2021 Delaware Code
Title 7 - Conservation
Chapter 40. Erosion and Sedimentation Control
§ 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;
(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 1-inch 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 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;
