Delaware General Assembly

AN ACT TO AMEND TITLE 3 OF THE DELAWARE CODE RELATING TO NUISANCE PLANTS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE :

“Chapter 27. Nuisance Plants

§2701. The General Assembly finds and declares that nuisance plants within the State of Delaware threaten significant recreational, aesthetic, wildlife and environmental benefits that citizens of the State have come to enjoy. The General Assembly further finds that the introduction and spread of nuisance plants has engendered border disputes between neighboring landowners. As a consequence, the purpose of Chapter 27 is to give the Delaware Department of Agriculture the authority to regulate the sale, transfer and effects of nuisance plants within the State and thus to preserve the significant benefits previously described and to attempt to minimize or eliminate border disputes.

§2702. Definitions.

As used in this Chapter:

(1) ‘Complainant’ means any individual, governmental entity, firm, partnership, corporation, company, society, association, or any organized group of persons, who possesses or has use of the land onto which the nuisance plant spreads or will spread unless controlled.

(2) ‘Control’ means to maintain a nuisance plant within the property boundaries of a landowner who has planted it or allowed it to remain.

(3) ‘Cultivate’ means to knowingly plant, propagate, transplant, or encourage to grow.

(4) ‘Landowner’ means any individual, governmental entity, firm, partnership, corporation, company, society, association, or any organized group of persons who owns or has the right to possess and use land on which a nuisance plant is growing.

(5) ‘Nuisance Plant List’ means the official list of nuisance plants designated as such by the Secretary of the State of Delaware Department of Agriculture with the advice of the Nuisance Plant Committee. The Secretary may make the alterations to the nuisance plant list after providing sixty (60) days written notice of the proposed alterations to the Nuisance Plant Committee. The Secretary may make alterations to the nuisance plant list immediately if the Nuisance Plant Committee meets before the sixty-day period elapses and approves the alterations by a majority vote.

(6) ‘Person’ means any individual, governmental entity, firm, partnership, corporation, company, society, association, or any organized group of persons, and every officer, agent, or employee thereof.

(7) ‘Secretary’ means the Secretary of the Delaware Department of Agriculture.

§2703. Nuisance Plant Committee.

(a) The Secretary shall establish a Nuisance Plant Committee to advise the Secretary on the creation of the Nuisance Plant List.

(b) The Nuisance Plant Committee comprises five (5) members to be appointed by the Secretary. The composition of the Nuisance Plant Committee shall be as follows:

a representative from Delaware nursery and landscape industries;

a representative from Plant Industries, Delaware Department of Agriculture;

a representative from the Plant and Soil Science faculty of the University of Delaware or Delaware State University;

a representative from Delaware State government outside the Department of Agriculture;

a public member.

(c) The Secretary will charge the Nuisance Plant committee with reviewing and revising the Nuisance Plant List and with categorizing such plants as either Class A or Class B nuisance plants. A Class A nuisance plant is one for which there is no known effective and reasonable method of control. A Class B nuisance plant is one for which there is a known effective control method.

(d) Nuisance Plant Committee appointees shall serve terms for a period of 2 years, except the Plant Industries appointee, who will serve for a period of 3 years.

(e) The Nuisance Plant Committee shall meet a minimum of one time per year. The Secretary may call additional meetings as needed.

(a) No person shall sell, collect, transport, distribute, propagate, or transplant any viable portion, including seeds, of a Class A nuisance plant without the prior written consent of the Secretary.

(b)(1) No person shall sell or distribute a Class B nuisance plant without labeling the plant or the container holding it with the following warning:

This plant has the capacity to spread and become a nuisance to neighboring property owners. For this reason, its sale or transfer is regulated by the Delaware Department of Agriculture under the Delaware Nuisance Plant Law. If it spreads from your property, you may be held financially accountable for its growth beyond boundaries of your property.

(2) No person who cultivates a Class B nuisance plant shall allow it to spread to neighboring properties.

(c) A violation of this section exposes the violator to an administrative penalty of no less than $50.00 and no more than $1000.00 per proven violation.

§2705. Settlement Agreement.

No administrative penalty shall be imposed for an alleged violation of this chapter until an administrative hearing is held before the Secretary or the Secretary’s designee after due notice has been given to the landowner or person who possesses or has use of the land in accordance with Delaware’s Administrative Procedures Act. However, a landowner or person who possesses or has use of the land from which a nuisance plant has spread onto a neighboring property may enter into a written agreement with the Department of Agriculture specifying terms and conditions for the control or eradication of the designated nuisance plant. So long as all the terms and conditions are being complied with, there is no violation of this chapter.

§2706. Hearing Procedure; Appeals.

All proceedings which are held to enforce the provisions of this chapter shall be conducted by the Secretary or Secretary’s designee and shall be initiated by the filing of a written complaint with the Department of Agriculture by either a complainant or a Department of Agriculture official. The landowner or person who possesses or has use of the land shall have the right to appear personally, to be represented by counsel, to submit evidence and witnesses in defense of the charges. The Secretary or the Secretary’s designee shall make and preserve a full record of the proceeding. A transcript of the record may be purchased upon payment to the Department of the cost of preparing such a transcript. The Secretary or the Secretary’s designee shall issue a decision in writing to the landowner or person who possesses or has use of the land within thirty (30) days of the conclusion of the hearing. The decision by the Secretary or the Secretary’s designee is appealable to the Superior Court for the county in which the nuisance plant is growing within thirty (30) days of the mailing by the Secretary or his designee of a decision.

§2707. Regulations.

The Department of Agriculture may promulgate and adopt regulations deemed necessary to carry out the purposes of this chapter.”

Approved July 19, 2004