Nutrient Management

Del. Code tit. 3, ch. 22
in effect

Del. Code tit. 3, § 2201 Declaration of purpose.

The purposes of this chapter are: (1) To regulate those activities involving the generation and application of nutrients in order to help improve and maintain the quality of Delaware’s ground and surface waters and to meet or exceed federally mandated water quality standards, in the interest of the overall public welfare. (2) To establish a certification program that encourages the implementation of best management practices in the generation, handling or land application of nutrients in Delaware. (3) To establish a nutrient management planning program. (4) To formulate a systematic and economically viable nutrient management program that will both maintain agricultural profitability and improve water quality in Delaware. (5) To regulate the composition and application of nutrients to turf.

Del. Code tit. 3, § 2202 Definitions.

For the purposes of this chapter: (1) “Agricultural commodity” means any agricultural product, including, but not limited to, plants, animals and plant and animal products grown, raised or produced within the State for use as food, feed, seed or any aesthetic, industrial or chemurgic purpose. (2) “Animal unit” shall be as defined by the United States Department of Agriculture. (3) “Applicant” means any person seeking a certificate from the Commission. (4) “Best management practices” means those practices that have been identified as such by the Commission. (5) “CAFO NPDES Program” means a regulatory program to issue a National Pollution Discharge Elimination System (NPDES) permit to a Concentrated Animal Feeding Operation (CAFO) in this State, and to undertake related activities. The CAFO NPDES Program is established pursuant to, among other authorities, the Clean Water Act [33 U.S.C. § 1251 et seq.] and Memorandum of Understanding between the Delaware Department of Natural Resources and Environmental Control (DNREC) and the Environmental Protection Agency (EPA) dated May 4, 1983, as amended. (6) “Certification” means the recognition by the DNMC that a person has met the qualification standards established by the DNMC and has been issued a written certificate authorizing such person to perform certain functions. (7) “Commercial processor” means an individual, partnership, corporation, association or other business unit that controls, through contracts, vertical integration or other means, several stages of production and marketing of any agricultural commodity. (8) “Commission” or “DNMC” means the Delaware Nutrient Management Commission. (9) “Commissioner” means a member of the DNMC. (10) “Critical area targets” means watersheds, subwatersheds or sectors where water quality conditions merit special attention, where resources should be directed and for which incentives should be provided. (11) “Crop rotation” means a series of crops grown in succession on a field, not to exceed 3 years. (12) “Environmental coordinator” means an employee of the Department of Agriculture who acts on behalf of the Commission as a liaison between the Commission and persons against whom a complaint for a violation of this chapter or Commission regulation has been brought. (13) “Fertility index value” or “FIV” is equivalent to the measured Mehlich 3 soil test phosphorus concentration in parts per million (ppm). (14) “High phosphorus soil” means soil with a soil test phosphorous exceeding 150 FIV. (15) “Nutrient management plan” or “plan” means a plan by a certified nutrient consultant to manage the amount, placement, timing and application of nutrients in order to reduce nutrient loss or runoff and to maintain the productivity of soil when growing agricultural commodities and turfgrass. (16) “Nutrients” means nitrogen, nitrate, phosphorus, organic matter and any other elements necessary for or helpful to plant growth. (17) “Person” means any individual, partnership, association, fiduciary, or corporation or any organized group of persons, whether incorporated or not. (18) “Phosphorus site index” or “PSI” mean the current field-scale phosphorus risk assessment tool developed and maintained by the University of Delaware and approved by the Delaware Nutrient Management Commission. The PSI score is categorized as “low,” “medium,” “high,” or “very high,” based on agricultural and environmental parameters. (19) “Program administrator” or “NMPA” means the 1 exempt employee of the Department of Agriculture who is responsible for the operation of the State Nutrient Management Program. (20) “Secretary” means the Secretary of the Delaware Department of Agriculture or the Secretary’s designee. (21) “State nutrient management program” or “SNMP” means all the program elements developed by the Commission, including, but not limited to, establishing critical areas for targeting programs, establishing best management practices to reduce nutrient losses, developing educational and certification programs, developing nutrient management plan requirements, developing incentive programs that encourage compliance, making recommendations for transportation of nutrients, and determining appropriate alternative uses. (22) “Turf” means residential, commercial, and publicly-owned land that is planted in closely-mowed and managed grass. Turf does not include athletic fields, golf courses, or land used in the production for sale of sod or seed.

Del. Code tit. 3, § 2220 Delaware Nutrient Management Commission; general powers and duties.

(a) The Delaware Nutrient Management Commission is hereby established. The Commission shall have the power to develop, review, approve and enforce regulations governing the certification of individuals engaged in the business of land application of nutrients and the development of nutrient management plans as set forth in this chapter. In addition, the Commission shall: (1) Consider the establishment of critical areas for targeting of other voluntary or regulatory programs; (2) Establish best management practices to reduce nutrient losses to the environment; (3) Develop educational and awareness programs designed to voluntarily curtail use of nutrients by persons not otherwise covered by this chapter; (4) Consider the development of a transportation and alternative use incentive program to move nutrients from areas with overabundance to areas needing nutrient sources; (5) Make such other recommendations to the Secretary that it deems important for the furtherance of the goals of this Chapter; and (6) Establish the elements and general direction of the State Nutrient Management Program. (b) The Commission, in carrying out its duties under this chapter, shall consider comments from affected stakeholders and others interested in the activities of the Commission, including, but not limited to, the University of Delaware and other state and federal agencies, nonprofit groups, and others with an interest in nutrient management. In addition, the Commission shall consider prior work of the Governor’s Agricultural Industry Advisory Committee on Nutrient Management. (c) Notwithstanding the foregoing, the Commission shall not hold any person or persons certified pursuant to this chapter responsible for violations committed by another person.

Del. Code tit. 3, § 2221 Adoption of regulations; voting; considerations.

(a) With the guidance, advice and consent of the Commission, the Secretary shall, by July 1, 2000, develop and adopt regulations to implement this chapter. A majority vote of the full Commission shall constitute consent for purposes of this subsection. Regulations shall be adopted in accordance with the provisions of the Delaware Administrative Procedures Act. (b) In developing regulations concerning nutrient management planning, the Secretary and the Commission shall consider any waste management planning requirements imposed on animal producers or nutrient users through their commercial processor and shall, to the maximum extent possible, strive to reduce any duplication in effort on the part of the contractor or property owner. (c) The Commission may not approve any regulation and the Secretary may not promulgate any regulation that requires tilled lands to be converted for grass filter strips, vegetated and/or forested buffer strips along Delaware’s lakes, streams, rivers, ponds, drainage ditches or any other natural or artificial conveyance system.

Del. Code tit. 3, § 2222 Composition; appointment; qualifications and term; compensation; vacancies; civil liability.

(a) The Delaware Nutrient Management Commission consists of 19 members as follows: (1) Five members appointed by the Governor, 1 each representing the following categories, with at least 1 from each county: a. A dairy, swine, beef, or small ruminant farmer. b. An equine operation owner. c. A poultry farmer. d. A grain row crop farmer. e. A vegetable row crop farmer. (2) Three members appointed by the Governor, 1 each representing the following categories: a. A representative of a commercial/agriculture nutrient applicator. b. A representative of a golf course/lawn care industry. c. A public citizen that does not represent any of the other categories. (3) Two members appointed by the President Pro Tempore of the Senate, representing each of following categories: a. A representative of a community-based environmental advocacy group. b. A poultry farmer. (4) Two members appointed by the Speaker of the House, representing each of following categories: a. A representative of a community-based environmental advocacy group. b. A dairy, swine, beef, or small ruminant farmer. (5) One member who is a nutrient consultant appointed by the Senate Minority Leader. (6) One member who is a representative of the commercial nursery industry appointed by the House Minority Leader. (7) The Director of the Division of Watershed Stewardship of DNREC, or the Director’s designee. (8) Four ex officio nonvoting members, or their designee: a. The Secretary of the Department of Agriculture. b. The Secretary of the Department of Natural Resources and Environmental Control (DNREC). c. The Secretary of the Department of Health and Social Services. d. The Nutrient Management Program Administrator. (b) The Commission members shall elect a chairperson and vice chairperson from the appointed members of the Commission. Each officer shall serve for 4 years and may not serve more than 2 consecutive terms. In the event of a vacancy in 1 of the offices, a replacement must be elected within 60 days. (c) All appointed members shall serve a term of 4 years. (d) Any appointed member of the Commission who misses 3 consecutive meetings or is otherwise recommended for removal by the Commission may be removed by the appointing authority. (e) Each appointed member of the Commission shall receive compensation of $100 per meeting. Commission members may be compensated for no more than 16 meetings per year. Commission members are entitled to be paid reasonable expenses for traveling to and from any Commission or Commission subcommittee meeting or conference attended on official business for the Commission. (f) The Nutrient Management Program Administrator (NMPA) is a full-time, exempt state position selected by the Commission and created within the Department of Agriculture. The NMPA is the administrator of, and is responsible for, the operation of the State Nutrient Management Program. (g) In any civil action against the Commission or any of its members, civil liability is determined pursuant to the provisions of Chapter 40 of Title 10.

Del. Code tit. 3, § 2240 State Nutrient Management Program; powers and duties of the Commission.

The State Nutrient Management Program (SNMP) shall consist of: (1) Certification of persons directly involved with the generation or application of nutrients within the State, as limited by § 2241 of this title; (2) The development of and implementation of best management practices designed to improve water quality, optimize nutrient use and maintain a profitable agricultural industry in the State; (3) Educational programs through which applicants shall be instructed in the best management practices established by the Commission; (4) A method developed by the Commission and instituted prior to granting of any certificate to evaluate an applicant’s comprehension of the best management practices established by the Commission; and (5) Any other program elements instituted by the Commission.

Del. Code tit. 3, § 2241 Requirement for certification; classifications.

(a) Beginning January 1, 2004, all persons who conduct the following activities shall be duly certified by the Commission in accordance with Commission regulations or shall utilize a duly certified person or firm: (1) Operate any animal feeding operation totaling more than 8 animal units. (2) Apply nutrients to lands totaling more than 10 acres or as a component of a commercial venture or lands that the person or firm owns, leases or otherwise controls. (3) Apply nutrients to turf totaling more than ¼ acre (10, 890 square feet) as a component of a commercial venture managed for another. (4) Advise or consult with persons required by this chapter to be certified by the Commission. (b) The Commission shall establish by regulation the following classifications for certification of nutrient handlers for use in the SNMP: (1) Nutrient generator: a person within the State who operates a facility that produces organic or inorganic nutrients. (2) Private nutrient handler: A person in this State who applies organic or inorganic nutrients to turf or land the person owns, leases or otherwise controls. (3) Commercial nutrient handler: A person in this State who applies uses, or supervises the application of organic or inorganic nutrients to turf or land as a component of a commercial or agricultural business in exchange for a fee or service charge. (4) Nutrient consultant: A person in this State who is engaged in the activities of advising or consulting regarding the formulation, application or scheduling of organic or inorganic nutrients within the State. (c) The Commission may subclassify any certificates described in subsection (b) of this section as necessary. Separate subclassifications may be specified as to the method used by nutrient handlers to apply nutrients, the use of specific quantities or types of nutrients, or any other identifiable characteristics of nutrient management the Commission deems necessary. (d) These certification requirements shall not apply to individuals who are performing nutrient application services under the direct supervision of a certified person as a private or commercial nutrient handler. Direct supervision shall apply only to individuals who are responsible for professional duties at the same physical location as the commercial nutrient handler.

Del. Code tit. 3, § 2242 Certification; applications.

(a) Applications for certification shall be made to the Commission in writing on a form designated by the Commission. (b) The Commission shall develop and approve minimum criteria for certification, which shall be included in regulations promulgated by the Secretary. (c) The Commission may establish by regulation a yearly fee not to exceed $100 for each certificate. (d) If the Commission finds the applicant qualified to handle nutrients in the classifications the applicant has applied for, the Commission may issue a certificate limited to the classifications for which the applicant is qualified. The Commission may limit the certificate of the applicant based on any subclassification the Commission has established. If a certificate is not issued as applied for, the Commission shall inform the applicant in writing of the reasons therefor.

Del. Code tit. 3, § 2243 Same — Denial.

(a) The Commission may refuse to grant any certificate if the applicant fails to meet the minimum criteria for certification or has been found to have violated this chapter or Commission regulations related to the generation or application of nutrients in this State. (b) All decisions of the Commission relating to the denial of a certificate shall be final and conclusive unless the person who was denied a certificate shall appeal that denial pursuant to provisions of § 2262 of this title.

Del. Code tit. 3, § 2244 Certification; applications; suspension, modification; revocation.

(a) The Commission may, after notice and opportunity for a hearing, suspend, revoke, or modify any certificate granted under this chapter or fine any person against whom a complaint has been brought, or both, if the Commission finds the person certified has been found guilty of any violation of this chapter or Commission regulations. (b) The Commission may impose a fine of not less than $25 nor more than $1,000 for each violation. Each day of continued violation may be considered as a separate violation up to a limit of $10,000. (c) Any fines collected by the Department of Agriculture under this chapter shall be appropriated to the Department for use in assisting persons in achieving compliance or to demonstrate the application of research that may be of substantial benefit to many individuals seeking compliance with this chapter. (d) All decisions of the Commission relating to suspension, modification or revocation of a certificate shall be final and conclusive unless the person whose certificate was suspended, modified or revoked appeals according to the provisions of § 2263 of this title.

Del. Code tit. 3, § 2245 Same — Renewal.

(a) The Commission shall establish the length of time that certificates shall remain in full force and effect, and if they are to expire, the procedure for renewal. (b) All decisions of the Commission relating to the refusal of the Commission to renew a certificate shall be final and conclusive unless the person whose certificate was not renewed shall appeal pursuant to the provisions of § 2262 of this title.

Del. Code tit. 3, § 2246 Commercial processors.

(a) On or before July 1, 2000, or prior to commencing operations, each commercial processor operating in the State shall file with the Commission a plan under which the commercial processor either directly or under contract with a third party shall: (1) Provide or assist in providing technical assistance to growers with whom it contracts on the proper management and storage of waste in accordance with best management practices approved by the Commission; (2) Provide or assist in providing continuing education programs on proper waste management that is protective of Delaware’s environment for the growers with whom it contracts, as well as other persons who may handle or utilize such waste; (3) Conduct or fund research and demonstration programs that will contribute to improved waste management practices; (4) Formulate and implement nutrient reduction strategies that effectively minimize the addition of nutrients to the environment without having adverse health impacts on animals or reduction in the growth of animals; and (5) Report annually to the Commission on the activities it has undertaken pursuant to its plan and any amendments thereto. (b) This section is not to be construed as a mandate to involve commercial processors in farm activities not related to waste management.

Del. Code tit. 3, § 2247 Nutrient management plans.

(a) All animal feeding operations with greater than 8 animal units or any person who owns, leases or otherwise controls property totaling more than 10 acres upon which nutrients are applied shall develop and implement a nutrient management plan in accordance with the schedule outlined in this section. Nutrient handlers who apply nutrients to turf totaling more than ¼ acres (10,890 square feet) but less than 10 acres shall not be required to have a nutrient management plan but are subject to limits outlined in this title and the Commission’s regulations. All nutrient management plans shall include all of the following: (1) Field maps as an arial photograph showing field identification, boundaries, acres, location of surface waters, irrigation systems, and location of designated sensitive areas with associated nutrient application restrictions or setbacks. (2) Soil maps and information, including drainage class, permeability, available water capacity, depth to water table, and flooding or ponding frequency. (3) Current or planned crop rotations. (4) Results of applicable soil, plant, water, manure, or organic by-products analyses. (5) Realistic yield goals and the methods used to estimate those goals. Expected yields shall be calculated as a mathematical average of the best 4 out of 7 year data or, in the absence thereof, best professional judgement by a certified nutrient consultant under § 2241 of this title. (6) Recommended nutrient rates, timing, form and methods of nutrient applications and incorporation. (7) Results of approved risk assessment tools for nitrogen, phosphorus, and erosion losses, if applicable. (8) Animal information including types, number, average sizes, annual manure generation, and any manure import or export, if applicable. (b) Planned applications of phosphorous to high phosphorous soils cannot exceed total phosphorous removal in a planned crop rotation unless a different management practice is permitted after conducting the Delaware PSI risk assessment tool. (1) If the PSI score for a field is “very high,” no phosphorus application is allowed. (2) All fields with FIV exceeding 499 must have a PSI assessment prior to phosphorus application. Results of the PSI are valid for a term not to exceed 3 years. (3) Fields with FIV below 500 but above 150 must have a PSI assessment, unless the total planned phosphorus application to a crop rotation does not exceed the phosphorus removed by all crops in the rotation. (c) Yield goals shall be used to determine nitrogen application rates as appropriate. Recommended nitrogen application rates cannot exceed the application rates published by the University of Delaware of the specific crop, unless an adaptive approach is used to adjust in-season nitrogen application rates based on recommendations from a certified consultant or a Commission approved nitrogen application model. (d) All animal waste management plans, nutrient management plans and records of implementation shall be kept by the land owner or person responsible for the plans or records. Animal waste management plans, nutrient management plans and records of implementation shall not be considered as public records under the Freedom of Information Act and shall not be disclosed, except, however, that they shall be made available for inspection by the Delaware Department of Agriculture and the Commission. Records of implementation shall include: (1) Soil test results and recommended nutrient application rates; (2) Quantities, analyses and sources of nutrients applied; (3) Dates and methods of nutrient applications; (4) Crops planted, yields and crop residues removed; and (5) Certification statement signed by the operator to document the intention of nutrient management and/or animal waste management plan implementation Notwithstanding the foregoing, animal waste management plans, nutrient management plans and records of implementation may be retained, disclosed and made public as provided for in § 2248 of this title. (e) Nutrient management plans shall be updated a minimum of every 3 years or upon significant alterations in facility operations, or upon a 25% or greater increase in facility operations. Such plans shall be reported to the Commission no later than December 15 of the year in which it must be updated. (f) If a person implementing a nutrient management plan intends to store manure, other than in an approved manure storage structure or facility, such outdoor storage shall: (1) Be reflected in the person’s nutrient management plan; (2) Be at least 100 feet from any body of water or drainage ditch; (3) Be at least 100 feet from any public road; (4) Be at least 200 feet from any residence that is not located on the person’s property; and (5) Be at least 6 feet high and in a conical shape. (g) In situations where persons other than the land owner are responsible for nutrient applications, nutrient management plans as required in this section shall be the responsibility of the person actually managing the application of nutrients to that property. (h) Upon completion and implementation of a nutrient management plan, the owner/operator/planner shall notify the Commission within 60 days of the completion of the plan. (i) In the event of circumstances that are beyond the control of the person implementing a nutrient management plan pursuant to this section, such person shall notify the Department of any actions such person intends to take as a result of those circumstances. (j) In the case of animal feeding operations where no other nutrients are used for farming and the animal waste is not land-applied, the operator of the facility may substitute an animal waste management plan for a nutrient management plan. At a minimum, the animal waste management plan shall include: (1) Information concerning how the waste is stored prior to transport; (2) Records of where and to whom the animal waste was transported and the amount of such waste; and (3) The mortality disposal method. (k) The State shall make nutrient consultants available through the conservation districts to provide free nutrient management plans assistance to anyone requesting such assistance. For those persons wishing to hire private nutrient consultants, the State, through the conservation districts, shall reimburse any person establishing a nutrient management plan or updating an established nutrient management plan at a rate and amount that shall be determined annually by the Commission and subject to annual appropriations. ( l ) County, municipal and industrial facilities discharging solid or liquid waste and permitted by the Department of Natural Resources and Environmental Control under The Guidance and Regulations Governing the Land Treatment of Wastes shall be exempt from the provisions of this chapter. Provided, however that they provide the Commission with an annual report as required by their land treatment permit.

Del. Code tit. 3, § 2248 Confined animal feeding operations subject to Clean Water Act § 402 requirements.

(a) Section 301(a) of the Clean Water Act (CWA) [33 U.S.C. § 1311] establishes statutory requirements for the discharge of pollutants from point sources to waters of the United States. Under CWA § 502(14) and implementing regulations “concentrated animal feeding operations” are point sources subject to the National Pollutant Discharge Elimination System (NPDES) program. The Regulations Governing the Control of Water Pollution, § 9.5 Concentrated Animal Feeding Operation, 7 DE Admin. Code 7201-9.5, 14 Del. Reg. 482 (November 2010), as may be amended, are hereby ratified and approved. Said regulations, together with the State Technical Standards, are fundamental components of the CAFO NPDES Program. Nothing in this section shall be construed to require ratification or approval of any additions, deletions, revisions or amendments of any regulations enacted pursuant to this section at any time. (b) The Secretaries of the Delaware Department of Agriculture (DDA) and the Department of Natural Resources and Environmental Control (DNREC) shall have authority to jointly promulgate and amend regulations for the CAFO NPDES Program, including but not limited to the authority to determine the extent to which any nutrient management plan (NMP), annual report, or other documents required to be submitted by a concentrated animal feeding operation permitted under the CAFO NPDES Program, shall be made public or not, and the authority to require any concentrated animal feeding operation to apply for and obtain an NPDES CAFO permit. (c) Each person or concentrated animal feeding operation covered by this section or identified as requiring an NMP by DDA and DNREC shall develop and submit the requisite, signed NMP, on such terms and conditions as may be specified by DDA or DNREC. The NMP shall be developed in accordance with the provisions of § 2247 of this title, provided, however, that DNREC and DDA may prescribe additional or different requirements for an NMP submitted under the CAFO NPDES Program. As necessary, the NMP shall also include the following additional site specific handling and storage considerations: (1) Diverting clean water from contacting animal waste or litter. (2) Preventing storage, collection and conveyance systems from leaking organic matter, nutrients and pathogens to ground or surface water. (3) Providing adequate storage to prevent polluted runoff. (4) Handling manure and litter to reduce nutrient losses. (5) Managing dead animals to protect ground and surface waters. (6) Proper chemical handling. (7) Tillage and crop residue management practices. The NMP shall be amended pursuant to § 2247 of this title or whenever there is any significant change in the design, construction or operation which has a significant effect on the potential for the discharge of pollutants to state waters, or as may be otherwise required by regulation. (d) The Memorandum of Agreement between DDA and DNREC dated December 16, 2010 (MOA), is hereby ratified and approved. DDA has authority to fulfill the terms of the MOA, to undertake all actions ancillary to the MOA, and otherwise to contribute to the CAFO NPDES Program. (e) The Secretary shall notify a person in writing that an NPDES permit is required. Such notice shall include a brief statement of the reasons for the decision, an application form, a deadline for submission of the application and a statement regarding the effective date of coverage. A person’s obligation to independently seek and secure an NPDES permit is not conditioned upon or qualified by the Secretary’s duty to notify a person that an NPDES permit is required.

Del. Code tit. 3, § 2249 Nutrient Management Funding.

Funds appropriated to the Nutrient Transport Program, in the annual operating budget act are intended to support projects that transport poultry and animal waste, including litter, for alternative use projects and for transporting the poultry and animal waste to cropland showing a need for these nutrients as indicated by a nutrient management plan. It is intended that a portion of these funds will be use to remove the nutrients from Delaware and for farm to farm relocation within Delaware. Reimbursement of transportation shall not exceed $20 per ton of poultry or nonpoultry waste. The program shall be developed and implemented by the Delaware Department of Agriculture according to the guidelines established by the Delaware Nutrient Management Commission as provided for under § 2220(a)(4) of this title. Any appropriation to the Nutrient Management Contingency shall be used for the sole purpose of nutrient relocation and/or nutrient management planning pursuant to these guidelines.

Del. Code tit. 3, § 2250 Composition and application of nutrients applied to turf.

(a) Turf nutrients must be applied in compliance with this chapter and the Nutrient Management Commission’s Regulations. (b) No more than 4.8 pounds of nitrogen per 1,000 square feet of turf may be applied per year unless specified in a nutrient management plan. (c) Single application limits shall be set forth in the regulations. (d) Nutrients with phosphorous may not be applied to turf unless a soil test from an approved lab is performed to confirm a phosphate deficiency or it is being used to establish, re-establish, or repair a turf area. (e) The Commission may publish a list of approved commercial nutrient handlers certified to apply nutrients to turf.

Del. Code tit. 3, § 2260 Complaints; investigations; enforcement.

(a) The Commission shall establish by regulation a process whereby any person may file a complaint with the Commission against any person for a violation of any of the provisions of this chapter or any regulations promulgated pursuant thereto. (b) The Commission shall establish by regulation the procedure for investigating any complaints brought before the Commission and the manner in which those complaints shall be resolved. (c) The Commission shall, when requested, keep confidential the names of complainants, and shall not investigate or respond to anonymous complaints.

Del. Code tit. 3, § 2261 Hearings; procedural requirements.

(a) For purposes of this section, the Commission may create a hearing panel that will be subordinate to the Commission and comprised of individuals selected by the Commission. The Commission or hearing panel shall examine all complaints meeting the criteria of § 2260(a) of this title brought before it for violations of this chapter or Commission regulations within 60 days of receipt of the complaint. The Commission or hearing panel shall conduct a hearing on any matter that on its face presents a colorable claim that a violation has occurred. (b) The Commission or hearing panel shall send 10 days’ notice of any hearing to all named parties, together with a recital of the complaint or issue brought before the Commission or hearing panel. It shall be sufficient to send such notice to the attorneys of those who are represented by counsel. (c) When a hearing panel presides over a hearing, the hearing panel shall prepare a proposed order for the consideration of the Commission that shall include: (1) A brief summary of the evidence and recommended findings of fact based upon the evidence. (2) Recommended conclusions of law. (3) A recommended decision. (d) When a proposed order by a hearing panel is submitted to the Commission, a copy shall be delivered to each of the parties who shall have 20 days to submit in writing to the Commission exceptions, comments, and arguments respecting the proposed order. (e) The Commission shall make its final decision based upon the entire record of the case and the recommendations of the hearing panel, if applicable. The Commission’s decision shall be incorporated into a final order which shall include: (1) A recitation of the evidence before the commission. (2) The Commission’s findings of fact. (3) The Commission’s decision and a brief statement of the reasons for its decision. (4) The manner in which the Commission construed the law and applied it to the facts. (5) Any remunerative action a violator must take, including any fine, revocation, suspension, or modification to any certificate. (f) The Commission shall have the power to compel the attendance of witnesses whose testimony is related to the alleged violation under review and the production of records related to the alleged violation under review by filing a praecipe for a subpoena through the Attorney General or a Deputy Attorney General with the Prothonotary of any county of this State, such a subpoena to be made by any sheriff of the State; failure to obey said subpoena will be punishable according to the rules of the Superior Court. (g) All decisions of the Commission pursuant to this subsection shall be final and conclusive unless a party to such hearing shall appeal pursuant to the provisions of § 2263 of this title.

Del. Code tit. 3, § 2262 Certification appeals.

All decisions of the Commission pursuant to § 2243 or § 2245 of this title shall be final and conclusive unless within 15 days after notice thereof, the person who was denied a certificate or whose certificate was not renewed shall appeal to the Commission for a hearing on the matter. The Commission shall hold a hearing within 60 days of receipt of the appeal and develop a record on the case upon which they shall base their decision on the appeal. The Commission may uphold, modify or reverse their decision to issue or renew the certificate.

Del. Code tit. 3, § 2263 Appeals to the Secretary.

(a) All decisions of the Commission pursuant to this chapter shall be final and conclusive unless within 15 days after notice thereof, the Secretary receives an appeal for a review of any Commission decision. Such appeal shall state the nature of the appeal, the reasons therefor, and the remedy sought. The Secretary may uphold the action of the Commission, remand the decision back to the Commission for further consideration, or repeal the action of the Commission. The Secretary may appoint a hearing officer, who shall hold a hearing pursuant to the Administrative Procedures Act. The Secretary’s decision shall be based solely on the record developed by the Commission at the hearing unless the Secretary finds that additional evidence should be taken. If the Secretary finds that additional evidence should be taken, the Secretary may take the additional evidence or remand the cause to the Commission for completion of the record. (b) All decisions of the Secretary on appeals brought pursuant to this section shall be final and conclusive unless within 10 days after notice thereof, a party appeals to the Superior Court of the county in which the violation occurred. In every appeal from a decision of the Secretary, the cause shall be decided by the Court on the record without aid of the jury and may affirm, reverse or modify the Secretary’s decision. The findings of fact made below shall not be set aside unless the Court determines that the record contains no substantial evidence that would reasonably support the findings. If the Court finds that additional evidence should be taken, the Court may take the additional evidence or remand the cause to the Secretary for completion of the record. If the Court finds that an error of law has been made, the Court shall reverse or modify the Secretary’s decision and render an appropriate judgment.

Del. Code tit. 3, § 2281 Suits for enforcement.

Any person may file suit in Chancery Court for injunctive relief against: (1) Any person found pursuant to § 2260 of this title to have violated this chapter or regulations promulgated thereunder; (2) The Department of Agriculture, for any alleged failure to perform any act or duty mandated to the Department under this chapter; or (3) The Commission, for any failure to perform any act or duty mandated to the Commission under this chapter or for failure to enforce the chapter or regulations promulgated thereunder.

Del. Code tit. 3, § 2282 Protection from enforcement.

The Commission shall establish a list of best management practices for which funding is available from the Department and/or other local, state or federal agencies. Should any person be required under this chapter or regulations promulgated hereunder to undertake any of the activities for which funding is available and fail to receive funding due to insufficient funds available through those local, state or federal agencies, the Commission shall not begin any enforcement action under this title until such funding becomes available; provided, however, that the owner-operator must accept the first available funding after a period of 3 years, dated from nutrient management plan acceptance.

Del. Code tit. 3, § 2290 Annual reports.

(a) The Commission shall prepare and submit an annual report of its activities and the environmental results that have accrued during the previous year for the Governor and the General Assembly by April 1 each year. Each annual report shall include: (1) Specific recommendations for incentives to promote best management practices within the industry; (2) A complete list and delineation of all critical areas identified jointly with the Secretary of the Department of Natural Resources and Environmental Control that will be targeted for action and the reasons therefor; (3) A listing of all nutrient management training and education opportunities that were available in the State or within a reasonable travel distance, and any records of participation in those events; and (4) Best management practices implemented and the amount of acres under nutrient management plans by watershed. (b) (1) Each person required to maintain a nutrient management plan or animal waste management plan shall submit to the Commission by March 1 of every calendar year, on a form developed and supplied by the Commission, a report detailing, at a minimum, the following: a. The amount of animal wastes applied to the land and the quantity of land it was applied to; b. The amount of animal wastes transferred for alternative uses (if applicable); and c. The amount of inorganic fertilizers applied to the land. (2) All reports submitted under this subsection shall not be considered public records under Delaware’s Freedom of Information Act and shall not be disclosed. Such data may be used for data compilation. Notwithstanding the foregoing, reports submitted by permitted concentrated animal feeding operations under this subsection or under the CAFO NPDES Program may be retained, disclosed and made public as provided for in § 2248 of this title.
Source: DE Code (Official Site)URL: https://delcode.delaware.gov/title3/c022/sc01/index.htmlFetched: 10/4/2026

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