generated by this application fee shall be placed in the
“Debris Disposal Area Remediation Account.” This account shall only be used to offset costs of this program. Homeowners who wish to
excavate and remove buried debris from their own residential property or homeowners who have already excavated and removed buried
debris from their own residential property are eligible for reimbursement of the cost of remediation up to a maximum reimbursement
of $10,000, provided that:
(1) The cost was incurred on or after December 8, 1988;
(2) The disposal areas were created as part of the construction of residential or subdivision developments in accordance with this
section; and
(3) Satisfactory documentation of the work and expenses incurred are provided.
(b) The Department shall report the findings from the study and the evaluation and make recommendations to the Governor and the
General Assembly no later than March 15, 1999.
(c) There shall be established within the Department an account to be known as the “Debris Disposal Area Remediation Account.”
All funds made available to the Department in accordance with the provisions of subsection (b) of this section shall be placed in the
Debris Disposal Area Remediation Account to be used by the Department or its agents to carry out the purposes of this section. The
Department may establish presumptive remedies to address the remediation of debris disposal areas. These funds shall be used for the
purpose of identifying, investigating, assessing, mitigating or remediating debris disposal areas and associated effects as determined by
the Department. Notwithstanding any other provision to the contrary, up to $7,500 per site may also be used to cover any secondary
damage that may occur to existing structures or property as the result of the remediation, which, if applicable, shall be in addition to the
maximum reimbursement amount established in subsection (a) of this section.
(d) The Department may use funds from the Debris Disposal Area Remediation Account to identify, investigate, assess, mitigate or
remediate any debris disposal area constructed, used or filled subsequent to December 8, 1988, if the party responsible for the area does
not respond as required to any order issued by the Secretary, and if such site presents an imminent threat to human health, safety or the
environment as determined by the Department. In addition to the assessment of any penalty as provided in § 6005(a) and (b) of this title,
any person who fails to comply with any order issued by the Secretary to identify, investigate, assess, mitigate or remediate any debris
disposal area may be liable for all costs incurred by the Department to do so as provided in § 6005 (c) of this title.
(e) Except to the extent provided herein, no provision contained in this section shall relieve any party from compliance with or liability
under any other environmental statute, including, but not limited to, Chapters 60, 62, 63, 66, 74 and 77 of Title 7.
(71 Del. Laws, c. 418, § 2; 72 Del. Laws, c. 318, §§ 1, 2; 73 Del. Laws, c. 212, § 1.)
§ 6040. Requirement for scrap tire piles; enforcement.
(a) The following definitions shall apply to this section:
(1) “Operator” means any person or entity who has or had a contractual or other responsibility for security, maintenance, sales or
operations of a scrap tire pile or of any real property on which a scrap tire pile is located, at any time after July 20, 1999; provided that
this definition does not include a person or entity whose only ownership interest is as a mortgagee.
(2) “Owner” means any person or entity who has or had legal or equitable ownership interest in a scrap tire pile, or in any real
property on which a scrap tire pile is located, at any time after July 20, 1999.
(3) “Scrap tire” means:
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a. A tire that is no longer prudent or practical for vehicular use; or
b. A tire that has not been used on a vehicle for more than 6 months after the last date it was used on a vehicle.
(4) “Scrap tire pile” means an accumulation of 100 or more scrap tires, whether or not they are lying 1 upon another, that:
a. Has been accumulated or located in the same general vicinity, or accumulated or located on a parcel of real property; and
b. Is not enclosed by a building.
(5) “Tire” means a covering fitting around the rim of a vehicular wheel to absorb shocks, usually of reinforced rubber or a rubberized
compound, and pressurized with air or by a pneumatic inner tube, and typically weighing approximately 25 pounds. Included in this
meaning is any substantial portion of such covering, and any weight tires including truck tires.
(b) The Secretary shall, after notice and public hearing, promulgate regulations to establish standards for storage of scrap tires. Such
standards shall include:
(1) A limit on the number of scrap tires that may be stored at any given location;
(2) A limit on the length of time that scrap tires may be stored at a given location;
(3) Appropriate mosquito control methods to be employed at scrap tire piles; and
(4) Proper methods for managing scrap tire piles.
(72 Del. Laws, c. 205, § 1; 75 Del. Laws, c. 346, §§ 1-6.)
§ 6041. Scrap Tire Management Fund.
(a) There shall be established in the State Treasury and in the accounting system of the State a special fund to be known as the Scrap
Tire Management Fund (“the Fund”).
(b) The following moneys shall be deposited into the Fund:
(1) All fees collected by the State pursuant to § 2910 of Title 30;
(2) The State Treasurer shall credit to the Scrap Tire Management Fund such amount of interest as determined by this paragraph
upon such Fund. On the last day of each month, the State Treasurer shall credit the Fund with interest on the average balance in the
Fund for the preceding month. The interest to be paid to the Fund shall be that proportionate share, during such preceding month, of
interest to the State as the Fund’s and the State’s average balance is to the total State’s average balance; and
(3) Any other money appropriated or transferred to the account by the General Assembly.
(c) Money in the Fund may be used by the Secretary only to carry out the purposes of this section, including but not limited to the
following activities.
(1) Conducting a comprehensive inventory of scrap tire piles in the State.
(2) Developing and implementing a scrap tire pile registration program.
(3) Implementing a program to clean up the scrap tire piles in existence in Delaware on June 30, 2006.
(4) Providing for state matching funds for the cleanup of scrap tire piles that have been registered in accordance with the scrap tire
pile registration program referenced in paragraph (c)(2) of this section. For each registered scrap tire pile, the Fund shall cover 90%
of the cost of cleaning up the pile. The owner and operator shall pay 10% of the cost of cleaning up the pile, unless they satisfactorily
demonstrate the inability to pay that cost.
(5) Paying the total cost of cleaning up scrap tire piles located on abandoned properties and on estate properties where the inheritors
do not register the scrap tire piles in accordance with the scrap tire pile registration program referenced in paragraph (c)(2) of this
section. For such abandoned and estate properties, the Department shall place liens on the properties in order to recoup the entire
cleanup cost upon sale of the properties.
(6) Payment to the Division of Revenue for the costs of administering § 2910 of Title 30.
(d) No greater than 15% of the moneys deposited into the Fund shall be used for administering this section without approval of the
Joint Finance Committee.
(e) Prior to January 1, 2009, the Department shall prepare and submit to the Governor and the General Assembly a joint report on the
progress made toward cleaning up the scrap tire piles in the State. Such report shall include recommendations for extension, modification,
or termination of the Scrap Tire Management Fund and § 2910 of Title 30.
(74 Del. Laws, c. 203, § 2; 75 Del. Laws, c. 88, § 21(4); 75 Del. Laws, c. 346, § 7.)
§ 6042. Civil and administrative penalties; Community Environmental Project Fund.
(a) There is hereby established a Community Environmental Project Fund, referred to herein as the “Fund.” The Fund shall be held
as a separate account within the Department and may be invested by the State Treasurer in securities consistent with investment policies
established by the Cash Management Policy Board.
(b) The Fund shall consist of 25 percent of all civil or administrative penalties collected by the Department pursuant to § 4015, §
6005, § 6617, § 7011, § 7214, § 7906, § 9109, or § 9111 of this title. Twenty-five percent of such civil and administrative penalties
are hereby appropriated to the Fund, subject to the requirements of this section.
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(c) Moneys shall be expended from the Fund only for Community Environmental Projects, referred to herein as “Projects.” As used
herein the term “Community Environmental Project” means a project that is undertaken for the purpose of effecting pollution elimination,
minimization, or abatement, or improving conditions within the environment so as to eliminate or minimize risks to human health, or
enhancement of natural resources for the purposes of improving indigenous habitats or the recreational opportunities of the citizens of
the Delaware. The Secretary may, by regulation, provide for further definition of such Projects.
(d) The Secretary, after consultation with the Community Involvement Advisory Council, shall give priority to Community
Environmental Projects which benefit communities that are most impacted by specific infraction(s) or violation(s). Specifically, the
Secretary, at his or her discretion, shall determine whether a proposed Project is located within the watershed or airshed adversely affected
by a violation or infraction as part of the evaluation process. The Secretary shall ensure that records identify the location of each civil
or administrative penalty. No provision of this section shall be construed to require the Department to expend funds from the Fund in
the absence of a suitable Project within the community where the violation or infraction occurred. The Secretary may also determine
that the requirements of this subsection cannot practicably be met with respect to expenditures from the Fund associated with a penalty
from a facility or location because such amount is insufficient or too large to be an appropriate expenditure. The expenditure of funds
required under this subsection may be waived by the Secretary, with the concurrence of the Director of the Office of Management and
Budget and Controller General.
(e) In the event that the requirements of this section conflict with applicable federal or State of Delaware requirements pertaining to
the establishment and collection of penalties or other assessments by the Department, such requirements shall take precedence over the
conflicting requirements of this section.
(f) The Department shall submit quarterly reports on the progress of the expenditures and/or projects conducted with the Community
Environmental Project Fund to the Governor and members of the General Assembly. All of the expenditures made by or on behalf of
the Fund, together with an explanation the process utilized for selecting and prioritizing Projects, shall be reported annually to the Joint
Finance Committee in the Department’s budget presentation.
(74 Del. Laws, c. 203, § 2; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 88, § 21(4); 75 Del. Laws, c. 346, § 7; 78 Del. Laws, c. 193,
§ 1.)
Subchapter II-A
Regional Greenhouse Gas Initiative and CO2 Emission Trading Program
§ 6043. Findings, purpose, and definitions.
(a) Findings. — The General Assembly hereby makes the following findings concerning the development, utilization and control of
the air resources of the State related to impacts of carbon dioxide (CO2) emissions:
(1) There is growing scientific consensus that the increased anthropogenic emissions of greenhouse gases are enhancing the natural
greenhouse effect and causing changes in the Earth’s climate.
(2) Climate change poses serious potential risks to human health and terrestrial and aquatic ecosystems globally, regionally and in
the State.
(3) CO2 is an air contaminant as defined in § 6002 of this title.
(4) It is in the interest of the State to protect human health and terrestrial and aquatic ecosystems by taking actions to stabilize and
to limit the CO2 contributions from the State.
(5) A CO2 reduction program focusing on fossil fuel-fired electricity generation, and the development of a CO2 allowance trading
program, will create a strong incentive for the creation and deployment of more efficient fuel-burning technologies, renewable resources
and end-use efficiency resources, which will lead to lower dependence on imported fossil fuels.
(6) Given the absence of federal action to protect the nation, a number of states, including Delaware, are taking actions regionally
to reduce power sector CO2 emissions.
(7) The State of Delaware is a signatory state to the Regional Greenhouse Gas Initiative (“RGGI”), a cooperative effort on the part
of mid-Atlantic and northeastern states to curtail CO2 emissions from power plants.
(8) The Memorandum of Understanding (“MOU”) signed by the Governors of participating RGGI states requires each participating
state to promulgate regulations to establish a cap-and-trade program for CO2 with the goal of stabilizing CO2 emissions at current levels
through 2015 and reducing by 10 percent such emissions by 2019.
(9) The MOU sets an initial emissions cap of 7,559,787 short tons of CO2 for Delaware and further requires a minimum of 25 percent
of Delaware’s allocation of CO2 allowances under the cap-and-trade program to be used for public benefit purposes. The cap and
Delaware’s allocation may be adjusted in the future.
(10) Implementation of a CO2 reduction program on a large scale, such as regionally, or nationally, is important so as to maximize
our efficient use of energy and our contribution to lowering CO2 emissions while minimizing impacts on electric system reliability and
unnecessary costs to Delaware power consumers. Further, costs of the CO2 cap and trade program are anticipated to be less burdensome
if the program is implemented, to the extent possible and practicable, on a regional level.
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(11) Pursuant to Senate Concurrent Resolution 28 of the 144th General Assembly, a stakeholder workgroup was convened to study
the RGGI MOU, analyze the actions of other RGGI states, and consider and recommend the best course of action for Delaware, noting
particularly the quantity of CO2 allowances to be auctioned and the potential for the use of any revenue to further the goals of the
Sustainable Energy Utility or such other goals the workgroup considered consistent with the RGGI MOU.
(b) Definitions. — For purposes of this chapter, the following terms shall have the meaning set out herein.
(1) “CO2 allowance” shall mean a limited authorization to emit up to 1 ton of CO2.
(2) “Public benefit purpose” shall mean purposes including the promotion of energy efficiency, the mitigation of electricity ratepayer
impacts attributable to RGGI, the promotion of distributed renewable or non-carbon-emitting energy technologies, the stimulation and
reward of investment in the development of innovative carbon emissions abatement technologies with significant carbon reduction
potential, and funding of the administration of the Program established by this chapter.
(3) “Regional Greenhouse Gas Initiative” or “RGGI” shall the mean Regional Greenhouse Gas Initiative as established by the MOU
signed by Delaware and other states calling for the development of a program to reduce CO2 emissions from energy generating facilities
utilizing fossil fuels.
(76 Del. Laws, c. 262, § 1.)
§ 6044. Regional Greenhouse Gas Initiative.
(a) The General Assembly explicitly authorizes and sanctions the prior and ongoing participation of the Secretary of the Department of
Natural Resources and Environmental Control, and the Chair of the Public Service Commission, and their duly authorized representatives,
as part of their official duties, to implement and participate in the Regional Greenhouse Gas Initiative (RGGI).
(b) Representatives of the RGGI states have formed a nonprofit corporation called “RGGI Inc.” to assist in the development of
the regional program for reducing CO2 emissions. The General Assembly explicitly authorizes and sanctions the prior and ongoing
participation in RGGI Inc. by the Secretary of the Department of Natural Resources and Environmental Control, and the Chair of the
Public Service Commission, and their duly authorized representatives, as part of their official duties. The State may contract with RGGI
Inc, pay dues to RGGI Inc, and transfer funds to RGGI Inc. to facilitate implementation of the RGGI program.
(c) The Secretary of the Department of Natural Resources and Environmental Control is herein authorized to promulgate regulations
to implement the RGGI cap and trade program consistent with the RGGI Memorandum of Understanding, as amended.
(d) No person that is required by regulation to hold CO2 allowances shall operate in Delaware unless it holds CO2 allowances as
required by the regulations implementing the RGGI Program.
(e) The Secretary shall enforce the provisions of this subchapter.
(76 Del. Laws, c. 262, § 1.)
§ 6045. Auction of allowances.
(a) The Secretary of the Department of Natural Resources and Environmental Control is hereby authorized to establish, implement
and manage an auction program to sell CO2 allowances into a market based trading program consistent with the RGGI Memorandum of
Understanding (MOU) and this statute. The Secretary shall make every effort to participate in a regional allowance auction with other
RGGI states but may conduct a Delaware-only auction if such individual auction is found to be in the best interests of Delaware electric
ratepayers, as determined by the Secretary, and after consultation with the Delaware Public Service Commission.
(b) The Secretary need not establish, implement or manage the elements of the allowance auction program by regulation. However,
the Secretary shall publish the elements of the auction program in the Delaware Register of Regulations no less than 60 days prior
to Delaware’s participation in its first auction. The Secretary may modify the auction program as the Secretary deems necessary, but
substantive modifications shall also be published in the Delaware Register of Regulations.
(c) Any auction of Delaware CO2 allowances shall be conducted in accordance with accepted auction practices and principles and
shall seek to maximize the efficacy of the RGGI program, minimize program costs to consumers and provide a liquid, transparent market
for CO2 allowances.
(d) Beginning with 2009 CO2 allowances, the Secretary shall auction 60% of allowances available to Delaware and allocate 40% to
generators in proportion to their average annual emissions from 2000-2002. The percentage of allowances auctioned by the Secretary
shall increase by 8% per year, such that 100% of Delaware’s allowances for 2014 shall be auctioned.
(76 Del. Laws, c. 262, § 1.)
§ 6046. Auction revenue.
(a) All proceeds associated with the auction of CO2 allowances shall be directed to public benefit purposes as defined herein.
(b) The Secretary shall hold any and all auction proceeds in an interest bearing account with all interest directed to the account to carry
out the purposes set forth herein.
(c) The Secretary shall direct auction proceeds to the following uses:
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(1) Sixty-five percent of the CO2 allowance proceeds shall be directed to the Sustainable Energy Utility (SEU), established in § 8059
of Title 29. The SEU shall apply these funds to further the goals and activities of the SEU including, but not limited to, the promotion
of energy conservation, energy efficiency, renewable energy, and energy financing pursuant to § 8059(f)(3) of Title 29.
(2) A total of 15% of the CO2 allowance proceeds shall be directed to low-income consumers, of which 10% shall be directed to
the federally funded and state-administered Weatherization Assistance Program (WAP), and up to 5% shall be directed to the federally
funded and state-administered fuel assistance (Low Income Home Energy Assistance Program or LIHEAP) programs. Participants in
the LIHEAP program funded pursuant to this section shall also participate in the WAP program within 2 years of receiving assistance
through LIHEAP, subject to funding availability. These programs are administered by the Division for State Service Centers in the
Delaware Department of Health and Social Services.
(3) Percentage allocations of funds to the SEU and low-income consumers may be reviewed and adjusted annually by a committee
comprised of the Secretary of the Department of Natural Resources and Environmental Control (DNREC), who shall serve as committee
chair, the Chair of the Board of the SEU, and the program managers of the state WAP and LIHEAP.
(4) Ten percent of CO2 allowance proceeds shall be directed to Greenhouse Gas Reduction Projects, selected by the Secretary
following a periodic competitive proposal process. The Secretary shall utilize an advisory body composed of electric generators,
environmental advocates, legislators and such others as the Secretary may find useful in developing guidelines for the proposal process
and in soliciting and ranking of projects. Projects must result in quantifiable and verifiable reductions in Greenhouse gas emissions in
Delaware not otherwise required by federal or state law and not receiving funding from any other state sources.
(5) The Secretary shall use up to 10% of CO2 allowance proceeds as detailed in subsection (d) of this section. Expenses for running
the RGGI program shall be met first, prior to distribution of funds as outlined above.
(d) The Secretary of DNREC shall use annual auction proceeds to implement the cap-and-trade program, monitor emissions, allowances
and offsets, and pay any expenses associated with the program including, but not limited to, expenses related to auctioning and tracking of
allowances. This may include contracting with RGGI Inc., paying of dues to RGGI Inc., or transferring funds to RGGI Inc. should DNREC
determine it appropriate for RGGI Inc. to undertake any action related to implementation of the program. Any auction proceeds directed to
the Secretary of DNREC may also be used to fund climate change activities designed to reduce greenhouse gas emissions from all sectors
of Delaware’s economy and to maintain a public information program to educate Delawareans about the impacts of climate change on
Delaware, and for any administrative costs associated with support of the SEU not otherwise provided for under § 8059 of Title 29.
(76 Del. Laws, c. 262, § 1; 78 Del. Laws, c. 290, § 176; 79 Del. Laws, c. 395, § 1.)
§ 6047. Federal preemption.
Should a national cap and trade program essentially equivalent to the requirements of Regional Greenhouse Gas Initiative (RGGI)
be promulgated by the federal government, Delaware may transition into the federal program and suspend or amend its regulations
accordingly, provided that any unspent funds remaining with the Sustainable Energy Utility or Department of Natural Resources and
Environmental Control following cessation or suspension of the RGGI program shall be used in accordance with their initial purpose.
Delaware’s program shall not be abandoned until the national program is fully implemented and Delaware’s regulations are amended
to transition to the national program.
(76 Del. Laws, c. 262, § 1.)
Subchapter III
Solid Waste Recycling
§ 6051. Findings; intent.
In furtherance of the determination long established in § 6450 of this title that “the reduction of solid waste disposal and recovery
of usable materials from solid waste are matters of extreme importance in minimizing the environmental impact of solid waste disposal
through landfilling” and that it “is in the public interest to develop a comprehensive statewide system of recycling and resource recovery
which maximizes the quantity of solid waste materials which can be recovered, reused or converted to beneficial use” the General
Assembly hereby makes the following findings and declares the following intent with respect to the establishment of this subchapter. In
order to establish a comprehensive statewide system of recycling, wherein recycling is maximized and the necessary economies of scale
are realized, every residence and business must have access to recycling programs that are both convenient and cost effective. It is the
intent of the General Assembly, in full recognition that the establishment of a comprehensive statewide recycling program has long been
sought, that said program shall be accomplished by modification of the existing beverage container law and the establishment of universal
recycling inclusive of the prescribed recycling programs, requirements and goals that follow. As such, liberal interpretation in favor of
accomplishing the stated goals and objectives shall be exercised.
(77 Del. Laws, c. 275, § 1.)
§ 6052. Definitions.
Notwithstanding any definitions in Chapter 60 or 64 of this title to the contrary, the following words and phrases shall have the meaning
ascribed to them in this subchapter unless the context clearly indicates otherwise.
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(1) “Authority” means the Delaware Solid Waste Authority.
(2) “Beverage” means any mineral waters (but not including naturally sparkling mineral waters), soda waters or any other carbonated
beverage not containing alcohol that is commonly known as a “soft drink” and any beer, ale or other malt beverage containing alcohol.
(3) “Beverage container” means any airtight nonaluminous container containing less than 2 quarts of a beverage under pressure of
carbonation.
(4) “Dealer” means any person who engages in the sale of beverages in beverage containers to a consumer and shall include groups
of retailers or retail chains.
(5) “Multi-family” means 3 or more attached structures, such as condominiums or apartments, generally intended for occupancy by
individuals or families and where centralized community trash disposal and collection services are typically provided.
(6) “Municipal solid waste” means wastes such as durable goods, nondurable goods, containers and packaging, food scraps, organic
yard waste and miscellaneous inorganic waste from residential (i.e. household), commercial, institutional and industrial sources such
as appliances, automobile tires, old newspapers, clothing, disposal tableware, office and classroom paper, wood pallets, and cafeteria
wastes. Municipal solid waste does not include solid wastes from other sources such as construction and demolition debris, auto bodies,
municipal sludges, combustion ash and industrial process wastes.
(7) “On-premises sales” means sales transactions in which beverages are purchased by a consumer for immediate consumption within
the area under the control of the dealer.
(8) “Organic yard waste” means plant material resulting from lawn maintenance and other horticultural gardening and landscaping
activities and includes grass, leaves, prunings, brush, shrubs, garden material, Christmas trees and tree limbs up to 4 inches in diameter.
(9) “Recyclable material” or “recyclables” means any material or group of materials that can be collected and sold or used for
recycling.
(10) “Recycling” means the process by which solid wastes are separated for use as raw materials, products or replacement of products,
including the reuse of organic yard waste, but does not include the incineration of materials for energy.
(11) “Residential waste” means the solid waste generated in occupied single-family and multi-family structures. Also referred to
as “household waste”.
(12) “Single-family” means either a detached structure (i.e. a house) surrounded by open space or attached structures, such as town
or row homes, generally intended for occupancy by a family and where individual trash collection services are typically provided for
each structure.
(13) “Single stream” means a system in which all fibers (including but not limited to paper, cardboard, etc.) and containers (including
but not limited to plastic, glass and metal) are commingled for collection into 1 container instead of being sorted into separate
commodities and multiple containers.
(14) “Source-separated” means recyclable materials, including single stream recyclables, are segregated at the point of generation
and kept apart from the waste stream by the generator thereof for the purpose of collection and recycling.
(61 Del. Laws, c. 503, § 1; 63 Del. Laws, c. 385, § 1; 67 Del. Laws, c. 341, § 1; 71 Del. Laws, c. 74, § 2; 77 Del. Laws, c. 275, §
1.)
§ 6053. Universal recycling.
The goal of universal recycling is to create an economy of scale wherein a dramatic increase in Delaware’s diversion of recyclables
occurs in the most cost effective manner achievable while simultaneously creating job opportunities and significantly reducing Delaware’s
rate of waste disposal.
Universal recycling shall be implemented in accordance with the following provisions:
(1) Effective no later than September 15, 2011, the Authority shall cease providing curbside recycling services, including yard waste
collection, and all persons providing solid waste collection services in the State shall also provide:
a. Single-stream curbside recycling collection services to all of their Delaware single-family residential customers, including
delivery of a container for the purpose of storage and collection of recyclables that is adequately sized for the customers use such
that recycling is encouraged and disposal of recyclables is discouraged; and the recyclables collection service shall be provided at
a frequency of not less than once every other week.
b. Source-separated recycling collection services to dealers who provide on-premise sales, including delivery of a recyclables
container that is adequately sized for the premise being served and a frequency of recyclables collection that shall preclude the
recycling containers from overflowing and otherwise causing a nuisance.
c. All single-family residential and on-premise sales customers with a single charge for the collection of waste and recyclables on
their “waste services” bill that is inclusive of the combined waste and recycling collection service costs. Local governments that do
not presently bill separately for the costs of waste collection are exempt from this requirement.
d. Notification to all customers that the single-stream recycling service will be provided and instructions on participation prior
to September 15, 2011.
(2) Effective no later than January 1, 2013, all persons providing solid waste collection services in the State shall provide:
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a. Single-stream recycling collection services to all of their Delaware multi-family residential customers, including providing the
multi-family complex with an appropriately sized and centrally located recyclables collection container or containers for the complex
being served and ideally in the same proximity as the complex’s waste disposal containers. Local governments may require multifamily complex owners to provide their own recyclable collection containers consistent with local requirements.
b. Notification to the multi-family complex management that the single-stream recycling service, including instructions on
participation, will be provided.
c. A frequency of recyclables collection that shall preclude the recycling containers from overflowing and otherwise causing a
nuisance.
d. Written justification to the Department for not providing multi-family recycling collection services where the physical
constraints of the site prevent the placement of both trash and recycling containers. Exclusion from multi-family recycling is subject
to Department review and approval.
(3) Owners of multi-family complexes must, at least once per calendar year, provide residents with instructions on participating in
the complex’s recycling program.
(4) The Recycling Public Advisory Council shall issue a report to the Governor and the General Assembly no later than November 1,
2012, with recommendations regarding the implementation of universal recycling in the commercial sector. It is the express requirement
of this legislation that universal recycling be adopted by the commercial sector and that all commercial businesses actively participate
in a comprehensive recycling program no later than January 1, 2014.
(5) Persons who choose to transport and deliver the solid waste and recyclables they generated on their own property for proper
disposal or to a recycling facility of their choice respectively shall not be affected by this subchapter and may continue in this practice.
(6) Nothing shall impair the ownership of recyclable materials by the generator unless and until such materials are placed at curbside
or similar location for collection and recycling, and nothing in this chapter shall be construed to prevent any person from collecting,
transporting, processing, and marketing recyclable materials in competition with other persons in the same business, including the
Authority, provided that the requirements of this subchapter are satisfied.
(7) Persons engaging in the collection, transportation, processing, or marketing of source separated recyclable materials shall conduct
such activities in a manner that the source separated recyclable materials enter the marketplace and are otherwise not disposed via a
landfill or by incineration.
(77 Del. Laws, c. 275, § 1.)
§ 6054. Delaware Recycling Fund.
(a) There shall be established in the State Treasury and in the accounting system of the State a special fund to be known as the Delaware
Recycling Fund (“the Fund”).
(b) The following revenue shall be deposited into the Fund:
(1) As specified in § 2912 of Title 30, the recycling fee on the sale of beverage containers;
(2) On the last day of each month, the State Treasurer shall credit the Fund with interest on the average balance in the Fund for the
preceding month. The interest to be paid to the Fund shall be that proportionate share, during such preceding month, of interest to the
State as the Fund’s and the State’s average balance is to the total State’s average balance;
(3) Any other revenue appropriated or transferred to the account by the General Assembly; and
(4) Repayment of low interest loans.
(c) The Fund shall be used by the Secretary for the exclusive purpose of funding specific activities designed to enhance the State’s
recycling rate and the diversion of recyclables that would otherwise be land disposed. The Fund may be expended only:
(1) To fund the Recycling Grants and Low Interest Loan Program referenced in § 6055 of this title. Annual funding for the Recycling
Grants and Low Interest Loan Program shall be dependent on revenue generated by the Fund;
(2) To pay the limited and reasonable cost of the Department and the Recycling Public Advisory Council to study, evaluate and report
on the status and potential for recycling various components of the solid waste stream, with emphasis on those aspects of municipal
solid waste and commercial waste necessary to achieve the diversion goals established in § 6056 of this title;
(3) To pay the Department’s limited and reasonable costs for administering this subchapter. No greater than 10% of the revenue
deposited into the Fund shall be used by the Department for administering this subchapter without approval of the Joint Finance
Committee and shall include but not be limited to: promoting the Recycling Grants and Low Interest Loan Program, universal recycling,
zero waste principles, development of reporting requirements and related recycling initiatives; and
(4) To pay the Division of Revenue for the costs of administering § 2912 of Title 30.
(d) The Department shall commence the Recycling Grants and Low Interest Loan Program in calendar year 2011 and offer the Program
at least annually thereafter until 2014.
(e) The revenue from the Fund and its disbursement via the Recycling Grants and Low Interest Loan Program shall be subject to audit
and the recipient of any such funding shall agree to the audit and cooperate with the auditor as a condition of receiving funding.
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(f) No expenditures shall be made from the Fund for any grants or loans pursuant to § 6055 of this title without the approval by the
Controller General and Director of the Office of Management and Budget of a plan for revenues and expenditures for the period between
December 1, 2010, and September 15, 2011.
(77 Del. Laws, c. 275, § 1.)
§ 6055. Recycling Grants and Low Interest Loan Program.
(a) There is hereby established a competitive Recycling Grants and Low Interest Loan Program (the “Program”) to assist persons
engaged in the business of collecting, transporting, processing, or marketing recyclable materials with the implementation of:
(1) Source-separated recyclables collection and processing programs with emphasis on start-up costs for residential single-stream
recyclables collection; and
(2) Start-up costs for initiatives which result in the recycling of solid waste materials which would otherwise be land disposed, with
emphasis on commercial waste.
The Program shall be administered by the Department, and moneys from the Program shall be paid based on approved grant and loan
moneys. The Department shall be entitled to disburse grant and loan monies for the documented costs of implementing the collection or
processing of recyclable materials. The Department shall be entitled to adopt guidelines and procedures for administering the Program
and determining eligibility for receipt of funding pursuant to § 6054 of this title. Such procedures shall include provisions for repayment
of loans to the Department and may include a rebate program for costs based on, including but not limited to, a prorated share of household
customers in a recycling program that may have been in existence prior to creation of this law. The Department shall solicit the commentary
of the grant eligible stakeholders during development of the grant guidelines and procedures. The Program shall be funded by monies
made available under the provisions of § 6054 of this title.
(b) The Recycling Public Advisory Council, after the receipt of comments by grant and loan eligible stakeholders, shall make
recommendations annually to the Department regarding the programmatic priorities for awarding Program funds under this subchapter.
The Recycling Public Advisory Council shall provide recommendations regarding the categories and priorities for grants and loans that
reflect an informed and representative view of the most urgent and important areas where grant funding will provide the most benefit to
the State balancing current needs with those of future generations.
(c) The Department shall review all grant and loan applications and award grants and loans taking into consideration the Recycling
Public Advisory Council recommendations. In those cases where the Department’s funding decisions differ significantly from the
Recycling Public Advisory Council recommendations, the Department shall report to the Recycling Public Advisory Council the
justification for such differences.
(d) Any person providing solid waste collection services that is a recipient of a grant or low interest loan from the Delaware Recycling
Fund shall not, as a result of implementation of universal recycling, increase rates charged for solid waste collection between such time
as they make application for the grant until March 15, 2013.
(77 Del. Laws, c. 275, § 1.)
§ 6056 Adopting diversion goals and reporting requirements.
It is the intent of the General Assembly that implementation of the requirements of this subchapter reduce the amount of nonhazardous
solid waste currently deposited in landfills in this State by maximizing the recovery of recyclable materials. In order to do so, it will be
necessary for the State to embrace the Zero Waste Principles of designing and managing products and processes to systematically avoid
and eliminate the volume and toxicity of waste and materials, conserve and recover all resources, and not incinerate or bury them. In that
spirit, the following Interim Waste Diversion Goals are established with the understanding that as more data and information regarding
the implementation of universal recycling become available, the goals leading up to January 1, 2020, may be modified by the Department
as circumstances dictate; however, the January 1, 2020, goals may not be modified without the approval of the General Assembly:
(1) In order to effectively measure the diversion rates being achieved, all persons, including persons who collect, process or market
recyclables, with the exception of those specified in § 6053(5) of this title, must report to the Department on a calendar year basis, no
later than February 15 of the following year, the type and quantity of recyclables managed, the method of recycling collection used
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(single or multiple streams), and the location of the recycling facilities used pursuant to reporting guidance developed by the Department
and the Recycling Public Advisory Council. Said reporting guidance shall be developed pursuant to the solicitation of stakeholders
responsible for reporting, shall take into account the need for confidentiality of the information reported and shall be finalized no later
than December 1, 2010. The first recycling report shall cover calendar year 2011 and shall be due no later than February 15, 2012.
(2) In order to ensure that the waste diversion goals specified in Table 1 of this section above are achieved by the dates specified, the
Department, in cooperation with the Recycling Public Advisory Council [RPAC], shall assess progress and recommend to the Governor
and General Assembly any additional mechanisms necessary including but not limited to: which waste streams must be diverted from
disposal; the parties responsible for ensuring the identified waste streams are diverted from disposal; the date by which the diverted
waste streams must be diverted from disposal; implementation of Pay As You Throw; Extended Producer Responsibility; incentive
based recycling; waste bans and related requirements. Such assessment shall be completed, inclusive of any draft legislation determined
necessary, and submitted to the General Assembly no later than November 1, 2014, as part of the RPAC annual report.
(77 Del. Laws, c. 275, § 1.)
§ 6057. Beverage containers — Findings, intent, prohibitions.
(a) The General Assembly hereby finds that beverage containers are a valuable recyclable material and a major source of nondegradable
litter in this State and that the collection and disposal of this litter and solid waste constitutes a great financial burden for the citizens of
this State; and that, in addition to this unnecessary expenditure of tax moneys, such litter unreasonably interferes with the enjoyment of
life and property by our citizens; and that the practice of littering and disposal of a recyclable material is not compatible with previously
adopted policies of the State in regard to proper use and protection of our natural resources.
(b) It is the intent of the General Assembly to increase recycling significantly, inclusive of beverage containers, thereby conserving
valuable natural resources, removing the blight of litter on the landscape of the State caused by the disposal of beverage containers and
other packaging, and reduce the increasing costs of litter collection and disposal.
(c) Prohibitions. — No beverage shall be sold or offered for sale in this State:
(1) In containers connected to each other with plastic rings or similar devices which are not classified by the Department as
biodegradable, photodegradable or recyclable.
(2) In a beverage container which is not recyclable or refillable.
(61 Del. Laws, c. 503, § 1; 64 Del. Laws, c. 57, § 1; 67 Del. Laws, c. 341, § 2; 77 Del. Laws, c. 275, § 1.)
§ 6058. Establishment, composition and responsibility of the Recycling Public Advisory Council.
(a) There is hereby established a Recycling Public Advisory Council (the “Council”). The Council shall be composed of 16 members
who shall be appointed by the Governor as follows:
(1) One member from the Department;
(2) One member from the Authority;
(3) One member representing county governments, with such member being recommended by the Delaware Association of Counties;
(4) One member representing municipal governments, with such member being recommended by the Delaware League of Local
Governments;
(5) One member representing the recycling industry;
(6) One member representing the waste hauling industry;
(7) Two members, 1 representing the soft drink industry and 1 representing the alcohol beverage industry;
(8) One member representing the Delaware State Chamber of Commerce;
(9) One member representing the Delaware restaurant industry;
(10) Five members representing community-based or public-interest groups; and
(11) One member representing the Delaware Food Industry Council.
(b) Members of the Council, except for those appointed pursuant to paragraphs (a)(1) and (2) of this section above, shall serve for
terms up to 3 years and may not serve more than 2 consecutive terms but may again serve after 1 year off of the Council. Members shall
be appointed for staggered terms so that no more than 5 appointments shall expire in any 1 calendar year. Members may be reimbursed
for travel to and from meetings. The Governor shall appoint a Chairman from among the 16 members. Actions of the Council shall be
approved by a majority vote of the Council. At least 9 members of the Council shall constitute a quorum. The Council may adopt bylaws
as it deems appropriate to serve the purposes of this subchapter.
(c) The Recycling Public Advisory Council shall:
(1) Advise the Department and the Authority on all aspects of recycling;
(2) Advise the Department in developing criteria for the Recycling Grants and Low Interest Loan Program and selection of
applications as well as provide an annual assessment of the revenue needed to satisfy the grant requirements;
(3) Maintain, in conjunction with the Department and the Authority, a methodology for measuring recycling rates;
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(4) Provide advice and recommendations regarding the recycling outreach and education programs conducted by the Authority and/
or the Department;
(5) Report to the Governor and the General Assembly annually by November 1 of each year on the status of recycling activities in
Delaware. Said report shall include, but not be limited to the following:
a. Status of attainment of the recycling goals specified in § 6056 of this title;
b. An accounting of the recycling grants and loan program and any recommendations for future funding of the grants and loan
program;
c. An assessment of the activities of both the Department and the Authority in achieving the recycling goals specified in § 6056
of this title;
d. An objective, auditable accounting of recycling rates for total solid waste, municipal solid waste, and residential solid waste;
e. Such other recommendations as the Council shall deem appropriate; and
f. Use the definitions of “recycling” and “municipal solid waste” as stated by the United States Environmental Protection Agency
in its document EPA530-R-97-011 dated September 1997. The Council shall be able to adopt changes to these definitions.
(d) The Department, in concert with the Authority and the Council, shall:
(1) Monitor the State’s recycling initiatives and measure Delaware’s achievements toward attainment of the recycling goals specified
in § 6056 of this title;
(2) Design and implement public educational efforts aimed at increasing public awareness of recycling opportunities;
(3) Provide technical assistance to local entities to assist them in increasing their recycling rates; and
(4) Provide administrative support to the Council.
(77 Del. Laws, c. 275, § 1; 81 Del. Laws, c. 79, § 2.)
§ 6059. Enforcement, civil and administrative penalties.
(a) Whoever violates this subchapter, or any rule or regulation promulgated there under, or any order of the Secretary, shall:
(1) For the first conviction, be fined not less than $100 nor more than $500 for each day of violation;
(2) For each subsequent conviction for the same offense within a 10-year period, be fined not less than $500 nor more than $1,500
for each day of violation;
(3) In the Secretary’s discretion, the Secretary may endeavor by conciliation to obtain compliance with all requirements of this
subchapter. Conciliation shall be giving written notice to the responsible party:
a. Specifying the complaint;
b. Proposing a reasonable time for its correction;
c. Advising that a hearing on the complaint may be had if requested by a date stated in the notice; and
d. Notifying that a proposed correction date will be ordered unless a hearing is requested.
If no hearing is requested on or before the date stated in the notice, the Secretary may order that the correction be fully implemented
by the proposed date or may, on the Secretary’s own initiative, convene a hearing, in which the Secretary shall publicly hear and
consider any relevant submission from the responsible party as provided in § 6006 of this title.
(b) Any person whose interest is substantially affected by any action of the Secretary may appeal to the Environmental Appeals Board,
in accordance with § 6008 of this title.
(61 Del. Laws, c. 503, § 1; 68 Del. Laws, c. 146, § 1; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 275, § 1.)
Subchapter IV
Ocean Dumping
§ 6070. Title.
This subchapter shall be known as the “Solid Waste Dumping Elimination Act.”
(67 Del. Laws, c. 135, § 1; 68 Del. Laws, c. 121, § 1.)
§ 6071. Purpose.
The General Assembly finds that historically millions of tons of solid wastes have been disposed of in the ocean and waters of the
State, that these wastes are not land disposed in recognition of the threat posed by the presence of contaminants, by the lack of knowledge
or appreciation of the harm such wastes can cause to the marine environment, or that it is cheaper to dispose of such wastes in the ocean
or other waters of the State. Therefore, it is the intent of the General Assembly to prohibit the disposal of solid wastes in the ocean and
other waters of the State.
(67 Del. Laws, c. 135, § 1; 68 Del. Laws, c. 121, § 1.)
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§ 6072. Definitions.
The following words and phrases shall have the meanings ascribed to them in this subchapter unless the context clearly indicates
otherwise:
(1) “Inland bays” shall mean the Rehoboth Bay, Indian River Bay, Indian River and Little Assawoman Bay.
(2) “Waters of exceptional recreational or ecological significance” shall mean waters designated by the State which are important,
unique or sensitive from a recreational and/or ecological perspective, but which may or may not have excellent water quality. Such
waters shall normally have regional significance with respect to recreational use (fishing, swimming and boating), or have significant
or widespread riverine, riparian or wetland natural areas.
(68 Del. Laws, c. 121, § 1.)
§ 6073. Prevention.
The provisions of any other law, rule or regulation to the contrary notwithstanding, all disposal of solid wastes into the ocean waters
of the State, the Delaware Bay, the inland bays and waters of exceptional recreational or ecological significance is hereby prohibited.
(67 Del. Laws, c. 135, § 1; 68 Del. Laws, c. 121, § 1.)
§ 6074. Penalties.
(a) Whoever negligently violates § 6073 of this title shall be fined not less than $2,500 nor more than $25,000 per day of violation,
or be imprisoned for not more than 1 year, or both. If a conviction of a person is for a violation committed after a prior conviction of
such person under this section, punishment shall be by a fine of not less than $5,000 nor more than $50,000 per day of violation, or by
imprisonment of not more than 2 years, or both.
(b) Whoever knowingly violates § 6073 of this title shall be fined not less than $5,000 nor more than $50,000 per day of violation,
or be imprisoned for no more than 3 years, or both. If a conviction of a person is for a violation committed after a prior conviction of
such person under this section, punishment shall be by a fine of not less than $10,000 nor more than $100,000 per day of violation, or
by imprisonment of not more than 6 years, or both.
(c) The Superior Court shall have jurisdiction over violations of § 6073 of this title.
(d) There shall be no suspension of any fines required under the provisions of this section.
(67 Del. Laws, c. 135, § 1; 68 Del. Laws, c. 121, § 1.)
Subchapter V
Water Utilities
§ 6075. Nonutility wells and permits for nonutility wells within a service territory served by a water utility
under a certificate of public convenience and necessity.
(a) The Department may not withhold a permit for a potable water well within the service territory served by a water utility under a
certificate of public convenience and necessity, or require an applicant for a potable water well permit in an area served by a water utility
to utilize the services of the utility, unless:
(1) The Delaware Geological Survey or the Department of Health and Social Services certifies that the ground water supply is
inadequate or unsuitable for the intended use for which the permit is being sought;
(2) The water utility demonstrates to the satisfaction of the Department that it can provide service of equal or better quality at lower
cost; or
(3) The permit applicant is a resident of a municipality, a county water district authority, or a recorded development where public
water is available.
(b) Notwithstanding paragraphs (a)(2) and (3) of this section, following the issuance of a certificate of public convenience and necessity
to a water utility, the Department shall not withhold a potable water well permit from any person seeking to construct or extend a well
on a farm, farmland or the lands of any existing mobile home community, or an addition, modification or extension of that mobile home
community, which as of April 11, 2000, self-supplied potable water under existing permits in an area served by a water utility, nor shall
it require that the person utilize the services of the utility. However, this subsection shall not authorize or require the issuance of a potable
well permit that would enable a person or entity to act as a water utility without a duly issued certificate of public convenience and
necessity.
(c) Notwithstanding any other provision of this section, following the issuance of a certificate of public convenience and necessity
to a water utility, the Department shall not withhold a nonpotable water well permit from any person seeking to construct or extend a
nonpotable water well in an area serviced by a water utility, subject to the provisions of subsection (d) of this section.
(d) Following the issuance of a nonpotable water well permit in an area for which a certificate of public convenience and necessity
has been issued, the Secretary shall send a copy of the permit, with conditions, to the water utility providing water to that area. This
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notification requirement shall not apply to permits issued for monitor, observation, recovery and dewatering wells. All nonpotable water
well permits issued in such an area shall include the following conditions:
(1) Water taken from the well is not to be used for human consumption;
(2) The well shall not, at anytime, be interconnected with any portion of any building’s plumbing and/or any water utility’s service
connection;
(3) Representatives of the Secretary and the water utility that services the certificated area may inspect the well at any reasonable
time to insure that there are not interconnections; and
(4) That the permit is subject to revocation upon any violation of its permit conditions, and upon revocation, the Secretary shall
order that the well will be abandoned.
(e) The Secretary may enforce this section under § 6005 of this title. Violations of this section may be sanctioned under the provisions
of §§ 6005 and 6013 of this title.
(72 Del. Laws, c. 402, § 2.)
§ 6076. Transfer of jurisdiction for certificates of public convenience and necessity for water utilities to the
Public Service Commission.
On and after July 1, 2001, the Department and Secretary shall no longer have jurisdiction to issue certificates of public convenience
and necessity to water utilities. On such date, the jurisdiction to issue certificates of public convenience and necessity shall be vested in
the Public Service Commission. On such date, the Public Service Commission shall also be vested with the jurisdiction, to the extent
described in Chapter 1 of Title 26, to issue, suspend and revoke certificates issued to water utilities. The process of reviewing requests
for certificates, however, shall include coordination and cooperation by the Commission with the Department of Natural Resources and
Environmental Control and the Division of Public Health.
(72 Del. Laws, c. 402, § 3.)
§§ 6077-6080. Issuance of certificate; limitations; powers of the Public Service Commission with respect to
water utilities; public hearings; rules for conduct; application fee [Repealed].
Repealed by 72 Del. Laws, c. 402, § 1, effective July 1, 2001.
Subchapter VI
Source Water Protection
§ 6081. Reporting on source water protection.
(a) The Secretary shall prepare, periodically, a report to the Governor and General Assembly, beginning in 2003, of the potential threats,
including contaminants currently not regulated, to public drinking water systems. The report shall identify actions that the Secretary
proposes to control these threats.
(b) The Secretary shall periodically prepare a report to the respective counties and municipalities, beginning in 2003, that denotes the
availability of source water assessments completed by the Department. The Secretary shall also report on the status of the Ground-Water
Recharge Potential Mapping Project.
(73 Del. Laws, c. 67, § 2; 70 Del. Laws, c. 186, § 1.)
§ 6082. Adoption of source water assessment, wellhead protection, and excellent ground-water recharge
potential areas by counties and municipalities.
(a) By December 31, 2004, the Department shall develop a guidance manual, in conjunction with and with the substantial concurrence
of the Source Water Protection Citizens Technical Advisory Committee, for desirable land uses within source water assessment areas that
promote the long-term protection of public drinking water supplies, consistent with “Shaping Delaware’s Future: Managing Growth in
21st Century Delaware, Strategies for State Policies and Spending” (December 1999).
(b) The counties and municipalities with populations of 2,000 persons or more, with the assistance of the Department, shall adopt as
part of the update and implementation of the 2007 Comprehensive Land Use Plans, the overlay maps delineating, as critical areas, source
water assessment, wellhead protection and excellent ground-water recharge potential areas. Furthermore, the counties and municipalities
shall adopt, by December 31, 2007, regulations governing the use of land within those critical areas designed to protect those critical areas
from activities and substances that may harm water quality and subtract from overall water quantity.
(c) Municipalities with populations of less than 2,000 persons, with the assistance of the Department, may adopt by ordinance the overlay
maps delineating, as critical areas, source water assessment, wellhead protection, and excellent ground-water recharge potential areas.
Furthermore, the ordinance shall include regulations governing the use of land within those critical areas designed to protect those critical
areas from activities and substances that may harm water quality and subtract from overall water quantity. Counties and municipalities
of more than 2,000 persons that have previously adopted ordinances that include the Department’s overlay maps and regulations that
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protect public water supplies and are consistent with minimum standards identified in the guidance manual shall be exempt from the
provisions of this subsection.
(d) The Department shall make source water assessment areas available to the public as they are completed, with all systems to be
completed by 2003.
(e) The Department may, when based on sound science and factual information, revise and update the overlay maps of source water
assessment areas.
(f) Counties and municipalities with populations of 2,000 persons or more shall update their overlay maps in accordance with changes
made by the Department with respect to source water assessment, wellhead protection and excellent ground-water recharge potential areas.
(g) Municipalities with populations of less than 2,000 persons may update their overlay maps in accordance with changes made by the
Department with respect to source water assessment, wellhead protection, and excellent ground-water recharge potential areas.
(73 Del. Laws, c. 67, § 2; 70 Del. Laws, c. 186, § 1.)
§ 6083. Adoption of source water assessment, wellhead protection and excellent ground-water recharge
potential areas by the Governor’s Cabinet Committee on State Planning Issues.
The Department shall make source water assessment, wellhead protection and excellent ground-water recharge potential area
delineations available for maps developed as part of “Shaping Delaware’s Future: Managing Growth in 21st Century Delaware, Strategies
for State Policies and Spending” (December 1999)
(73 Del. Laws, c. 67, § 2; 70 Del. Laws, c. 186, § 1.)
§ 6084. Source Water Protection Citizen and Technical Advisory Committee.
The Secretary shall consult a citizen and technical advisory committee, as established by the Delaware Source Water Assessment Plan,
on matters related to the implementation of the Source Water Assessment Plan and the requirements of this statute.
(73 Del. Laws, c. 67, § 2; 70 Del. Laws, c. 186, § 1.)
Subchapter VII
Labeling of Plastic Products
§ 6090. Findings; intent.
(a) The General Assembly finds that:
(1) Recycling of waste materials is preferable to incinerating or landfilling those materials because recycling conserves valuable
resources, saves energy in the manufacturing process and extends the life of disposal facilities;
(2) Increased recycling is necessary in Delaware to meet the EPA’s national goal of a 25% reduction of the solid waste stream;
(3) Plastics have been shown to be recyclable;
(4) One of the barriers to increased recycling of plastics is the necessity of keeping the various types of plastic separate, based on
the resin from which they are made; and
(5) The Society of the Plastics Industry, Inc., has devised a coding system that can be used to label plastic containers so as to identify
the type of resin from which they are made.
(b) It is the intent of the General Assembly to facilitate the recycling of plastic containers by requiring that these containers be labeled
according to resin type.
(68 Del. Laws, c. 174, § 1.)
§ 6091. Definitions.
As used in this subchapter, unless otherwise indicated:
(1) “Container” means a “rigid plastic container” or a “plastic bottle” as those terms are defined in this section.
(2) “Department” means the Department of Natural Resources and Environmental Control.
(3) “Label” means a molded, imprinted or raised symbol on or near the bottom of a rigid plastic container or plastic bottle.
(4) “Person” means any individual, trust, firm, joint stock company, federal agency, partnership, corporation (including a government
corporation), association, state, municipality, commission, political subdivision of a state or any interstate body.
(5) “Plastic” means any material made of polymeric organic compounds and additives that can be shaped by flow.
(6) “Plastic bottle” means a plastic container intended for single use that has a neck that is smaller than the body of the container;
accepts a screw-type cap, snap cap or other closure; and has a capacity of 16 fluid ounces or more, but less than 5 gallons.
(7) “Rigid plastic container” means any formed or molded container, other than a bottle, intended for single use, composed
predominantly of plastic resin and having a relatively inflexible finite shape or form with a capacity of 8 ounces or more but less than
5 gallons.
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(8) “Secretary” means the Secretary of the Department of Natural Resources and Environmental Control.
(68 Del. Laws, c. 174, § 1.)
§ 6092. Labeling.
(a) On or after July 1, 1992, no person shall distribute, sell or offer for sale in this State any plastic bottle or rigid plastic container
unless such container is labeled with a code identifying the appropriate resin type used to produce the structure of the container. The code
shall consist of a number placed within 3 triangulated arrows and a letter placed below the triangle of arrows. The triangulated arrows
shall be equilateral, formed by 3 arrows with the apex of each point of the triangle at the midpoint of each arrow, rounded with a short
radius. The pointer (arrowhead) of each arrow shall be at the midpoint of each side of the triangle with a short gap separating the pointer
from the base of the adjacent arrow. The triangle, formed by the 3 arrows curved at their midpoints, shall depict a clockwise path around
the code number. The numbers and letters used shall be as follows:
1 = PETE (polyethylene threphthalate)
2 = HDPE (high density polyethylene)
3 = V (vinyl)
4 = LDPE (low density polyethylene)
5 = PP (polypropylene)
6 = PS (polystyrene)
7 = Other
(b) The Department shall maintain a list of the label codes provided in subsection (a) of this section and shall provide a copy of the
list to any person upon request.
(c) The provisions of this section and any rules or regulations adopted hereunder shall be interpreted to conform with nationwide
plastics industry standards.
(68 Del. Laws, c. 174, § 1.)
§ 6093. Penalty; enforcement.
(a) Any person who violates this subchapter or any rule or regulation duly promulgated thereunder or any order of the Secretary issued
pursuant to this subchapter shall be punishable as follows:
(1) If a violation has been completed, by a civil penalty imposed by the Justice of the Peace Court of not less than $250 nor more
than $1,000 for each completed violation. The Secretary may also seek a permanent or preliminary injunction or temporary restraining
order in the Court of Chancery.
(2) If a violation is continuing, the Secretary may seek a monetary penalty as provided in paragraph (a)(1) of this section. If a
violation is continuing or is threatened, the Secretary may also seek a temporary restraining order or permanent injunction in the Court
of Chancery.
(b) The Secretary shall have the authority to enforce this subchapter.
(68 Del. Laws, c. 174, § 1.)
Subchapter VIII
Clean Air Act Title V Operating Permit Program
§ 6095. Applicability.
This subchapter shall apply to all sources required to obtain a Title V Operating Permit pursuant to the federal Clean Air Act
Amendments of 1990. Such sources shall include, but not be limited to, the following:
(1) Sulfuric acid plants; municipal incinerators; fossil-fuel burners; petroleum storage and transfer units with a total storage capacity
exceeding 300,000 barrels; petroleum refineries; sulfur recovery plants; chemical process plants;
(2) For pollutants other than radionuclides, any stationary source or group of stationary sources located within a contiguous area and
under common control or common ownership consistent with the requirements of 40 C.F.R. Part 70, that emits or has the potential to
emit, in the aggregate, 10 tons per year (tpy) or more of any hazardous air pollutant which has been listed pursuant to Title I, § 112(b)
of the Clean Air Act Amendments of 1990, Public Law 101-549, 25 tpy or more of any combination of such hazardous air pollutants,
or such lesser quantity as the Department may establish by regulation;
(3) A source that directly emits or has the potential to emit, 100 tpy or more of any air pollutant, including any major source of
fugitive emissions of any such pollutant, as the Department may establish by regulation;
(4) For ozone nonattainment areas, sources with the potential to emit 100 tpy or more of volatile organic compounds or oxides
of nitrogen in areas classified as “marginal” or “moderate,” 50 tpy or more in areas classified as “serious,” 25 tpy or more in areas
classified as “severe,” and sources subject to the requirements for preconstruction review; except that the references in this paragraph
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to 100, 50, and 25 tpy of nitrogen oxides shall not apply with respect to any source for which the Department has made a finding,
pursuant to regulations, that requirements under this section do not apply;
(5) For areas within the northeast transport region, sources with the potential to emit 50 tpy or more of volatile organic compounds; or
(6) Any other sources designated by the Department or mandated for designation by the United States Environmental Protection
Agency.
(69 Del. Laws, c. 121, § 1.)
§ 6096. Title V account.
The Secretary shall establish a separate account entitled the “Clean Air Act Title V Operating Permit Program Account,” hereinafter
the “Account.” All fees collected under this subchapter shall be deposited into this account and utilized solely to cover all direct and
indirect costs required to support the Title V Operating Permit Program, hereinafter “Program.” Any civil or administrative penalties or
costs recovered as a result of a violation of a Title V
