7 Del. Admin. Code § 5101-3.0

Current through Reigster Vol. 28, No. 6, December 1, 2024

Section 5101-3.0 - Plan Approval Procedures and Requirements

3.1 All projects requiring approval of a detailed Sediment and Stormwater Management Plan are subject to a three-step approval process. Step 1 of the plan approval process is scheduling and conducting the Project Application Meeting. Step 2 of the plan approval process is submission of the Preliminary Sediment and Stormwater Management Plan. Step 3 of the plan approval process is submission of the Sediment and Stormwater Management Plan.

3.1.1 Authorization from the Department or Delegated Agency is required to proceed from the current step to the subsequent step in the plan approval process.

3.1.2 If significant changes, as determined by the Department or Delegated Agency, are proposed on the subsequent submittal from the submittal that received authorization to proceed, the Owner may be required to repeat the previous step in the plan approval process.

3.1.3 Step 2 and Step 3 of the three-step approval process may be combined as determined by the Department or Delegated Agency on a case-by-case basis. This determination may be made at the Project Application Meeting.

3.2 Project Application Meeting

3.2.1 All Owners are required to hold a Project Application Meeting with the Department or Delegated Agency, unless the requirement for a project application meeting is waived in writing by the Department or Delegated Agency as determined on a case-by-case basis.

3.2.2 Before scheduling the Project Application Meeting, the Owner shall submit a Stormwater Assessment Study (SAS) to the Department or Delegated Agency.

3.2.3 At the Project Application Meeting the Stormwater Assessment Study will be reviewed as well as potential approaches for stormwater management and opportunities to reduce runoff rates, volumes, and pollutant loads.

3.2.4 Project Application Meeting discussion and agreement items will be documented in meeting minutes prepared by the Owner or the Owner's Representative and distributed to all in attendance.

3.3 Preliminary Sediment and Stormwater Management Plan

3.3.1 The Preliminary Sediment and Stormwater Management Plan submittal shall include preliminary plans for the site, as well as the schematic erosion and sediment control plan, with supporting hydrologic and hydraulic calculations necessary for the Department or Delegated Agency to determine compliance with these regulations.

3.3.2 If significant changes are proposed on the Preliminary Sediment and Stormwater Management Plan from the plan that was discussed at the Project Application Meeting, such as a change in land use, the Owner may be required to repeat the Project Application Meeting step of the process.

3.4 Sediment and Stormwater Management Plan

3.4.1 The Sediment and Stormwater Management Plan submittal shall consist of the following elements: Construction Site Stormwater Management Plan including pollution prevention elements, Post Construction Stormwater Management Plan, final hydrologic and hydraulic computations, Operation and Maintenance Plan, and a copy of the preliminary Record Plan as required by the local land use approval agency. The plan shall also include the following notes:

3.4.1.1 The Department or Delegated Agency shall be notified in writing five days prior to commencing with construction. Failure to do so constitutes a violation of the approved Sediment and Stormwater Management Plan.

3.4.1.2 Review and or approval of the Sediment and Stormwater Management Plan shall not relieve the contractor from his or her responsibilities for compliance with the requirements of the Delaware Sediment and Stormwater Regulations, nor shall it relieve the contractor from errors or omissions in the approved plan.

3.4.1.3 Following soil disturbance or re-disturbance, permanent or temporary stabilization shall be completed for all perimeter sediment controls, soil stockpiles, and all other disturbed or graded areas on the project site within 14 calendar days unless more restrictive Federal requirements apply.

3.4.1.4 All erosion and sediment control practices shall comply with the Delaware Erosion and Sediment Control Handbook, latest edition.

3.4.1.5 At any time a dewatering operation is used, it shall be previously approved by the Agency Construction Site Reviewer for a non-erosive point of discharge, and a dewatering permit should be approved by the Department's Well Permits Branch.

3.4.1.6 Post construction verification documents shall be submitted to the Department or Delegated Agency within 60-days of stormwater management facility completion.

3.4.1.7 The Notice of Intent for Storm Water Discharges Associated with Construction Activity under a NPDES General Permit for this project is # (to be filled in once received). The permittee of record shall not be relieved of their responsibilities until a Notice of Termination has been processed by the Department.

3.4.1.8 The owner shall be familiar with and comply with all aspects of the NPDES Construction General Permit.

3.4.1.9 The contractor shall at all times protect against sediment or debris laden runoff or wind from leaving the site. Perimeter controls shall be checked daily and adjusted or repaired to fully contain and control sediment from leaving the site. Accumulated sediment shall be removed when it has reached half of the effective capacity of the control. In addition, the contractor may need to adjust or alter measures in times of adverse weather conditions, or as directed by the Agency Construction Site Reviewer.

3.4.2 If significant changes are proposed on the Sediment and Stormwater Management Plan from the Preliminary Sediment and Stormwater Management Plan, such as a change in the size or location of proposed BMPs, the Owner may be required to repeat the Preliminary Sediment and Stormwater Plan step of the process.

3.4.3 Failure by the Owner to demonstrate that the Sediment and Stormwater Management Plan meets the requirements of these regulations, as determined by the Department or Delegated Agency, shall be reason to deny approval of the Sediment and Stormwater Management Plan.

3.5 Review Procedures for Plan Submittals

3.5.1 The Department or Delegated Agency shall have 30 calendar days from receipt of either the Preliminary Sediment and Stormwater Management Plan or final Sediment and Stormwater Management Plan to complete the review and have either the approval or review comments transmitted to the Owner, unless the 30-calendar day period cannot be met, in which case the Department or Delegated Agency shall notify the Owner in writing of the reasons for delay, and an expected time period not to exceed an additional 30 calendar days, for when that review will be completed.

3.5.2 The Department or Delegated Agency shall have the right to reject an incomplete application at any time during the 30-calendar day review period. If an application is rejected for incompleteness, the Owner will be informed in writing of the information necessary to complete the application.

3.5.3 In cases where modifications are required to approve the plan, the Department or Delegated Agency shall have an additional 30 calendar days to review the revised plan from the initial and any subsequent resubmission dates.

3.5.4 The sediment and stormwater management plan shall not be considered approved without the inclusion of an original approval stamp on the plans with signature and date by the plan approval agency. If the plan is approved, a minimum of one (1) copy bearing the signed approval stamp shall be returned to the Owner or Owner's agent. If the plan is not approved, the Owner shall be notified in writing of the reasons.

3.5.5 No changes shall be made to an approved plan without review and written approval by the Department or Delegated Agency. The Department or Delegated Agency may request additional data with a plan amendment as may be necessary for a complete review of the plan and to ensure that changes to the plan will comply with the requirements of these regulations.

3.6 Expiration of Plan Approval

3.6.1 Approved plans remain valid for five years from the date of an approval, unless specifically extended by the Department or Delegated Agency. The basis for extension may include, but is not limited to, the following items:

3.6.1.1 Failure to initiate the approved project for reasons acceptable to the Department or Delegated Agency such as funding or other agency permit delays; or

3.6.1.2 Time duration for a type of activity that typically exceeds five years.

3.6.2 The Department or Delegated Agency may extend plan approval following a written request for extension providing justification for the extension request. Plan approval extension may be granted no more than 90 days before plan expiration, and will be granted for a maximum extension of an additional five years. In no case shall the plan extension supersede the sunset provisions of the county or local government.

3.6.3 Plan extension requests for projects that have not commenced construction shall be granted for a maximum of one additional five-year period.

3.6.4 Plan extension requests for projects that have commenced and have been actively under construction within the latest approval or extension period will not be limited in the number of extensions that may be approved.

3.7 Standard Plans

3.7.1 In the event that a project meets the Standard Plan Applicability Criteria for the project type, that project has the option to comply with Standard Plan Conditions for the project type in lieu of developing a detailed Sediment and Stormwater Management Plan for the project. Project types for which Standard Plan Applicability Criteria has been developed include:

3.7.1.1 residential construction less than 1.0 acre disturbed;

3.7.1.2 residential construction greater than or equal to 1.0 acre disturbed;

3.7.1.3 non-residential construction less than 1.0 acre disturbed;

3.7.1.4 tax ditch maintenance;

3.7.1.5 minor linear utility disturbances;

3.7.1.6 stormwater facility maintenance;

3.7.1.7 agricultural structure construction;

3.7.1.8 poultry house construction;

3.7.1.9 demolition;

3.7.1.10 BMP construction or retrofit;

3.7.1.11 minor bridge and culvert construction; and

3.7.1.12 sidewalk, trail or other linear impervious surfaces.

3.7.2 All standard plans shall contain standard conditions for construction site stormwater management and may contain standard conditions for post construction stormwater management.

3.7.3 The inclusion of an activity into the standard plan classification does not exclude that activity from the requirements of 7 Del.C. Ch. 40. Rather, the standard plan precludes that activity from the necessity of a detailed plan review for a qualifying project.

3.7.4 Failure to implement control practices pursuant to conditions included in the standard plan may necessitate appropriate enforcement action as provided in 7 Del.C. Ch. 40 and these regulations.

3.7.5 A detailed plan may be required for a site that would otherwise meet standard plan criteria but does not meet the intent of the regulations as determined by the Department or Delegated Agency on a case-by-case basis. The Department or Delegated Agency may require a detailed plan prior to approval or at any time during construction.

3.7.6 Parcels that have previously received approval under a Standard Plan may not be eligible for a Standard Plan in the future, as determined by the approval agency on a case-by-case basis.

3.7.7 A project that does not meet all Standard Plan Applicability Criteria but does meet the intent of the regulations may be considered for approval under the Standard Plan as determined by the Department or Delegated Agency on a case-by-case basis.

3.7.8 Approval of a standard plan does not relieve the applicant from complying with any and all federal, state, county, or municipal laws and regulations.

3.7.9 Construction projects exceeding 1.0 acre of total disturbance require submittal of a Notice of Intent (NOI) for Stormwater Discharges Associated with Construction Activity. A plan fulfilling Stormwater Pollution Prevention Plan (SWPPP) requirements must be developed to obtain general permit coverage for Stormwater Discharges Associated with Construction Activity.

3.7.10 Construction site stormwater management best management practices shall be used throughout construction.

3.7.11 Residential construction less than 1.0 acre disturbed

3.7.11.1 For the purposes of standard plan criteria for residential construction less than 1.0 acre disturbed, residential construction means residential and auxiliary structures such as detached garages, sheds, pole barns, and other structures that create additional imperviousness.

3.7.11.2 Applicability criteria:

3.7.11.2.1 The total land disturbance will not exceed 1.0 acre on any individual lot within the proposed project.

3.7.11.2.2 The proposed construction is for residential development that does not create common lands, common open space, or a public street.

3.7.11.3 Conditions. Standard Detail and Specification DE-ESC-3.7.1 ESC For Minor Development will be followed during construction.

3.7.12 Residential construction greater than or equal to 1.0 acre disturbed

3.7.12.1 For the purposes of standard plan criteria for residential construction greater than or equal to 1.0 acre disturbed, residential construction means single family residence and auxiliary structures such as detached garages, sheds, pole barns, accessory dwelling units, and other structures that create additional imperviousness.

3.7.12.2 Applicability criteria:

3.7.12.2.1 The proposed construction is for residential construction that does not create common lands, common open space, or a public street.

3.7.12.2.2 The total land disturbance will not exceed 5.0 acres on any individual lot within the proposed project.

3.7.12.2.3 One of the following will be met on any individual lot:

3.7.12.2.3.1 Clearing of forest areas will not exceed 1.0 acre, or

3.7.12.2.3.2 Equivalent forest area will be retained on the parcel for the portion of the forest clearing that exceeds 1.0 acre.

3.7.12.3 Conditions:

3.7.12.3.1 Standard nutrient management plan recommendations will be followed for the project, during construction and throughout the life of the project.

3.7.12.3.1.1 Application of lawn nutrients will be based upon the recommendations of a soil test.

3.7.12.3.1.2 Nutrients will be applied only to turf areas, not impervious surfaces.

3.7.12.3.1.3 Nutrients will not be applied directly before a runoff event.

3.7.12.3.2 Discharges from rooftops will be disconnected to the maximum extent practicable using a method approved by the Department or Delegated Agency. For example:

3.7.12.3.2.1 Individual downspouts that discharge to lawn, landscape area, or preserved open space or forested area.

3.7.12.3.2.2 Discharges from downspouts can be collected in rain barrels or cisterns for reuse.

3.7.12.3.3 Driveways, sidewalks, patios, and other impervious surfaces will be graded to sheet flow to lawn or other pervious areas to the maximum extent practicable.

3.7.12.3.4 Standard Detail and Specification DE-ESC-3.7.1 ESC For Minor Development will be followed during construction.

3.7.13 Non-residential construction less than 1.0 acre disturbed

3.7.13.1 Applicability criteria:

3.7.13.1.1 The disturbed area for construction of the improvements will not exceed 1.0 acre.

3.7.13.1.2 Within the disturbed area, the pre-development land use is not classified as forest.

3.7.13.1.3 For project site locations within an area previously managed for stormwater quantity and quality under an approved Sediment and Stormwater Plan, the post construction condition meets the original stormwater design criteria.

3.7.13.1.4 For project site locations within an area previously unmanaged for stormwater quantity and quality under an approved Sediment and Stormwater Plan, one of the following is met:

3.7.13.1.4.1 Comparison of the existing parcel curved number (CN) based upon the Department's 2017 aerial photography to the proposed CN for the parcel after non-residential construction results in less than one whole number change in the CN, or

3.7.13.1.4.2 No new impervious area is proposed as a result of construction.

3.7.13.2 Conditions:

3.7.13.2.1 Discharges from rooftops will be disconnected to the maximum extent practicable using one of the following methods or another method approved by the Department or Delegated Agency:

3.7.13.2.1.1 Individual downspouts will discharge to lawn or landscape area.

3.7.13.2.1.2 Discharges from downspouts will be collected to discharge to a rain garden.

3.7.13.2.1.3 Discharges from downspouts will be collected in rain barrels or cisterns for reuse.

3.7.13.2.2 Driveways, sidewalks, patios, and other impervious surfaces will be graded to sheet flow to lawn or other pervious areas to the maximum extent practicable.

3.7.13.2.3 Unless waived in writing by the Department or Delegated Agency a construction site stormwater management plan in accordance with Department or Delegated Agency guidance for this Standard Plan shall be followed.

3.7.14 Tax Ditch Maintenance

3.7.14.1 Applicability criteria. Land disturbance is for maintenance of a recorded tax ditch having a design on file with the Department.

3.7.14.2 Conditions:

3.7.14.2.1 Construction will follow "Principles and Guidelines for Planning, Constructing, and Maintaining Drainage Ditches in the State of Delaware", June 1995.

3.7.14.2.2 Following maintenance the tax ditch elevations will be returned to design elevations.

3.7.15 Minor Linear Utility Disturbance

3.7.15.1 Applicability criteria.

3.7.15.1.1 Disturbance will be for linear utility construction, having a maximum width of disturbance of 40 feet.

3.7.15.1.2 One of the following is met:

3.7.15.1.2.1 Total disturbance is 1.0 acre or less; or

3.7.15.1.2.2 Total disturbance is 5.0 acres or less, and

3.7.15.1.2.2.1 No greater than 1.0 acre will be disturbed at any time throughout the course of construction, and

3.7.15.1.2.2.2 Land cover will be restored to the pre-construction hydrologic condition. In the case of forest clearing, land cover will be restored to an equivalent meadow condition.

3.7.15.2 Conditions:

3.7.15.2.1 Stabilization with seed and mulch or seed and stabilization matting will occur daily so that no greater than one acre will be disturbed at any one time.

3.7.15.2.2 Construction through sensitive areas, including stream and wetland crossings, will be accomplished through directional drilling, with land disturbance happening outside of the sensitive area.

3.7.16 Stormwater Facility Maintenance

3.7.16.1 Applicability criteria. Land disturbance is for maintenance of a stormwater management facility having a design on file with the Department or Delegated Agency.

3.7.16.2 Conditions:

3.7.16.2.1 Construction will follow an Operation and Maintenance Plan in place for the stormwater management facility if one exists.

3.7.16.2.2 Following maintenance the stormwater management facility elevations will be returned to design elevations.

3.7.17 Agricultural Structure Construction

3.7.17.1 Applicability criteria.

3.7.17.1.1 Construction is for an agricultural structure as defined in Section 2.0 of these regulations.

3.7.17.1.2 The total land disturbance will not exceed 5.0 acres.

3.7.17.1.3 The pre-construction land use at the location of the agricultural structure is historically agricultural use (farmstead, crop field, pasture). Within the disturbed area, the pre- development land use is not classified as forest. If any portion of the pre-construction land use is forest, a detailed plan is required.

3.7.17.1.4 The proposed impervious area as a result of construction of an agricultural structure is less than 10% of the watershed area to the point of discharge from the parcel.

3.7.17.2 Conditions:

3.7.17.2.1 Nutrient management plan recommendations will be followed for the project, during construction and throughout the life of the project.

3.7.17.2.2 Discharges from rooftops will be disconnected from impervious surfaces to the maximum extent practicable. Downspouts, if applicable, will discharge to a stabilized area, such as grass or gravel.

3.7.17.2.3 Impervious surfaces, including compacted gravel roadways, will be graded to sheet flow to pervious areas to the maximum extent practicable.

3.7.18 Poultry House Construction

3.7.18.1 Applicability criteria.

3.7.18.1.1 Construction is for one or more poultry houses and associated structures including generator and pump structures, composter structures and manure storage structures. Other agricultural structures shall comply with subsection 3.7 .17.

3.7.18.1.2 Poultry house layout, including the general dimensions of structures, roadways and loading areas, as well as spacing between structures will adhere to Department or Delegated Agency guidance for this Standard Plan.

3.7.18.2 Conditions.

3.7.18.2.1 Nutrient management plan recommendations will be followed for the project, during construction and throughout the life of the project.

3.7.18.2.2 To the maximum extent practicable, runoff from impervious surfaces including roof, roadways, and loading areas will be conveyed to an ephemeral wetland forebay. Ephemeral wetland forebay volume calculations based on Department or Delegated Agency guidance for this Standard Plan will be submitted.

3.7.18.2.3 A detention basin will be provided to manage the runoff from the Conveyance (Cv) and Flooding (Fv) events. For poultry houses constructed where there is no forest clearing, the volume of the detention basin may be included in the ephemeral wetland forebay to make one detention structure. Detention basin volume calculations based on Department or Delegated Agency guidance for this Standard Plan will be submitted.

3.7.18.2.4 Vegetated stabilization will be completed in accordance with Department or Delegated Agency guidance for this Standard Plan.

3.7.19 Demolition

3.7.19.1 Applicability criteria.

3.7.19.1.1 Land disturbance is for demolition and removal of a structure, building foundation, building slab, roadway, driveway, parking lot, sidewalk, or other amenity resulting in exposed soil, including access and staging for demolition activities.

3.7.19.1.2 Total disturbance is 5.0 acres or less, and no greater than 1.0 acre will be disturbed at any time throughout the course of construction.

3.7.19.1.3 Disturbed land will be restored to a stabilized surface. No additional impervious surfaces shall be created as part of the demolition project.

3.7.19.2 Conditions. Stabilization with seed and mulch or seed and stabilization matting will occur within 14 days of completion of demolition.

3.7.20 BMP Construction and Retrofit

3.7.20.1 Applicability criteria:

3.7.20.1.1 The construction will provide either:

3.7.20.1.1.1 RPv, Cv or Fv reduction by implementing Post Construction Stormwater BMP, retrofitting a degraded BMP, or creating a floodplain;

3.7.20.1.1.2 Stabilization of an eroding area.

3.7.20.1.2 The total land disturbance will not exceed 5.0 acres.

3.7.20.1.3 Within the disturbed area, the pre-development land use is not classified as forest.

3.7.20.1.4 The total impervious area proposed (roof, driveway, sidewalks, auxiliary structures, etc.) will not exceed the lesser of 7,500 square feet or 15% of the disturbed area.

3.7.20.2 Conditions:

3.7.20.2.1 The area must be returned grassed or vegetated condition (excluding permeable pavement installation and the allowable impervious areas), after construction and throughout the life of the project.

3.7.20.2.2 Discharges from added impervious areas will be disconnected to the maximum extent practicable using one of the following methods or another method approved by the Department or Delegated Agency:

3.7.20.2.2.1 Impervious areas will discharge to grassed or vegetated area.

3.7.20.2.2.2 Discharges from impervious area will be collected to discharge to a rain garden.

3.7.20.2.2.3 Discharges from impervious areas will be collected in rain barrels or cisterns for reuse.

3.7.21 Minor Bridge and Culvert Construction

3.7.21.1 Applicability criteria:

3.7.21.1.1 The disturbed area for construction of the improvements will not exceed 1.0 acre.

3.7.21.1.2 The net increase in impervious area will not exceed 5,000 square feet.

3.7.21.1.3 Land cover will be restored to the pre-construction hydrologic condition or better.

3.7.21.2 Conditions:

3.7.21.2.1 Impervious surfaces will be graded to sheet flow to pervious areas to the maximum extent practicable.

3.7.21.2.2 All non-impervious disturbed area will be vegetated to original or better condition.

3.7.22 Sidewalk, Trail, or Other Linear Impervious Surfaces

3.7.22.1 Applicability criteria:

3.7.22.1.1 Disturbance will be for construction of a sidewalk, trail or other linear impervious surface with total disturbance not to exceed 5.0 acres.

3.7.22.1.2 No greater than 1.0 acre disturbed at any one time throughout the course of construction.

3.7.22.1.3 Within the disturbed area, the pre-development land use is not classified as forest.

3.7.22.1.4 For project site locations within an area previously managed for stormwater quantity and quality under an approved Sediment and Stormwater Plan, the post construction condition meets the original stormwater design criteria.

3.7.22.1.5 For project site locations within an area previously unmanaged for stormwater quantity and quality under an approved Sediment and Stormwater Plan, one of the following is met:

3.7.22.1.5.1 Comparison of the existing parcel curved number (CN) based upon the Department's 2017 aerial photography to the proposed CN for the parcel after non-residential construction results in less than one whole number change in the CN, or

3.7.22.1.5.2 No new impervious area is proposed as a result of construction.

3.7.22.2 Conditions:

3.7.22.2.1 Impervious surfaces will be graded to sheet flow to lawn or other pervious areas to the maximum extent practicable.

3.7.22.2.2 Stabilization of exposed soil areas with seed and mulch or seed and stabilization matting will occur daily so that no greater than one acre will be disturbed at any one time.

3.8 Plan Certifications

3.8.1 All detailed plans submitted for review shall be prepared, signed, dated, and sealed by a Licensed Professional in the State of Delaware. It is the obligation of the Licensed Professional in the State of Delaware to ensure that the design of construction site stormwater management best management practices (BMPs) and post construction stormwater management systems meet the requirements in these regulations.

3.8.2 All Sediment and Stormwater Management Plans submitted for approval shall contain certification by the Owner stating that clearing, grading, construction, and development will be accomplished pursuant to the plan.

3.8.3 All Sediment and Stormwater Management Plans for projects having a land disturbance greater than or equal to one acre shall contain a certification by the Owner stating that responsible personnel involved in the land disturbance will have attended and successfully completed the Departmental-sponsored Contractor Training Program before initiation of the project.

3.8.4 All Sediment and Stormwater Management Plans shall contain certification by the Owner granting the right of either the Department or Delegated Agency or both to conduct on-site reviews.

3.9 Before project completion the Owner shall submit a final post construction stormwater management Operation and Maintenance Plan for the entire stormwater management system. Operation and Maintenance Plans remain valid for the life of the stormwater management system.

3.10 Post construction verification documents shall be submitted to the Department or Delegated Agency within 60 calendar days of completion for stormwater management systems. The post construction verification documents shall compare the designed and constructed elements of the stormwater management system, and bear the seal of a Licensed Professional in the State of Delaware. A final construction review and approval by the Department or Delegated Agency is required before a financial guarantee shall be released, and before a Notice of Completion may be issued.

7 Del. Admin. Code § 5101-3.0

18 DE Reg. 396 (11/1/2014)
22 DE Reg. 680 (2/1/2019) (Final)