Sec. 48-437.1. - Purpose and intent.

(a)

Pursuant to the Delaware Source Water Protection Law of 2001, 7 Del. C. §§ 6081-6084, and consistent with the city's ongoing efforts to improve surface water quality, the city, with the assistance of the Delaware Department of Natural Resources and Environmental Control (DNREC) delineated a Source Water Protection Area (SWPA) within the city limits for the Brandywine Creek, the city's source of drinking water, and created a SWPA Map which was adopted as part of the city's comprehensive plan. Parcels within the SWPA shall be subject to this division which is designed to protect the SWPA, a critical area, from activities and substances that may harm water quality and subtract from overall water quantity. The SWPA includes two sub-categories with more stringent water quality and quantity protection requirements: (1) SWPA Subcategory A - Erosion Prone Slopes; and, (2) SWPA Subcategory B - 200 Foot Creek Buffer from the bank of the Brandywine Creek. Tax parcels located within the SWPA must meet the requirements of the relevant zoning district and must also comply with the SWPA requirements and prohibitions. If there is an inconsistency between the zoning district and SWPA requirements, the higher standard shall govern, consistent with City Code section section 48-4

(b)

The SWPA map may be amended from time to time as deemed scientifically appropriate by the department of public works and DNREC and as approved by the planning commission and adopted by city council.

(Ord. No. 09-044, § 2, 8-27-09)

Cross reference— (7 Del. C. § 6082(b)).

Sec. 48-437.2. - Scope and applicability; effective date.

(a)

This division is prospective. All non-conforming conditions to this particular division in existence at the time the ordinance is adopted may continue in the form in which the condition existed at the time of the adoption of this division. Any formal application for new development that has been submitted to any city department, commission or board for approval prior to the adoption of the ordinance may proceed and not trigger applicability of this division.

(b)

Any existing or future condition which poses a direct hazard to the city's water supply, as determined by the city upon advice from the Delaware Division of Public Health, or is causing some foreign substance (oil, salts, chemicals or other substances) to be introduced into the city's water supply, as determined by the city upon advice from DNREC's Division of Air and Waste Management and/or Division of Water Resources, the city shall issue a cease and desist order to stop the offending activity.

(c)

For parcels located within the SWPA any application for new development to the city, county, state or the federal government triggers applicability of this division.

(d)

This division is effective upon adoption.

(Ord. No. 09-044, § 2, 8-27-09)

Sec. 48-437.3. - Source water protection area requirements.

(a)

Source water protection area requirements.

(1)

Underground storage tanks prohibited. Installation of an underground storage tank (UST), as defined by Delaware Code, Title 7, Chapter 74, Delaware Underground Storage Tank Act, is prohibited in the SWPA. However, the replacement of existing underground storage tanks is permitted provided all state and federal regulations are met and secondary containment is provided. In the event of an existing UST failure or UST abandonment, the city may require replacement of the UST with an aboveground storage tank.

(i)

Exemptions:

A.

Any UST less than 110 gallons or residential UST less than 1,100 gallons containing heating fuel. A residential UST is a UST located on a single family or two-family property used primarily for dwelling purposes.

Cross reference— 7 Delaware Administrative Code 1351, Delaware Regulations Governing Underground Storage Tank Systems.)

(2)

Aboveground tanks prohibited. Installation of an aboveground storage tank (AST), as defined in Delaware Code Title 7, Chapter 74A, The Jeffrey Davis Aboveground Storage Tank Act, is prohibited in the SWPA.

(i)

Exceptions:

A.

Aboveground storage tanks used in the process of public water supply and treatment and public sewage treatment.

B.

The replacement of existing aboveground storage tanks shall be permitted, provided all state and federal regulations are met and secondary containment is provided.

C.

Aboveground storage tanks used solely to store propane gas.

Cross reference— (7 Del. C. § 7404A(a)(2)).

D.

Aboveground storage tanks of 1,100 gallons or less in capacity used solely to store heating fuel for consumptive use on the premises where stored.

Cross reference— 7 Del. C. § 7404A(a)(3)).

E.

Aboveground storage tanks installed on a temporary basis, not to exceed six months.

Cross reference— (7 Del. C. § 7404A(a)(5)).

(3)

Hazardous waste treatment, storage and disposal facilities prohibited. The on site treatment, storage or disposal of hazardous waste, as defined by the federal Resource Conservation Recovery Act, 42 U.S.C. §§ 6901-6992k, or 7 Delaware Administrative Code 1302, Delaware Regulations Governing Hazardous Waste, is prohibited.

(4)

New development shall comply with DNREC's Permanent Stormwater Management Water Quality Controls. New development disturbing greater than 5,000 square feet must comply with Delaware's Sediment and Stormwater Regulations, dated October 11, 2006, or as later revised, and, in particular, Section 10, "Specific Design Criteria and Minimum Standards and Specifications", specifically including, but not limited to, Section 10.3, "Specific requirements for the permanent storm water management portion". At the discretion of the commissioner of public works, connecting to the city's combined sewer system may be an option to meet this requirement. Direct storm water discharge to the Brandywine Creek or any of its tributaries is prohibited without pretreatment for water quality and water quantity improvement in compliance with Section 10.3 of Delaware's Sediment and Stormwater Regulations.

i.

Exemption: Certified Brownfields.

(5)

Filling of wetlands prohibited. Filling of wetlands, as defined by the State of Delaware and the Army Corps of Engineers, is prohibited regardless of the size of the wetland.

(6)

Parking lots. All parking lots must comply with subsection 48-437.3(a)(4) regardless of the size of the parking lot even if the new development disturbs less than 5,000 square feet.

(7)

Government owned parks and open space. New development that disturbs more than 1,000 square feet must comply with subsection 48-437.3(a)(4) of this division and is prohibited without prior approval from the commissioner of public works.

(b)

Subcategory Level A—Erosion prone slopes.

(1)

Comply with all requirements of subsection 48-437.3(a).

(2)

Comply with erosion prone slopes practices. New development on erosion prone slopes as identified on the SWPA Map must comply with the following practices:

i.

No other alternative location within the new development being considered is feasible or practical.

ii.

Removal of or disturbance to existing vegetation on the parcel shall be minimized. The proposed impacts on existing vegetation shall be evaluated in terms of the potentially detrimental effects on slope stability, recharge of storm water and existing drainage patterns.

iii.

Roads and driveways shall only be permitted if no viable alternative alignment or location is feasible, provided that such roads and driveways are aligned predominately parallel to the contours.

iv.

All earth work shall be conducted so as to be concluded one month prior to the end of the planting seasons (i.e., April 30 and September 30). This practice will enable a ground cover to be established after work completion.

v.

A ground cover shall be placed on all exposed surfaces prior to the end of the planting season, or as the work is completed prior to that date. The city is authorized to permit temporary cover in limited situations where unusual weather or the type of new development requires earth work beyond a planting season. surety may be required for remedial work if temporary cover is to be used.

vi.

All erosion prone slopes exceeding 15 percent or where water flows can be anticipated shall have a protective cover to hold the seed or plants in place.

(c)

Subcategory Level B—200 foot buffer from bank of Brandywine Creek.

(1)

Comply with all requirements of subsection 48-437.3 (a)

(2)

Filling of 100-year floodplain prohibited. No approval shall be granted by the zoning board of adjustment permitting the raising of elevation of the land on the 100-year floodplain.

i.

Exemption: Paths or walkways open to the public in perpetuity.

(3)

Underground storage tanks prohibited. Installation of an underground storage tank (UST), as defined by Delaware Code, Title 7, Chapter 74, Delaware Underground Storage Tank Act, is prohibited regardless of size.

(Ord. No. 09-044, § 2, 8-27-09)

Sec. 48-437.4. - Administrative rules.

The department of planning, the department of public works, and the department of licenses and inspections may draft rules as deemed necessary regarding implementation of this division subject to review and approval by the administrative board.

(Ord. No. 09-044, § 2, 8-27-09)

Sec. 48-437.5. - Administration, enforcement, and penalties.

(a)

The relevant departments shall administer and enforce the provisions of this division under the authority of each respective department.

(b)

Penalties for non-compliance with this division shall be issued consistent with relevant penalty provisions of the City Code or under section 48-31

(Ord. No. 09-044, § 2, 8-27-09)

Sec. 48-437.6. - Variance or waiver request.

If any requirement or prohibition of this division causes unnecessary hardship or exceptional practical difficulty to a property owner a variance or waiver request may be submitted in writing by the property owner to the zoning board of adjustment ("ZBA") consistent with City Code section 48-70. Such submittal must include a mitigation plan where appropriate. Any variance or waiver request to the ZBA must also be submitted to the commissioner of license and inspections who, after consultation with the relevant city department head, will make a recommendation to the ZBA regarding approval or denial of the variance or waiver request.

(Ord. No. 09-044, § 2, 8-27-09)

Sec. 48-437.7. - Severability clause.

The provisions of this section are specifically made severable in accordance with the general severability provisions of section 1-9 of the City Code.

(Ord. No. 09-044, § 2, 8-27-09)

Sec. 48-437.8. - Definitions.

The following words, terms and phrases, when used in this division, shall have the meaning ascribed to them in this section, except where the context clearly indicates a different meaning:

(a)

Aboveground storage tank or AST as defined by The Jeffrey Davis Aboveground Storage Tank Act, 7 Delaware Code Chapter 42A, and Delaware Regulations Governing Aboveground Storage Tanks.

(b)

Brownfields. Means any vacant, abandoned or underutilized real property the development or redevelopment of which may be hindered by the reasonably held belief that the real property may be environmentally contaminated.

Cross reference— (7 Del C. § 9103(3)).

(c)

Certified Brownfields. Means a Brownfield, as defined in 7 Del. C. § 9103(3), that the Secretary of the Delaware Department of Natural Resources and Environmental Control has certified pursuant to the regulations governing hazardous substance cleanup.

Cross reference— (7 Del. C. §9123(3)).

(d)

Critical area. Means an area wherein the establishment or maintenance of a viable physical, economic or social environment is of more than local concern; or the physical, economic or social characteristics of said area are of primary importance or uniquely sensitive, including, but not limited to, wetlands, major port facilities and historic areas.

Cross reference— (Historic definition pursuant to 29 Del. C. § 9202, repealed in 2003).

(e)

Erosion prone slopes. Erosion prone slopes, SWPA Subcategory A, are delineated in the SWPA map and are contiguous to, and draining toward, the 100-year flood plain or water course and consist of land with soils of United States Department of Agriculture Soil Conservation Service capability classifications IVe, VIe, VIs, and VIIIe as mapped by the Soil Survey of New Castle County (1970).

(f)

Land disturbing activity. Means any land change or construction activity for residential, commercial, industrial and institutional land use which may result in soil erosion from water or wind or movement of sediments or pollutants into state waters or onto lands in the state, or which may result in accelerated storm water runoff, including, but not limited to, clearing, grading, excavating, transporting and filling of land. This definition does not apply to commercial forestry practices.

Cross reference— (Title 7 Delaware Code, Chapter 40 - Erosion and Sedimentation Control, § 4002(3)).

(g)

New development. Any land use change to a parcel, including but not limited to:

(1)

Minor or major subdivision.

(2)

Building permit application.

(3)

Demolition permit application.

(4)

Grading permit application.

(5)

Application for floodplain variance.

(6)

Application for underground or aboveground storage tank permit.

(7)

Application to dredge or fill wetlands.

(8)

Any land disturbing activity, as defined in 7 Del C. § 4002, greater than 5,000 square feet, triggering a sediment and storm water management plan requirements pursuant to City Code section 11-38

(9)

Application for an encroachment permit for alteration and/or modification of the stream bank.

(h)

Parking lot. For the purposes of this division only, parking lot is defined to mean any commercial parking lot or parking lot that is an accessory use.

(i)

Source water. Shall mean any aquifer or surface water body from which water is taken either periodically or continuously by a public drinking water system for drinking or food processing purposes.

Cross reference— (Title 7 Del. C. § 6002(65)).

(j)

Source water protection area (SWPA). Shall mean the delineated area which contributes water to a public supply system. This is called a watershed or basin for a surface water intake. A source water protection area shall constitute a critical area as historically defined under Chapter 92, Title 29 of the Delaware Code.

Cross reference— ("Source Water Assessment Area" 7 Del. C. § 6002(66)).

(k)

Underground storage tank. As defined by the Delaware Underground Storage Tank Act, 7 Delaware Code, Chapter 42, and 7 Delaware Administrative Code 1351, Delaware Regulations Governing Underground Storage Tank Systems.

(l)

100-year floodplain. Means the land area subject to a probability of flooding at least once in 100 years. For purposes of the SWPA and this Code, the identified floodplain area shall be those areas of the city which are subject to the 100-year flood as shown on the floodway map or flood insurance rate map (FIRM) and described in the flood insurance study (FIS) prepared for the city by the Federal Emergency Management Agency (FEMA), dated April 17, 1996, or the most recent revision thereof.

(Ord. No. 09-044, § 2, 8-27-09)

Secs. 48-438—48-440. - Reserved.