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Show 192 DELAWARE does not reduce the stream below the average minimum flow required by the act;B0 (2) Any person may impound water on, or divert from, any stream having a minimum daily flow of not more than one-half million gallons, so long as he does not "utilize" more than 360 acre inches per year, and so long as such impoundment or use "does not affect the established average minimum flow in the stream below the dam at any time."61 (3) Ponds not larger than 60,000 square feet [about 11/3 surface acres] may be constructed for purposes of "conservation, recreation, propagation and protection of fish or wildlife, watering of stock or fire protection."62 This particular exemption is not limited by or subject to provisions for maintenance of average minimum streamflow. The third exemption, relating to municipal use, provides that the statute: * * * shall not prevent a municipal user from serving additional nonindustrial subscribers, supplying water for emergency purposes or extending its mains or water services from which water will be supplied from existing wells, reservoirs and storage tanks.53 It is apparent from the foregoing discussion that all surface and ground water in Delaware is subject to regulation, with exemptions for pre-July 1,1966 uses, certain domestic and agricultural uses, cer- tain dams, ponds and impoundments, and certain additional uses by municipalities. Some of the applicable administrative procedures are discussed in section 2.1.e, below, and those procedures which relate to issuance of water use permits are discussed in section 3.1. Regu- lation of ground water and licensing of well drillers are discussed in section 4. e. ADMINISTRATIVE REGULATIONS The administrative regulations implemented under the statute dis- cussed above are very interesting, since they seem to deal with sub- stantive matters as well as procedures. Section 2.01 (sec. 2, par. 1 of regulation I) contains the following: The following administrative principles shall be adhered to by the Com- mission in all matters involving the use of the water resources of the State: a. The water resources of the State are considered to be public waters and public wealth and the usage of such waters shall be allocated on the bases of equitable apportionment and reasonable beneficial use. Waters which flow vagrantly over land surface shall not be regarded as public waters and the owner of land on which such waters fall or flow shall have the right to its use, provided that no damages result to other persons. b. A right to a water allocation can only be acquired by a permit issued by the Commission or by having been a reasonable beneficial use prior to the adoption of these regulations. No right to the use of water can be acquired by adverse use or adverse possession. c. It is recognized by the commission that the water resources in and on the State of Delaware may be physically and hydrologically related and that where such a relationship exists approval of uses of such waters shall take into account this relationship. d. The rights of the public regarding the water resources of the State are considered to be usufructuary upon approval by the commission. Prospective water users within the incoporated limits of any town, city or other applicable jurisdiction shall be required to obtain permission from said governing body for any allocation sought, as well as from the commission, where their juris- diction are in effect. Prospective water users not located within the confines 60 Sec. 7-6103(2). bi Sec. 7-6103(3). 62 Sec. 7-6103(4). » Sec. 7-6105 (b). |
