City of Lewes, DE Environmental Protection Regulations

Identify environmentally sensitive areas in the City.

Impose additional land development standards and practices in these environmentally sensitive areas.

Applicability: in all zoning districts of the City.

§ 197-73 Floodplains.

[Amended 10-21-2013; 12-16-2014[1]]

General provisions.

Findings.

The Federal Emergency Management Agency (FEMA) has identified special flood hazard areas within the boundaries of the City of Lewes. Special flood hazard areas are subject to periodic inundation which may result in loss of life and property, health and safety hazards, disruption of commerce and governmental services, extraordinary public expenditures for flood protection and relief, and impairment of the tax base, all of which adversely affect the public health, safety and general welfare. Development that is inadequately elevated, improperly floodproofed, or otherwise unprotected from flood damage also contributes to the flood loss.

The City of Lewes, by resolution, agreed to meet the requirements of the National Flood Insurance Program and was accepted for participation in the program on March 15, 1977. Subsequent to that date or the initial effective date of the City of Lewes Flood Insurance Rate Map, all development, new construction, and substantial improvement, as defined herein, are to be compliant with the floodplain management regulations in effect at the time of construction, and all development, new construction, and substantial improvements subsequent to the effective date of these regulations shall be compliant with these regulations and the flood load and flood-resistant construction provisions of the Building Code, including specific amendments adopted by the City of Lewes.

Statement of purpose. It is the purpose of these regulations to promote the public health, safety and general welfare, and to:

Protect human life, health and welfare;

Encourage the utilization of appropriate construction practices in order to prevent or minimize flood damage in the future;

Minimize flooding of water supply and sanitary sewage disposal systems;

Maintain natural drainage;

Reduce financial burdens imposed on the community, its governmental units and its residents, by discouraging unwise design and construction of development in areas subject to flooding;

Minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public;

Minimize prolonged business interruptions;

(h)

Minimize damage to public facilities and other utilities such as water and gas mains, electric, telephone and sewer lines, streets, and bridges;

(i)

Reinforce that those who build in and occupy special flood hazard areas should assume responsibility for their actions;

(j)

Minimize the impact of development on adjacent properties within and near flood-prone areas;

(k)

Provide that the flood storage and conveyance functions of the floodplain are maintained;

(l)

Minimize the impact of development on the natural and beneficial functions of the floodplain;

(m)

Prevent floodplain uses that are either hazardous or environmentally incompatible; and

(n)

Meet community participation requirements of the National Flood Insurance Program as set forth in the Code of Federal Regulations at 44 CFR 59.22.

Areas to which these regulations apply. These regulations shall apply to all special flood hazard areas within the jurisdiction of the City of Lewes, as established herein.

Basis for establishing special flood hazard areas.

For the purposes of these regulations, and for the purpose of establishing flood hazard areas in the Building Code [Section 1612.3 and Table R301.2(1)], the following are adopted by reference as a part of these regulations and serve as the basis for establishing special flood hazard areas:

The FEMA Flood Insurance Study for Sussex County, Delaware and Incorporated Areas, dated March 16, 2015, and all subsequent amendments and/or the most recent revision thereof.

The FEMA Flood Insurance Rate Map for Sussex County, Delaware and Incorporated Areas, dated March 16, 2015, and all subsequent amendments and/or the most recent revision thereof.

Other hydrologic and hydraulic engineering studies and/or maps prepared pursuant to these regulations or for other purposes, and which establish base flood elevations, delineate one-hundred-year floodplains, floodways or other areas of special flood hazard.

The City of Lewes may identify and regulate new local flood hazard or ponding areas. These areas should be delineated and adopted on a "Local Flood Hazard Map," using best available topographic data and locally derived information such as flood of record, historic high-water marks or approximate study methodologies.

Where field-surveyed topography indicates that ground elevations are below the closest applicable base flood elevation, even in areas not delineated as a special flood hazard area on a flood hazard map, the area shall be considered as a special flood hazard area.

Maps and studies that establish special flood hazard areas are on file at City Hall.

Abrogation and greater restrictions. These regulations are not intended to repeal or abrogate any existing ordinances, including subdivision regulations, zoning ordinances or building codes. In the event of a conflict between these regulations and any other ordinance, the more restrictive shall govern. These regulations shall not impair any deed restriction, covenant or easement, but the land subject to such interests shall also be governed by these regulations.

Interpretation. In the interpretation and application of these regulations, all provisions shall be:

Considered as minimum requirements;

Liberally construed in favor of the governing body;

Deemed neither to limit nor repeal any other powers granted under state statutes; and

Where a provision of these regulations may be in conflict with a state or federal law, such state or federal law shall take precedence, where more restrictive.

Warning and disclaimer of liability. The degree of flood protection required by these regulations is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods can and will occur on rare occasions. Flood heights may be increased by man-made or natural causes. These regulations do not imply that land outside of the special flood hazard areas or uses that are permitted within such areas will be free from flooding or flood damage. These regulations shall not create liability on the part of the City of Lewes, any officer or employee thereof, or the Federal Emergency Management Agency for any flood damage that results from reliance on these regulations or any administrative decision lawfully made thereunder.

FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA)

Severability. Should any section or provision of these regulations be declared by the courts to be unconstitutional or invalid, such decision shall not affect the validity of the regulations as a whole, or any part thereof other than the part so declared to be unconstitutional or invalid.

Definitions. Unless specifically defined below, words or phrases used in these regulations shall be interpreted so as to give them the meaning they have in common usage and to give these regulations the most reasonable application. Where terms are not defined in these regulations and are defined in the Building Code,[2] such terms shall have the meanings ascribed to them in that code.

ACCESSORY STRUCTURE

For the purposes of these regulations, a structure on the same lot with, and of a nature customarily incidental and subordinate to, the principal structure.

AREA OF SHALLOW FLOODING

A designated Zone AO on a community's Flood Insurance Rate Map with a one-percent annual chance or greater of flooding to an average depth of one to three feet where a clearly defined channel does not exist, where the path of flooding is unpredictable, and where velocity flow may be evident. Such flooding is characterized by ponding or sheet flow.

BASE FLOOD

The flood having a one-percent chance of being equaled or exceeded in any given year; the base flood also is referred to as the "one-hundred-year flood" (or the "one-percent-annual-chance flood").

BASE FLOOD DISCHARGE

The volume of water resulting from a base flood as it passes a given location within a given time, usually expressed in cubic feet per second (cfs).

BASE FLOOD ELEVATION

The elevation of the base flood, including wave height, relative to the National Geodetic Vertical Datum (NGVD), North American Vertical Datum (NAVD) or other datum specified on the community's Flood Insurance Rate Map.

BASEMENT

Any area of the building having its floor subgrade (below ground level) on all sides.

BREAKAWAY WALL

A wall that is designed and certified by a registered design professional that is not part of the structural support of the building and is intended, through its design and construction, to collapse under specific lateral loading forces, without causing damage to the elevated portion of the building or supporting foundation system.

BUILDING CODE

The family of Building Codes specifically adopted by the City of Lewes in Chapter 70, Building Code. The code that applies to one- and two-family dwellings is referred to as the "Residential Code."[3]

COASTAL HIGH HAZARD AREA

Area within the flood hazard area that is subject to high-velocity wave action, and shown on a Flood Insurance Rate Map (FIRM) or other flood hazard map as Zone V, VO, VE or V1-30.

CRITICAL FACILITY

Hospitals, nursing homes, police stations, fire stations, and emergency operation centers that are needed for flood response activities before, during, or after a flood; public and private utility facilities that are vital to maintaining or restoring normal services to flooded areas before, during, and after a flood; and structures or facilities that produce, use, or store highly volatile, flammable, explosive, toxic and/or water-reactive materials. The term includes facilities that are assigned Risk Category III and Risk Category IV, assigned pursuant to the Building Code, or Flood Design Class 3 and Flood Design Class 4 assigned pursuant to ASCE 24, if applicable.

DEVELOPMENT

Any man-made change to improved or unimproved real estate, including but not limited to buildings or other structures, placement of manufactured homes, mining, dredging, filling, grading, paving, excavation or drilling operations or storage of equipment or materials.

DRY FLOODPROOFING

A combination of measures which results in a structure, including attendant utilities and equipment, being watertight with all elements substantially impermeable and with structural components having the capacity to resist flood loads.

ELEVATION CERTIFICATE

The National Flood Insurance Program, Elevation Certificate (FEMA Form 086-0-33), used to document building elevations and other information about buildings. When required to be certified, the form shall be completed by a licensed professional land surveyor.

The federal agency with the overall responsibility for administering the National Flood Insurance Program.

FEMA TECHNICAL BULLETIN

A series of guidance documents published by FEMA to provide guidance concerning building performance standards of the National Flood Insurance Program. See sections where specific TBs are identified.

FLOOD DAMAGE-RESISTANT MATERIALS

Any construction material capable of withstanding direct and prolonged contact with floodwaters without sustaining any damage that requires more than cosmetic repair. See FEMA Technical Bulletin No. 2, Flood Damage-Resistant Materials Requirements, and FEMA Technical Bulletin No. 8, Corrosion Protection for Metal Connectors in Coastal Areas.

FLOOD INSURANCE RATE MAP (FIRM)

An Official Map on which the Federal Emergency Management Agency (FEMA) has delineated both the special flood hazard areas and the risk premium zones applicable to the community.

ZONE ASpecial flood hazard areas inundated by the one-percent-annual-chance flood; base flood elevations are not determined.

ZONE AESpecial flood hazard areas subject to inundation by the one-percent-annual-chance flood; base flood elevations are determined; floodways may or may not be determined.

ZONE AOAreas of shallow flooding, with or without a designated average flood depth.

ZONE X (shaded)Areas subject to inundation by the five-hundred-year flood (0.2% annual chance); areas subject to the one-percent-annual-chance flood with average depths of less than one foot or with contributing drainage area less than one square mile; and areas protected by levees from the base flood.

ZONE X (unshaded)Areas determined to be outside the one-percent-annual-chance flood and outside the five-hundred-year floodplain.

ZONE VESpecial flood hazard areas subject to inundation by the one-percent-annual-chance flood and subject to high-velocity wave action (also referred to as "coastal high hazard areas").

LIMIT OF MODERATE WAVE ACTION (LiMWA)The inland limit of the area affected by waves greater than 1.5 feet during the base flood. Base flood conditions between the Zone VE and the LiMWA will be similar to, but less severe than, those in the Zone VE.

FLOOD INSURANCE STUDY

The official report provided by the Federal Emergency Management Agency (FEMA) containing the Flood Insurance Rate Map (FIRM), the Flood Boundary and Floodway Map (FBFM), the water surface elevations of the base flood and supporting technical data.

FLOOD or FLOODING

A general and temporary condition of partial or complete inundation of normally dry land areas from:

The overflow of inland or tidal waters; and/or

FLOODPROOFING CERTIFICATE

The unusual and rapid accumulation or runoff of surface waters from any source.

FLOODPLAIN

Any land area susceptible to being inundated by water from any source. (See "flood or flooding.")

The National Flood Insurance Program, Floodproofing Certificate for Nonresidential Structures (FEMA Form 86-0-34), used by registered professional engineers and architects to certify dry floodproofing designs.

FLOODWAY

The channel of a river or other watercourse and the adjacent land areas that must be reserved in order to pass the base flood discharge such that the cumulative increase in the water surface elevation of the base flood discharge is no more than a designated height.

FREEBOARD

A margin of safety added to the base flood elevation to account for waves, debris, miscalculations, or lack of data.

FUNCTIONALLY DEPENDENT USE

A use which cannot perform its intended purpose unless it is located or carried out in close proximity to water; the term includes only docking facilities, port facilities that are necessary for the loading and unloading of cargo or passengers, and ship building and ship repair facilities, but does not include long-term storage or related manufacturing facilities.

HIGHEST ADJACENT GRADE

The highest natural elevation of the ground surface prior to construction next to the proposed walls of a structure.

HISTORIC STRUCTURE

Any structure that is:

Individually listed in the National Register of Historic Places (a listing maintained by the United States Department of the Interior) or preliminarily determined by the Secretary of the Interior as meeting the requirements for individual listing on the National Register;

Certified or preliminarily determined by the Secretary of the Interior as contributing to the historical significance of a registered historic district or a district preliminarily determined by the Secretary to qualify as a registered historic district;

HYDROLOGIC AND HYDRAULIC ENGINEERING ANALYSIS

Individually listed on the City's local inventory of historic places; the City's historic preservation program is certified by the Secretary of the Interior.

An analysis performed by a professional engineer, licensed in the State of Delaware, in accordance with standard engineering practices as accepted by FEMA, used to determine the base flood, other frequency floods, flood elevations, floodway information and boundaries, and flood profiles.

LETTER OF MAP CHANGE

An official FEMA determination, by letter, to amend or revise an effective Flood Insurance Rate Map, Flood Boundary and Floodway Map, and Flood Insurance Study. "Letters of Map Change" include:

LETTER OF MAP AMENDMENT (LOMA)An amendment based on technical data showing that a property was inadvertently included in a designated special flood hazard area. A LOMA amends the current effective Flood Insurance Rate Map and establishes that a specific property is not located in a special flood hazard area.

LETTER OF MAP REVISION (LOMR)A revision based on technical data that may show changes to flood zones, flood elevations, floodplain and floodway delineations, and planimetric features. One common type of LOMR, a Letter of Map Revision Based on Fill (LOMR-F), is a determination that a structure or parcel of land has been elevated by fill above the base flood elevation and is, therefore, no longer exposed to flooding associated with the base flood; in order to qualify for this determination, the fill must have been permitted and placed in accordance with these regulations.

SPECIAL FLOOD HAZARD AREA

CONDITIONAL LETTER OF MAP REVISION (CLOMR)A formal review and comment as to whether a proposed flood protection project complies with the minimum National Flood Insurance Program requirements for such projects with respect to delineation of special flood hazard areas. A CLOMR does not amend or revise effective Flood Insurance Rate Maps, Flood Boundary and Floodway Maps, or Flood Insurance Studies; upon submission to and approval of certified as-built documentation, a Letter of Map Revision may be issued.

LOWEST FLOOR

The lowest floor of the lowest enclosed area, including basement, but excluding any unfinished or flood-resistant enclosure, usable solely for vehicle parking, building access or limited storage, provided that such enclosure is not built so as to render the structure in violation of the nonelevation requirements specified in the Building Code for enclosures below the lowest floor.

MANUFACTURED HOME

A structure, transportable in one or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when connected to the required utilities. The term "manufactured home" does not include a "recreational vehicle."

NEW CONSTRUCTION

Buildings and structures for which the "start of construction" commenced on or after March 15, 1977, including any subsequent improvements to such structures.

PERSON

An individual or group of individuals, corporation, partnership, association, or any other entity, including state and local governments and agencies.

RECREATIONAL VEHICLE

A vehicle which is built on a single chassis, 400 square feet or less when measured at the largest horizontal projection, designed to be self-propelled or permanently towable by a light-duty truck, and designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational, camping, travel, or seasonal use.

The land in the floodplain subject to flood hazards and shown on a Flood Insurance Rate Map as Zones A, AE, AO, and VE. The term includes areas shown on other flood hazard maps that are specifically listed or otherwise described in § 197-73A(4).

START OF CONSTRUCTION

The date of issuance of permits for new construction and substantial improvements to existing structures, provided the actual start of construction, repair, reconstruction, rehabilitation, addition, placement, or other improvement was within 180 days after the date of issuance. The "actual start" means the first placement of permanent construction of a building (including a manufactured home) on a site, such as the pouring of a slab or footings, installation of pilings, or construction of columns. Permanent construction does not include land preparation (such as clearing, grading and filling), the installation of streets or walkways, excavation for a basement, footings, piers, or foundations, the erection of temporary forms or the installation of accessory buildings such as garages or sheds not occupied as dwelling units or not part of the main building. For a substantial improvement, the actual "start of construction" means the first alteration of any wall, ceiling, floor, or other structural part of a building, whether or not that alteration affects the external dimensions of the building.

STRUCTURE (or BUILDING)

That which is built or constructed.

SUBSTANTIAL DAMAGE

Damage of any origin sustained by a structure whereby the cost of restoring the structure to its before-damaged condition would equal or exceed 50% of the market value of the structure before the damage occurred.

[Amended 2-14-2022]

SUBSTANTIAL IMPROVEMENT

Any combination of repair, alteration, reconstruction, rehabilitation, addition, or other improvement of a structure, the cumulative cost of which equals or exceeds 50% of the market value of the structure before improvement or repair is started. If the structure has sustained substantial damage, any repairs are considered substantial improvement regardless of the actual repair work performed. The term does not, however, include any project for improvement of a building required to correct existing health, sanitary, or safety code violations identified by the Building Official and that are the minimum necessary to assure safe living conditions.

[Amended 2-14-2022]

VIOLATION

The failure of a structure or other development to be fully compliant with the community's floodplain management regulations. A structure or other development without the elevation certificate, other certifications, or other evidence of compliance required in these regulations is presumed to be in violation until such time that documentation is provided.

Editor's Note: See Ch. 70, Building Code.

Editor's Note: The definition of "Coastal A Zone," which immediately followed this definition was repealed 2-5-2015.

Administration.

Designation of the Floodplain Administrator.

The Building Official is hereby appointed to administer and implement these regulations and is referred to herein as the "Floodplain Administrator." The Floodplain Administrator shall obtain and maintain Certified Floodplain Manager (CFM) certification from the Association of State Floodplain Managers, Inc.

The Floodplain Administrator is authorized to fulfill the duties and responsibilities set forth in these regulations, delegate duties and responsibilities set forth in these regulations to qualified technical personnel, plan examiners, inspectors, and other employees, and enter into a written agreement or written contract with another jurisdiction or agency, or private sector entity, to administer specific provisions of these regulations. Administration of any part of these regulations by another entity shall not relieve the community of its responsibilities pursuant to the participation requirements of the National Flood Insurance Program as set forth in the Code of Federal Regulations at 44 CFR 59.22.

Duties and responsibilities of the Floodplain Administrator. The duties and responsibilities of the Floodplain Administrator shall include but are not limited to:

Coordinate with City officials to support administration, interpretation, and enforcement of the flood load and flood-resistant construction provisions of the Building Code.

Review applications for permits to determine whether proposed activities will be located in special flood hazard areas.

Interpret floodplain boundaries and provide flood elevation and flood hazard information.

Advise applicants for new construction or substantial improvement of structures that are located on any coastal barrier within the Coastal Barrier Resources System established by the Coastal Barrier Resources Act that federal flood insurance is not available on such structures; areas subject to this limitation are shown on Flood Insurance Rate Maps as identified undeveloped coastal barriers or otherwise protected areas.

Review applications to determine whether proposed activities will be reasonably safe from flooding.

Review applications to determine whether all necessary permits have been obtained from those federal, state or local agencies from which prior or concurrent approval is required.

Verify that applicants proposing to alter or relocate a watercourse have notified adjacent communities and the Delaware Department of Natural Resources and Environmental Control (Division of Watershed Stewardship), and have submitted copies of such notifications to the Federal Emergency Management Agency.

(h)

Issue permits to develop in special flood hazard areas when the provisions of these regulations have been met, or disapprove the same in the event of noncompliance.

(i)

Inspect special flood hazard areas to determine compliance with these regulations or to determine if noncompliance has occurred or violations have been committed.

(j)

Review submitted elevation certificates for completeness.

(k)

Submit to FEMA data and information necessary to maintain flood hazard maps, including hydrologic and hydraulic engineering analyses prepared by or for the City of Lewes, corrections to labeling or planimetric details, etc.

(l)

Maintain and permanently keep all records for public inspection that are necessary for the administration of these regulations, including Flood Insurance Rate Maps, Letters of Map Amendment and Revision, records of issuance and denial of permits, determinations of whether development is in or out of special flood hazard areas for the purpose of issuing permits, elevation certificates, other required certifications, variances, and records of enforcement actions taken for violations of these regulations.

(m)

Enforce the provisions of these regulations.

(n)

Assist with and coordinate flood hazard map maintenance activities.

(o)

Conduct determinations as to whether existing buildings and structures damaged by any cause and located in special flood hazard areas have been substantially damaged.

(p)

Make reasonable efforts to notify owners of substantially damaged buildings and structures of the need to obtain a permit prior to repair, rehabilitation, or reconstruction, and to prohibit the noncompliant repair of substantially damaged buildings except for temporary emergency protective measures necessary to secure a property or stabilize a structure to prevent additional damage.

(q)

Undertake, as determined appropriate due to the circumstances, other actions which may include but are not limited to issuing press releases, public service announcements, and other public information materials related to permit requests and repair of damaged structures; coordinating with other federal, state, and local agencies to assist with substantial damage determinations; providing owners of damaged structures materials and other information related to the proper repair of damaged structures in special flood hazard areas; and assisting owners with National Flood Insurance Program claims for increased cost of compliance payments.

(r)

Notify the Federal Emergency Management Agency when the corporate boundaries of the City of Lewes have been modified.

Permits required. It shall be unlawful for any person or entity to begin construction or other development which is wholly or partially within any identified special flood hazard area, as established in § 197-73A(4), including but not limited to subdivision of land, filling, grading, or other site improvements and utility installations; placement or replacement of a manufactured home; recreational vehicles; installation or replacement of storage tanks; or alteration of any watercourse, until a permit is obtained from the City of Lewes. These regulations are intended to be administered and enforced in conjunction with the Building Code. No permit shall be issued until the requirements of these regulations and, as applicable, the flood load and flood-resistant construction provisions of the Building Code have been met.

Application required. Application for a permit shall be made by the owner of the property or his/her authorized agent, herein referred to as the "applicant," prior to the actual start of construction. The application shall be on a form furnished for that purpose. For applications for buildings and structures, these required minimum contents of the application are in addition to the requirements of the Building Code.

Application contents. At a minimum, applications shall include:

Site plans drawn to scale showing the nature, location, dimensions, existing and proposed topography of the area in question, the limits of any portion of the site that was previously filled, and the location of existing and proposed structures, excavation, filling, storage of materials, drainage facilities, and other proposed activities.

Elevation of the existing natural ground where structures are proposed, referenced to the datum on the Flood Insurance Rate Map, and an elevation certificate that shows the ground elevation and proposed building elevations (identified in Section C of the elevation certificate as "Construction Drawings").

Delineation of special flood hazard areas, floodway boundaries, flood zones, and base flood elevations. Where surveyed natural ground elevations are lower than the base flood elevations, base flood elevations shall be used to delineate the boundary of special flood hazard areas. If proposed, changes in the delineation of special flood hazard areas shall be submitted to and approved by FEMA in accordance with § 197-73C(4)(b). Where special flood hazard areas are not delineated or base flood elevations are not shown on the flood hazard maps, the Floodplain Administrator has the authority to require the applicant to use information provided by the Floodplain Administrator, information that is available from other sources, or to determine such information using accepted engineering practices.

For subdivision proposals and development proposals containing at least 50 lots or at least five acres, whichever is the lesser, and where base flood elevations are not shown on Flood Insurance Rate Maps, hydrologic and hydraulic engineering analyses and studies as required by § 197-73D(2)(d).

Elevation of the lowest floor, including basement, or elevation of the bottom of the lowest horizontal structural member, as applicable to the flood zone, of all proposed structures, referenced to the datum on the Flood Insurance Rate Maps.

[6]

Such other material and information, as may be requested by the Floodplain Administrator, necessary to determine conformance with these regulations.

[7]

For work on an existing structure, including any improvement, addition, repairs, alterations, rehabilitation, or reconstruction, sufficient information to determine if the work constitutes substantial improvement, including:

Documentation of the market value of the structure before the improvement is started or before the damage occurred.

Documentation of the actual cash value of all proposed improvement work, or the actual cash value of all work necessary to repair and restore damage to the before damaged condition, regardless of the amount of work that will be performed; the determination requires evaluation of previous permits issued for improvements and repairs as specified in the definitions for "substantial damage" and "substantial improvement."

[8]

Certifications and/or technical analyses prepared or conducted by an appropriate design professional licensed in the State of Delaware, as appropriate to the type of development activity proposed and required by these regulations and the Building Code:

Floodproofing certificate for dry floodproofed nonresidential structures, as required by the Building Code.

Certification that flood openings that do not meet the minimum requirements for nonengineered openings but designed to automatically equalize hydrostatic flood forces, as required by the Building Code.

[c]

Certification that the structural design, specifications and plans, and the methods of construction to be used for buildings and structures in coastal high hazard areas are in accordance with accepted standards of practice and meet the requirements of the Building Code.

[d]

Technical analyses to document that the flood-carrying capacity of any watercourse alteration or relocation will not be diminished and documentation of maintenance assurances as required in § 197-73E(3)(c).

[e]

Hydrologic and hydraulic engineering analyses demonstrating that the cumulative effect of proposed development, when combined with all other existing and anticipated development, will not increase the water surface elevation of the base flood by more than one foot in special flood hazard areas where the Federal Emergency Management Agency has provided base flood elevations but has not delineated a floodway, as required by § 197-73E(3)(b).

[f]

Hydrologic and hydraulic engineering analyses of any development proposed to be located in an identified floodway, as required by § 197-73E(3)(a).

[g]

Hydrologic and hydraulic engineering analyses to develop base flood elevations for subdivisions and large-lot developments, as required by § 197-73D(2)(d) or otherwise required by the Floodplain Administrator.

Right to submit new technical data. The applicant has the right to seek a Letter of Map Change and to submit new technical data to FEMA regarding base maps, topography, special flood hazard area boundaries, floodway boundaries, and base flood elevations. Such submissions shall be prepared in a format acceptable by FEMA, and the Floodplain Administrator shall be notified of such submittal. Submittal requirements and processing fees shall be the responsibility of the applicant.

Requirement to submit new technical data. The Floodplain Administrator shall notify FEMA of physical changes affecting flood hazard areas and flooding conditions by submitting technical or scientific data as soon as practicable, but not later than six months after the date such information becomes available. The Floodplain Administrator has the authority to require applicants to submit technical data to FEMA for Letters of Map Change.

Review, approval, or disapproval.

Review. The Floodplain Administrator shall:

Review applications for development in special flood hazard areas to determine the completeness of information submitted. The applicant shall be notified of incompleteness or additional information required to support the application.

Review applications for compliance with these regulations after all information required in § 197-73C(4) or identified and required by the Floodplain Administrator has been received.

Review all permit applications to assure that all necessary permits have been received from those federal, state or local governmental agencies from which prior approval is required. The applicant shall be responsible for obtaining such permits, including but not limited to:

Permits issued by the United States Army Corps of Engineers under Section 10 of the Rivers and Harbors Act and Section 404 of the Clean Water Act, and the Delaware Environmental Protection Agency under Section 401 of the Clean Water Act.

Permits required by the State of Delaware.

Approval or disapproval. The Floodplain Manager shall approve applications that comply with the applicable requirements of these regulations. The Floodplain Manager shall disapprove applications for proposed development that does not comply with the applicable provisions of these regulations and shall notify the applicant of such disapproval, in writing, stating the reasons for disapproval.

Expiration of permit. A permit is valid, provided the actual start of construction occurs within 365 days of the date of permit issuance. If the actual start of construction is not within 365 days of the date of permit issuance, requests for extensions shall be submitted in writing. Upon reviewing the request and the permit for continued compliance with these regulations, the Floodplain Administrator may grant, in writing, one or more extensions of time, for periods not more than 365 days each.

[Amended 10-14-2024]

Inspections. The Floodplain Administrator shall make periodic inspections of development permitted in special flood hazard areas, at appropriate times throughout the period of construction, in order to monitor compliance. In addition to the inspections required by the Building Code, such inspections may include:

Stake-out inspection, to determine location on the site relative to the special flood hazard area and floodway.

Foundation inspection, upon placement of the lowest floor and prior to further vertical construction, to collect information or certification of the elevation of the lowest floor.

Enclosure inspection, including crawlspaces, to determine compliance with applicable provisions.

Utility inspection, upon installation of specified equipment and appliances, to determine appropriate location with respect to the base flood elevation.

Storage of materials.

Submissions required prior to foundation inspection and prior to issuance of a certificate of occupancy. The following certifications are required to be submitted by the permittee for development that is permitted in special flood hazard areas prior to the foundation inspection and prior to issuance of a certificate of occupancy:

For new or substantially improved residential structures or nonresidential structures that have been elevated, the applicant shall:

As part of the foundation inspection and placement of the lowest floor, and prior to further vertical construction, submit an elevation certificate that shows the ground elevation and floor elevation (identified in Section C of the elevation certificate as "Building Under Construction").

Prior to issuance of the certificate of occupancy, submit an elevation certificate (identified in Section C of the elevation certificate as "Finished Construction").

For nonresidential structures that have been dry floodproofed, a floodproofing certificate based on "Finished Construction" (identified in Section II).

For all development activities subject to the requirements of § 197-73C(4)(b), a Letter of Map Revision shall be provided.

Flood Insurance Rate Map use and interpretation. The Floodplain Administrator shall make interpretations, where needed, as to the exact location of special flood hazard areas, floodplain boundaries, and floodway boundaries. The following shall apply to the use and interpretation of special flood hazard maps and data:

In FEMA-identified special flood hazard areas where base flood elevation and floodway data have not been identified and in areas where FEMA has not identified special flood hazard areas, any other flood hazard data available from a federal, state, or other source shall be reviewed and reasonably used. When a Preliminary Flood Insurance Rate Map has been provided by FEMA to identify base flood elevation where such elevations were not previously shown, the base flood elevations on the Preliminary Flood Insurance Rate Map shall be used.

Special flood hazard area delineations, base flood elevations, and floodway boundaries on FEMA maps and in FEMA studies shall take precedence over delineations, base flood elevations, and floodway boundaries by any other source that reflect a reduced special flood hazard area, reduced floodway width and/or lower base flood elevations.

Other sources of data shall be reasonably used if they show increased base flood elevations and/or larger floodway areas than are shown on FEMA flood maps and studies.

Where field surveyed topography indicates that ground elevations are below the base flood elevation, even in areas not delineated as a special flood hazard on a flood hazard map, the area shall be considered as special flood hazard area.

Requirements in all special flood hazard areas.

Application of requirements. The general requirements of this section apply to all development proposed within special flood hazard areas identified in § 197-73A(4).

Subdivisions and developments.

All subdivision and development proposals shall be consistent with the need to minimize flood damage and are subject to all applicable standards in these regulations.

All subdivision and development proposals shall have utilities and facilities such as sewer, gas, electrical, and water systems located and constructed to minimize flood damage.

All subdivision and developments proposals shall have adequate drainage provided to reduce exposure to flood damage.

All subdivision proposals and development proposals containing at least 50 lots or at least five acres, whichever is the lesser, in FEMA-delineated special flood hazard areas where base flood elevation data are not available shall be supported by hydrologic and hydraulic engineering analyses that determine base flood elevations and floodway delineations. The analyses shall be prepared by a licensed professional engineer in a format required by FEMA for a Conditional Letter of Map Revision or Letter of Map Revision. Submittal requirements and processing fees shall be the responsibility of the applicant.

Protection of water supply and sanitary sewage systems.

New and replacement water supply systems shall be designed to minimize or eliminate infiltration of floodwaters into the systems.

New and replacement sanitary sewage systems shall be designed to minimize or eliminate infiltration of floodwaters into systems and discharges from systems into floodwaters.

On-site waste disposal systems shall be located to avoid impairment to or contamination from them during conditions of flooding.

Buildings and structures. All new construction of buildings and structures, including placement of manufactured homes and substantial improvements to existing buildings and structures, that are to be located, in whole or in part, in special flood hazard areas shall comply with flood load and flood-resistant construction requirements of the Building Code, including specific amendments adopted by the City of Lewes.

Fill.

Disposal of fill, including but not limited to rubble, construction debris, woody debris, and trash, shall not be permitted in special flood hazard areas.

Fill shall not be permitted to be placed for the purpose of supporting a building or structure.

Fill placed for a purpose other than to support a building or structure shall be compacted for stability under conditions of rising and falling floodwaters and resistance to erosion, scour, and settling and shall be designed with adequate drainage and no adverse effect on adjacent properties.

Fill within the special flood hazard area shall result in no net loss of natural floodplain storage or increase in water surface elevations during the base flood. A report documenting this condition shall be submitted as part of the major preliminary subdivision process when fill is to be used on site. The report shall be created by a qualified professional. The report shall include the existing and proposed floodplain storage capacity and document that the completed development will meet or exceed the existing floodplain storage capacity at or adjacent to the development site.

[Added 12-14-2020]

Historic structures. Repair, alteration, or rehabilitation of historic structures where the proposed work is a substantial improvement or repair of substantial damage shall be subject to the requirements of this section unless a determination is made that compliance will preclude a structure's continued designation as an historic structure and a variance is granted in accordance with § 197-73G and such variance is the minimum necessary to preserve the historic character and design of the structure.

Recreational vehicles.

Recreational vehicles in special flood hazard areas shall be fully licensed and ready for highway use, and shall be placed on a site for less than 180 consecutive days.

Recreational vehicles that are not fully licensed and ready for highway use, or that are to be placed on a site for more than 180 consecutive days, shall meet the requirements of § 197-73D(9) for manufactured homes.

Gas or liquid storage tanks.

Underground tanks in special flood hazard areas shall be anchored to prevent flotation, collapse or lateral movement resulting from hydrostatic loads, including the effects of buoyancy, during conditions of the base flood.

Aboveground tanks in special flood hazard areas shall be elevated and anchored to or above the base flood elevation plus 36 inches or shall be anchored at grade and designed and constructed to prevent flotation, collapse, or lateral movement resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy, during conditions of the base flood.

[Amended 10-14-2024]

In special flood hazard areas, tank inlets, fill openings, outlets and vents shall be:

At or above the base flood elevation or fitted with covers designed to prevent the inflow of floodwater or outflow of the contents of the tanks during conditions of the base flood.

Anchored to prevent lateral movement resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy, during conditions of the base flood.

(9)

Manufactured homes.

Elevation. All new and replacement manufactured homes to be placed or substantially improved in a flood hazard area shall be elevated such that the bottom of the lowest horizontal structural supporting member of lowest floor of the manufactured home is elevated to or above the base flood elevation plus 36 inches.

[Amended 10-14-2024]

Foundations. All new and replacement manufactured homes, including substantial improvement of existing manufactured homes, shall be placed on permanent, reinforced foundations that are designed in accordance with Section R322 of the Residential Code based on the applicable flood zone identified on the FIRM. Designs for foundations shall be certified as meeting the requirements of these regulations and the Residential Code.

Anchoring. All new and replacement manufactured homes to be placed or substantially improved in a special flood hazard area shall be installed using methods and practices which minimize flood damage. Manufactured homes shall be securely anchored to an adequately anchored foundation system to resist flotation, collapse and lateral movement. The anchor and tie-down specifications of the manufacturer are permitted, provided such specifications are specific to installation in special flood hazard areas. This requirement is in addition to applicable state and local anchoring requirements for resisting wind forces.

Enclosures. Fully enclosed areas below elevated manufactured homes shall comply with the requirements of Section R322 of the Residential Code based on the applicable flood zone identified on the FIRM.

Protection of mechanical equipment and outside appliances. Mechanical equipment and outside appliances shall comply with the requirements of Section R322 for protection of mechanical and electrical systems.

(10)

Critical facilities. New critical facilities shall, to the extent feasible, be located outside of the special flood hazard area and outside of the 0.2% annual chance flood hazard area (five-hundred-year floodplain). If documentation is provided that feasible sites outside of the special flood hazard area are not available that satisfy the objectives of a proposed critical facility, then the critical facility shall:

Have the lowest floor elevated to or above the 0.2% annual chance flood hazard area (five-hundred-year floodplain) elevation plus 18 inches or to the design flood elevation, whichever is higher; and

[Amended 10-14-2024]

Meet the applicable flood-resistant requirements of the Building Code and ASCE 24, and where elevation requirements are specified, the minimum elevation shall be the 0.2% annual chance flood hazard area (five-hundred-year floodplain) elevation plus one foot (305 mm) or to the design flood elevation, whichever is higher.

Requirements in special flood hazard areas other than coastal high hazard areas.

[Amended 2-5-2015]

General requirements. In addition to the general requirements of § 197-73D, the requirements of this section apply to all development proposed in special flood hazard areas other than coastal high hazard areas. These areas include Zones A, AE, and AO. See § 197-73D(4) for the requirement that buildings and structures comply with the flood load and flood-resistant construction requirements of the Building Code, including specific amendments adopted by the City of Lewes.

Accessory structures. Accessory structures shall meet the requirements of these regulations. Accessory structures that have a footprint of no more than 200 square feet may be allowed without requiring elevation or floodproofing, provided such structures meet all of the following requirements:

Usable only for parking or limited storage.

Constructed with flood damage-resistant materials below the base flood elevation.

Constructed and placed to offer the minimum resistance to the flow of floodwaters.

Firmly anchored to prevent flotation, collapse, and lateral movement.

Electrical service and mechanical equipment elevated to or above the level of the base flood elevation plus 36 inches.

[Amended 10-14-2024]

Equipped with flood openings that meet the requirements of Section R322.2.2 of the Residential Code.

For guidance, see FEMA Technical Bulletin No. 7, Wet Floodproofing Requirements.

Protection of flood-carrying capacity.

Development in floodways. Within any floodway area designated on the Flood Insurance Rate Map, no encroachments, including fill, new construction, substantial improvements, or other development shall be permitted unless it has been demonstrated through hydrologic and hydraulic engineering analysis that the proposed encroachment would not result in any increase in flood levels within the community during the occurrence of the base flood discharge. Such technical data shall be submitted to the Floodplain Administrator and to FEMA. The analyses shall be prepared by a licensed professional engineer in a format required by FEMA for a Conditional Letter of Map Revision or Letter of Map Revision. Submittal requirements and processing fees shall be the responsibility of the applicant. The proposed development activity may be permitted if the analyses demonstrate that the activity:

Will not result in any increase in the base flood elevation; or

Will result in an increase in the base flood elevation, provided a Conditional Letter of Map Revision has been issued by FEMA and the applicant completes all of the following:

Submits technical data required in § 197-73C(4)(a)[8][e];

Evaluates alternatives which would not result in increased base flood elevations and an explanation why these alternatives are not feasible;

[c]

Certifies that no structures are located in areas which would be impacted by the increased base flood elevation;

[d]

Documents that individual legal notices have been delivered to all impacted property owners to explain the impact of the proposed action on their properties;

[e]

Requests and receives concurrence of the City Manager of the City of Lewes and the Chief Executive Officer of any other community impacted by the proposed actions; and

[f]

Notifies the Delaware Department of Natural Resources and Environmental Control (Division of Watershed Stewardship).

Development in areas with base flood elevations but no floodways. For development activities in a special flood hazard area with base flood elevations but no designated floodways, the applicant shall develop hydrologic and hydraulic engineering analyses and technical data reflecting the proposed activity and shall submit such analyses and data to the Floodplain Administrator and to FEMA. The analyses shall be prepared by a licensed professional engineer in a format required by FEMA for a Conditional Letter of Map Revision or Letter of Map Revision. Submittal requirements and processing fees shall be the responsibility of the applicant. The proposed development activity may be permitted if the analyses demonstrate that the cumulative effect of the proposed development activity, when combined with all other existing and potential special flood hazard area encroachments, will not increase the base flood elevation more than one foot at any point.

Deliberate alterations of a watercourse. For the purpose of these regulations, a watercourse is deliberately altered when a person causes a change to occur within its banks. Deliberate changes to a watercourse include, but are not limited to, widening, deepening or relocating of the channel; installation of culverts; construction of bridges, and excavation or filling of the channel or watercourse banks. For any proposed deliberate alteration of a watercourse, the applicant shall develop hydrologic and hydraulic engineering analyses and technical data reflecting such changes and submit such technical data to the Floodplain Administrator and to FEMA. The analyses shall be prepared by a licensed professional engineer in a format required by FEMA for a Conditional Letter of Map Revision or Letter of Map Revision. Submittal requirements and processing fees shall be the responsibility of the applicant. The proposed alteration of a watercourse may be permitted upon submission, by the applicant, of the following:

Documentation of compliance with § 197-73E(3)(a) if the alteration is in a floodway or § 197-73E(3)(b) if the alteration is in a watercourse with base flood elevations but no floodway.

A description of the extent to which the watercourse will be altered or relocated as a result of the proposed development.

A certification by a licensed professional engineer that the bankful flood-carrying capacity of the watercourse will not be diminished.

Evidence that adjacent communities, the United States Army Corps of Engineers, and the Delaware Department of Natural Resources and Environmental Control (Division of Watershed Stewardship) have been notified of the proposal and evidence that such notifications have been submitted to the Federal Emergency Management Agency.

Evidence that the applicant shall be responsible for providing the necessary maintenance for the altered or relocated portion of the watercourse so that the flood-carrying capacity will not be diminished. The Floodplain Administrator may require the permit holder to enter into an agreement with the City of Lewes specifying the maintenance responsibilities; if an agreement is required, the permit shall be conditioned to require that the agreement be recorded on the deed of the property which shall be binding on future owners.

Requirements in coastal high hazard areas (Zone VE).

[Amended 2-5-2015]

General requirements. Section 197-73D(4) requires buildings and structures in coastal high hazard areas (Zone V) to comply with the flood load and flood-resistant construction requirements of the Building Code, including specific amendments adopted by the City of Lewes.

Variances. The City of Lewes's Board of Adjustment shall have the power to authorize, in specific cases, such variances from the requirements of these regulations and the flood load and flood-resistant construction of the Building Code, not inconsistent with federal regulations, as will not be contrary to the public interest where, owing to special conditions of the lot or parcel, a literal enforcement of the provisions of these regulations would result in exceptional practical difficulties to the owner of the structure.

Application for a variance. Any owner, or agent thereof, of property for which a variance is sought shall submit an application for a variance to the Board of Adjustment per § 197-90. Notwithstanding the requirements of § 197-90, at a minimum, such application shall contain the following information: name, address, and telephone number of the applicant; legal description of the property; parcel map; description of the existing use; description of the proposed use; location of the floodplain; description of the variance sought; and reason for the variance request. Each variance application shall specifically address each of the considerations in § 197-73G(2) and the limitations and conditions of § 197-73G(3).

Considerations for variances. In considering variance applications under this section, the Board of Adjustment shall consider and make findings of fact on all evaluations, all relevant factors, requirements specified in other sections of these regulations, and the following factors:

The danger that materials may be swept onto other lands to the injury of others.

The danger to life and property due to flooding or erosion damage.

The susceptibility of the proposed development and its contents (if applicable) to flood damage and the effect of such damage on the individual owner.

The importance of the services provided by the proposed development to the community.

The availability of alternative locations for the proposed use which are not subject to, or are subject to less, flooding or erosion damage.

The necessity to the facility of a waterfront location, where applicable, or if the facility is a functionally dependent use.

The compatibility of the proposed use with existing and anticipated development.

(h)

The relationship of the proposed use to the Comprehensive Plan for that area.

(i)

The safety of access to the property in times of flood for ordinary and emergency vehicles.

(j)

The expected heights, velocity, duration, rate of rise, and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site.

(k)

The costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, and water systems, and streets and bridges.

(l)

Variances may be issued for the repair and rehabilitation of historic structures upon a determination that the proposed repair or rehabilitation will not preclude the structure's continued designation as a historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure.

Limitations for variances.

An affirmative decision on a variance request shall only be issued upon:

A showing of good and sufficient cause. A "good and sufficient" cause is one that deals solely with the physical characteristics of the property and cannot be based on the character of the planned construction or substantial improvement, the personal characteristics of the owner or inhabitants, or local provisions that regulate standards other than health and public safety standards.

A determination that failure to grant the variance would result in exceptional practical difficulty due to the physical characteristics of the property.

Increased cost or inconvenience of meeting the requirements of these regulations does not constitute an exceptional practical difficulty to the applicant.

A determination that the granting of a variance for development within any designated floodway, or special flood hazard area with base flood elevations but no floodway, will not result in increased flood heights beyond that which is allowed in these regulations.

A determination that the granting of a variance will not result in additional threats to public safety, extraordinary public expense, nuisances, fraud on or victimization of the public, or conflict with existing local laws.

[6]

A determination that the structure or other development is protected by methods to minimize flood damages.

[7]

A determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.

Upon consideration of the individual circumstances, the limitations and conditions, and the purposes of these regulations, the Board of Adjustment may attach such conditions to variances as it deems necessary to further the purposes of these regulations.

The Board of Adjustment shall notify, in writing, any applicant to whom a variance is granted for a building or structure with a lowest floor elevation below the base flood elevation that the variance is to the floodplain management requirements only, and that the cost of federal flood insurance will be commensurate with the increased risk.

Enforcement.

Compliance required.

No structure or land development shall hereafter be located, erected, constructed, reconstructed, repaired, extended, converted, enlarged or altered without full compliance with these regulations and all other applicable regulations which apply to uses within the jurisdiction of these regulations.

Failure to obtain a permit shall be a violation of these regulations and shall be punishable in accordance with § 197-73H(3).

Permits issued on the basis of plans and applications approved by the Floodplain Administrator authorize only the specific activities set forth in such approved plans and applications or amendments thereto. Use, arrangement, or construction of such specific activities that is contrary to that authorized shall be deemed a violation of these regulations.

Notice of violation. The Building Official is authorized to serve a notice of violation or order on any person or entity in violation of the provisions of this section. Such order shall direct the discontinuance of the illegal action or condition and the abatement of the violation. If the notice of violation is not complied with promptly, the Building Official is authorized to request that the City Solicitor institute the appropriate proceeding at law or in equity to enforce this section.

Violations and penalties.

Who shall be liable. Any person or entity who knowingly commits, takes part or assists in any violation or who maintains any buildings or premises in which a violation exists, including, but not limited to, the following:

The owner, general agent or contractor of a building or premises where such violation has been committed or shall exist; and

The lessee or tenant of an entire building or entire premises where such violation has been committed or shall exist; and

The owner, general agent, contractor, lessee or tenant of any part of a building or premises in which such violation has been committed or shall exist; and

The general agent, architect, builder, contractor or any other person.

Penalties if convicted. If convicted, a person or entity, as enumerated in this section, shall be subject to the following:

A fine, not less than $50 nor more than $1,000 and/or imprisonment for not more than 30 days for each and every offense.

Payment of costs of prosecution, including the City's reasonable attorney's fees.

Each day a separate offense. Whenever the Building Official shall have notified a person by service of a warrant in a prosecution or in any other way that he/she is committing such violation of this section, each day that such violation continues shall be deemed a separate offense punishable by like fine or penalty.

Unlawful construction declared nuisance. Any building or portion thereof or part of foundation wall hereafter erected or placed upon any lot or premises within the City in violation of the provisions of this section is hereby declared to be a common and public nuisance and may be abated as authorized in the Charter of the City of Lewes for the abatement of any other nuisance in addition to the provisions of this section.

Violation abatement. In addition to any other remedy provided by law, an appropriate action or proceeding, whether by legal process or otherwise, may be instituted to:

Prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance or use;

Restrain, correct, abate such violation;

Prevent the occupancy of such building, structure or land; or

Prevent any illegal act, conduct, business or use in and about such premises.

Freeboard.

[Added 10-14-2024]

Special Flood Hazard Areas (1% annual chance, Zone AE, and Zone VE).

Residential structures located within the 1.0% annual flood chance (Zone AE) shall be elevated and anchored to or above the base flood elevation plus 36 inches. The first-floor elevation shall be measured at the top of the lowest finished floor height. Houses may have a maximum height of 35.5 feet.

Residential structures located within the 1.0% annual flood chance (Zone VE) shall be elevated and anchored to or above the base flood elevation plus 36 inches. The first-floor elevation shall be measured at the bottom of the lowest horizontal structure member. Houses may have a maximum height of 35.5 feet.

Non-Special Flood Hazard Areas [0.2% Zone X (shaded)].

Residential structures located within the 0.2% shall be elevated and anchored to or above the base flood elevation plus 18 inches. The first-floor elevation shall be measured at the top of the lowest finished floor height. Houses may have a maximum height of 34 feet. This requirement shall go into effect two years from the adoption of the ordinance.

Outside a Regulated Flood Area [Zone X (unshaded)].

Residential structures outside a regulated floodplain are encouraged to elevate and anchor to or above the finished floor an elevation plus 18 inches. The base elevation shall be determined by applying the definition of "building height." Houses using this option may have a maximum height of 34 feet.

Editor's Note: This ordinance provided an effective date of 3-16-2015.

§ 197-74 Wetlands.

Purpose: provide standards for protecting wetlands in development projects.

Definition:

[Amended 8-12-2019]

WETLANDS —

Areas inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions; or

Areas that are defined and delineated in accordance with the United States Army Corps of Engineers Wetlands Delineation Manual, Technical Report Y-87-1, as amended from time to time; or

Areas that are further defined and delineated by the United States Army Corps of Engineers, the United States Environmental Protection Agency, or the Delaware Department of Natural Resources and Environmental Control (DNREC).

TIDAL WETLANDS — Areas under jurisdiction of Title 7, Chapter 66, of the Delaware Code, as regulated and mapped by DNREC.

NONTIDAL WETLANDS — Areas inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions and that are not defined as tidal wetlands in the City Code.

TIDAL WATERS (MEAN HIGH-WATER LINE) — The mean high-water line of a tidal water body, tidal stream, or tidal marsh. The average height of all the high-tide water recorded over a nineteen-year period as defined by the National Oceanic and Atmospheric Administration tidal datum.

WETLAND BUFFER — An area located upland and landward of the delineated wetlands line, at the time of accepted delineation, that is established or will be established with vegetation to protect the wetlands and terrestrial environment from human disturbance, even if the area was previously disturbed by human activity.

[Added 10-12-2020]

Official boundaries. The Official Map for tidal wetlands is prepared by the Delaware Department of Natural Resources and Environmental Control (DNREC), Division of Water Resources, Wetlands and Subaqueous Lands Section.

[Amended 8-12-2019]

Identification on development plans and in the field.

[Amended 8-12-2019; 10-12-2020]

Development plans shall include a report delineating the locations of all wetlands by legal description with bearings and distances and with each flag point numbered, signed, and dated.

As part of the report, the applicant shall submit documentation from DNREC delineating and defining the area (square footage) of tidal wetlands, and this can be accomplished by submitting the completed "Jurisdictional Determination and Map Change Request Form" to the Wetlands and Subaqueous Land Section of DNREC.

The report should also establish the area (square footage) of the nontidal wetlands on the tract.

The wetlands shall be flagged, and the flags shall remain on site for major subdivisions during construction of the development.

Wetland delineation report.

The report shall utilize the on-site method or process for identifying wetlands as described in the United States Army Corps of Engineers Wetlands Delineation Manual," Technical Report Y-87-1, 1987 as amended from time to time.

The report shall be prepared by a person with professional experience and knowledge in wetlands identification and shall analyze a site for the existence and extent of wetlands.

Building lots containing wetlands shall be identified with a notation stating, "Construction activities within these sites may require a permit from the United States Army Corps of Engineers or the State of Delaware."

If a tract proposed for development contains no wetlands, the plan shall include a statement affirming this from an experienced, qualified professional.

Permitted activities.

Generally, development is not permitted in wetlands.

Exception. Utility and access crossings within wetlands may be allowed where no other recourse is available.

Proposed crossings must be authorized by the City and meet the requirements of the City Code, United States Army Corps of Engineers regulations, and DNREC.

Any work in wetland buffer areas shall meet the requirements of the City Code, United States Army Corps of Engineers regulations, and DNREC.

Wetland mitigation activities.

Definition. Activities carried out in order to compensate for freshwater wetlands or state open-waters loss or disturbance caused by regulated activities.

Before commencing wetland mitigation measures, an applicant shall obtain a permit from the United States Army Corps of Engineers.

Permits from the state may also be required.

Wetland buffers.

[Added 10-12-2020]

Purpose: Provide standards for the establishment of a buffer around all wetlands in major subdivisions as the wetlands boundaries are expected to change over time; to provide standards for protecting wetlands in major subdivisions; to encourage natural drainage; and to encourage best management practices and design standards.

This subsection shall be reviewed for consistency with this purpose after two years from its adoption date, October 12, 2020.

Wetland buffer zones. A fifty-foot wetlands buffer shall be established landward from the boundaries of all wetlands. This buffer shall consists of two zones as defined below.

Wetland buffer zone.

Zone A: 20 feet wide on the upland side of the wetland buffer.

Zone B: 30 feet wide beyond Zone A except as provided in Subsection G(4).

Figure 1 - Wetlands Buffer Zones Ex. NTS

Permitted activities.

Activity	Zone A	Zone B
State and federal permitted disturbances, such as road crossing and fill with permits	Permitted	Permitted
Other road crossings, such as bridges with permits	Permitted	Permitted
Stormwater management outfalls permitted by Sussex Conservation District (SCD)	Permitted	Permitted
Invasive species control	Required	Required
Planting of native vegetation	Permitted	Permitted
Floodplain creation without impacting associated wetlands with permits	Permitted	Permitted
Tax ditch maintenance	Permitted	Permitted
Stormwater management BMPs	Not permitted	Permitted
Recreational trails constructed of permeable materials	Not Permitted	Permitted
Selective cutting for maintenance	Not permitted	Permitted
Erosion or stabilization measures	Not permitted	Permitted
Boat ramps with permits	Permitted	Permitted
Boardwalks	Not permitted	Permitted
Docks with permits	Permitted	Permitted

Additional regulations. No buffers are required for wetlands to be filled with a valid USACE and/or DNREC permit.

The wetland buffer shall not traverse any lot intended to be developed with one or more dwelling units.

Authorized impacts.

Development activities shall not be authorized in waters of the US, waters of the state, delineated wetlands, or wetland buffers without approval from the United States Army Corp of Engineers and/or DNREC. Subject to City approval, such allowable activities permitted may include bridge crossings, utility crossings, boat ramps, docks, or stormwater outfalls, only with proper approval and permitting.

Major subdivision activities such as permanent or temporary structures shall not be authorized by the City of Lewes in wetlands or wetland buffers except when the following criteria are met:

The applicant has taken every reasonable step to avoid adverse impact to the wetland and buffer; and

The applicant has provided appropriate mitigation for adverse impacts to the wetland and buffer.

Wetlands buffer width averaging.

Wetlands buffer width averaging can be utilized to allow flexibility in site design and buffer width due to nonconformities in shorelines/wetlands lines.

Wetlands buffer width averaging will require the overall total area to be provided, and no area reduction will be allowed implementing averaging.

Buffer width averaging may be utilized to adjust the width of the buffer along the length, allowing a reduction of the width for short runs while meeting the overall area of buffer to be provided as to not reduce the wetlands function or values.

The overall square footage of Zone B wetland buffer must be achieved within the boundaries of the property to be developed.

Wetland buffer width averaging is not available for Zone A.

Wetland buffer width averaging may be used on all of the Zone B wetland buffers.

Zone B wetland buffer averaging shall not be expanded more than double the width of Zone B wetland buffer as referenced in the attached table.[1]

Editor's Note: The Table of Dimensional Regulations is included as an attachment to this chapter.

Buffer maintenance and management.

Maintenance standards.

All buffers that are composed of native species should be preserved to the maximum extent practicable with no disturbance of native species allowed in Zone A and only selective cutting of native species allowed in Zone B.

All buffers that are composed of native species shall be maintained with no mowing allowed in Zone A. Planting of native woody species is encouraged in these buffers. Grass in Zone B shall be mowed a maximum of four times per year.

All buffers that are composed of nonnative species should be maintained to minimize nonnative species and to encourage colonization from native noninvasive species. Planting of native woody species is encouraged in these buffers. Planting of nonnative and invasive species is prohibited.

Buffer management plan. All major subdivisions that contain buffers shall be required to submit a buffer management plan and inventory of trees and plants, prepared by a qualified professional, that describes measures for maintaining and, if applicable, improving buffer on the site. The community's homeowners' association shall be responsible for maintaining the buffer.

The buffer management plan shall include that all maintenance of the buffer shall comply with City of Lewes codes and/or policies regarding invasive species.

§ 197-75 Water resources protection areas; Source Water Protection Overlay.

Intent.

[Amended 1-10-2022]

The intent of this section is to provide clarification on the environmental constraints and requirements for development in wellhead protection areas and excellent groundwater recharge potential areas to protect public drinking water resources from contamination and pollution and to ensure that groundwater quality and quantity are adequately protected and maintained. Protection areas include source water resource protection areas.

The purpose of this article is to protect the quality and quantity of groundwater supplies. The City herein adopts the overlay maps delineating, as source water protection areas, wellhead protection and excellent groundwater recharge potential areas. To ensure the protection of these water resources, this article establishes a zoning overlay to be known as the "Source Water Protection Overlay."

The purpose of the Source Water Protection Overlay is to protect public health and safety by minimizing contamination of aquifers, preserving, and protecting existing potential sources of water resources and preserving and protecting the quality and quantity of groundwater. It is the intent to accomplish this purpose through both public education and public cooperation, as well as by creating appropriate land use regulations that may be imposed in addition to those currently imposed by existing zoning districts or other state and county regulations.

ABOVEGROUND STORAGE TANK (AST)

The Source Water Protection Overlay is superimposed on current zoning districts. It shall apply to all new construction, redevelopment, or expansion of existing buildings and new or expanded uses. Applicable activities/uses allowed in a portion of one of the underlying zoning districts that fall within the Source Water Protection Overlay must additionally comply with the requirements of this district. Uses prohibited in the underlying zoning districts shall not be permitted in the Source Water Protection Overlay District.

Definitions. This subsection defines words, terms, and phrases found in this article.

A single containment vessel greater than 250 gallons as defined in the Delaware Regulations Governing Aboveground Storage Tanks, dated February 11, 2005. ASTs with a storage capacity greater than 12,499 gallons containing petroleum or hazardous substances, and ASTs with a storage capacity greater than 39,999 gallons containing diesel, heating fuel or kerosene, are subject to the design, construction, operation, and maintenance requirements of the Delaware AST regulations.

APPLICANT

See Article XVI.

AQUIFER

A geological formation, group of formations or part of a formation composed of rock, sand, or gravel capable of storing and yielding groundwater to wells.

CERCLA AND/OR HAZARDOUS SUBSTANCES

Those substances specifically designated as hazardous under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),[1] otherwise known as the "Superfund Law," or those substances identified under other laws. In all, the Superfund Law includes references to four other laws to designate more than 800 substances as hazardous and identify many more as potentially hazardous due to their characteristics and the circumstances of their release.

CONTAMINATION

Any physical, chemical, biological, or radiological substance that enters the hydrological cycle through human action and may cause a deleterious effect on groundwater resources; it shall include, but is not limited to, hazardous waste, limiting nutrients, and sanitary sewage.

DRAINAGE

The process by which surface water (usually from rainfall) moves across the land surface. See "stormwater management."

DRAINAGE AREAS

The delineated areas that currently contribute or are proposed to contribute runoff to a specific location or point.

ENGINEER

See Article XVI.

EXCELLENT GROUNDWATER RECHARGE POTENTIAL AREA

Those areas with high percentages of sand and gravel that have "excellent" potential for recharge as determined through a stack unit mapping analysis delineated by the Delaware Geological Survey and presented in the Report of Investigations No. 66, Groundwater Recharge Potential Mapping in Kent and Sussex Counties, Delaware, Geological Survey, 2004.

GEOLOGIST

See Article XVI.

GROUNDWATER

A portion of the subsurface water that occurs beneath the water table in soils and geologic formations that are fully saturated.

HAZARDOUS SUBSTANCE UST SYSTEM

An underground storage tank system that contains a hazardous substance defined by § 101(4) of CERCLA[2] (but not including any substance regulated as a hazardous waste under RCRA[3] Subtitle C), or any mixture of such substances and petroleum, and which is not a petroleum UST system.

HAZARDOUS WASTE

A solid waste, or combination of solid wastes, which, because of its quantity, concentration, or physical, chemical, or infectious characteristics, may cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating irreversible illness, or pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed. Without limitation, included within this definition are those hazardous wastes described in the Delaware Regulations Governing Hazardous Wastes, §§ 261.31 to 261.33.

PUBLIC WATER SUPPLY WELL

A well from which the water is used to serve a community water system by § 22.146 (Public Water Systems) in the Delaware Regulations Governing Public Drinking Water Systems.

REDEVELOPMENT

Any proposed expansion, addition, major facade change or rebuilding to an existing building, structure or parking facility.

RUNOFF

That portion of precipitation or snowmelt that has not evaporated or infiltrated into the soil but flows on land surface.

SOURCE WATER

Refers to any aquifer from which water is drawn either periodically or continuously by the City's water system or any community water system which provides piped water for human consumption.

SOURCE WATER PROTECTION AREA

Wellhead protection areas and excellent groundwater recharge potential areas.

STORMWATER

The runoff of water from the surface of the land resulting from precipitation or snow or ice melts.

STORMWATER MANAGEMENT

For water quantity control, a system of vegetative, structural, and other measures that may control the volume and rate of stormwater runoff which may be caused by land-disturbing activities or activities upon the land; and

UNDERGROUND STORAGE TANK (UST)

For water quality control, a system of vegetative, structural, and other measures that control adverse effects on water quality that may be caused by land-disturbing activities or activities upon the land.

SURFACE, IMPERVIOUS

Surfaces providing negligible infiltration such as pavement, buildings, recreation facilities (by example, but not by limitation, tennis courts, swimming pools) and covered driveways.

[Amended 1-10-2022]

One or a combination of tanks including underground pipes, the volume of which is 10% or more below ground, as defined in the Delaware Regulations Governing Underground Storage Tank Systems, dated March 12, 1995. The following USTs are not subject to the design, construction, operation, and maintenance requirements of the Delaware UST regulations: residential heating fuel, agricultural, and residential motor fuel USTs less than 1,100 gallons and any UST less than 110 gallons.

WELLHEAD

The upper terminal of a well, including adapters, ports, seals, valves, and other attachments.

WELLHEAD PROTECTION (WHP) ZONE 1

The surface area extending to a minimum one-hundred-fifty-foot radius around the wellhead.

WELLHEAD PROTECTION (WHP) ZONE 2

The remaining surface area of the delineated WHPA outside Zone 1.

WELLHEAD PROTECTION AREA (WHPA)

Surface and subsurface areas surrounding public water supply wells or well fields where the quantity or quality of groundwater moving toward the wells or well fields may be adversely affected by land use activity.

Editor's Note: See 42 U.S.C. § 9601 et seq.

Editor's Note: See 42 U.S.C. § 9601(14).

Editor's Note: The Resource Conservation and Recovery Act.

Source water protection areas. Source water protection areas are wellhead protection areas and excellent water recharge potential areas. All such areas are as depicted on source water protection area maps located in City Hall as adopted as part of the update and implementation of the 2005 Comprehensive Land Use Plan. These maps are also available in GIS overlays from Delaware Department of Natural Resources and Environmental Control, Division of Water Resources, Source Water Assessment and Protection Program. These areas shall be managed as required by this article to protect public drinking water resources from activities and substances that may harm water quality and subtract from overall water quantity.

Wellhead protection areas.

WHP Zone 1 requirements.

Parcels of land within a WHP Zone 1 wellhead protection area shall be preserved in a natural condition with the exception of impervious surface limited to building and access associated with the well and distribution and treatment facilities and their maintenance.

Aboveground storage tanks for materials used in the treatment facility operation are permitted.

Underground storage tanks are prohibited.

Stormwater runoff shall be diverted away from the wellhead.

Stormwater infiltration practices designed to handle runoff are prohibited.

The minimum lot area for a proposed public water supply well and related facility drawing from a confined aquifer shall be one acre, and the minimum lot area for a public well drawing from an unconfined aquifer shall be two acres.

On-site wastewater and disposal systems shall not be permitted.

WHP Zone 2 requirements.

Impervious cover. Impervious cover shall not exceed 20% per parcel. New development in this Zone 2 may exceed the twenty-percent impervious cover threshold within WPAs but shall be no more than fifty-percent impervious cover, provided that the applicant submits an environmental assessment impact report. (See Article IX, § 197-75H.)

Stormwater.

Stormwater shall be treated by an approved stormwater quality management practice in accordance with current requirements of the Delaware Sediment and Stormwater Regulations, dated October 11, 2006, or as later revised.

For all new construction, all structures shall be required to discharge roof drains onto permeable surfaces.

Underground storage tanks (USTs).

USTs with a capacity greater than 110 gallons containing petroleum, and residential and agricultural USTs with a capacity greater than 1,100 gallons containing heating fuel or motor fuel, shall not be permitted in a delineated WHP Zone 2 wellhead protection area.

USTs with a capacity greater than 110 gallons containing a hazardous substance as defined in CERCLA § 101(14)[4] shall not be permitted in a designated wellhead area.

Editor's Note: See 42 U.S.C. § 9601(14).

Hazardous waste treatment, storage, and disposal facilities, as defined in 7 DE Admin. Code § 1302, Delaware Regulations Governing Hazardous Waste, shall not be permitted in wellhead protection areas.

Sanitary and industrial landfills, as defined in 7 DE Admin. Code § 1301, Delaware Regulations Governing Solid Waste, shall not be permitted in wellhead protection areas.

Hazardous waste generators, vehicle repair, salvage operations, waste sludge storage or application, tire piles and dredge spoil sites shall not be permitted in wellhead protection areas.

Aboveground storage tanks. Aboveground storage tanks with a capacity greater than 12,499 gallons containing petroleum or hazardous substances, and ASTs with a storage capacity greater than 39,999 gallons containing diesel, heating fuel or kerosene, shall be permitted in a delineated wellhead area if the ASTs are designed, constructed, operated and maintained with the applicable requirements in the Delaware Regulations Governing Aboveground Storage Tanks, dated February 11, 2005, or as later revised.

Wastewater treatment and disposal systems. On-site wastewater treatment and disposal systems shall not be permitted.

Excellent groundwater recharge potential areas.

Impervious cover. Major subdivisions in excess of one acre and site development plans in excess of one acre. For new major subdivisions and site development plans encompassing more than 1 acre, the excellent groundwater recharge potential area shall not exceed twenty-percent impervious cover per parcel. New development in this area may exceed the twenty-percent impervious cover threshold within the excellent groundwater recharge potential area but shall be no more than fifty-percent impervious cover, provided that the applicant submits an environmental assessment impact report. (See Article IX, § 197-75H.)

[Amended 1-10-2022]

Stormwater.

For all new construction, all structures shall be required to discharge roof drains onto permeable surfaces.

Underground storage tanks.

Underground storage tanks with a capacity greater than 110 gallons containing petroleum, and residential and agricultural ASTs with a capacity greater than 1,100 gallons containing heating fuel or motor fuel, shall be permitted in an excellent groundwater recharge potential area if the USTs are designed, constructed, maintained and operated in accordance with the Delaware Regulations Governing Underground Storage Tank Systems, dated March 12, 1995, or as later revised. (NOTE: Regulated USTs must be constructed with secondary containment of the tanks and piping and must have continuous monitoring for releases.)

Underground storage tanks with a capacity greater than 110 gallons containing a hazardous substance as defined in CERCLA § 101(14)[5] shall be permitted a delineated excellent groundwater recharge potential area if the USTs are designed, constructed, maintained and operated in accordance with the Delaware Regulations Governing Underground Storage Tank Systems, dated March 12, 1995, or as later revised. (NOTE: Regulated USTs must be constructed with secondary containment of the tanks and piping and must have continuous monitoring for releases.)

Editor's Note: See 42 U.S.C. § 9601(14).

Aboveground storage tanks. Aboveground storage tanks with a capacity greater than 12,499 gallons containing petroleum or hazardous substances, and ASTs with a storage capacity greater than 39,999 gallons containing diesel, heating fuel or kerosene, shall be permitted in a delineated excellent groundwater recharge potential area if the ASTs are designed, constructed, operated and maintained with the applicable requirements in the Delaware Regulations Governing Aboveground Storage Tanks, dated February 11, 2005, or as later revised.

Wastewater treatment and disposal systems. Such systems shall not be permitted in an excellent groundwater recharge potential area.

Boundary interpretation and adjustment.

All subdivision and land development plans depicting development or land disturbance submitted for City review shall be evaluated for the existence of source water protection areas. All such areas are as depicted on source water protection area maps located in City Hall, including but not limited to Stormwater Map, Recharge Area Map and Wellhead Protection Map, and as adopted as part of the update and implementation of the 2005 Comprehensive Land Use Plan. These maps are also available in GIS overlays. Maps/overlays are available from Delaware Department of Natural Resources and Environmental Control (DNREC), Source Water Assessment and Protection Program (SWAPP). If an SWPA exists within a proposed development site, the boundaries of these areas shall be delineated on the plan by the applicant's engineer or geologist.

DNREC SWAPP may, when based on sound science and information, revise and update the overlay maps of wellhead protection areas.

The Delaware Geological Survey (DGS) may, when based on sound science and information, revise and update the overlay maps of excellent groundwater recharge potential areas.

When there appears to be a conflict between the mapped boundary and actual site conditions, the applicant may engage the services of a geologist to prepare a report intended to determine more accurately the precise boundary of the source water protection area. The report shall include:

A detailed topographic layout of the subdivision and/or area to be developed and prepared by a state-registered professional land surveyor or geologist.

Evidence derived from a site-specific investigation that may include aquifer testing, test borings, test pits, observation wells, groundwater elevations, and topography surveys as appropriate for the type of source water protection area that clearly demonstrate that the area in question does not meet the definition of a "source water protection area" as defined.

Any challenges to the delineations of the excellent groundwater recharge potential areas must follow the methods used in the Delaware Geological Survey publication Report of Investigations No. 66, Groundwater Recharge Potential Mapping in Kent and Sussex Counties, Delaware. The challenge must be approved by DGS and DNREC SWAPP.

Notwithstanding any other section of this article, if an owner initiates a precise boundary delineation pursuant to this section, any and all time review limitations shall be stayed pending the submission of the complete report contemplated by this section. Following submission of the report and all supporting documents, the DGS and DNREC SWAPP shall have 90 days to approve finally or disapprove the exploratory sketch plan submission or such further time as deemed necessary by the DGS and DNREC SWAPP, but not to exceed an additional 90 days.

Identification on development plans.

Development plans shall delineate the locations of water resources protection areas. A statement by an experienced, qualified engineer or geologist shall be provided, verifying the accuracy of the delineation.

If a tract proposed for development contains no wellhead protection areas, the plan shall include a statement affirming this from an experienced, qualified professional engineer or geologist.

When a property proposed for development contains water resources protection areas, an environmental impact assessment report shall be submitted with the preliminary plan.

The following standards and criteria shall be applicable to any limited use, special use or other use requiring an environmental impact assessment permitted pursuant to this division:

Stormwater management facilities shall be designed and constructed in accordance with DNREC Delaware Sediment and Stormwater Regulations, dated October 11, 2006, or as later revised.

(Reserved)

Environmental impact assessment report.

If a proposed use requires an environmental impact assessment report, the applicant shall submit an environmental assessment report. Such report shall include a climatic water budget and systems to augment recharge that assure water quality as well as water quantity. The environment impact assessment must document that post-development recharge will be no less than predevelopment recharge when computed on an annual basis. It is acknowledged that, commonly, the applicant offsets the loss of recharge due to impervious cover by constructing recharge basins that convey pretreated rooftop runoff for infiltration to groundwater. Refer to Supplement 1, Groundwater Recharge Design Methodology, dated May 2005, or as later revised, for the details of how to design recharge facilities in Delaware source water protection areas.

An engineer or geologist prepares an environmental assessment report, including but not limited to the following elements of planning, design, construction, and maintenance of groundwater recharge facilities:

Site description of proposed development within the water resource protection area;

Climatic water balance comparing predevelopment and post-development recharge potential;

Subsurface exploration, including borings, test pits, and infiltration tests;

Design of groundwater recharge facilities that assure water quality as well as quantity;

Construction and maintenance considerations; and

Recommended groundwater monitoring plan.

Enter into a water management agreement between the applicant, the City, the Board of Public Works of the City of Lewes and Sussex County Conservation District providing for review, monitoring, and maintenance of the recharge system.

The applicant shall abide by the groundwater management agreement as written in DNREC Supplement 1 to the Source Water Protection Guidance Manual for the Local Governments of Delaware: Groundwater Recharge Design Methodology, dated May 2005, or as later revised.

Redevelopment in wellhead protection areas and groundwater recharge protection areas.

Impervious cover.

Site modifications that require site plan approval must create a fifteen-percent reduction in the amount of impervious cover on the site when compared to pre-redevelopment conditions.

If the fifteen-percent reduction would require a site to go below the twenty-percent maximum impervious cover provisions of source water protection areas, then the maximum impervious surface cover for the site is 20%.

Stormwater.

Sites that do not meet the twenty-percent impervious cover threshold must employ rooftop infiltration practices. Stormwater shall be treated by an approved stormwater quality management practice in accordance with current requirements of the Delaware Sediment and Stormwater Regulations, dated October 11, 2006, or as later revised.

If the fifteen-percent reduction does not meet the twenty-percent impervious cover threshold, the site must employ rooftop infiltration practices. Stormwater shall be treated by an approved stormwater quality management practice in accordance with current requirements of the Delaware Sediment and Stormwater Regulations, dated October 11, 2006, or as later revised.

Abandoned or vacant property. Article IX, § 197-75I does not apply to vacant or abandoned property. These properties shall comply with the source water protection area regulations.

Uniform standards and criteria.

Hazardous waste treatment, storage, and disposal facilities, as defined in regulations established pursuant to 7 Del. C., § 6302, Delaware Regulations Governing Hazardous Waste, shall not be permitted in source water protection areas.

Sanitary and industrial landfills, as defined in regulations established pursuant to 7 DE Admin. Code § 1301, Delaware Regulations Governing Solid Waste, shall not be permitted in source water protection areas.

Nonconforming uses.

Nonconforming uses may continue in wellhead protection areas and excellent groundwater recharge potential in the form in which they existed at the time of the posting of this proposed ordinance, unless they pose a direct hazard to the City's water supply, as determined by the Board of Public Works, upon advice from the Delaware Division of Public Health, or are causing some foreign substances (by example, but not by limitation, oil, salts, chemicals, or other substances) to be introduced into the City's water supply as determined by the Board of Public Works upon advice from DNREC's Division of Air and Waste Management and/or Division of Water Resources. In the latter case, the Building Official or Board of Public Works shall issue a mandatory cease-and-desist order to stop the offending activity within the area.

Nonconforming existing underground or aboveground storage of oil, petroleum, and petroleum products shall require secondary containment pursuant to the regulations of the State of Delaware governing underground storage tanks.

Nonconforming existing aboveground storage of petroleum products shall require containment facilities capable of capturing the material stored on the site, for existing facilities that are proposed either to be upgraded or replaced.

Replacement and new wells.

The replacement of any existing public water supply well that was not required to meet this wellhead protection requirement at the date of its original installation and that has failed shall be exempt from meeting this wellhead protection requirement.

All public water supply wells within a housing development, subdivision or strip development recorded on or after the implementation of the Delaware Regulations Governing the Construction and Use of Wells, dated April 6, 1997, or as later revised, shall be located at least 150 feet within the subdivision's or development's outermost property lines.

§ 197-76 Drainage.

Natural drainage system utilized to maximum extent feasible.

To the extent practicable, all development shall conform to the natural contours of the land. Natural and preexisting man-made drainageways shall remain undisturbed.

To the extent practicable, lot boundaries shall be made to coincide with the natural and preexisting man-made drainageways within subdivisions to avoid the creation of lots that can only be built upon by altering such drainageways.

Proper drainage required.

All developments, lots, and properties shall be provided with a drainage system that is adequate to prevent the undue retention of surface water on the site.

Surface water may not be channeled or directed into a sanitary sewer.

Whenever practicable the drainage system of new developments shall be designed to retain runoff on site, and streets shall provide natural stormwater management in a manner consistent with provision of standardized shade trees.

§ 197-77 Permanent stormwater management.

Requirement.

Developments shall be constructed and maintained so that adjacent properties are not unreasonably burdened with surface waters as a result of such development.

No development or property may be constructed or maintained in a way that such development or property unreasonably hampers the natural flow of water from higher adjacent properties across the development or property thereby causing substantial damage to the higher adjacent property.

No development or property may be constructed or maintained so that surface waters from such development or property are unreasonably collected and channeled onto lower adjacent properties at such locations and at such volumes so as to cause substantial damage to the lower adjacent property.

Design, construction, and review. See § 170-30, in Chapter 170, Subdivision and Land Development.

[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]

§ 197-78 Erosion and sediment control.

Requirement. Development plans shall include adequate provision for controlling temporary flooding, soil erosion, and sediment deposits during and after construction.

Design and construction.

All development or land-disturbing activity is subject to the requirements of the Delaware Erosion and Sediment Control Handbook.

Topsoil.

No topsoil shall be removed from a site or used as spoil.

Topsoil moved during the course of construction shall be redistributed so as to provide at least six inches of cover to all areas of the subdivision and stabilized by seeding and planting.

§ 197-78.1 Tree density.

[Added 11-13-2023]

Purpose: to require a minimum number of trees on parcels of land.

Applicability.

The tree density requirements shall apply to major subdivisions, minor subdivisions, site development plans, and new construction of residential dwellings.

Interior renovations and building additions are exempt.

General requirements.

There shall be at least one tree for every 2,500 square feet of land area on a parcel or portion thereof.

Existing trees count towards the tree density requirement.

Trees located within the right-of-way do not count towards the tree density requirement.

Invasive species shall not be planted, as identified in the State Code Title 3, Agriculture, Ch. 29, Invasive and Potentially Invasive Plant.

The trees should be selected with the "right tree in the right place" best practices.

The minimum size of the tree at the time of planting shall be 1 1/2 inch caliper or five feet to six feet in height.

This requirement is separate from any other required landscape buffer or tree planting requirement as required in Chapter 170.

The planting of native trees is encouraged.

§ 197-78.2 Construction period tree protection.

[Added 4-8-2024]

Purpose.

To protect a tree or mass of trees, that will remain on the property as designated on the plan.

Applicability.

This section shall apply to major subdivisions, minor subdivisions, site development plans, and construction of new residential dwellings.

This section shall apply to all trees that will remain on the property during construction.

Definitions.

Dripline: area encircling the base of a tree, the minimum extent of which is delineated by a vertical line extending from the outer limit of a tree's branch tips down to the ground.

Tree protection area: the area within the dripline, or the dripline of the perimeter of a mass of trees.

General requirements.

Install a barrier at the dripline, which delineates the tree protection area.

The dripline shall consist of one of the following: brightly colored snow fencing, wood fence, or metal fence. A silt fence is not permitted.

Brightly colored signage shall be placed on the barrier every 30 feet stating "Tree Protection Area" in both English and Spanish.

The location of the barrier shall be shown on all construction and record plan sheets.

The tree protection area shall be shown on the survey for the construction of a new residential dwelling.

The barrier shall be installed within 48 hours after the issuance of the notice to proceed by the Sussex Conservation District or the issuance of a demolition permit, whichever is sooner.

The barrier shall remain until the acceptance of the roads for a major subdivision, or the certificate of occupancy has been issued for the residential dwelling or commercial structure.

Activities within the tree protection area.

Permitted uses within the tree protection area;

The general clearing of scrub, invasive species, and unwanted vegetation without the use of power vehicles. Clearing activities shall not damage the trunks of the trees to remain.

A maximum depth of three inches of mulch may be placed within the tree protection area. The root flare of the tree(s) shall be exposed.

Minimize the direction of drainage towards the trees.

Prohibited uses within the tree protection area:

Driving or parking of vehicles and equipment.

Placement, or storage of dumpsters, storage containers, felled trees, construction materials, construction equipment, building materials, debris, or any other material.

Disposal, placement, or application of chemicals, e.g., glyphosate, solvents/residual from construction use, liquid spoil.

Disturbance of, excavation of soil, grading, trenching, or placement of fill.

Disturbance of or damage to tree roots.

Attachment or placing items to the trees.

Violation and penalties per § 197-105.