Delaware Administrative Code
Title 7 - Natural Resources and Environmental Control
5000 - Division of Watershed Stewardship
5102 - Regulation Governing Beach Protection and the Use of Beaches
Section 5102-2.0 - Permits and Letters of Approval
Universal Citation: 7 DE Admin Code 5102-2.0
Current through Register Vol. 28, No. 3, September 1, 2024
2.1 Purpose, Application of Current and Earlier Regulations. The primary purpose of these Regulations is to enhance, protect, and preserve public and private beaches of the State through a permit and letter of approval process. These current Regulations shall not apply to any project for which a valid letter of approval, permit, or extension of the same has been issued by the Division prior to the effective date of these Regulations. However, those provisions of the Department's regulations that governed beach protection and the use of beaches that were in effect prior to the effective date of these current Regulations shall apply to the projects, permits and letters of approval that were authorized or issued before the effective date of these Regulations.
2.2 Approval Requirement
2.2.1 No person shall commence or conduct
construction for which approval is required under these Regulations (see
Section 4.0) unless and until a letter of approval or the proper permit has
been issued.
2.2.2 Before any
person shall commence construction of any modification or expansion pursuant to
the provisions of this Section, said person shall apply for and be issued a
letter of approval or a permit from the Division.
2.2.3 The provisions of Section 3.0 of the
Regulations have provided for certain exceptions to the general prohibition
against construction seaward of the Building Line. However, prior to the
commencement of any construction of any structure, or portion thereof, that is
included within one or more of the exceptions set forth in said Section 3.0,
the owner of the proposed structure or portion thereof shall apply to the
Division for a permit pursuant to the provision set forth in subsection 4.5 of
the Regulations. The permit application will be processed pursuant to
procedures set forth in Section 5.0 of the Regulations.
2.3 Department Exemption
2.3.1 The Department shall be subject to all
the rules and requirements of these Regulations, except that in the performance
of its erosion control duties pursuant to the authority granted by the Beach
Preservation Act of 1972 (7 Del.C. Ch. 68), the Department shall be exempt from
the permit requirements of these Regulations. The Department shall, however,
still be subject to any substantive standards and guidelines generally
applicable to the construction and placement of shore protection structures and
facilities.
2.4 Extensions for Letter of Approval or Permit
2.4.1 These Regulations shall not apply to
any project for which a valid letter of approval, permit, or extension of same
has been issued by the Division, prior to the effective date of these
Regulations. After the effective date of these Regulations no extension shall
be granted for a letter of approval or permit issued prior to the effective
date of these Regulations. Any letter of approval or permit which was issued
without specific time limits has become null and void if construction has not
been initiated within one year or completed within two years from the effective
date of these Regulations.
2.4.2 An
extension to the time limits of a permit or letter of approval that was issued
after the effective date of these Regulations may be granted by the Division.
Before any such extension may be granted, the person who was issued the letter
of approval or permit shall submit a written request for the extension. The
written request must be received by the Division at least 15 days prior to the
expiration date of the letter of approval or permit and shall contain a
detailed explanation of why the extension is necessary, and the date when the
project will be completed. In determining whether such an extension will be
granted the Division may consider the following:
(1) whether reasonable progress is being made
toward completion of the project; and
(2) any changes that may have occurred in
state, federal and local laws, regulations, rules, requirements or
administrative policy, which are contrary to aspects of the project that had
been originally approved by the Division. In lieu of an extension of the time
limits in a letter of approval or permit, the Division may require a person to
reapply for a letter of approval or a permit if the Division determines that
the facts and circumstances relating to a previously approved project require a
re-evaluation by the Division.
2.4.2.1 An extension to a letter of approval
or permit shall not be granted more than three
times.
2.5 Construction Setback Lines - Prior Approvals
2.5.1 At those locations where dune
reconstruction has been approved by permit prior to the Regulations promulgated
and effective on August 13, 1981 and a construction setback line mutually
agreed upon in writing between an owner/developer and the Division to be the
landward toe of the reconstructed dune, that agreed upon line shall prevail
over the current Building Line for the purposes of initial construction of a
structure upon each affected parcel. Any subsequent additions to, or
replacements of, the initially approved structure shall be subject to the
Building Line as established pursuant to these Regulations and the appropriate
sections thereof. Regardless of the developmental status of the parcels
affected by this Section, all construction activities shall be subject to the
Building Line upon its future re-establishment pursuant to subsection 2.11 of
this regulation.
2.6 Maintenance, Repairs, and Emergency Action
2.6.1 Except as otherwise provided in
subsections 2.6 .2 and 2.6.3, any Person intending to commence any
maintenance or repair work on any structure located in part or entirely seaward
of the Building Line, shall apply in writing to the Division for a letter of
approval or a permit. No person shall commence such maintenance or repair work
until after being issued a letter of approval or a permit by the Division. (See
also the provisions of Section 3.0 - Prohibited Activities and Section 4.0 -
Activities Requiring a Permit or Letter of Approval).
2.6.2 The provisions of Section 2.6.1 shall
not apply where maintenance or repair work on a structure located in part or
entirely seaward of the Building Line is undertaken pursuant to the following
limitations or causes:
2.6.2.1 Where a
building is involved, and the location of the finished maintenance or repair
work is at or above the lowest living floor.
2.6.2.2 The maintenance consists solely of
non-structural work such as repainting, replacement of shingles or siding or
replacement of windows and doors and any cleaning necessary to maintain the
structure.
2.6.2.3 The maintenance
or repair work is to a structure, and is necessary because of damage being
caused to the structure by some means other than wave action, a flood or
erosion.
2.6.2.4 In the event of an
extreme emergency, or warning thereof, which may involve grave and imminent
danger of substantial property loss or personal injuries (e.g., an impending
coastal storm), a person may perform work on a structure that is related to the
protection of persons and said structure. However, before a person can commence
any such emergency protection work, the person owning the structure on which
such work shall be performed, or any agent thereof, shall contact the Division
to request approval to perform the emergency protection work. The Division's
approval or disapproval may be given to the owner, or agent thereof, either
orally or in writing. After the emergency, or emergency warning period, the
Division may require the removal of any emergency protection work performed
pursuant to the provisions of this Section.
2.7 Other Requirements and Approvals
2.7.1 A person who is issued a permit or
letter of approval by the Division pursuant to these Regulations is not
exempted from obtaining any other permit or approval required by Federal, State
or local laws, rules, regulations, and building and zoning
ordinances.
2.8 General Permit Considerations
2.8.1 The Division, in
considering applications, shall take into account the geology, geomorphology,
meteorology and hydraulics of the area.
2.9 Sole Jurisdiction
2.9.1 All structures, devices and facilities
for the enhancement, preservation or protection of beaches shall be under the
sole jurisdiction of the Department. None of these shall be changed in any way
except as provided in these Regulations.
2.10 Building Line Format
2.10.1 The Building Line shall be shown on
topographic maps at a scale of one inch equals 50 feet for all shoreline areas
of Delaware Bay and the Atlantic Ocean Coast from, and including, Pickering
Beach to the Delaware-Maryland line at Fenwick Island, where privately owned
structures, either existing or potential, may be affected by the establishment
of the Building Line. The Building Line shall be shown as a series of straight
lines connected together at points whose locations are identified by reference
to the Delaware State Plane Coordinate System. No point shall be located more
than 500 feet from an adjoining point.
2.11 Building Line Re-establishment
2.11.1 When, in the opinion of the Secretary,
storms or other natural phenomena cause a substantial long term change in the
seaward contour used to establish the Building Line, the Division may,
following public hearing, re-establish the Building Line in its entirety or for
the portions of the coast where the natural phenomena have caused substantial
long term changes from information provided by topographic
survey.
2.12 Re-establishment Effects on Lot Status
2.12.1
Re-establishment of the Building Line may place parcels of land, lawfully
subdivided after the effective date of these Regulations, in a position of
having insufficient space to construct a structure landward of the newly
established Building Line. These parcels shall be subject to the appropriate
permit requirements of Section 4.0 of this regulation.
2.13 Savings Clause
2.13.1 If any provision of these Regulations,
or the application of such provision to any person or circumstances, is held
invalid, the remainder of these Regulations, and the application of such
provision to persons or circumstances other than those to which it shall have
been held invalid, shall not be affected.
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