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 5102-5.0 - Procedures for Processing Permit Applications

Universal Citation: 7 DE Admin Code 5102-5.0

Current through Register Vol. 28, No. 3, September 1, 2024

5.1 The Division

5.1.1 Applications shall be considered and permits issued or denied by the Division in accordance with the purposes and intent of the Act and these Regulations.

5.2 Notice

5.2.1 Upon receipt of a permit application in proper form, the Division shall advertise in a daily newspaper of state-wide circulation and in a newspaper of general circulation in the county in which the activity is proposed:
5.2.1.1 That the application has been received;

5.2.1.2 A brief description of the nature of the application; and

5.2.1.3 That comments will be received for 15 calendar days by the Division regarding the application.

5.2.2 The Division shall also mail notice of the above to all adjacent property-owners as listed in the permit application, and make the application available for public inspection at the Dover office of the Division. A decision shall not be rendered on any permit application until at least 20 calendar days after notice has been published and mailed to adjacent property owners, and the application has been made available for public inspection, in accordance with this Section.

5.3 Specific Information to be Examined by the Division; Investigatory Authority of the Division and Its Agents; Authority of Division to Require Special Conditions or Modifications

5.3.1 In addition to the general categories of information that are provided for pursuant to subsection 2.8 of the Regulations whenever the Division is deciding to issue a Permit pursuant to the Regulations, the Division shall take into consideration any relevant information relating to the following:
5.3.1.1 Any comments received by the Division;

5.3.1.2 The effect of the proposed construction on shoreline recession, beach erosion, flooding, and potential damage to the parcel of real property that is the subject of the permit application, and potential damage to any other parcel of real property, public lands, or personal property;

5.3.1.3 The feasibility of alternative protection from storm damage that may be available;

5.3.1.4 The historical average rate of shoreline change for the general area nearby and including the parcel of real property that is the subject of the permit application;

5.3.1.5 The design modifications which may mitigate the impact of the proposed construction on the part of the beach that is located seaward of the Building Line (see subsection 5.3 .2 below for further information); and

5.3.1.6 Any other factors or information that the Division determines to be relevant to the subject matter of the permit and carrying out the purposes and intent of the Regulations and the Act.

5.3.2 In determining if the Division shall require that the dimensions or location of a proposed structure, or portion thereof, or other design aspects are to be modified or redesigned pursuant to the provisions of subsection 3.1.1.2 of the Regulations, the Division, in addition to what is required in subsections 2.8 and 5.3.1, shall balance the actual and potential hardships or benefits that may be experienced by the person owning the structure or portion thereof against the actual and potential hardships or benefits that the State, the public and adjacent landowners may experience. The Division while carrying out the balancing test may take into consideration the following factors:
5.3.2.1 The purposes and provisions of the Act and the Regulations;

5.3.2.2 The likelihood and amount of actual, or potential for, expenditures of federal and state revenues for maintaining, repairing or restoring the parcel of real property prior to construction, after construction and after any natural disaster (e.g. storm);

5.3.2.3 The protection of the State, the public and any adjacent landowners from actual and potential financial and property loss;

5.3.2.4 The actual and potential financial or personal losses to the owner of the structure or portion thereof;

5.3.2.5 The feasibility of any modification or redesign required by the Division, keep in mind any increased or decreased costs, in achieving the purpose and function of the structure or portion thereof as originally planned;

5.3.2.6 Any design alternatives or amendments to the original designs submitted to the Division by the owner of the proposed structure or portion thereof; and

5.3.2.7 Any other factor the Division determines to be relevant.

5.3.3 The Division or Department, and any agents thereof, may do any of the following acts while attempting to carry out the purposes and intent of the Regulations and the Act, or while processing an application for a permit or request for a letter of approval:
5.3.3.1 Make on-site inspections of any type of structure, or portion thereof, or any real property regulated by the provisions of the Regulations or the Act.

5.3.3.2 Communicate with any party to discuss any matter relating to the Regulations or the Act.

5.3.3.3 Undertake formal or informal investigations or activities as are necessary to carry out the propose and intent of the Regulations and the Act.

5.3.4 In addition to the provisions of subsection 4.7 of this Regulation, the Division may establish special permit conditions, and require modification of any proposed structure or activity in order to (1) prevent increased erosion damage to the parcel of real property in issue, nearby parcels or real property, or public lands, and (2) reduce public expenditures for beach protection.

5.4 Decision

5.4.1 The Division shall make a decision on the application which it determines will best implement the purposes of the Act and these Regulations. The Division shall give written notice with reasons to the applicant, to adjacent property owners as listed in the permit application and to other persons who have requested that they be notified of the decision on that application.

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