PART 4: Activities Requiring a Permit or Letter of Approval from the Division
4.01 General Rule
No permit shall be issued for any activity prohibited by any provision of the Regulations. Procedures for processing applications are set forth in PART 5 of the Regulations.
4.02 Permit Application; Fee
Any person applying for a permit pursuant to the provisions of PART 4 of the Regulations must apply to the Division on an application form provided by the Division. Any person submitting a permit application form to the Division pursuant to the provisions of PART 4 of the Regulations shall at the same time submit an application fee of $150.00 for each permit application.
4.03 Construction of Beach Erosion Control or Shore Protection Structures or Facilities Seaward of the Building Line
No person shall commence or conduct, without a permit therefor from the Division, construction of any structure or facility on any beach seaward of the Building Line, the primary function of which is beach erosion control or shore protection including, but not limited to, groins, jetties, seawalls, revetments, dikes, bulkheads, and beach nourishment; except that ordinary dune maintenance, as determined by the Division, including the proper installation of sand fence and the planting and fertilization of stabilizing vegetation, shall not require a permit.
4.04 Construction of Pipelines or Harbor Works Seaward of the Building Line
No person shall commence or conduct without a permit therefor from the Division, construction seaward of the Building Line, or any pipeline, dock, pier, wharf, ramp or other harbor work.
4.05 Construction of a Structure Seaward of the Building Line; Permits; Exception for Beach Access Structures
- Except as provided pursuant to the provisions of Sections 4.03, 4.04, or 4.05 (c) of the Regulations, before any person commences the construction of any structure, or portion thereof, that would be located seaward of the Building Line, said person must have been issued a permit for the construction by the Division.
- Before any permit is issued by the Division pursuant to Section 4.05(a) of the Regulations for the construction of any structure, or portion thereof, seaward of the Building Line, the person applying for the permit must provide the Division with written documentation that the proposed structure, or portion thereof, will be constructed in accordance with Division requirements relating to location and design criteria, which are intended to prevent or minimize any damage to the beach, and also all the provisions of the Act and the Regulations.
- A person is not required to follow the requirements of Section 4.05 (a) or (b) if a person intends to construct a structure, or portion thereof, that is going to be used only for the purpose of providing pedestrian access to and from the berm and foreshore across the dune zone. However, before any person commences the construction for such a beach access structure, or any portion thereof, that would be located seaward of the Building Line, said person must have been issued a letter of approval for the construction by the Division. A person may receive said letter of approval after applying to the Division on an application form that shall be made available by the Division. The Division shall process said application form pursuant to the procedures set forth in the provisions of Section 4.08 of the Regulations.
4.06 Other Activities Seaward of the Building Line
No person shall commence or conduct any of the following activities on any beach without a permit therefor from the Division: the alteration, digging, mining, moving, removal or deposition of any substantial amount of beach or other materials, or the significant removal of vegetation on any beach seaward of the Building Line which may affect enhancement, preservation or protection of beaches.
4.07 Mitigating Measures
In rendering its decision on requests for permits and letters of approval pursuant to these Regulations, the Division shall make a determination regarding the potential adverse effects of the proposed structure or activity. If, in the opinion of the Division the potential for damage to the beach seaward of the Building Line is increased as a result of the proposed structure or activity, the Division may require the applicant to take mitigating measures (including, but not limited to beach nourishment, dune construction, and/or dune maintenance) to reduce such damage potential. When the Division requires such mitigating measures, the applicant, his successors, heirs and assigns, shall be required to maintain these measures for the life of the structure or activity. Failure to comply with the mitigating measures prescribed by the Division shall be cause for removal of the structure or termination of the activity and restoration of the beach, as nearly as possible, to its original condition at the expense of those persons owning the structure or conducting the activity, or for the Division to take the necessary actions to bring the owner into compliance and to place a lien on such property for all reasonable costs and expenses incurred by the Division, whichever action the Division deems most appropriate.
4.08 Construction Activities Landward of the Building Line and Within the Beach Area
No person shall commence or conduct construction of any structure or the alteration, digging, mining, moving, removal or disposition of any substantial amount of beach or other materials landward of the Building Line and within the beach area without a letter of approval from the Division. To obtain the written approval, the applicant shall furnish to the Division a completed application on forms available from the Division. Upon receipt of an application for approval, the Division shall consider the effect of the proposed project on beach enhancement, preservation and protection. The Division may undertake any investigation or activity it deems necessary to carry out the purposes of this Act. If the Division determines such a project may have a substantial effect on beach enhancement, preservation and protection, the applicant shall be directed to follow the procedures for obtaining a permit applicable under PART 4. The Division shall make a decision on the application that may include terms and conditions which it determines will best implement the purposes of the Act and these Regulations. The Division shall give written notice with reasons for the decision to the applicant.
PART 5: Procedures for Processing Permit Applications
5.01 The Division
Applications shall be considered and permits issued or denied by the Division in accordance with the purposes and intent of the Act and these Regulations.
Upon receipt of a permit application in proper form, the Division shall advertise in a daily newspaper of state-wide circulation and in a newspaper of general circulation in the county in which the activity is proposed:
The Division shall also mail notice of the above to all adjacent property-owners as listed in the permit application, and make the application available for public inspection at the Dover office of the Division. A decision shall not be rendered on any permit application until at least 20 calendar days after notice has been published and mailed to adjacent property owners, and the application has been made available for public inspection, in accordance with this Section.
- That the application has been received;
- A brief description of the nature of the application; and
- That comments will be received for 15 calendar days by the Division regarding the application.
5.03 Specific Information to be Examined by the Division; Investigatory Authority of the Division and Its Agents; Authority of Division to Require Special Conditions or Modifications
- In addition to the general categories of information that are provided for pursuant to Section 2.10 of the Regulations whenever the Division is deciding to issue a Permit pursuant to the Regulations, the Division shall take into consideration any relevant information relating to the following:
- Any comments received by the Division;
- The effect of the proposed construction on shoreline recession, beach erosion, flooding, and potential damage to the parcel of real property that is the subject of the permit application, and potential damage to any other parcel of real property, public lands, or personal property;
- The feasibility of alternative protection from storm damage that may be available;
- The historical average rate of shoreline change for the general area nearby and including the parcel of real property that is the subject of the permit application;
- The design modifications which may mitigate the impact of the proposed construction on the part of the beach that is located seaward of the Building Line (see Section 5.03 (b) below for further information); and
- Any other factors or information that the Division determines to be relevant to the subject matter of the permit and carrying out the purposes and intent of the Regulations and the Act.
- In determining if the Division shall require that the dimensions or location of a proposed structure, or portion thereof, or other design aspects are to be modified or redesigned pursuant to the provisions of Section 3.01 (a)(2), the Division, in addition to what is required in Sections 2.10 and 5.03(a), shall balance the actual and potential hardships or benefits that may be experienced by the person owning the structure or portion thereof against the actual and potential hardships or benefits that the State, the public and adjacent landowners may experience. The Division while carrying out the balancing test may take into consideration the following factors:
- The purposes and provisions of the Act and the Regulations;
- The likelihood and amount of actual, or potential for, expenditures of federal and state revenues for maintaining, repairing or restoring the parcel of real property prior to construction, after construction and after any natural disaster (e.g. storm);
- The protection of the State, the public and any adjacent landowners from actual and potential financial and property loss;
- The actual and potential financial or personal losses to the owner of the structure or portion thereof;
- The feasibility of any modification or redesign required by the Division, keep in mind any increased or decreased costs, in achieving the purpose and function of the structure or portion thereof as originally planned;
- Any design alternatives or amendments to the original designs submitted to the Division by the owner of the proposed structure or portion thereof; and
- Any other factor the Division determines to be relevant.
- The Division or Department, and any agents thereof, may do any of the following acts while attempting to carry out the purposes and intent of the Regulations and the Act, or while processing an application for a permit or request for a letter of approval:
- Make on-site inspections of any type of structure, or portion thereof, or any real property regulated by the provisions of the Regulations or the Act.
- Communicate with any party to discuss any matter relating to the Regulations or the Act.
- Undertake formal or informal investigations or activities as are necessary to carry out the propose and intent of the Regulations and the Act.
- In addition to the provisions of Section 4.07 of the Regulations, the Division may establish special permit conditions, and/or require modification of any proposed structure or activity in order to (1) prevent increased erosion damage to the parcel of real property in issue, nearby parcels or real property, or public lands, and/or (2) reduce public expenditures for beach protection.
The Division shall make a decision on the application which it determines will best implement the purposes of the Act and these Regulations. The Division shall give written notice with reasons to the applicant, to adjacent property owners as listed in the permit application and to other persons who have requested that they be notified of the decision on that application.