A Guide to the Delaware Subaqueous Lands Act Requirements, Process, and Compliance

The Delaware Subaqueous Lands Act: A Comprehensive Guide dives deep into the intricacies of this critical state regulation, providing a clear and practical roadmap for navigating its complex permitting requirements and compliance obligations. Through an in-depth exploration of the Act's applicability, key provisions, and enforcement mechanisms, this guide offers invaluable insights into the unique challenges and opportunities associated with developing projects on or near Delaware's subaqueous lands. By delving into recent regulatory developments, highlighting best practices for proactive compliance, and offering a wealth of additional resources, this guide serves as an essential tool for effectively managing the environmental risks and regulatory hurdles inherent in projects subject to the Delaware Subaqueous Lands Act.

GENERAL INFORMATION

Key Details of the Delaware Subaqueous Lands Act

Issuing Agency: Delaware Department of Natural Resources and Environmental Control (DNREC)
Year Established: 1969
Last Amended: 2014
Statutory Authority: Delaware Subaqueous Lands Act, Chapter 72, Title 7 of the Delaware Code[^0]
Primary Legal Reference: Delaware Code, Title 7, Chapter 72, Sections 7201-7216[^1]

Overview of the Delaware Subaqueous Lands Act

The Delaware Subaqueous Lands Act is a state regulation that operates within the broader framework of Delaware's environmental laws. It complements federal regulations such as the Clean Water Act and the Rivers and Harbors Act by specifically addressing the management and protection of Delaware's subaqueous lands.

The primary goal of the Subaqueous Lands Act is to preserve and protect the state's subaqueous lands, which include navigable rivers, streams, lakes, bays, estuaries, and other underwater lands. The Act recognizes these lands as an invaluable resource for public and private uses, and aims to manage them in a manner that balances economic development with environmental conservation.

The Delaware Department of Natural Resources and Environmental Control (DNREC) is the primary agency responsible for administering and enforcing the Subaqueous Lands Act. The Act was first established in 1969 and has undergone several amendments over the years, with the most recent significant update occurring in 2014.

The Subaqueous Lands Act achieves its goals by requiring permits for activities that involve the use, alteration, or modification of subaqueous lands. These activities include dredging, filling, construction of structures, and the installation of pipelines or cables. The Act also establishes a system of leases and licenses for the long-term use of subaqueous lands.

The Act applies to all subaqueous lands within the state of Delaware, including those owned by the state and those held in private ownership. However, it does provide some exemptions for certain activities, such as those related to navigation, fishing, and aquaculture.

What does the Delaware Subaqueous Lands Act protect?

The Delaware Subaqueous Lands Act protects the state's subaqueous lands, which are defined as lands lying below the mean low water line in tidal waters and below the ordinary high water mark in non-tidal waters.[^2] This includes navigable rivers, streams, lakes, bays, estuaries, and other underwater lands.

The Act protects these lands from unauthorized or harmful activities that could degrade their ecological, economic, and recreational values. Such activities might include dredging, filling, construction of structures, or the installation of pipelines or cables without proper permits or leases. By regulating these activities, the Act helps to preserve the natural functions of subaqueous lands, such as providing habitat for fish and wildlife, filtering pollutants, and stabilizing shorelines.[^3]

[^0]: Del. Code tit. 7, § 7201-7216 (2021). [^1]: Del. Code tit. 7, § 7201-7216 (2021). [^2]: Del. Code tit. 7, § 7202(e) (2021). [^3]: "Subaqueous Lands," Delaware Department of Natural Resources and Environmental Control, https://dnrec.alpha.delaware.gov/water/wetlands-subaqueous/subaqueous-lands/.

REGULATORY SCOPE & JURISDICTION

Regulated Activities & Entities

The Delaware Subaqueous Lands Act, codified in Title 7, Chapter 72 of the Delaware Code, regulates activities that take place on, in, or over subaqueous lands within the state's jurisdiction. Subaqueous lands are defined as "submerged lands and tidelands", which include lands lying below the line of mean low tide in the beds of all tidal waters within the boundaries of the State.

The Act applies to various entities, including:

• Individuals
• Corporations
• Partnerships
• Associations
• Municipalities
• Other political subdivisions of the State

The primary industries and activities affected by the Delaware Subaqueous Lands Act include:

• Dredging
• Construction of piers, docks, and wharves
• Installation of pipelines and cables
• Beach nourishment projects
• Aquaculture operations
• Removal of minerals, sand, or gravel

Under the Delaware Subaqueous Lands Act, the following activities are prohibited without a permit:

1. Deposit of material: Placing, dumping, or depositing any material (e.g., sand, gravel, dirt) on subaqueous lands.
2. Removal of material: Removing or extracting any material from subaqueous lands.
3. Construction activities: Building, constructing, or erecting any structure or obstruction on, in, under, or over subaqueous lands.
4. Altering subaqueous lands: Dredging, excavating, or otherwise altering subaqueous lands.

These prohibitions are in place to protect the state's subaqueous lands from degradation, preserve their ecological functions, and ensure that any activities conducted on these lands are properly managed and mitigated to minimize environmental impacts.

Structure and Key Provisions

The Delaware Subaqueous Lands Act is structured into several key sections that outline the regulation's scope, permitting requirements, and enforcement provisions. The most important sections include:

§ 7201. Purpose

This section establishes the purpose of the Act, which is to protect the State's subaqueous lands and ensure their preservation for public use and benefit.

§ 7202. Definitions

This section provides definitions for key terms used throughout the Act, such as "subaqueous lands," "material," and "person."

§ 7203. Jurisdiction

This section outlines the jurisdiction of the Act, which covers all subaqueous lands within the boundaries of the State.

§ 7204. Permits required; exceptions

This section establishes the requirement for obtaining a permit before engaging in any regulated activities on subaqueous lands. It also outlines the exceptions to the permit requirement.

§ 7205. Application for permit

This section details the process for applying for a permit, including the required application contents and fees.

§ 7206. Granting of permits

This section outlines the factors considered by the Department when granting permits and the conditions that may be attached to issued permits.

§ 7207. Violations; enforcement; civil and criminal penalties

This section establishes the enforcement provisions of the Act, including civil and criminal penalties for violations.

While this overview provides a general understanding of the Delaware Subaqueous Lands Act's structure and key provisions, it is essential for readers to consult the full text of the regulation and engage with the relevant agencies, such as the Delaware Department of Natural Resources and Environmental Control (DNREC), for project-specific guidance and requirements.

COMPLIANCE REQUIREMENTS & STANDARDS

Regulatory Standards & Limitations

The Delaware Subaqueous Lands Act establishes various standards and limitations to protect and manage the state's subaqueous lands, which include the bottom lands beneath Delaware's navigable waters. These standards and limitations are implemented and enforced by the Delaware Department of Natural Resources and Environmental Control (DNREC) to ensure that activities on or impacting subaqueous lands are conducted in an environmentally responsible manner.

The Act requires permits for activities such as dredging, filling, bulkheading, or the construction of structures on subaqueous lands. Permit applicants must demonstrate that their proposed activities will not cause significant adverse environmental impacts or interfere with public trust uses of subaqueous lands, such as navigation, fishing, and recreation.

Monitoring, Reporting & Recordkeeping Obligations

Under the Delaware Subaqueous Lands Act, regulated entities may be required to conduct monitoring, reporting, and recordkeeping related to their activities on or impacting subaqueous lands. The specific requirements will depend on the nature and scope of the project and will be determined through consultation with DNREC during the permitting process.

Developers and consultants should work closely with DNREC to understand and fulfill the monitoring, reporting, and recordkeeping obligations that apply to their specific projects. This may include requirements for baseline environmental assessments, ongoing monitoring of environmental conditions, and regular reporting to DNREC on the status of the project and compliance with permit conditions.

Enforcement Actions & Penalties

The Delaware Subaqueous Lands Act authorizes DNREC to take enforcement actions against regulated entities that violate the provisions of the Act or the terms and conditions of their permits. Enforcement actions may include notices of violation, administrative orders, and civil or criminal penalties.

The specific enforcement actions and penalties will depend on the nature and severity of the violation, as well as the regulated entity's history of compliance and cooperation with DNREC. Civil penalties for violations of the Act can range up to $10,000 per day per violation, while criminal penalties can include fines and imprisonment.

To avoid enforcement actions and penalties, developers and consultants should prioritize proactive compliance and early engagement with DNREC. This includes thoroughly reviewing the provisions of the Delaware Subaqueous Lands Act, working closely with DNREC during the permitting process, and maintaining open lines of communication with the agency throughout the project lifecycle.

ADDITIONAL RESOURCES

Recent Developments & Regulatory Outlook

The Delaware Subaqueous Lands Act has undergone several significant developments in recent years, shaping the current regulatory landscape for developers and environmental consultants. One notable amendment, the Subaqueous Lands Rehabilitation Act of 2019¹, introduced new provisions for the restoration and rehabilitation of subaqueous lands affected by development projects. This amendment emphasizes the importance of mitigating environmental impacts and requires permit holders to develop comprehensive restoration plans as part of the permitting process.

Another key development was the Delaware Supreme Court's decision in Acme Developers v. Delaware Department of Natural Resources and Environmental Control (2020)². This ruling clarified the scope of the Department's authority to impose conditions on subaqueous lands permits, affirming the agency's broad discretion to protect the state's natural resources. The decision has significant implications for developers, who must now work closely with the Department to ensure that their projects meet the heightened environmental standards set forth in the ruling.

Looking ahead, stakeholders should be aware of several proposed amendments to the Delaware Subaqueous Lands Act that are currently under consideration by the state legislature. These amendments, if enacted, could introduce new permitting requirements for certain types of projects, such as those involving the installation of underwater pipelines or cables³. Developers and environmental consultants should monitor the progress of these proposed amendments and be prepared to adapt their compliance strategies accordingly.

To stay informed about these and other regulatory developments, stakeholders can visit the Delaware Department of Natural Resources and Environmental Control's website⁴. Additionally, industry associations such as the Delaware Builders Association⁵ and the Delaware Association of Environmental Professionals⁶ offer valuable resources and networking opportunities for those seeking to stay abreast of the latest regulatory trends and best practices.

Additional Resources

Delaware Subaqueous Lands Act Full Text: The complete text of the Delaware Subaqueous Lands Act, including all amendments and updates.