Drainage of Lands and Management of Waters; Tax Ditches

Del. Code tit. 7, ch. 41

in effect

Del. Code tit. 7, § 4101 Declaration of policy.

It is declared that the drainage and the prevention of flooding of lands and the management of water for resource conservation shall be considered a public benefit and conducive to the public health, safety and welfare.

Del. Code tit. 7, § 4102 Purpose.

It is the purpose of this chapter in carrying out the policy declared in § 4101 of this title to provide a basis for a uniform system for establishing, financing, administering, maintaining and dissolving tax ditch organizations in the State under the supervision of the Department of Natural Resources and Environmental Control to the end that the conservation and management of the soil, water, wildlife, forest and other resources of the State may be accomplished in a workable and practicable manner.

Del. Code tit. 7, § 4103 Definitions.

For the purposes of this chapter, unless otherwise specifically defined, or another intention clearly appears, or the context requires a different meaning: (1) “Benefits” include, but shall not be limited to, the privilege of participating in a cooperative system for the management of water from one’s lands by a tax ditch formed under this chapter. (2) “Drainage” means water management, by drainage areas or watersheds, to safely remove or control both excess, surface flood waters and damaging, excess subsurface waters. (3) “Landowner” or “owner” means that person or group of persons in whom the entire title to a certain tract of land is vested. (4) “Taxable” means any person entitled to vote under this chapter. (5) “Flooding” means the occurrence of damaging, excess surface water. The occurrence of surface water for beneficial uses is a component of water management, not flooding. (6) “Water management” means the removal, storage, or application of water by intentional means, including but not limited to management methods using drains, channels, culverts, structures for water level control and dams.

Del. Code tit. 7, § 4104 Application; effect on previously established drainage organizations and on earlier drainage laws.

(a) Any landowner or owners in an area served by a drainage organization established prior to June 1, 1951, under any other law of this State, or any landowner or owners who desire their lands to be drained or protected from flooding may, at any time, petition for the establishment of a tax ditch under this chapter. (b) In those cases, when an existing drainage organization becomes a tax ditch under this chapter, the present assets or liabilities of said existing drainage organization may be transferred to the tax ditch provided that such assets or liabilities are declared by the tax ditch commissioners in their report, and that the transfer of such assets or liabilities is approved by the affected taxables either by a referendum held by board of ditch commissioners pursuant to § 4132 of this title or by a signed statement pursuant to § 4135 of this title. (c) Article 2, Chapter 65, and Article 1, Chapter 105, of the 1935 Revised Code of Delaware shall remain in effect and shall apply to drainage organizations established thereunder prior to June 1, 1951, unless such drainage organizations reform or reorganize under this chapter.

Del. Code tit. 7, § 4105 Limitation of easement or right-of-way.

(a) Once a tax ditch has been constructed, any right-of-way for the construction and major maintenance of the tax ditch — provided such has been created pursuant to this chapter — and including tax ditches where rights-of-way were previously defined as “adequate” or “sufficient” — unless previously modified by a change to the court order, shall have the maximum extent defined as follows: (1) Tax ditches with a designed 0′-4′ bottom width — 80′ from top of bank and to include the cross-section of the ditch; or the existing construction right-of-way, whichever is less. (2) Tax ditches with a designed 4′-10′ bottom width — 120′ from top of bank and to include the cross-section of the ditch; or the existing construction right-of-way whichever is less. (3) Tax ditches with a designed bottom width greater than 10′ — existing construction and major maintenance right-of-way as filed in the original court order. (b) No change to the minor maintenance right-of-way is necessary provided such has been otherwise created pursuant to this chapter. (c) The reference point for all tax ditch rights-of-way that are established or modified as a result of 76 Del. Laws, c. 389 or future actions is the nearest top of ditch bank. The “top of ditch bank” is the point where the side slope of the ditch intersects the existing grade of the adjacent land. For ditch sections that have been piped, the point of references shall be the centerline of the pipe. (d) An additional deferment of the timeline for the recordation process for certifying rights-of-way as set forth in amendments contained in § 4195(b) of this title and as extended by SCR No. 27 of the 144th General Assembly shall be granted until January 13, 2009. (e) For purposes of this chapter: (1) “Construction and major maintenance right-of-way” means the right-of-way created by this chapter for the purpose of construction/reconstruction of the tax ditch, to allow for the piling of debris and to allow spoil to be leveled as part of the construction operations and major maintenance activities including “dipping out” and/or disposal of spoils. (2) “Minor maintenance right-of-way” means the right-of-way created under this chapter for the purpose of maintenance activities that include but are not limited to inspection, mowing, use of specialized equipment for vegetative management (i.e. herbicide applications), removal of debris and obstructions, pipe repairs and installation of crossings for access.

Del. Code tit. 7, § 4106 Ditch commissioners; membership; qualifications; term; vacancies; secretary.

(a) A board of ditch commissioners, consisting of 3 ditch commissioners and 3 alternate ditch commissioners, is continued for each county within the State. Upon the expiration of the terms of office of the present and all future commissioners, the resident judge for each county shall appoint ditch commissioners and alternate ditch commissioners, who may be selected from lists of 10 or more names submitted by the supervisors of the soil conservation district within the county. Each ditch commissioner and alternate ditch commissioner shall be a resident landowner of the county from which the commissioner is appointed, shall have some knowledge of water management including flood and drainage problems and their impacts to natural resources and shall be familiar with farming and with land values within such county. (b) The term of office for each ditch commissioner shall be 3 years. The term of office for the alternate ditch commissioners shall be 1 year each. A ditch commissioner or alternate ditch commissioner may be reappointed to succeed himself or herself. All appointments shall be effective as of August 1 of each year. (c) In the case of the death, resignation or removal from office of a ditch commissioner, the vacancy shall be filled by the appointment of 1 of the alternate ditch commissioners to serve for the remainder of the term of the vacating ditch commissioner. (d) Except in the case of death or removal from office, a ditch commissioner shall hold office until his or her successor has been appointed. (e) The Division of Watershed Stewardship shall serve as secretary, without voting authority, for each of the county boards of ditch commissioners.

Del. Code tit. 7, § 4107 Disqualification of members.

In those cases where any member of the board of ditch commissioners owns lands within the boundary of a proposed tax ditch, such member shall not serve as a member of said board on that particular tax ditch and an alternate ditch commissioner shall serve in the member’s stead.

Del. Code tit. 7, § 4108 Chairperson; quorum; voting.

A chairperson of each board of ditch commissioners shall be designated by the members thereof and such designation may be changed from time to time. A majority of the ditch commissioners of each board shall constitute a quorum and the concurrence of a majority in any matter within their duties shall be required for its determination.

Del. Code tit. 7, § 4109 Compensation; expenses and reimbursement.

(a) The ditch commissioners shall be entitled to receive reimbursement for their expenses necessarily incurred in the discharge of their duty at a per diem rate set by the Secretary of the Department of Natural Resources and Environmental Control, not to exceed $50, plus mileage reimbursement at the rate established in § 7102 of Title 29, as amended. The ditch commissioners shall be reimbursed for said expenses by the landowners petitioning to have a tax ditch formed. Such reimbursement shall be made from funds deposited in advance by the petitioners at the time the petition is filed or from the first moneys collected by the tax ditch after it is organized, the manner to be decided by the county soil conservation district pursuant to § 4120 of this title. (b) Ditch commissioners will be reimbursed for their expenses incurred in the discharge of their duties in connection with the formation of a tax ditch after the ditch order has become effective, or at such time as the Superior Court issues an order denying the petition for the formation of the tax ditch.

Del. Code tit. 7, § 4110 Employment of qualified personnel.

The Department of Natural Resources and Environmental Control shall employ personnel, including a Registered Professional Engineer, authorized to practice engineering in this State under Chapter 28 of Title 24, who is qualified by experience in hydraulic engineering, drainage and soil work, to assist it in carrying out its functions under this chapter and to perform related duties within the Division of Watershed Stewardship.

Del. Code tit. 7, § 4111 Employment of personnel; purchase of supplies and equipment.

The Department may employ such personnel and obtain by purchase or otherwise such supplies and equipment as are necessary to carry out this chapter.

Del. Code tit. 7, § 4116 Nature of a tax ditch.

A tax ditch organized under this chapter shall constitute a governmental subdivision of this State and a public body, corporate and politic, exercising public powers.

Del. Code tit. 7, § 4117 Petition for formation of a tax ditch; assistance of Division of Watershed Stewardship.

(a) Whenever 1 or more of the owners of any lands desire their lands to be drained or protected from flooding, or the waters of their lands to be managed they may present a petition for the formation of a tax ditch to the Superior Court of the county in which all or the major portion of the area involved is located, through the board of supervisors of the soil conservation district of the county. (b) The services of the Division of Watershed Stewardship shall be available to assist the landowners in the preparation of such petitions.

Del. Code tit. 7, § 4118 Form of petition.

A petition for the formation of a tax ditch shall be in the following form: PETITION To the Superior Court of ________________________________ County through the Board of Supervisors of the Soil Conservation District of ________________________________ County: Whereas the undersigned (is) (are) the owner(s) of certain lands subject to overflow or in need of water management situated in ________________________________ Hundred(s) ________________________________ County (Counties), and the State of Delaware, said lands being more particularly described as follows ________________ ________________ ________________ ________________; and Whereas the draining and the prevention of flooding of said lands, and/or the management of water for resource conservation on said lands would be a public benefit and conducive to the public health, safety and welfare; and Whereas the undersigned desire that a Tax Ditch be formed under the provisions of Chapter 41, Title 7 of the Delaware Code, said Tax Ditch to be known as________________________________ Tax Ditch; The undersigned therefore request the Soil Conservation District of ________________________________ County to make the investigation required under the above cited chapter and, if the findings thereon be favorable, to file this petition in the office of the Prothonotary of ________________________________ County so that the Superior Court of said County may take the necessary steps required by law to issue an order establishing ________________________________ Ditch. Dated this ________date day of ________________________________month , ________year at ________________________________, Delaware. ________________ (Space for Signatures)

Del. Code tit. 7, § 4119 Name of tax ditch.

The name of any tax ditch established under this chapter shall not be the same as the name of any existing drainage organization within the same county.

Del. Code tit. 7, § 4120 Deposit upon filing of petitions for tax ditch.

(a) The county soil conservation district shall require that a specified sum be deposited with it by the petitioners before the petition is filed in the office of the prothonotary to cover filing fees, mailing and other necessary expenses. The amount of the deposit shall be determined by the county soil conservation district and may vary according to the size of the area involved, the complexity of the problem, and other pertinent factors. If the original deposit is not sufficient, the district shall require an additional deposit as soon as the need for such becomes evident. (b) The district shall keep an account of such deposits and shall return any unused portion thereof to the petitioners upon completion of final action by the Superior Court. When such action is favorable, the petitioners shall be repaid, out of the first moneys collected by the tax ditch, all expenses of formation charged to them by the county soil conservation district. (c) From the funds deposited with it pursuant to this section, the county soil conservation district shall pay filing fees, mailing and other necessary expenses incurred in the investigation and formation of a tax ditch.

Del. Code tit. 7, § 4121 Duties of county soil conservation district upon receipt of petition.

The board of supervisors of the county soil conservation district shall, upon receipt of a petition for the formation of a tax ditch, determine whether the petition is in the form set forth in § 4118 of this title and has been properly executed. If the petition is in the prescribed form and has been properly executed, the board shall immediately notify the Division of Watershed Stewardship, and by virtue of such action shall have made available to it the services of the Department of Natural Resources and Environmental Control to assist it with the investigation concerning the possible formation of the tax ditch.

Del. Code tit. 7, § 4122 Investigation; hearing.

The county soil conservation district shall cause an investigation to be made by the Division of Watershed Stewardship in order to ascertain the general location and approximate watershed boundaries of the proposed tax ditch, and to obtain other information to assist the district to determine whether the formation of the tax ditch is practicable and feasible and is in the interest of the public health, safety and welfare. The district may hold such hearings as it deems necessary in order to assist it in making such determination.

Del. Code tit. 7, § 4123 Report of investigation by Division of Watershed Stewardship.

The Division of Watershed Stewardship shall make a formal report of its investigation to the county soil conservation district together with its recommendations.

Del. Code tit. 7, § 4124 Determination by county soil conservation district.

The county soil conservation district shall, upon the basis of the information obtained under this chapter, determine whether the formation of the proposed tax ditch is practicable and feasible and is in the interest of the public health, safety and welfare.

Del. Code tit. 7, § 4125 Filing of petition and report; action by district when formation is found to be not practicable and feasible.

(a) If the county soil conservation district determines that the formation of the proposed tax ditch is practicable, feasible and in the interest of the public health, safety and welfare, it shall file the petition in the office of the prothonotary of the county in which all or the major portion of the land involved is located, together with the report of the Division of Watershed Stewardship and such other relevant information as the district deems appropriate. (b) Where the county soil conservation district determines that the formation of the proposed tax ditch is not practicable and feasible or is not in the interest of the public health, safety and welfare, it shall so notify all of the petitioners involved, and a new petition for the formation of that tax ditch may not be refiled for a period of 1 year from the date of said notice.

Del. Code tit. 7, § 4126 Determinations to be made by board of ditch commissioners.

(a) Upon the filing of a petition for the formation of a tax ditch in the office of the prothonotary of a county, the board of ditch commissioners of such county, acting as officers of the Court, shall, at the direction of the resident judge thereof, go upon the lands that may be included in the tax ditch and determine the approximate sizes, grades and locations of the required drainage ditches; the approximate sizes, locations and specifications for required dikes, levees, structures and other necessary works of improvement; the location of public roads and railroads, and public utility installations within the proposed tax ditch; the exterior boundaries of the tax ditch; the approximate boundaries of each farm, parcel or piece of land within the tax ditch; the location and extent of needed permanent rights-of-way; the estimated total cost of all required tax ditch works of improvement; the damages to lands, if any, which will result from the construction of the tax ditch; and an equitable basis, considering relative benefits to each landowner, for the distribution of costs. The board of ditch commissioners shall obtain from the county soil conservation district such assistance and information as is needed in making the required determinations. (b) When all of the landowners involved, with the approval of the board of ditch commissioners and with the cooperation of the county soil conservation district and the Division of Watershed Stewardship: (1) Jointly make the determinations regularly assigned to the board of ditch commissioners in subsection (a) of this section and in § 4127 of this title, and (2) Prepare the assessment list required by § 4129 of this title, and (3) Supply any additional data necessary to complete the report of the board of ditch commissioners required by § 4130 of this title, and (4) Personally sign a statement to the effect that they approve the formation of the tax ditch, the board of ditch commissioners shall prepare their report from said determinations and such data without going upon the lands involved.

Del. Code tit. 7, § 4127 Existing works of improvement; compensation for work done thereon.

The board of ditch commissioners may deem adequate any works of improvement already constructed, including but not limited to ditches and structures and may incorporate these in the tax ditch, and may allow a fair compensation to landowners for work previously done by them on such works of improvement.

Del. Code tit. 7, § 4128 Factors in determination of cost.

(a) In determining the total cost of the proposed tax ditch works of improvement, the board of ditch commissioners shall include, among other things, the estimated costs of construction, the estimated cost of forming the tax ditch, the amount of damages, if any, awarded to landowners and the amount of compensation, if any, to be paid to landowners for works of improvement previously constructed and deemed adequate under § 4127 of this title. (b) The estimated cost of interest which will develop if the tax ditch borrows money to finance construction and the estimated cost of annual maintenance shall not be included in the total cost of the proposed tax ditch works of improvement.

Del. Code tit. 7, § 4129 Assessment list.

After determining the basis for distribution of costs among the landowners, the board of ditch commissioners shall prepare an assessment list which shall show the names of all owners of property, wholly or partly within the watershed of the proposed tax ditch, together with addresses and descriptions of those properties as currently recorded by the board of assessment of the county. The list shall also show, for each property, that portion, expressed in acres, which is within the watershed or drainage area. The cost-sharing or assessment base, expressed in dollars, for each of said properties shall also be shown. The sum of the individual property assessment bases shall be termed the total assessment base which in all cases shall be equal to or greater than the total cost of the proposed tax ditch works of improvement. The assessment list, as modified by the ditch order, described in § 4137 of this title, shall be the basis for all taxes levied under this chapter.

Del. Code tit. 7, § 4130 Proposed report of board of ditch commissioners.

The board of ditch commissioners, with the assistance of the Division of Watershed Stewardship, shall prepare a proposed report containing the following determinations and information: (1) The name of the proposed tax ditch; (2) The hundred and the county in which the proposed tax ditch is situated; (3) A map, drawing or aerial photograph, to a suitable scale, on which the following is shown: a. The main ditch, all prongs, all subprongs and other divisions of the proposed tax ditch; b. All dikes, levees, structures and other works of improvement of the proposed tax ditch; c. All railroads, public highways and all public utility installations near the points where such reach, cross or pass close to any part of the proposed tax ditch; d. The exterior boundaries of the tax ditch; e. The approximate boundaries of each farm, parcel or piece of land within the proposed tax ditch, together with the identification of each farm, parcel or piece of land by name or code number; f. The location and extent of rights-of-way, including overhead and underground clearances where necessary, assigned to the tax ditch for construction and maintenance operations; (4) The estimated total cost of the proposed tax ditch works of improvement; (5) The assessment list required under § 4129 of this title; (6) Factors which influenced the determination of relative benefits and the basis for distribution of costs among the landowners, and other pertinent information; (7) The names of all landowners awarded damages or to be paid compensation for works of improvement previously constructed and deemed adequate under § 4127 of this title; and the amount of damages or compensation to which each such landowner is entitled; and factors which influenced the determination of the damages awarded and compensation to be paid; (8) The number of ditch managers, not less than 2 nor more than 5, required to conduct the business affairs of the proposed tax ditch; (9) In the case of a previously existent drainage organization, the amount of present assets to be turned over to, or liabilities to be assumed by the proposed tax ditch.

Del. Code tit. 7, § 4131 Notice of hearing on establishment of tax ditch.

Upon completion of the proposed report required by § 4130 of this title, the board of ditch commissioners shall notify all owners of property, wholly or partly within the watershed of the proposed tax ditch, of a hearing concerning the establishment of said tax ditch to be held in the county in which all or the major portion of the lands involved is located. The notice shall be mailed by 1st-class mail at least 20 days prior to the hearing and shall designate the time and place thereof. It shall also state that the purpose of the hearing is to consider the formation of a tax ditch which may affect the lands of the person notified and to hold a referendum among the affected landowners concerning the establishment of a tax ditch. In addition, the notice shall state the place where a copy of the above proposed report of the board of ditch commissioners will be open to inspection for at least 5 days, excepting Saturday and Sunday, prior to the hearing date.

Del. Code tit. 7, § 4132 Hearing; adoption of proposed report; right to adjourn hearing; referendum.

At the time and place designated in the notice, the board of ditch commissioners, with the assistance of the Division of Watershed Stewardship, shall hold a hearing at which all persons interested shall have an opportunity to express their opinions on and objections to the proposed report required by § 4130 of this title. The board of ditch commissioners shall make such changes in the proposed report as it deems warranted from evidence presented at the hearing, and shall then adopt the report and declare it final. If, however, as a result of the hearing, the board of ditch commissioners deems it advisable, it may adjourn the hearing in order to enable it to reexamine and modify its report in the light of the opinions and objections expressed at the hearing. The hearing may be adjourned to a fixed future date with no additional notification required or adjourned to an unspecified future date for which the notification and display procedures of § 4131 of this title will again apply. At the conclusion of the hearing, a referendum shall be held under the supervision of the board of ditch commissioners and the Division of Watershed Stewardship. The referendum shall afford each landowner the opportunity to cast a ballot for or against the formation of the proposed tax ditch in accordance with the final report of the board of ditch commissioners. Each landowner shall be entitled to the same number of votes as the number of dollars shown as the assessment base for the lands by the board of ditch commissioners.

Del. Code tit. 7, § 4133 Contents of report; filing.

After holding the hearing and supervising the referendum provided for in § 4132 of this title, the board of ditch commissioners shall file the original and 2 copies of its final report in the office of the prothonotary of the county in which all or the major portion of the lands involved is located, and shall attach to the report a certificate stating the results of the referendum and the place where and the time when it was held. The board of ditch commissioners shall also prepare and attach to the report a statement showing: (1) Whether the board of ditch commissioners has fully discharged the duties assigned to it as prescribed by law; (2) Whether the proposed tax ditch is practicable and feasible and in the interest of the public health, safety and welfare; (3) Whether in laying out the tax ditch, the lands of every landowner assessed are directly or indirectly affected by some part of the proposed tax ditch; (4) Any objections made to the report of the board of ditch commissioners which did not warrant further changes in the report and the reasons therefor; (5) Whether, in the opinion of the board of ditch commissioners, the benefits that will result from the construction of the proposed tax ditch will exceed the total cost; (6) Any other recommendations or information which the board of ditch commissioners deems pertinent.

Del. Code tit. 7, § 4134 Signing of commissioners’ report; dissent.

The report of the board of ditch commissioners, including the statement required by § 4133 of this title, shall be signed by all of the commissioners concurring therein. Any ditch commissioner who dissents therefrom shall attach to the report the reasons for his or her dissent.

Del. Code tit. 7, § 4135 Waiving of commissioners’ hearing and referendum.

In those cases, when all of the landowners involved, indicate by signed statement that they are familiar with the report of the board of ditch commissioners and that they favor the formation of the tax ditch, the board of ditch commissioners shall not hold a hearing and referendum, pursuant to § 4132 of this title, nor shall they give notice thereof as pursuant to § 4131 of this title, but they shall prepare the statement required and file their report, pursuant to § 4133 of this title, without a certificate of referendum.

Del. Code tit. 7, § 4136 Action by Superior Court; notice of final hearing.

(a) After the report and statement of the board of ditch commissioners have been filed in the office of the prothonotary of the appropriate county, they shall be carefully reviewed by the Superior Court of the county. (b) If the report of a majority of the board of ditch commissioners is opposed to the formation of the proposed tax ditch, or if the certificate stating the results of the referendum shows that a majority of all votes cast were opposed to the formation of the tax ditch, or if such report shows that the total cost of the construction of the tax ditch will exceed the benefits that will result therefrom, then the Superior Court shall issue an order denying the petition for the formation of the tax ditch. (c) If the report of a majority of the board of ditch commissioners is in favor of the formation of the proposed tax ditch, and if the statement attached to said report indicates that the total benefits that will result from the tax ditch will exceed the total cost of the proposed tax ditch works of improvement, and if the certificate stating the results of the referendum shows that a majority of all votes cast were in favor of the formation of the tax ditch, then the Superior Court shall set a date for the final hearing on the petition and shall direct the prothonotary to give notice of the hearing by publication in a newspaper of general circulation in each county in which any of the lands involved are located and by posting a written or printed notice on the door of the courthouse of each such county, such publication and posting to be made not less than 15 days before the time of the final hearing. Notice of the final hearing shall also be given to landowners involved by first-class mail. This notice shall be mailed not less than 15 days before the time of the hearing. From the time the report of the board of ditch commissioners is filed in the office of the prothonotary of the appropriate county it shall be open to inspection by any interested person. (d) In those cases, when all of the landowners involved have indicated by signed statement that they are familiar with the report of the board of ditch commissioners and that they favor the formation of the tax ditch, and if the report of a majority of the board of ditch commissioners is in favor of the formation of the proposed tax ditch, and if the statement attached to the report indicates that the total benefits that will result from the tax ditch will exceed the total cost of the proposed tax ditch works of improvement, then the Superior Court shall not hold a final hearing, nor give notice thereof, but shall confirm the report and issue an order granting the petition for the formation of the proposed tax ditch, the order to become effective immediately, and to be known as the ditch order. The confirmed report shall be considered a part of the ditch order.

Del. Code tit. 7, § 4137 Final hearing; ditch order.

At least 10 days prior to the date set for the final hearing before the Superior Court, any interested person may file an objection in writing to the report of the board of ditch commissioners. The Superior Court shall review the report of the board of ditch commissioners and any objections filed thereto, and make, in consultation with the ditch commissioners, such changes as are necessary to render substantial and equal justice to all interested persons. Damages to any 1 landowner shall not be grounds for denying the petition, but may be used to adjust the assessment base of that property or the damages to be paid to that landowner and shall be considered as part of the total cost of the proposed tax ditch. If the conditions set forth in § 4136(c) of this title, still exist after the objections have been considered and the necessary changes have been made in the report of the board of ditch commissioners, the Superior Court shall confirm the report and issue an order granting the petition for the formation of the proposed tax ditch, said order to be known as the ditch order. The confirmed report shall be considered a part of said ditch order. If no objections are presented at the final hearing before the Superior Court the ditch order shall become effective when issued.

Del. Code tit. 7, § 4138 Right to jury trial; procedure.

When objections to the report of the board of ditch commissioners are filed in writing with the Superior Court and when the party filing feels aggrieved by the report of the board of ditch commissioners, such party may apply to the Superior Court, within 30 days after the issuance of the ditch order, for an order in the nature of a writ of inquiry to ascertain by the verdict of a jury at the bar of the Court, the full and true value of the relative benefits, damages, injury or loss which will result to the lands of such person from the construction of the proposed tax ditch.

Del. Code tit. 7, § 4139 Defense of contested ditch orders; Attorney General.

If the ditch order is contested, the board of ditch commissioners shall defend the order, and in conducting its defense, the board shall be represented by the Attorney General of the State.

Del. Code tit. 7, § 4140 Notice of final action on ditch order.

When the ditch order has become effective because no objection has been filed, or because the right to appeal therefrom has expired, the prothonotary shall notify the Division of Watershed Stewardship and the appropriate county soil conservation district accordingly, and shall forward 2 certified copies of the ditch order to the Division of Watershed Stewardship.

Del. Code tit. 7, § 4141 Permanent court record.

The ditch order, together with any amendment thereto, shall be a permanent court record and shall be kept in the office of the prothonotary of the county wherein it was issued and copies of the ditch order shall be recorded in a Tax Ditch Volume in the office of the recorder of deeds in the county where the tax ditch is located. A filing fee for all new tax ditch orders shall be charged by the office of the recorder of deeds after the effective date of this legislation. It shall not be removed from that office except in cases where an emergency so requires. The prothonotary shall make such docket entries of proceedings as directed by rule of court.

Del. Code tit. 7, § 4142 Employment of private engineer by landowners.

If the board of supervisors of the county soil conservation district in which all or the major portion of the area involved is located determines that the formation of a tax ditch is practicable and feasible and is in the interest of the public health, safety and welfare, the interested landowner or owners may at any time thereafter employ at their expense engineering personnel of their selection to assist the Division of Watershed Stewardship.

Del. Code tit. 7, § 4143 Exclusive procedure for determination of damages.

The determination, assessment or award of damages or other compensation to be paid to any landowner in connection with the formation of a tax ditch shall be made under and in accordance with this chapter. Chapter 61 of Title 10 shall not be applicable to proceedings to organize a tax ditch under this chapter.

Del. Code tit. 7, § 4151 Meeting to organize tax ditch; notice.

(a) The Division of Watershed Stewardship, at its earliest convenience after the ditch order becomes final, shall call a meeting of the taxables for the purpose of organizing the proposed tax ditch, including the election of ditch managers, as called for in the ditch order, and a secretary-treasurer; the formulation of a plan for constructing, financing, administering and maintaining the proposed tax ditch; and for levying taxes to cover the costs of construction and maintenance. (b) The Division of Watershed Stewardship shall send a notice to every taxable, by first-class mail to that landowner’s address as currently recorded by the board of assessment of the county, at least 10 days prior to that meeting, stating the time, place and object of the meeting. (c) A notice of the meeting shall be sent to the chairperson of the board of supervisors of the county soil conservation district.

Del. Code tit. 7, § 4152 Distribution of ditch order and this chapter; filing of assessment list.

(a) At the organization meeting of the tax ditch, the Division of Watershed Stewardship shall deliver to the managers, when elected, a certified copy of the ditch order and a copy of this chapter, together with all effective amendments thereto. (b) The Division of Watershed Stewardship shall deliver a copy of the assessment list prepared under § 4129 of this title, as modified by the ditch order, to the board of assessment of the county, making such changes in the names of the owners thereon as are warranted by transfers, to new owners, of lands assessed.

Del. Code tit. 7, § 4153 Representation at meeting.

In addition to the Division of Watershed Stewardship, the county soil conservation district may be represented at the organization meeting by 1 member of the board of district supervisors.

Del. Code tit. 7, § 4154 Voting rights.

At all meetings, each landowner shall be entitled to the same number of votes as the number of dollars assessed against the land of such owner in the ditch order. In the event that any lands are held by tenants in common or joint tenants, each such tenant in common or joint tenant shall be entitled to the same number of votes as his or her fractional share of the total number of dollars assessed against said lands. In the case of lands held by a husband and wife as tenants by the entirety, either the husband or wife may vote all the dollars assessed against their lands.

Del. Code tit. 7, § 4155 Voting by proxy.

Any person entitled to vote pursuant to § 4154 of this title may authorize another landowner within the tax ditch to cast his or her votes in that person’s stead by executing a proxy. The proxy shall be signed, dated and notarized.

Del. Code tit. 7, § 4156 Election of ditch managers and a secretary-treasurer; terms of office; vacancies.

(a) At the first meeting the taxables shall elect from their group the number of ditch managers specified in the ditch order, and a secretary-treasurer. (b) The term of office of each ditch manager and of the secretary-treasurer shall be 1 year. If the ditch managers and secretary-treasurer first elected are elected prior to July 1 of any year, the time elapsing between said election and the first annual January meeting provided for in § 4159 of this title shall be deemed to constitute the first year of their terms of office. However, if the ditch managers and secretary-treasurer first elected are elected on or after July 1 of any year, their terms of office shall not be deemed to begin until the said first annual January meeting, although they shall assume the duties and responsibilities of their respective offices immediately upon election. (c) In the event that any tax ditch officer dies, resigns, ceases to be 1 of the taxables, or is removed from office, the remaining ditch officers shall within 60 days, appoint a taxable to serve the remainder of the term of such officer. However, except in the case of death or removal from office, each tax ditch officer shall continue to serve until a successor has been appointed.

Del. Code tit. 7, § 4157 Chairperson of ditch managers; duties.

Immediately after they are elected, the ditch managers shall designate 1 of their number to serve as chairperson. The chairperson shall call meetings of the ditch managers and taxables and shall preside thereat.

Del. Code tit. 7, § 4158 Compensation of ditch managers and secretary-treasurer.

Tax ditch managers and the secretary-treasurer may be entitled to receive compensation at a rate to be determined by a majority of the eligible votes of those taxables present at the first meeting provided for in § 4159 of this title. The rate of compensation for the tax ditch managers and secretary-treasurer may be revised only at a regular annual meeting of the taxables.

Del. Code tit. 7, § 4159 Annual and other meetings of taxables; notice of meetings.

At the first meeting the taxables shall set a date for the regular annual meeting. This date may not be changed except by action of a majority of the taxables present at a regular annual meeting. The chairperson of the ditch managers may call special meetings at such times as the circumstances warrant. At least 10 days’ notice of all meetings shall be given by the ditch managers using either of the following methods: (1) By publishing in a newspaper of general circulation in the area of a tax ditch, and by posting at 5 conspicuous places in or near the area of said tax ditch, a notice stating the time, place and object of the meeting; or (2) By mailing to each affected taxable at the address currently shown on the records of the board of assessment of the county, a notice stating the time, place and object of the meeting.

Del. Code tit. 7, § 4160 Meetings of ditch managers; quorum.

The ditch managers shall meet as often as necessary to properly conduct the business of the tax ditch. At such meetings a majority of the ditch managers shall constitute a quorum and the concurrence of a majority in any matter within their duties shall be required for its determination.

Del. Code tit. 7, § 4161 Powers of a tax ditch.

A tax ditch organized under this chapter, being a governmental subdivision of this State and a public body, corporate and politic may exercise public powers and, in addition to such other powers as usually pertain to corporations, may: (1) Levy taxes; (2) Sue and be sued in the name of the tax ditch, and suits against the tax ditch shall be governed by subchapter I of Chapter 40 of Title 10; (3) Make and execute contracts and other instruments necessary or convenient to the exercise of its powers; (4) Borrow money for the purpose of constructing, maintaining and administering the tax ditch; (5) Acquire, by purchase, exchange, lease, gift, grant, bequest, devise or otherwise, any property, real or personal, or any rights or interests therein; (6) Cooperate, or enter into agreements with the state or federal governments or any agency or subdivision thereof; (7) Exercise the power of eminent domain, in accordance with the condemnation procedure prescribed in Chapter 61 of Title 10, with respect to lands outside the boundaries of the tax ditch which are needed for right-of-way or outlet purposes; (8) Accept contributions from landowners assessed in the tax ditch, and disburse such funds for the purposes of performing certain operations, such as, but not limited to, additional clearing or the installation of structures, which operations are authorized in the tax ditch order, but which are not included in the original estimated construction requirements and costs; (9) Call upon the Division of Watershed Stewardship for assistance with administrative and operations problems of the tax ditch; (10) After initial construction has been completed, and with the prior approval of the Department of Natural Resources and Environmental Control, and with written consent of more than one half of the landowners involved, owning more than 1 / 2 of the drainage area assessed: a. Transfer to the Department of Natural Resources and Environmental Control: 1. The responsibility for certain specified responsibilities for maintenance of the tax ditch; 2. All rights-of-way assigned by court order to the tax ditch for construction and maintenance operations; 3. Any and all powers possessed by the tax ditch, or the managers thereof, related to obstruction of, or damage to said tax ditch, or to the addition of territory to a tax ditch, or to the alteration of a tax ditch. b. Discontinue annual and other meetings of taxables and of tax ditch managers, except that when maintenance has been transferred to the Department of Natural Resources and Environmental Control, that body shall call a meeting of the taxables upon a written request from at least 3 of such taxables. c. Discontinue tax ditch managers and secretary-treasurer as long as no meetings are being held.

Del. Code tit. 7, § 4162 Duties of ditch managers.

In addition to the duties specified in other sections of this chapter, the ditch managers shall: (1) Determine from the taxables the desired program of operations; (2) Determine the amount of taxes to be levied to carry out such desired program; (3) Secure specific authority for borrowing money, in the name of the tax ditch, by a majority vote of the taxables present at a duly called meeting of the tax ditch; (4) At the first meeting, or within 30 days thereafter, prepare, with the assistance of the Division of Watershed Stewardship, a comprehensive plan for carrying out the desired program, which plan shall include provisions for levying taxes and for financing the program; (5) Execute warrants, with the assistance of the Division of Watershed Stewardship, to the receiver of taxes and county treasurer authorizing and requesting the collection of all tax ditch taxes other than maintenance taxes; (6) Execute a warrant, with the assistance of the Division of Watershed Stewardship, to the receiver of taxes and county treasurer authorizing and requesting the annual collection of a tax in the amount of 2 percent of the total assessment base, or in the amount of 2 percent of the total benefits for tax ditches previously formed under the original provisions of this chapter, said warrant to be marked plainly as being for annual maintenance taxes, and to be issued simultaneously with the issuance of the first warrant for the collection of taxes for construction purposes; (7) Make a report, at the annual meeting, of their activities during the year preceding such annual meeting; (8) Provide for construction work on the tax ditch; (9) Provide for adequate maintenance of the tax ditch.

Del. Code tit. 7, § 4163 Duties of secretary-treasurer of tax ditch.

In addition to any powers and duties set forth elsewhere in this chapter, the secretary-treasurer of the tax ditch shall: (1) Keep accurate minutes of all meetings of the ditch managers and taxables, and such minutes shall be a part of the permanent records of the tax ditch; (2) Prepare a complete financial statement at the end of each calendar year, including therein an itemized report of all funds received, all funds expended, all funds due from taxes not yet collected and all sums due and owing by the tax ditch, and this statement and the records of the secretary-treasurer shall be audited annually by 2 qualified persons and shall become part of the permanent records of the tax ditch; (3) Provide for the safekeeping of any funds of the tax ditch which are placed in his or her custody; (4) Attend all meetings of the ditch managers and taxables.

Del. Code tit. 7, § 4164 Bond of secretary-treasurer.

The secretary-treasurer shall, before assuming the duties of his or her office and within 15 days after his or her election, furnish a bond in favor of the tax ditch, in an amount satisfactory to the ditch managers and with a surety to be approved by the ditch managers, conditioned for the faithful performance of his or her duties and for the payment to his or her successor of all tax ditch funds. If any person elected secretary-treasurer neglects or refuses to give bond as aforesaid within the time specified, his or her right to hold such office shall be terminated, and the ditch managers shall call a special meeting of the taxables to elect a new secretary-treasurer who shall give bond and security as provided in this section.

Del. Code tit. 7, § 4165 Failure of ditch officer to perform duties; remedy; removal.

If any officer of a tax ditch fails to perform the duties imposed on him or her by this chapter, any taxable may petition the Superior Court from which the ditch order was issued and request an order directing said officer to carry out his or her duties, and upon his or her failure to comply with the order within the time stated therein, the taxable may further petition the Superior Court for the removal of the officer.

Del. Code tit. 7, § 4166 Signatures on instruments issued by tax ditch.

Any note, bond, warrant or other instrument issued by a tax ditch pursuant to this chapter shall be signed by the chairperson of the ditch managers and the chairperson’s signature shall be attested by the secretary-treasurer of the tax ditch.

Del. Code tit. 7, § 4167 Liability of tax ditch officers.

No ditch manager or other officer of a tax ditch shall be held personally liable for the obligations of the tax ditch. The tax ditch shall indemnify the ditch managers or other officers in accordance with § 4003 of Title 10 for all tort claims.

Del. Code tit. 7, § 4168 Limitation on borrowing power of tax ditch.

A tax ditch may borrow money pursuant to this chapter with the consent of a majority of the votes cast at a meeting duly called under § 4159 of this title. No tax ditch shall borrow money in excess of 90 percent of the total assessment base established by the ditch order.

Del. Code tit. 7, § 4171 Duties of board of assessment; assessment book; assistance by Division of Watershed Stewardship.

(a) For tax ditches formed under this chapter, the board of assessment of the county shall transcribe the information shown on the assessment list delivered to it pursuant to § 4162(4) of this title into a special assessment book and it shall keep the same as part of the permanent records of its office. It shall also change the name of the owner shown therein from time to time as such changes are warranted by transfers of the lands assessed, to new owners. (b) The Division of Watershed Stewardship shall assist the various boards of assessment of all 3 counties, upon request, to make such changes in their special ditch assessment books as are warranted by transfers of properties listed therein.

Del. Code tit. 7, § 4172 Method of determining tax.

In determining the amount of any taxes to be levied against each owner’s lands under this chapter, the ditch managers shall determine the same in accordance with the ratio which exists between the assessment base for each property and the total assessment base for the tax ditch.

Del. Code tit. 7, § 4173 Warrants by ditch companies for collection of taxes.

Each ditch company organized under the laws in effect prior to June 1, 1951, in each year after its assessment has been made and its tax rate fixed, shall execute its warrant with a duplicate of the assessment list to the receiver of taxes and county treasurer, which warrant shall be delivered not later than May 1 in each year.

Del. Code tit. 7, § 4174 Warrants by tax ditches for collection of taxes.

(a) For tax ditches formed under this chapter, warrants authorizing and requesting the collection of ditch taxes executed to the receiver of taxes and county treasurer shall be signed by the chairpersons of the ditch managers and the secretary-treasurer or the tax ditch and shall contain the following information: (1) The name of tax ditch; (2) The location by county and hundred; (3) The date said warrant is delivered to the receiver of taxes and county treasurer; (4) The date that tax ditch assessment list was filed with county assessor; (5) Total of that assessment list; (6) Tax rate based on that assessment list; (7) Total tax to be collected; (8) Method of payment, if by installments; (9) Statement as to whether the warrant is for construction, special or maintenance taxes; (10) Amount and terms of loans, if any, secured by said tax warrant; (11) Person to be paid directly by receiver of taxes and county treasurer and amounts to be paid to him or her. (b) When a tax ditch includes 2 or more counties, separate tax warrants shall be executed by the ditch managers to each receiver of taxes and county treasurer thereof.

Del. Code tit. 7, § 4175 Collection and disposition of taxes levied by ditch company.

All taxes levied by ditch companies organized under the laws in effect prior to June 1, 1951, shall be collected by the receiver of taxes and county treasurer in the county wherein the district of such ditch company is situated, within a period of 90 days from the date of the warrant referred to in § 4173 of this title, in the same manner as provided by law for the collection of taxes for other purposes. The money collected, with respect to each ditch company, shall be deposited by the receiver of taxes and county treasurer in a bank in 1 or more accounts as the receiver of taxes and county treasurer shall determine. But records shall be kept by the receiver of taxes and county treasurer shall keep records which list separately each ditch company and each deposit made by each ditch company. The moneys so collected and deposited shall be withdrawn from the accounts only upon warrants drawn by the proper officer of the respective ditch companies.

Del. Code tit. 7, § 4176 Duties of receiver of taxes and county treasurer.

All taxes levied by any tax ditch organized under this chapter shall be collected by the receiver of taxes and county treasurer in the county or counties wherein the lands taxed are located. The receiver of taxes and county treasurer shall accept tax warrants in proper form from such tax ditches, shall refer to tax ditch assessment lists on file with the board of assessment of the county and shall collect such taxes warranted annually, pursuant to the terms of the warrants in the same manner as provided by law for the collection of county taxes, and money so collected shall be paid during the months of November, January and July to the receiver designated in the tax warrants. Warrants received not later than May 1 of each year, by the receiver of taxes and county treasurer, shall be processed to be collected during that same year. Tax warrants marked plainly as being for annual maintenance taxes shall be filed by the receiver of taxes and county treasurer in a special binder and the same shall be maintained as part of the permanent records of that office. Such annual maintenance taxes shall be deemed to have been levied by the tax ditch as of April 30 of each year, except the year in which the original or a revised maintenance tax warrant is delivered to the receiver of taxes and county treasurer, in which case the levy shall be effective from and after the date of the delivery of such warrant. Annual maintenance taxes, once warranted, shall be collected yearly by the receiver of taxes and county treasurer, except that an annual maintenance tax shall not be collected during any tax year when another warrant, whether for construction taxes or special taxes, for an identical portion of the tax ditch is in effect and is being collected. The receiver of taxes and county treasurer shall accept original tax warrants for annual maintenance taxes signed by the chairperson of the ditch managers and attested by the secretary-treasurer of the tax ditch. Such warrants may not be withdrawn and may not be revised except with the consent of the county soil conservation district, pursuant to § 4181 of this title.

Del. Code tit. 7, § 4177 Installment payment of taxes for construction; lien; amount of first installment.

(a) The ditch managers may order the tax levied for the cost of construction to be paid in annual installments and shall designate the method of payment on the tax warrant when it is forwarded to the appropriate receiver of taxes and county treasurer. (b) In the event that the ditch managers order the tax levied for the cost of construction to be paid in annual installments, the entire tax shall, nevertheless, constitute a present lien on the lands against which it is levied, and the amount of the first installment shall not be less than the sum of all payments for damages and compensation as set forth in the ditch order, plus the costs and expenses incurred in the formation of a tax ditch.

Del. Code tit. 7, § 4178 Taxes as security for loans; notation on tax warrant.

A tax ditch may secure the payment of any loan made to it by entering on the tax warrant provided for in § 4162(5) of this title, a statement setting forth the fact that the taxes shown on the tax warrants have been pledged to secure the payment of a certain designated loan and, if a loan is so secured, by reciting the amount and terms of the loan and from whom it is being obtained, and by directing the receiver of taxes and county treasurer to pay any such taxes collected by him or her directly to the creditor until the loan is repaid. Such warrant may not be withdrawn and may not be altered or cancelled without the written consent of the creditor until the loan is repaid.

Del. Code tit. 7, § 4179 Special tax.

A special tax to raise the funds necessary to carry into effect any of the provisions of this chapter and not otherwise provided for herein, may be levied by the ditch managers in the same manner as provided in this chapter for levying taxes for original construction.

Del. Code tit. 7, § 4180 Lien of taxes; enforcement.

All taxes levied under this chapter shall constitute a first and paramount lien against the lands to which they apply from and after the date of such levy, subject only to the lien for state and county taxes, which lien may be enforced by sale or otherwise in the same manner as the lien for the county taxes. All such taxes shall be collected by the appropriate receiver of taxes and county treasurer as provided in § 4176 of this title. Penalties for failure to make payment by the due date shall apply to taxes levied under this chapter in the same manner and amount as in the case of county taxes, and funds so received shall be credited to the tax ditch.

Del. Code tit. 7, § 4181 Adjustment of maintenance tax.

When in the opinion of the ditch managers the amount of the tax levied to defray the cost of annual maintenance is either insufficient or excessive, they may raise or lower the same for the current and succeeding years with the consent of the county soil conservation district, acting upon the advice of the Division of Watershed Stewardship. If the annual maintenance tax is so raised or lowered, it shall be apportioned to each landowner in accordance with § 4172 of this title and a new maintenance tax warrant shall be delivered to the appropriate receiver of taxes and county treasurer.

Del. Code tit. 7, § 4182 Limitation on liability of landowner for taxes.

No landowner shall be liable in any manner for any taxes levied by the tax ditch against the lands of another owner.

Del. Code tit. 7, § 4185 Payment of damages and compensation.

The damages and compensation awarded by the terms of the ditch order shall be paid to the person entitled thereto out of the first funds available to the tax ditch under this chapter, and no construction shall commence until said damages and compensation have been paid.

Del. Code tit. 7, § 4186 Obstruction of or damage to tax ditch; civil and criminal liability.

(a) If any person wilfully or negligently obstructs or damages any part of a tax ditch, and upon request of the ditch managers fails to remove the obstruction or to repair the damage at the person’s own expense, the ditch managers shall see that the obstruction is removed and that the damage is repaired. (b) The person so obstructing or damaging the tax ditch shall be liable for all loss or injury caused thereby and the expenses or charges for remedying the same, and said loss or injury, expenses or charges may be sued for and recovered by the ditch managers in the name of the tax ditch before any justice of the peace in the county where the obstruction or damage occurred. (c) Whoever wilfully obstructs or damages any part of a tax ditch, as specified in subsection (a) of this section, or wilfully interferes in any way with tax ditch operations as provided for in this chapter or in a ditch order made pursuant to this chapter, shall be fined not more than $100. (d) As of July 17, 2008, if a permanent structure, whether existing or approved for construction, including but not limited to any residential, agricultural, or commercial structure, or any associated permanent accessory structure or septic system, driveway or parking area associated therewith still are found to be within a tax ditch right-of-way; that structure is exempt from the provisions of this chapter as a “legal nonconforming use”.

Del. Code tit. 7, § 4187 Right of entry upon lands.

The Division of Watershed Stewardship, engineering personnel hired under § 4142 of this title, the soil conservation district supervisors, the Department of Natural Resources and Environmental Control, the ditch commissioners, the ditch managers, or any of their employees or agents, may enter upon any lands within the tax ditch at all reasonable times in order to carry out the purpose of this chapter.

Del. Code tit. 7, § 4188 Addition of territory to a tax ditch.

(a) Any landowner who desires his or her lands to be included within a tax ditch formed under this chapter, may present a petition for an amendment to the existing ditch order to include such lands, to the Superior Court of the county which issued said ditch order through the board of supervisors of the soil conservation district of the same county, and the procedure shall be substantially the same as method in § 4189(3) of this title, for amending a ditch order, except that, in addition to establishing an assessment base which will be the basis for all future ditch taxes, for each parcel of land being included within the tax ditch, a special assessment, based generally on the approximate total amount of taxes that would have been levied against such parcels of land since the tax ditch was formed, had such lands been within the original boundaries of said tax ditch and other considerations, shall be determined by the board of ditch commissioners and payment thereof prescribed in their report to the Superior Court. (b) In those cases when any landowner, directly or indirectly, alters lands to utilize any part of a tax ditch to benefit land which is not within the original boundary of the tax ditch as established in the ditch order and which was not assessed as part of the tax ditch, or which was not assessed to the prong or part of the tax ditch utilized by the alteration, and when the landowner or owners have not secured an amendment to the ditch order in accordance with the procedure set forth in subsection (a) of this section, it shall be assumed that such landowner accepts the liability for payment of a special assessment and costs incurred in processing an amendment to the ditch order, in addition to all future ditch taxes, and it shall be the duty of the ditch managers in the name of the tax ditch to present a petition for an amendment to the existing ditch order to include such lands, in the same manner as set forth in subsection (a) of this section and the procedure shall be the same as outlined in that subsection, except that estimated costs of processing the amendment shall be added to the special assessment which will be established by the board of ditch commissioners. (c) In those cases when any landowner desires his or her lands to be included within a tax ditch and when agreement can be reached on the part of the landowner and the tax ditch managers as to the special assessment to be paid and the assessment base to be established as the basis for all future ditch taxes, then method (1) or method (2) of § 4189 of this title may be used to add the additional territory to the tax ditch.

Del. Code tit. 7, § 4189 Alteration of tax ditches; amendments to ditch orders.

If it becomes necessary to change any part of a tax ditch, such changes may be made in one of the following ways: (1) The desired or required changes, justified in writing and including any necessary maps or drawings, shall be presented by the tax ditch managers to the taxables at a regularly called tax ditch meeting. If a majority vote of the taxables present favors the changes, and providing that such changes do not include any relocations of works of improvement, or of the construction area, or of the maintenance right-of-way on the lands of any owner without the owner’s consent, the tax ditch managers shall present 3 copies of their request for the changes, including the written justification and any necessary maps or drawings, and also including the results of the referendum, to the Division of Watershed Stewardship for its approval. Should that approval be given, the change shall be effective at once, and the Division of Watershed Stewardship shall file the original request with supporting papers in the office of the prothonotary of the proper county, and return 1 copy to the tax ditch. Whenever changes are made which affect the tax ditch assessment list, the Division of Watershed Stewardship shall notify the board of assessment of the proper county of such changes. (2) a. When all landowners affected consent to changes of any part of a tax ditch, including the assessment list, they shall enter into a written agreement to make such changes and present 3 copies of such agreement, together with any necessary maps or drawings, to the Division of Watershed Stewardship for its approval. Should that approval be given, the change shall be effective at once, and the Division of Watershed Stewardship shall file the original request with supporting papers in the office of the prothonotary of the proper county, and return 1 copy to the tax ditch. Whenever changes are made which affect the tax ditch assessment list, the Division of Watershed Stewardship shall notify the board of assessment of the proper county of such changes. b. The Division of Watershed Stewardship shall be responsible for assuring that any change to a court order to a tax ditch or right-of-way pursuant to this chapter shall be recorded in the prothonotary’s office. The landowner of any property upon which a change to a court order has been made to any tax ditch or right-of-way pursuant to this chapter shall be responsible for assuring that such change is filed with the recorder of deeds in the county or counties where the parcel subject to the right-of-way is located. (3) Any landowner within the boundaries of a tax ditch, or the tax ditch managers in the name of said tax ditch, may, at any time, petition for the amendments of the ditch order that created the tax ditch. Such petition shall list the changes that are desired and shall be presented to the Superior Court that issued the tax ditch order through the board of supervisors of the soil conservation district of the same county. That board of supervisors shall require and handle a deposit from the petitioners in accordance with § 4120 of this title, so far as that section is applicable. As soon as the deposit is received, the board of supervisors shall file the petition in the office of the prothonotary of the proper county without further investigation. Upon the filing of a petition for amendments to a ditch order in the office of the prothonotary of a county, the board of ditch commissioners of such county, shall, at the direction of the resident judge thereof, go upon the lands of the tax ditch watershed, if necessary, review the existing ditch order, consider the changes requested and make determinations regarding these. The board of ditch commissioners shall obtain from the county soil conservation district such assistance and information as may be required. The board of ditch commissioners, with the assistance of the Division of Watershed Stewardship, shall prepare a special proposed report in the nature of 1 or more proposed amendments to the existing ditch order, together with any maps or drawings deemed necessary. Upon completion of that report, they shall give notice, and hold a hearing and referendum in accordance with §§ 4131 and 4132 of this title so far as these are applicable. After holding the hearing and supervising the referendum, the board of ditch commissioners shall file the original and 2 copies of its report in the office of the prothonotary of the county in which all the major portion of the tax ditch is located and shall attach to the report a certificate showing the results of the referendum and the place where, and the time when, it was held. The board of ditch commissioners shall also prepare and attach to the report a statement showing: a. The board of ditch commissioners has fully discharged the duties assigned to it as prescribed by law. b. Any objections made to the report of the board of ditch commissioners which did not warrant further changes in the report and the reasons therefor. c. Any other recommendations or information which the board of ditch commissioners deems advisable including their determination as to whether the petitioners or the tax ditch are liable for the costs of this action. Action by the Superior Court shall follow §§ 4136, 4137, 4138, 4139, 4140, 4141 of this title so far as these sections are applicable.

Del. Code tit. 7, § 4190 Bridges and culverts.

If any public road crossed by any part of a tax ditch will be benefited so that the public should construct and maintain a bridge or culvert at such crossing, the board of ditch commissioners shall so state in their report and upon establishment of the tax ditch such bridges or culverts shall be constructed and maintained at the public charge from funds provided for that purpose.

Del. Code tit. 7, § 4191 Ditches near highways.

The Department of Transportation shall maintain the highway drainage system insofar as is possible in such manner as to prevent silt from such system from obstructing any part of a tax ditch. If silt enters from the highway system and obstructs a tax ditch the Department of Transportation shall remove the same within a reasonable time after being given notice of such obstruction by the ditch managers.

Del. Code tit. 7, § 4192 Dissolution of tax ditch.

After a duly called meeting of the taxables at which a majority of all eligible votes have been cast in favor of dissolving a tax ditch, created under this chapter, the ditch managers shall prepare a petition requesting such dissolution to the Superior Court through the appropriate county soil conservation district. If the tax ditch has operated for at least 10 years, and if said district is of the opinion that the dissolution of such tax ditch is in the public interest, it shall file the petition therefor, together with the recommendations of said district in the office of the prothonotary of the county in which the original ditch order was issued. After a petition for dissolution has been so filed, the Superior Court shall issue an order dissolving the tax ditch. No such order of dissolution shall be issued unless and until all obligations of the tax ditch have been paid in full and all commitments of the tax ditch have been fulfilled.

Del. Code tit. 7, § 4193 Ditches in Kent County; transfer by Department of Transportation to tax ditch.

If any landowners in Kent County establish a tax ditch under this chapter, the Department of Transportation shall transfer to the tax ditch all its right, title and interest in and to any existing ditch or ditches, within the boundaries of the new tax ditch, which have previously been transferred to the Department under § 28 of Chapter 105 of the 1935 Revised Code of Delaware, and the Department shall delegate to the new tax ditch all its powers and duties in connection with the existing ditch or ditches.

Del. Code tit. 7, § 4194 Appropriations to Department of Natural Resources and Environmental Control.

An appropriation to the Department of Natural Resources and Environmental Control for purposes of planning, designing and constructing tax ditches/public group ditches shall be included in the annual appropriation bill (budget bill) of the General Assembly.

Del. Code tit. 7, § 4195 Notice of right-of-way, or assessment.

(a) The Department of Natural Resources and Environmental Control shall certify and file with the prothonotary of each county a list of all parcels by county tax parcel numbers and all owners of said parcels of real property located in that county which are subject to any portion of a right-of-way or assessment as part of a tax ditch created by this chapter. The list shall be in alphabetical order by owner. The Department shall also certify and similarly file a list of any changes of parcel numbers subject to such right-of-way or assessment annually. Additionally, the Department shall certify and similarly file a list of any addition or deletion of a parcel or parcels subject to a right-of-way or assessment immediately upon making any such addition or deletion. (b) No later than 180 days after complying with subsection (a) of this section the Department shall certify and file with the prothonotary of each county a list of all parcels by county tax parcel numbers and all owners of said parcels listed in alphabetical order and designating which parcels are subject to a right-of-way and assessment, and which parcels are subject only to an assessment. (c) The certified list submitted pursuant to subsection (a) or (b) of this section shall be confirmed by order of the Resident Judge of Superior Court for each county, which order shall: (1) State the name of the tax ditch; (2) State the owner’s name or names and that owner’s county tax parcel number for each parcel subject to the right-of-way and assessment and each parcel subject to an assessment only; and (3) Direct that the order be recorded in the Office of the Recorder of Deeds in and for that county. (d) There shall be no charge or fee to file the list required by subsection (a) of this section. (e) There shall be no charge or fee to record the order pursuant to this subsection.

Source: DE Code (Official Site)URL: https://delcode.delaware.gov/title7/c041/sc01/index.htmlFetched: 10/4/2026