Bill Text: DE HB246 | 2023-2024 | 152nd General Assembly | Draft
Bill Title: An Act To Amend Title 9 Of The Delaware Code Relating To Establishing Uniform Minimum Riparian Buffer Areas.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Introduced - Dead) 2023-06-22 - Introduced and Assigned to Housing Committee in House [HB246 Detail]
Download: Delaware-2023-HB246-Draft.html
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SPONSOR: |
Rep. Phillips & Rep. Longhurst & Sen. Huxtable |
HOUSE OF REPRESENTATIVES
152nd GENERAL ASSEMBLY
HOUSE BILL NO. 246
AN ACT TO AMEND TITLE 9 OF THE DELAWARE CODE RELATING TO ESTABLISHING UNIFORM MINIMUM RIPARIAN BUFFER AREAS.
WHEREAS, the surface waters of Delaware are an invaluable resource to the State and its citizens; and
WHEREAS, the lands adjacent to the waters of the State harbor some of the most valuable natural resources in the State and serve important functions related to the health and quality of the State’s surface waters; and
WHEREAS, the land adjacent to the State’s surface waters is a fragile natural resource and its protection in the face of increasing development is necessary to maintain the vitality and health of the State’s surface waters; and
WHEREAS, existing county laws result in uncoordinated, unplanned and piecemeal development along the State’s surface waters, with resulting negative impact on the surface waters of Delaware; and
WHEREAS, buffer zones consisting of trees and other vegetation adjacent to lakes and streams of the State function to control water pollution; preserve and protect wetlands; help maintain and protect, channel, streambank, and floodplain stability; preserve and protect the habitat of terrestrial and aquatic wildlife; promote open space; and achieve additional environmental protection for the surface waters of Delaware.
NOW, THEREFORE:
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Title 9 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline and by creating a new Chapter as follows:
CHAPTER 10A. Minimum Riparian Buffer Areas.
To aid in the fulfillment of the State’s role as trustee of its surface waters and to promote public health, safety, convenience and general welfare, it is declared to be in the public interest to make policies, plans, and rules, that require minimum riparian buffer areas along the lakes and streams of the State, promote the protection and management of the river corridors of the State, authorize county minimum riparian buffer laws, all for the efficient use, conservation, development and protection of the State’s water resources. The purpose of this chapter is to enhance safe and healthy waterways; prevent and control water pollution; protect spawning grounds, fish, and aquatic life; control building sites, placement of structures and land uses; preserve shore cover and natural beauty; and support multiple uses of the waters in a manner that provides for the best interests of all citizens of this State.
(1) “Department” means Department of Natural Resources and Environmental Control.
(2) “Existing use” means the established use, activity, or development occurring within a riparian buffer area on June 30, 2024, including: (a) repair, renovation, or maintenance, provided that the result of any repair, renovation, or maintenance is a functionally equivalent use; and (b) maintenance of a cleared area, including lawns and beaches, within the buffer area, provided that the cleared area is not enlarged and no change in use has occurred.
(3) “Lake” means a body of standing water, including ponds and reservoirs that may have natural or artificial water level controls. Off-stream reservoirs specifically constructed for the following purposes shall not be considered lakes: golf course irrigation, stormwater management, and fire suppression.
(4) “Mean high-water line” means the intersection of the plane of the mean high water tidal datum with shore.
(5) “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.
(6) “Public navigable waters” means the Delaware River, all natural inland lakes within Delaware, and all streams, ponds, flowages, and other waters within the territorial limits of Delaware, including the Delaware portion of boundary waters, which are boatable under the laws of this State.
(7) “River corridor” means an area adjacent to streams, as defined by the Department, necessary to accommodate the slope and platform of the stream’s naturally stable channel wherein encroachment and channel management activities that constrain the stream channel from achieving natural stability may increase risks to public safety, fluvial erosion hazards, property loss, and water quality and habitat degradation .
(8) “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.
(9) “Stream” means the full length and width, including the bed and bank of any watercourse, including rivers, creeks, brooks, and branches. “Stream” does not mean constructed drainageways, including swales, manmade irrigation ditches, and tax ditches.
(10) “Subaqueous lands” means submerged lands and tidelands.
(11) “Submerged lands” means any of the following:
a. Lands lying below the line of mean low tide in the beds of all tidal waters within the boundaries of the State.
b. 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.
c. Specific manmade lakes or ponds as designated by the Secretary.
(12) “Tidelands” means lands lying between the mean high- water line and the line of mean low water.
(13) “Top of bank” means the point along the bank of a stream where an abrupt change in slope is evident, and where the stream is generally able to overflow the banks and enter the adjacent floodplain during flows at or exceeding the average annual high-water stage.
(14) “Trail” means any trail system used for hiking, walking, bicycling, cross-country skiing, snowmobiling, all-terrain vehicle riding, horseback riding, and other similar activities that is regularly maintained by the State, a county, a municipality, or a nonprofit association.
§ 1022. Minimum Riparian Buffer Areas.
(a) On or before June 30, 2024, the county governments of New Castle County, Kent County, and Sussex County, shall update their codified land use planning laws by adopting the following minimum riparian buffer areas along the lakes and streams of all unincorporated areas and incorporated areas, that do not hold a Municipal Separate Storm Sewer System(“MS4”) permit:
(1) 300 feet to the shoreline, as defined by the mean high-water line, of any tidal water body, tidal stream, or tidal marsh.
(2) 300 feet to the shoreline, as defined by the mean highwater line, of any nontidal freshwater body, lake, pond, or blue-line stream as depicted on the most recent version of the United States Geological Survey Topographic Quadrangle Maps.
(3) 50 feet to the shoreline or top of bank, as defined by a greater than 50% change in slope in a distance of less than 10 feet of any stream (non-blue-line), creek, or drainage ditch.
(b) This section does not prohibit a county from establishing riparian buffer areas more stringent than what is required under this section.
(c) The following activities are permitted in the riparian buffer area and are not subject to the requirements of subsection (b) of this section:
(2) Reconstruction, repair, or maintenance of linear public transportation facilities; improvements directly related to providing transportation enhancements; and safety features on or adjacent to linear public transportation facilities.
(3) The control of non-native, invasive species of plants where such control is authorized by law or approved by the Department.
(4) Maintenance or repair of pollution abatement facilities as permitted under Title 7.
(5) Railroad activities and facilities within the jurisdiction of federal law.
(6) Stormwater treatment facilities or practices existing within a riparian buffer as of June 30,2024, including repair or maintenance under a permit issued under Title 7.
(7) Construction of electric transmission projects regulated under Title 26.
(8) The routine repair and maintenance of utility lines and poles, including vegetation maintenance in utility line corridors, in a manner that minimizes adverse impacts and is in accordance with a plan approved by the Department.
(9) The emergency repair of utility lines and poles in a manner that minimizes adverse impacts to the riparian buffer areas.
(10) Trail construction and maintenance conducted in conformance with applicable management standards recommended by the Department.
(11) Stairways or paths of not more than 6 feet in width that lead to a lake or stream.
(12) Maintenance, reconstruction or retrofitting work performed by or with the assistance of any state, county, or municipal government, or conservation district when that work occurs in any nontidal submerged lands and complies with the standards and specifications associated with best management practices in the Delaware Erosion and Sediment Control Handbook.
(13) Any work in agricultural drainage ditches created from non-subaqueous lands that are designed according to reasonable drainage standards, when performed by or with the assistance of any state, county, or municipal government, or conservation district.
(14) Ponds constructed in uplands when those ponds are constructed by or with the assistance of any state, county, or municipal government, or conservation district and do not drain into a waterway.
(15) Stormwater ponds that are permitted in accordance with Chapter 40 of Title 7 or farm ponds or other ponds whose only source of hydrology is groundwater.
§ 1023. Authorized Uses in Riparian Buffer Areas.
(a) The following are authorized uses in a riparian buffer area:
(1) The development of existing buildings within the riparian buffer area.
(2) Encroachment on a riparian buffer area by an existing or new use.
(3) Change in use of existing nonconforming use.
(4) Recreational uses within the buffer area, including docks, decks, piers, access areas, landing areas, and beaches.
(5) Utility lines as permitted under Title 26.
(6) Stormwater treatment facilities as permitted by the county with jurisdiction or by the Department.
(7) Lake or stream conservation or restoration projects approved by the county with jurisdiction or by the Department.
(8) Construction of new alignment linear public transportation facilities.
(9) Private crossings of riparian buffer areas, including driveways and other access roads.
(b) All 3 counties must establish rules and regulations for authorized uses under subsection (a) of this section.as least as stringent as existing State law.
§ 1024. County adopted rules and regulations.
All 3 counties shall adopt substantive and technical rules and regulations to implement this chapter which may include the following:
(1) Regulate the development and use of riparian buffer areas to prevent and control water pollution.
(2) Preserve and protect wetlands.
(3) Maintain and protect channel, streambank, and floodplain stability.
(4) Preserve and protect the habitat of terrestrial and aquatic wildlife.
(5) Promote open space and aesthetics.
(6) Promote the county or State conservation and development objectives for riparian buffer areas.
(7) Regulate the planting and maintenance of vegetation.
(8) Regulate maintenance of existing access to public navigable waters.
(9) Set standards or criteria that regulate development or change of use of buildings or structures within riparian buffers.
(10) Regulate the use and storage of hazardous materials, as defined in Title 7 provided that any regulations adopted are consistent with and at least as stringent as State and federal law.
(11) Regulate practices or the use or storage of other materials that could impair water quality, provided that any regulations are consistent with and at least as stringent as State and federal law.
(12) Establish regulations for the mitigation of the impact of an authorized use, under this chapter, including mitigation offsets, mitigation banking, and impact fee s.
Section 2. All 3 County Planning and Land Use Departments, in conjunction with their County Planning Directors, may develop a coordinated educational and training program to inform the public of the requirements of this Act.
Section 3. This Act will take effect on June 30, 2024.
SYNOPSIS
Currently each county has its own riparian buffer requirements. The intent of this Act is to make minimum riparian buffer areas uniform throughout the State in unincorporated areas and incorporated municipalities that do not hold a Municipal Separate Storm Sewer System(“MS4”) permit. This Act creates a new Chapter 10A of Title 9 which sets forth the following minimum riparian buffer areas: (1) 300 feet to the streamline, as defined by the mean high water line, of any tidal water body, tidal steam or tidal marsh; (2) 300 feet to the shoreline, as defined by the mean highwater line, of any nontidal freshwater body, lake, pond, or blue-line stream; and (3) 50 feet to the shoreline or top of bank, as defined by a greater than 50% change in slope in a distance of less than 10 feet of any non-blueline stream, creek or drainage ditch. The Act sets forth permitted uses not subject to the minimum buffer requirements. The Act requires the 3 Counties to adopt substantive and technical rules and regulations to implement the minimum riparian buffer areas and establish rules for specified uses. The Act requires all 3 Counties, by June 30, 2024 to amend their land use laws by adopting the minimum riparian buffer areas and adopting rules and regulations. The Act permits the Planning and Land Use Departments, in conjunction with the County Planning Directors, to create a coordinated program that educates and trains the public about the requirements of this Act. This Act takes effect on June 30, 2024.
