7 Del. C. § 6607: Procedures; regulations; application fees [For application of this section, see 85 Del. Laws, c. 351, § 4].

(a) The Secretary shall administer this chapter.

(b) The initial regulations promulgated under this chapter shall establish the Delaware wetland screening tool referenced in § 6603 of this title. The Delaware wetland screening tool may include:

(1) Screening methodologies to determine the likely or predicted existence of a wetland;

(2) Methodologies for confirming and/or refining that assessment based on field conditions using published criteria such as the Classification of Wetlands and Deepwater Habits of the United States (Cowardin et al., 1979);

(3) Criteria for the evaluation and rating of wetland function, including high, moderate and low function;

(4) Screening criteria to distinguish between tidal and nontidal wetlands;

(5) Criteria for screening for the identification of exceptional value wetlands; and

(6) Certification and oversight criteria for the use of the Delaware wetlands screening tool by Department-certified professionals on behalf of the public.

It is intended that, to the maximum extent possible, and excepting any “presence/probable absence study,” any onsite screening required could be performed in under 1 day and with a minimum of equipment.

(c) The Secretary shall adopt a wetlands designation or any other regulation only after holding a public hearing in accordance with § 6609 of this title.

(d) The Secretary shall, in furtherance of the purpose of this chapter, adopt regulations:

(1) Setting forth procedures, including provision for fees, which shall govern the processing of permit applications and the conduct of hearings;

(2) Elaborating standards consistent with § 6604 of this title by which each permit application will be reviewed and acted upon;

(3) Controlling or prohibiting activities on lands designated or proposed for designation as wetlands, which regulations may vary from area to area according to the ecological value of the subject wetlands and the threat to the health and welfare of the people of this State which their alteration would pose.

(4) Affording additional protections to exceptional value wetlands, including restrictions on allowed activities and development of best management practices for any allowed activity in such areas.

(5) Reducing duplication with the permitting requirements of the Army Corps of Engineers. Where possible, the regulations should enable joint applications or 1-stop permitting in areas of jurisdictional overlap.

(6) Improving this State’s ability to account accurately for cumulative and individual impacts from wetlands permitting actions.

(7) Promulgating mitigation strategies designed to facilitate no net overall loss in wetland acreage and function throughout this State, and to protect Delaware’s resiliency to the impacts of climate change. Strategies to be considered include a wetland mitigation bank, aquatic restoration fund, in-lieu fee program, or other vehicle that provides incentives for the creation, restoration, enhancement, or protection of wetlands. Incentives shall be structured to create a framework that provides a strong incentive for the preservation of exceptional value wetlands.

(8) Establishing general permits to improve the efficiency of permitting for common and/or environmentally beneficial activities with minimal environmental impact. All such general permits shall state whether they apply in nontidal wetlands, tidal wetlands, or both. general permits to be considered include:

a. A general permit that authorizes voluntary wetland habitat restoration projects through an expedited process.

b. A general permit that authorizes linear utility infrastructure projects.

c. A general permit that authorizes the use of pilings in nontidal wetlands in appropriate circumstances. The regulations shall consider imposing restrictions where:

1. The pilings are so closely spaced that sedimentation rates would be increased;

2. The pilings themselves effectively would replace the bottom of a water body;

3. The placement of pilings or related structures would result in the adverse alteration or elimination of aquatic or biologic functions; and

4. The pilings are intended to be used for structural support of a building such as a commercial or residential structure.

d. A general permit that authorizes the placement of educational signage and/or the construction of infrastructure for public use (e.g. viewing towers, nature trails), as determined by the Department.

e. A general permit that authorizes a wetland walkway for individual properties for water access under designated conditions to enable 1-stop State and federal permitting by means of State programmatic general permits.

f. A general permit that authorizes 1 community access structure per community for multi-unit or multi-home communities for water access under designated conditions;

g. A general permit, to be known as the “default general permit,” applicable to activities that disturb a cumulative area of nontidal wetlands equal to or less than 0.50 acres in extent that do not qualify as exceptional value wetlands. This “default general permit” shall require mitigation measures and shall only issue in the circumstances set forth in subsection (h) of this section.

(e) 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.

(f) The Secretary will consult with the soil conservation districts, the Department of Agriculture, and, as the Secretary deems appropriate, any other relevant state, local, or federal agency in the development of best management practices to protect wetlands in compliance with the regulations to be adopted by the Department under this chapter.

(g) The Department must notify the applicant within 30 days as to whether their application as submitted is administratively complete and request any information required to complete the application. The applicant has 30 days to respond with the requested information. Except as set forth in subsection (h) of this section, the Department has 120 days after receipt of a complete application to either issue or deny the permit, or state that an extension of time is required. Any such extension shall provide an anticipated timeline for a final determination on the permit, and shall provide specific reasons why an extension of time is required. Any permit denial must include specific reasons for denial including citations to the lack of compliance with this chapter. The foregoing timelines do not apply to applications involving the resolution of identified violations or applications which require the approval of a mitigation plan. The foregoing timelines do not apply to applications involving a permit hearing.

(h) Where a permit application is submitted for activities that disturb a cumulative area of nontidal wetlands equal to or less than 0.50 acres in extent that do not qualify as exceptional value wetlands, and where the Department has not issued or denied a permit within 120 days from receipt of a complete application for such activities, the default general permit set forth in paragraph (d)(8)g. of this section shall be automatically issued in connection with the application. The foregoing timeline does not apply to applications involving the resolution of identified violations or applications involving a permit hearing.

(i) The Department shall develop a tracking system to record and make public its response times for all permit applications received.

(j) If an on-site evaluation establishes that an error exists in a wetlands map that has been adopted by the Department, the wetlands map containing the error may be corrected by the Department after the Department documents, in writing, the results of the on-site evaluation, and the Department gives the public notice of any proposed correction. For purposes of this subsection, the term “public notice” shall consist of having notice of the proposed correction, the name of the property owner, location of the property in issue and a description of the error, published in a daily newspaper of general circulation throughout this State and a newspaper of general circulation in the county in which the activity is proposed. Such notice shall be published at least 20 days in advance of any correction to a map by the Department. If the Department determines that it has received a meritorious objection to any proposed correction set forth in a public notice, the Department shall hold a public hearing in accordance with the procedures set forth in § 6609 of this title. Any Department correction made to an adopted wetlands map shall be filed with the Secretary of State and made available for public inspection at the offices of the Department.

(k) The Secretary may waive any provision of the regulations adopted pursuant to this chapter when warranted under the following circumstances:

(1) Life-threatening emergencies.

(2) Actions required for public safety for which sufficient time is not available to follow the regulations.

(3) When imminent or catastrophic damage or loss of major infrastructure is likely if all provisions of the regulations are adhered to.

(4) Where the authority of the Department under this chapter overlaps with another statute, including but not limited to shellfish grounds (Chapter 19 of this title), beach preservation (Chapter 68 of this title) or subaqueous lands (Chapter 72 of this title) provided that the following criteria are met:

a. If, in the opinion of the Secretary, equal environmental impact review and regulation of the activity would be provided by either statute; and

b. Waiver of these regulations would not be contrary to the purposes of this chapter.

(l) The Secretary may issue an after-the-fact permit, letter of authorization or waiver in those cases where an activity has occurred without first obtaining the required permit, letter of authorization or waiver. The determination of whether or not to issue an after-the-fact permit, letter of authorization or waiver shall be consistent with the purposes and provisions of this chapter. The applicant receiving the after-the-fact permit, letter of authorization, or waiver will be responsible for paying any associated processing fee and the Secretary may assess a penalty in accordance with § 6005 of this title.