Delaware State Land Right-of-Way (3-DE-b)
State Land Right-of-Way Process
3-DE-b.1 to 3-DE-b.3 – Does the Project Cross State Land?
In Delaware, a developer must obtain approval from the DNREC or the state agency with jurisdiction prior to obtaining access to state land to construct or operate a transmission facility. Depending on the nature and scope of the project, a developer may purchase or lease state lands for the purpose of constructing or operating transmission facilities. Del. Code Ann. tit. 7 § 4506-11.
3-DE-b.4 to 3-DE-b.5 – Does the Delaware Department of Natural Resources and Environmental Control (DNREC) have Jurisdiction?
If the DNREC has jurisdiction over the state land, follow the process outlined below. If the DNREC does not have jurisdiction over the state land contact the state agency with jurisdiction and follow the prescribed state land right-of-way process.
3-DE-b.6 – Is the State Land Available for Sale?
The DNREC may sell state public lands in 50 acre tracts or less at public auction pursuant to Del. Code Ann. tit. 7 § 4506(a). If a project requires access to state land, a developer should contact the DNREC to determine if the land is available for sale. If the land is not available for sale, the land may still be available for lease.
3-DE-b.7 to 3-DE-b.8 – Provide Public Notice
If the DNREC determines that public lands should be sold, then the DNREC must provide public notice of the public auction offering the land for sale at least 10 days prior to auctioning the land. Del. Code Ann. tit. 7 § 4506(b). Public notice must be published and posted in all three counties in the state of Delaware. Del. Code Ann. tit. 7 § 4506(b).
3-DE-b.9 – Does the Developer Win the Bid?
The DNREC may only sell public land to the highest bidder for the amount of that highest bid. Del. Code Ann. tit. 7 § 4506(b).
3-DE-b.10 – Deed Conveying Public Land
If the DNREC issues a deed conveying the public land to the developer, the DNREC and the Governor of Delaware may place restrictions and conditions upon the deed that the DNREC deems advisable for the public good. Del. Code Ann. tit. 7 § 4507. If the developer fails to comply with restrictions and conditions on the use of the state lands for a period of 5 (five) years, then the developer forfeits the land to the state of Delaware. Del. Code Ann. tit. 7 § 4508.
3-DE-b.11 to 3-DE-b.13 – Is the State Land Available for Lease?
If the state land is not available for sale at public auction, a developer may still lease the state land pursuant to Del. Code Ann. tit. 7 § 4510. Generally, the DNREC and the Governor of Delaware have the authority to lease public lands under conditions that the DNREC determines are advisable for the public good. Del. Code Ann. tit. 7 § 4510. Additionally, the DNREC and Governor of Delaware may lease state lands for the exclusive right of operating “power stations.” Del. Code Ann. tit. 7 § 4511.
3-DE-b.14 – State Land Lease Agreement
If the developer enters into a lease with the DNREC and the Governor of Delaware, the developer must comply with any restrictions or conditions of the lease or forfeit the leasehold. Del. Code Ann. tit. 7 § 4510.
3-DE-b.15 to 3-DE-b.16 – Appeal Decision (Optional)
Any person whose interest is substantially affected by any action of the DNREC Secretary may appeal the action to the DNREC Environmental Appeals Board within 20 days of the DNREC Secretary’s decision. 7-100-105 Del. Admin. Code § 1.1.
Any person seeking an appeal with the Environmental Appeals Board must file a statement of appeal that contains the following:
- A statement of the interest that has been substantially affected;
- An allegation that the decision is improper;
- A statement of reasons why the decision is improper; and
- An estimate of the number of witnesses and the time involved in presenting the appeal at a public hearing. 7-100-105 Del. Admin. Code § 2.
The statement must also be accompanied by a $50 deposit for administrative costs. 7-100-105 Del. Admin. Code § 2.
3-DE-b.17 to 3-DE-b.18 – Hold Pre-hearing Conference
The Environmental Appeals Board must conduct a pre-hearing conference at least 20 days prior to the public hearing. 7-100-105 Del. Admin. Code § 3.
The DNREC must prepare and file a final letter indicating the action of the DNREC Secretary from which the appeal is taken and supporting documentation of the reasoning of the decision no later than 20 days after the appeal is filed. 7-100-105 Del. Admin. Code § 4.
3-DE-b.19 – Hold Public Hearing
The Environmental Appeals Board must hold the public hearing on the appeal on the first available date allowing for the proscribed 20-day notice period. 7-100-105 Del. Admin. Code § 5.
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