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2023 Delaware Code › Title 7 - Conservation › Chapter 39. SOIL AND WATER CONSERVATION DISTRICTS › Subchapter I. General Provisions › § 3910. Primary jurisdiction of Secretary and the Department of Natural Resources and Environmental Control.

§ 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 39. SOIL AND WATER CONSERVATION DISTRICTS › Subchapter I. General Provisions › § 3911. Appeals.

§ 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 39. SOIL AND WATER CONSERVATION DISTRICTS › Subchapter II. State and County Appropriations to Districts › § 3921. Annual appropriations to Division of Watershed Stewardship of Department of Natural Resources and Environmental Control.

§ 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 39. SOIL AND WATER CONSERVATION DISTRICTS › Subchapter II. State and County Appropriations to Districts › § 3922. Appropriations by the several county governments.

§ 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 39. SOIL AND WATER CONSERVATION DISTRICTS › Subchapter II. State and County Appropriations to Districts › § 3923. Use of appropriated money in Sussex, Kent and New Castle Counties.

§ 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 39. SOIL AND WATER CONSERVATION DISTRICTS › Subchapter II. State and County Appropriations to Districts › § 3925. Transfer of funds prohibited.

§ 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.;
2023 Delaware Code › Title 7 - Conservation › Chapter 40. EROSION AND SEDIMENTATION CONTROL › § 4001. Legislative findings and statement of policy.

§ 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 40. EROSION AND SEDIMENTATION CONTROL › § 4003. Duties of persons engaged in land disturbing activities.

§ 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 40. EROSION AND SEDIMENTATION CONTROL › § 4003A. Runoff Control near Mill Creek, Little Mill, Red Clay, White Clay Creek, Persimmon Creek and Shellpot Creek.

§ 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 40. EROSION AND SEDIMENTATION CONTROL › § 4004. Applicability.

§ 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:
(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;
2023 Delaware Code › Title 7 - Conservation › Chapter 40. EROSION AND SEDIMENTATION CONTROL › § 4005. Program funding and financial assistance.

§ 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 40. EROSION AND SEDIMENTATION CONTROL › § 4007. Local sediment and stormwater programs.

§ 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 40. EROSION AND SEDIMENTATION CONTROL › § 4008. Interim program.

§ 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 40. EROSION AND SEDIMENTATION CONTROL › § 4009. Failure of conservation districts, counties, municipalities or state agencies to implement delegated program elements.

§ 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 40. EROSION AND SEDIMENTATION CONTROL › § 4010. State and federal projects.

§ 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 40. EROSION AND SEDIMENTATION CONTROL › § 4011. Designated watersheds or subwatersheds.

§ 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 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 40. EROSION AND SEDIMENTATION CONTROL › § 4012. Construction review and enforcement.

§ 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 40. EROSION AND SEDIMENTATION CONTROL › § 4014. Training of responsible personnel.

§ 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 40. EROSION AND SEDIMENTATION CONTROL › § 4015. Penalties.

§ 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 40. EROSION AND SEDIMENTATION CONTROL › § 4016. Injunctions.

§ 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 41. DRAINAGE OF LANDS AND MANAGEMENT OF WATERS; TAX DITCHES › Subchapter I. General Provisions › § 4101. Declaration of policy.

§ 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 41. DRAINAGE OF LANDS AND MANAGEMENT OF WATERS; TAX DITCHES › Subchapter I. General Provisions › § 4102. Purpose.

§ 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 41. DRAINAGE OF LANDS AND MANAGEMENT OF WATERS; TAX DITCHES › Subchapter I. General Provisions › § 4103. Definitions.

§ 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 41. DRAINAGE OF LANDS AND MANAGEMENT OF WATERS; TAX DITCHES › Subchapter I. General Provisions › § 4104. Application; effect on previously established drainage organizations and on earlier drainage laws.

§ 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 41. DRAINAGE OF LANDS AND MANAGEMENT OF WATERS; TAX DITCHES › Subchapter I. General Provisions › § 4105. Limitation of easement or right-of-way.

§ 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.
(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;
2023 Delaware Code › Title 7 - Conservation › Chapter 41. DRAINAGE OF LANDS AND MANAGEMENT OF WATERS; TAX DITCHES › Subchapter II. Boards of Ditch Commissioners › § 4106. Ditch commissioners; membership; qualifications; term; vacancies; secretary.

§ 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 41. DRAINAGE OF LANDS AND MANAGEMENT OF WATERS; TAX DITCHES › Subchapter II. Boards of Ditch Commissioners › § 4107. Disqualification of members.

§ 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 41. DRAINAGE OF LANDS AND MANAGEMENT OF WATERS; TAX DITCHES › Subchapter II. Boards of Ditch Commissioners › § 4108. Chairperson; quorum; voting.

§ 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 41. DRAINAGE OF LANDS AND MANAGEMENT OF WATERS; TAX DITCHES › Subchapter II. Boards of Ditch Commissioners › § 4109. Compensation; expenses and reimbursement.

§ 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 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 41. DRAINAGE OF LANDS AND MANAGEMENT OF WATERS; TAX DITCHES › Subchapter II. Boards of Ditch Commissioners › § 4110. Employment of qualified personnel.

§ 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 41. DRAINAGE OF LANDS AND MANAGEMENT OF WATERS; TAX DITCHES › Subchapter II. Boards of Ditch Commissioners › § 4111. Employment of personnel; purchase of supplies and equipment.

§ 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 41. DRAINAGE OF LANDS AND MANAGEMENT OF WATERS; TAX DITCHES › Subchapter III. Formation of Tax Ditch; Procedure › § 4116. Nature of a tax ditch.

§ 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 41. DRAINAGE OF LANDS AND MANAGEMENT OF WATERS; TAX DITCHES › Subchapter III. Formation of Tax Ditch; Procedure › § 4117. Petition for formation of a tax ditch; assistance of Division of Watershed Stewardship.

§ 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 41. DRAINAGE OF LANDS AND MANAGEMENT OF WATERS; TAX DITCHES › Subchapter III. Formation of Tax Ditch; Procedure › § 4118. Form of petition.

§ 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.
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;
2023 Delaware Code › Title 7 - Conservation › Chapter 41. DRAINAGE OF LANDS AND MANAGEMENT OF WATERS; TAX DITCHES › Subchapter III. Formation of Tax Ditch; Procedure › § 4119. Name of tax ditch.

§ 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 41. DRAINAGE OF LANDS AND MANAGEMENT OF WATERS; TAX DITCHES › Subchapter III. Formation of Tax Ditch; Procedure › § 4120. Deposit upon filing of petitions for tax ditch.

§ 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 41. DRAINAGE OF LANDS AND MANAGEMENT OF WATERS; TAX DITCHES › Subchapter III. Formation of Tax Ditch; Procedure › § 4121. Duties of county soil conservation district upon receipt of petition.

§ 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;
2023 Delaware Code › Title 7 - Conservation › Chapter 41. DRAINAGE OF LANDS AND MANAGEMENT OF WATERS; TAX DITCHES › Subchapter III. Formation of Tax Ditch; Procedure › § 4122. Investigation; hearing.

§ 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;