7 Del. Admin. Code § 7403-4.0

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

Section 7403-4.0 - Buffer Zone Established

This section requires riparian buffers in order to protect and improve water quality.

4.1 Applicability.

4.1.1 A buffer is only required for new major subdivisions and new activities requiring a site or major subdivision plan approval by Sussex County or other local government. For redevelopment projects, new improvements within the respective buffer shall be permitted at the existing set back or greater in accordance with applicable county or local ordinances.

4.1.2 This buffer provision does not apply to major subdivisions, site plans, or individual lots used for detached single family homes recorded prior to effective date of this regulation.

4.1.3 This buffer provision does not apply to any land or buildings deemed to be in agriculture use as prescribed in 9 Del.C.6902(b).

4.1.4 On-lot improvements requiring a site plan impacting less than 5000 square feet are excluded.

4.1.5 Excluded from the buffer provisions of this Regulation are permitted water-dependent facilities (maritime, recreational, educational or fisheries activities that cannot exist outside of the buffer by reason of the intrinsic nature of their operation) and the permitted installation, operation, repair or maintenance of any sanitary sewer system, stormwater facility, culvert, bridge, public utility, street, drainage facility, pond, recreational amenity, pier, bulkhead, boat ramp, waterway improvement project or erosion-stabilization project that has received the joint approval of the appropriate federal, state and local agencies.

4.1.6 Isolated, stormwater and farm ponds are excluded from the buffer provisions.

4.2 For purposes of this Section, buffers are hereby established for primary and secondary water features.

4.2.1 Buffers of 100 feet are hereby established landward from State-regulated wetlands, or landward from the mean high water line of all tidal waters, whichever extends farther upland, and landward from the ordinary high water mark of all other primary water features.

4.2.2 Buffers of 60 feet are hereby established landward from the ordinary high water mark of all secondary water features.

4.3 Buffer widths may be reduced to the widths specified below when combined with the provisions outlined in Section 5 and contingent upon the creation of a development-wide nutrient management plan created by a certified nutrient consultant and implemented by a certified nutrient handler in accordance with the Regulations Governing the Nutrient Management Program.

4.3.1 Buffers of 50 feet are hereby established landward from State-regulated wetlands, or the mean high water line of all tidal waters, whichever extends farther upland, and from the ordinary high water mark of all other primary water features.

4.3.2 Buffers of 30 feet are hereby established landward from the ordinary high water mark of all secondary water features.

4.4 When Section 4.3 applies, the applicant shall ensure that deed restrictions and the homeowner's association bylaws include the following statement: "This development is subject to a nutrient management plan, which shall be implemented by a certified nutrient handler. The nutrient management plan is designed to reduce pollutants entering the Inland Bays. The nutrient management plan must be maintained and implemented in accordance with the Inland Bays Pollution Control Strategy and Regulations of the Pollution Control Strategy for the Indian River, Indian River Bay, Rehoboth Bay and Little Assawoman Bay Watersheds, Delaware." In addition, the following requirements must also be met:

4.4.1 The homeowner's association must retain the nutrient management plan on file and maintain records of nutrient applications. A summary of nutrient application records must be submitted to the Delaware Department of Agriculture, Nutrient Management Program on an annual basis.

4.4.2 The homeowner's association must sign and accept any and all responsibility for implementation of these requirements.

4.5 In order to protect buffers and thus water quality, no landowner or their representative shall extend lot lines into buffers.

4.6 Determination of the areas of State jurisdiction, including the limit of State-regulated wetlands as mapped or otherwise field adjusted, the mean high water line of tidal waters and the ordinary high water line of non-tidal waters and the upland edge of buffers will be made by the Department.

4.7 No person shall submit final site plans or final major subdivision plats without including buffers as defined and described in these regulations that are clearly demarcated, designated, and recorded on such plans or plats.

4.8 Property owner(s) shall maintain the buffer in perpetuity in accordance with these regulations. Property owners shall install boundary signs or markers or distinctive vegetation identifying the upland edge of the buffer.

4.9 Buffer property owners or managers shall manage buffers to maintain their water quality benefits.

4.10 Allowable uses within the buffer are:

4.10.1 Flood control structures, where permitted,

4.10.2 Utility rights of way/structures, where permitted,

4.10.3 Stormwater best management practices may be placed within the buffer, but no closer than 25 feet to the feature being buffered, provided that the buffer is in open space,

4.10.4 Unpaved, pervious single-track trails or footpaths no wider than 5 feet, or pervious or impervious footpaths that encompass 5% or less of the buffer area, (in instances where the trail area is greater than 5% of the buffer area, the buffer will require 1/1 mitigation on a per square foot basis), and

4.10.5 Road crossings, where permitted,

4.11 In instances where a buffer is required adjacent to a tax ditch, the right-of-way may be included as part of the buffer. Access to the ditch for maintenance purposes shall be preserved.

7 Del. Admin. Code § 7403-4.0