§ 8003 — Powers, duties and functions of the Secretary

The Secretary may:

(1) Supervise, direct and account for the administration and operation of the Department, its divisions, subdivisions, offices, including an Office of Natural Resources and an Office of Environmental Protection, functions, and employees. The Office of Natural Resources may include the Divisions of Fish and Wildlife, Parks and Recreation, and Watershed Stewardship. The Office of Environmental Protection may include the Divisions of Air Quality, Waste and Hazardous Substances, and Water.

(2) Appoint and fix the salary, with the written approval of the Governor, of the following personnel, who may be removed from office by the Secretary, with the written approval of the Governor, and who shall have such powers, duties and functions in the administration and operation of the Department as may be assigned by the Secretary:

a. A Deputy Secretary position in the Department who shall be known as the Deputy Secretary and who shall be qualified by training and experience to perform the duties of the office;

b. A Director of the Division of Fish and Wildlife, who shall be known as the Director of Fish and Wildlife and who shall be qualified by training and experience to perform the duties of the office;

c. A Director of the Division of Parks and Recreation, who shall be known as the Director of Parks and Recreation and who shall be qualified by training and experience to perform the duties of the office;

d. A Director of the Division of Watershed Stewardship, who shall be known as the Director of Watershed Stewardship and who shall be qualified by training and experience to perform the duties of the office;

e. A Director of the Division of Air Quality, who shall be known as the Director of Air Quality and who shall be qualified by training and experience to perform the duties of the office;

f. A Director of the Division of Water, who shall be known as the Director of Water and who shall be qualified by training and experience to perform the duties of the office;

g. A Director of the Division of Waste and Hazardous Substances who shall be known as the Director of Waste and Hazardous Substances and who shall be qualified by training and experience to perform the duties of the office; and

h. [Repealed.]

i. A Director of the Division of Climate, Coastal and Energy, who shall be known as the Division of Climate, Coastal and Energy, who shall serve as the State Energy Coordinator and who shall be qualified by training and experience to perform the duties of the office.

(3) Appoint such additional personnel as may be necessary for the administration and operation of the Department. Those positions in the classified service shall be hired through the Office of Personnel. Those positions not in the classified service shall not be hired through the Office of Personnel and shall not receive an appointment exceeding 180 days in any calendar year. No pro rata share of employee administration costs shall be paid to the Office of Personnel;

(4) Establish, consolidate, abolish or transfer or combine the powers, duties and functions of the divisions, subdivisions and offices within the Department as the Secretary, with the written approval of the Governor, may deem necessary, provided that all powers, duties and functions required by law shall be provided for and maintained;

(5) Make and enter into any and all contracts, agreements or stipulations, and retain, employ and contract for the services of private and public consultants, research and technical personnel and to procure by contract, consulting, research, technical and other services and facilities, whenever the same shall be deemed by the Secretary necessary or desirable in the performance of the functions of the Department and whenever funds shall be available for such purposes. All necessary legal services shall be provided pursuant to Chapter 25 of this title;

(6) Delegate any of the Secretary’s powers, duties or functions to a director of a division except the Secretary’s power to remove employees of the Department or to fix their compensation;

(7) Establish and promulgate such rules and regulations governing the administration and operation of the Department as may be deemed necessary by the Secretary and which are not inconsistent with the laws of this State;

(8) Maintain such facilities throughout the State as may be required for the effective and efficient operation of the Department;

(9) Adopt an official seal or seals for the Department;

(10) To require, prior to any exploration or exploitation of offshore minerals, or any pumping or transfer operation of offshore minerals from a ship to another ship, or from a ship to land, or vice versa, that a bond in the amount of at least $1,000,000 be posted to secure to the State any damages and claims arising from the operations;

(11) The Secretary is empowered to administer and distribute funds in the form of grants to qualified agencies for the construction of treatment works from such funds as may be appropriated from time to time for this purpose.

a.Definitions. —1. “Council” shall mean the Water Infrastructure Advisory Council.

2. “Department” shall mean the Department of Natural Resources and Environmental Control.

3. “Inflow and infiltration” shall mean any rainwater, melted snow, ground water or stream water entering a sanitary sewer system designed to transport sewage and industrial wastes only.

4. “Qualified agency” shall mean any legally incorporated town or city, Levy Courts or other governments of the counties, state agencies, nonprofit corporations providing water or wastewater services as a regulated utility pursuant to a certificate of public convenience and necessity granted by the Public Service Commission, and sewer districts authorized by law and organized to provide publicly owned and operated treatment works.

5. “Secretary” shall mean the Secretary of the Department of Natural Resources and Environmental Control or the Secretary’s duly authorized representative.

6. “Treatment works” shall mean any device and system used in the storage, treatment, recycling and reclamation of municipal sewage, “domestic wastewater” as defined in Chapter 60 of Title 7, or industrial wastes of a liquid nature, or necessary to recycle or reuse water at the most economical cost over the estimated life of the works, including intercepting sewers, outfall sewers, sewage collection systems, pumping, power and other equipment, and their appurtenances; extensions, improvements, remodeling, additions and alterations thereof; elements essential to provide a reliable recycled supply such as standby treatment units and clear well facilities and improvements to exclude or minimize inflow and infiltration.

b.Treatment works projects. —1. The Secretary shall promulgate procedures for the administration and distribution of grants.

2. The State’s share of any treatment works shall be a minimum of 25% of the eligible costs as determined by the Environmental Protection Agency pursuant to 33 U.S.C. § 1251 et seq., only if:

A. The treatment works, having received federal approval, has awarded contracts for start of construction after January 1, 1970;

B. The treatment works has received a grant offer from the Environmental Protection Agency prior to October 18, 1972; or

C. The treatment works has received a grant offer from the Environmental Protection Agency after September 30, 1984, and the treatment works project has not been segmented or phased prior to October 1, 1984, entitling it to a 75% federal grant.

3. The state’s share of any treatment works which has received a grant offer from the federal government pursuant to § 202 of PL 92-500 [33 U.S.C. § 1282] shall be a minimum of 10% of the treatment works cost. The acquisition of real property shall not be included in the project cost.

4. The state’s share of any treatment works may be reduced by the Secretary if the cumulative share of state and federal grants exceed 85% of the total treatment works costs.

5. The Secretary may, with the consent of the Governor, make emergency grants and/or loans to any treatment works if the qualified agency demonstrates, to the satisfaction of the Secretary, the need for such funds. No project shall receive more than 331/3percent of the total project cost as state grants except as provided in paragraph (11)c.2.B. of this section.

6. No treatment works project shall receive a state grant unless it is certified by the Secretary to receive priority for funding based on the priority list.

c.Inflow and infiltration control. —1. The Secretary shall promulgate procedures for making grants to qualified agencies for the purpose of reducing infiltration and inflow into existing sewer systems.

2. No inflow and infiltration reduction project shall receive more than:

A. 10% of the costs of such a project if the project also receives a federal grant;

B. 50% of the costs of such a project if the project is required by the Department to improve the performance of the sewerage system and federal funds are not available;

C. The cost of legal, engineering and administrative services, and the cost of television inspection shall be included in the cost of the inflow and infiltration reduction project.

d.Priority list. —1. The Secretary shall, at least annually, submit to the Council a list of treatment works projects and inflow-infiltration reduction projects. The list shall be comprised of applications submitted by qualified agencies pursuant to procedures promulgated by the Secretary and arranged in an order of priority.

2. The Council shall hold a public hearing on the list submitted by the Secretary. The Council shall review the testimony received and comment upon, approve or rearrange the priority list. While rearranging the priority list, the Council shall give due recognition to regulations promulgated by the Department and the United States Environmental Protection Agency. The Secretary shall make grants utilizing the priority list and all applicable procedures and regulations.

3. The Secretary’s list shall become the approved list if the Council fails to hold a hearing, comment upon, approve or rearrange the list within 30 days of submission to the Council.

e.Appropriations and disbursements. —The Secretary may allocate up to 15% of the total funds appropriated by the General Assembly for state grants to fund projects specified in paragraph (11)c. of this section.

f.Advancements. —1. The Secretary may allocate up to 5% of the total funds appropriated by the General Assembly for state grants to a revolving advancement fund.

2. The Secretary may adopt procedures for providing advancement to qualified agencies for the purpose of initiating the necessary planning studies required under the Federal Water Pollution Control Act Amendments of 1972 (33 U.S.C. § 1314 et seq.) and the federal grant regulations promulgated thereunder, or for state funded projects. A qualified agency may receive an advancement when it is demonstrated by such agency to the satisfaction of the Secretary that the referenced planning activities place an undue financial burden on the agency.

3. When a qualified agency receives federal and/or state grants for a project for which an advancement is made, and construction of the project commences, the amount of the advancement shall be subtracted from the state grant payment. In no event shall an advancement under this paragraph entitle a qualified agency to a greater amount of state grant moneys than specified in this paragraph.

4. In the event a qualified agency fails to proceed with the construction of project after the completion of necessary planning studies, the Secretary may seek recovery of moneys advanced to the qualified agency. If the qualified agency refuses to return advancement moneys after written request by the Secretary, the Secretary may seek the recovery of such advancement money in a civil lawsuit in the Superior Court.

(12) The Secretary is empowered to administer a state revolving loan program in accordance with the requirements set forth in Title VI of the Federal Water Pollution Control Act [33 U.S.C. § 1381 et seq.].

a.Definitions. —1. “Delaware Water Pollution Control Revolving Fund” shall mean the special fund created pursuant to this subsection.

2. “Department” shall mean the Department of Natural Resources and Environmental Control.

3. “Federal Water Pollution Control Act” shall mean the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. and regulations promulgated thereunder.

4. “Person” shall mean any individual, trust, firm, joint stock company, federal agency, corporation (including a government corporation), partnership, state, municipality, commission, political subdivision of a state or any interstate body. For purposes of this subsection, the term “municipality” includes a nonprofit corporation providing water or wastewater services as a regulated utility pursuant to a certificate of public convenience and necessity granted by the Public Service Commission.

5. “Secretary” shall mean the Secretary of the Department of Natural Resources and Environmental Control.

b.Delaware Water Pollution Control Revolving Fund. —There is hereby established a “Delaware Water Pollution Control Revolving Fund” as contemplated by and to be administered pursuant to Title VI of the Federal Water Pollution Control Act. All federal capitalization grants received pursuant to the Federal Water Pollution Control Act, any state reallocations of federal construction grants funds pursuant to the Federal Water Pollution Control Act, all required matching state funds and all loan repayments received by the State pursuant to any loan agreement made under the Delaware Water Pollution Control Revolving Fund, shall be credited to the Delaware Water Pollution Control Revolving Fund. In addition, all proceeds of obligations issued by the State and supported by a pledge or other interest in the funds in the Delaware Water Pollution Control Revolving Fund, shall be held in or for such Fund. The Delaware Water Pollution Control Revolving Fund shall be deemed to be a special fund and shall be approved by the Governor for the following purposes:

1. To accept and retain the funds and revenues specified herein;

2. To make loans to eligible persons for qualifying purposes under the Federal Water Pollution Control Act;

3. To buy or refinance debt obligations of eligible persons for qualifying purposes under the Federal Water Pollution Control Act;

4. To guarantee or purchase insurance for obligations of eligible persons for qualifying purposes under the Federal Water Pollution Control Act;

5. To make loans to eligible persons to implement a nonpoint source pollution control management program under the Federal Water Pollution Control Act;

6. To make loans to eligible persons to implement an estuary conservation and management program under the Federal Water Pollution Control Act;

7. To be a source of revenue or security for the payment of principal and interest on revenue bonds of the State if the proceeds of the sale of such bonds will be deposited in the Delaware Water Pollution Control Revolving Fund;

8. To earn interest on amounts on deposit in such Fund;

9. To finance the reasonable costs incurred by the State in the administration of the Delaware Water Pollution Control Revolving Fund as permitted under the Federal Water Pollution Control Act;

10. To accomplish any other allowable purpose under the Federal Water Pollution Control Act.

The Department is designated as the administering agency of the Delaware Water Pollution Control Revolving Fund and shall have such powers necessary to administer such Fund including, but not limited to, the power to enter into capitalization grant agreements with the Environmental Protection Agency, the power to accept capitalization grant awards made under the Federal Water Pollution Control Act and the power to manage and make loans from the Fund in accordance with the requirements of the Federal Water Protection Control Act. The Department shall take all actions necessary to secure for the State the benefits of Title VI of the Federal Water Pollution Control Act.

c.Standards and procedures. —Before making any loan from the Delaware Water Pollution Control Revolving Fund, the Department shall specify:

1. Standards for the eligibility of borrowers and the type of projects to be financed with loans;

2. Procedures for the preparation, review and approval of the “project priority” list which must contain those projects for which financial assistance is sought;

3. Procedures for submitting applications for financial assistance and procedures for Department approval of such applications;

4. Procedures for completing an environmental review of projects pursuant to paragraph (12)d. of this section;

5. Conditions for financial assistance; and

6. Other relevant criteria, standards or procedures.

Standards and procedures specified under this paragraph shall provide for a final approval by the Water Infrastructure Advisory Council of any loan from the Delaware Water Pollution Control Revolving Fund and the “project priority” list.

d. The Secretary shall conduct an environmental review of projects otherwise qualifying under this subsection which shall be sufficiently consistent with the provisions for environmental review established under 40 C.F.R., Part 6, and the Secretary’s environmental review standards and procedures established in Title 7.

(13) Establish, supervise, direct and account for the operations and functions of the personnel responsible for the enforcement of the laws, regulations, rules, permits, licenses, orders and program requirements of the Department of Natural Resources and Environmental Control. In exercising the powers, duties and functions under this paragraph, the Secretary may:

a. Employ enforcement personnel who shall be officially known as law-enforcement officers of the Department of Natural Resources and Environmental Control, but who may be designated as Natural Resources Police Officers and shall include environmental protection officers, Fish and Wildlife Agents and park rangers;

b. Classify law-enforcement officers of the Department of Natural Resources and Environmental Control according to rank, title or duties assigned as deemed appropriate;

c. Assign or reassign law-enforcement officers of the Department of Natural Resources and Environmental Control to the divisions, subdivisions and offices of the Department to perform enforcement duties as deemed appropriate;

d. Provide law-enforcement training for law-enforcement officers of the Department of Natural Resources and Environmental Control; and

e. Establish a central filing system to record and maintain a record of violations of statutes, rules, regulations, permit conditions, licenses, orders and program requirements administered by the Department of Natural Resources and Environmental Control.

(14) The Secretary is empowered to apply for and accept grants which the Secretary deems necessary or desirable to the performance of the functions of the Department, subject to Chapter 76 of Title 29. The Secretary is empowered to administer and distribute those funds in the form of grants to qualified entities when funds are available for such purposes. Qualified entities may include, but are not limited to, state, county and local agencies, educational institutions, not-for-profit organizations, corporations, and other businesses, and individual citizens.

(15) Not, any other law or regulation to the contrary notwithstanding, have authority to enter into any agreement with any person or entity subject to the Secretary’s review or control which requires said person or entity to pay moneys to any third party other than the Department as part of an enforcement action, or to induce the Department to refrain from taking an enforcement action provided said limitation shall not apply for any provision negotiated as part of a settlement agreement or conciliatory order that would allow such person to undertake a supplemental environmental project that would result in an environmental benefit beyond that which is required under existing or anticipated regulations or standards.

(16) a. The Secretary shall be responsible for the administration and operation of the State Energy Office, and shall supervise all the required and discretionary programs currently underway within the State Energy Office. These include programs to promote energy efficient lighting and thermal systems, transportation programs aimed at reducing traffic and fuel usage and the procurement of energy efficient products and services. In addition, the State Energy Office shall work in cooperation with the State Public Service Commission and other State agencies and departments in the promotion of renewable fuels and energy supplies, improving the adequacy and reliability of energy supplies in Delaware and in assessing the environmental consequences of energy usage in Delaware. Further, the Secretary shall develop suitable and appropriate performance measures for the Energy Office and shall submit them as a component of the Department’s annual budget submission.

b. The Secretary shall also be responsible for development of a state facilities energy management plan. The state facilities energy management plan shall be developed in conjunction with the Division of Facilities Management to ensure that energy conservation methods are employed in all new and existing facilities owned by state agencies or local school districts. The plan shall be approved by the Secretary of the Department of Natural Resources and Environmental Control and Director of the Office of Management and Budget. The state facilities energy management plan shall provide for, but not be limited to:

1. Development and maintenance of energy conservation standards for the purpose of reviewing the design, construction, renovation and maintenance of facilities owned by state agencies or local school districts;

2. A program of energy audits of facilities owned by state agencies or local school districts in cooperation with designated representatives of said facilities;

3. Development, maintenance and distribution to facilities owned by state agencies or local school districts of guidelines, recommendations and technical assistance for energy conservation measures to be employed, installed and monitored in said facilities;

4. A detailed description of the estimated energy and monetary savings, and environmental benefits.

Legislative History

29 Del. C. 1953, § 8003; 57 Del. Laws, c. 302, § 1 ; 57 Del. Laws, c. 579 ; 57 Del. Laws, c. 739, § 222 ; 58 Del. Laws, c. 76 ; 59 Del. Laws, c. 176, § 1 ; 59 Del. Laws, c. 372, § 2 ; 59 Del. Laws, c. 526, § 1 ; 60 Del. Laws, c. 258, § 1 ; 60 Del. Laws, c. 448, § 1 ; 64 Del. Laws, c. 331, § 1 ; 65 Del. Laws, c. 431, §§ 1, 2 ; 67 Del. Laws, c. 291, § 1 ; 69 Del. Laws, c. 291, §§ 226, 227 ; 69 Del. Laws, c. 303, §§ 2-4 ; 70 Del. Laws, c. 74, § 1 ; 70 Del. Laws, c. 105, § 25 ; 70 Del. Laws, c. 186, § 1 ; 72 Del. Laws, c. 482, § 1 ; 73 Del. Laws, c. 74, § 150(c) ; 74 Del. Laws, c. 110, § 121 ; 75 Del. Laws, c. 88, § 16(5) ; 75 Del. Laws, c. 353, § 81(a), (b) ; 77 Del. Laws, c. 430, §§ 61-65 ; 78 Del. Laws, c. 127, §§ 1, 13, 14 ; 78 Del. Laws, c. 290, § 230 ; 79 Del. Laws, c. 40, § 1 ; 82 Del. Laws, c. 201, § 1 ; 84 Del. Laws, c. 141, § 2