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Department of Agriculture: Plant Industries

ENFORCEMENT RESPONSE POLICY FOR THE DELAWARE NOXIOUS WEED LAW



Enforcement Response Policy For the Delaware Noxious Weed Law
INTRODUCTION

This document sets forth the procedures and criteria that will be used to determine the appropriate enforcement response for violations of the Delaware Noxious Weed Law, 3 Del C., Chapter 24 (LAW). The Enforcement Response Policy (ERP) is designed to provide fair and equitable treatment of the regulated community by ensuring that similar enforcement responses and comparable penalty assessments will be made for comparable violations. The policy is designed to provide for swift resolution of Noxious Weed problems and to deter future violations of the LAW by the respondent as well as other members of the regulated community.

This policy supersedes the previous Noxious Weed Law Guidelines dated May 1982. There have been amendments to the statute, as well as rulemaking, since the 1982 Law Guidelines, which are incorporated into this revised ERP.
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OVERVIEW OF THE POLICY

This Enforcement Response Policy (ERP) is divided into two main sections. The first section, "Determining the Level of Action," briefly describes the Department's options for responding to violations of the LAW. Section 2 of this ERP, "Assessing Administrative Civil Penalties," elaborates on the Department's policy and procedures for calculating civil penalties to be assessed against persons who violate the LAW.

Voluntary compliance is the preferred enforcement remedy for most violations.

A civil penalty is appropriate where the violation by any landowner or person who possesses or has use of the land: (1) Ignores the initial warning from the Department; (2) presents an actual or potential risk of allowing noxious weeds to set seed of reach a height of 24 inches; (3) would impede the Department's ability to fulfill the goals of the statute; (4) was apparently committed as a result of ordinary negligence (as opposed to criminal negligence), inadvertence, or mistake.
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DETERMINING THE LEVEL OF ACTION

Once the documentation of a violation is complete, the appropriate level of action called for by the severity of the violation needs to be selected. These levels of response include:

· Notices of Warning under Section 2404

· Civil administrative penalties under Section 2407.

· Civil\Criminal referrals under Section 2404.

Notices of Warning

A written warning for a violation of the LAW should be issued to a landowner or person who possesses or has use of the land prior to the assessment of a civil penalty.

The Department has the authority to respond to certain violations of the LAW with a Notice of Warning to the violator.

The Department may choose to issue a Notice of Warning in lieu of a civil penalty if it determines that the violation occurred despite the exercise of due care or the violation did not cause significant harm to the environment. The Department may issue a written Notice of Warning in lieu of instituting a proceeding for minor violations of the LAW if the Secretary believes that the public interest will be adequately served through this course of action. Generally, a violation will be considered minor, and notice of warning may be issued in lieu of a civil complaint if the total infested area is less than one tenth of an acre. A Notice of Warning may also be appropriate for certain first-time violations.
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Civil Administrative Penalties

Voluntary compliance is the preferred enforcement remedy for most violations.

A civil penalty is appropriate where the violation by any landowner or person who possesses or has use of the land: (1) Ignores the initial warning from the Department; (2) presents an actual or potential risk of allowing noxious weeds to set seed of reach a height of 24 inches; (3) would impede the Department's ability to fulfill the goals of the statute; (4) was apparently committed as a result of ordinary negligence (as opposed to criminal negligence), inadvertence, or mistake.

Section 2407 (A) states that a landowner, or person who possesses or has use of the land, may be assessed a civil penalty of a minimum of $100 or $25.00 per acre of land for each violation of the LAW.

Section 2407 (B) states that any person who interferes with the Department in enforcement of the chapter as determined in an administrative hearing, shall be assessed a civil penalty of no less than $50.00 nor more than $500.00 for each violation of the LAW.
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Parallel Civil Proceedings

Section 2404 specifically lists the unlawful acts that are subject to civil and administrative enforcement.

Civil/administrative and criminal enforcement actions may be conducted simultaneously whenever deemed necessary by the Department in order to seek immediate relief to prevent the spread or dissemination of dangerously injurious plant pests. Simultaneous civil actions and criminal proceedings may be appropriate if the environmental consequences of a violation pose a hazard requiring remedial measures by a defendant. Other civil proceedings will be considered as an option when the Department has enough evidence to document a "known" violation of the Plant Pest Act or other related violations.
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Press Releases/Advisories, Etc.

The Department may, at its discretion issue a press release/advisory to notify the public of a person's violation of the Noxious Weed Law. However, the issuance of press release/advisory must not be an item of negotiation during settlement.

A press release/advisory can be a useful tool to notify the public of a person's noncompliance with the LAW and to educate the public on the requirements of the LAW.
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ASSESSING ADMINISTRATIVE CIVIL PENALTIES

The Civil Penalty System -Computation of the Penalty

In determining the amount of the civil penalty, the Department shall consider the appropriateness of the penalty to the gravity of the violation.
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Delaware Noxious Weed Law Charges;

Section

Violation

2404

Importing noxious weeds into the state in any form capable of growth Except for the purpose of research with the prior written approval of the State Department of Agriculture.

2404

Knowingly contaminate or infest any land or roadway with designated noxious weeds through the movement of rootstocks, seed, soil, mulch, nursery stock, farm machinery or other medium.1

2404

Knowingly allowing designated noxious weeds to set seed on any land, or to reach a height of length of 24 inches

2407

Interfere with the Department of Agriculture in the enforcement of this Chapter as determined in an administrative hearing.

2408

The Department of Transportation shall cut down, cause to be cut dawn, noxious weeds growing in the rights-ofways over which it has charge or supervision, as often in each year as shall be suffcient to prevent them from Going to seed. When particular problem areas have been identified, they Shall be sprayed to eradicate the weed.

Section 2407(B) states that a person who refuses to comply with the provisions of this chapter shall be assessed a civil penalty of a minimum of $100 for each violation of the LAW or $25 per acre of land which noxious weeds have set seed, whichever is greater for each violation of the LAW.
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Independently Assessable Charges

A separate civil penalty, up to the statutory maximum, shall be assessed for each independent violation of the LAW. A violation is independent if it results from an act (or failure to act) which is not the result of any other charge for which a civil penalty is to be assessed, or if the elements of proof for the violations are different. Dependent violations may be listed in the complaint, but will not result in separate civil penalties.

Consistent with the above criteria, the Department considers violations that occur from each infestation in a farm (by field, not individual plant sites) or each designated noxious weed species on a farm, or each individual life cycle of a noxious weed to be independent offenses of the LAW*. Each of these independent violations of the LAW is subject to civil penalties of no less than the statutory minimum of $25 per acre or $100, whichever is greater. For example, when the Department can document that a landowner or person who possesses or has use of the land has knowingly allowed a designated noxious weed to set seed on four separate parcels of land ( four sites), the Department will charge the landowner or person who possesses or has use of the land with four counts of violating the weed law, and assess the person or company civil penalties of $100 or $25 per acre, whichever is greater. Similarly, when the Department can document that a person or company has allowed four noxious weed species to set seeds (four different weed species on a single parcel of land), the Department will charge the landowner or person who possesses or has use of the land with four counts of violating the weed law.
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ADJUSTING THE PROPOSED CIVIL PENALTY IN SETTLEMENT

Upon an answer to a civil complaint by the person charged (respondent), the following circumstances may arise which may justify adjustment of the penalty proposed in the civil complaint:
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Negotiations Involving Only the Amount of the Penalty

In some cases the respondent may admit to all jurisdictional and factual allegations charged in the complaint and may desire a settlement conference limited to the amount of the proposed penalty. If the designated noxious weeds have been treated by the Department or its agents as required by the Plant Disease and Insect Pest Law (Vol 2, Title 3, Chapter 11) and the respondents paid all expenses incurred by the department within 30 days, the civil penalty may be reduced by that amount.
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Good Faith Adjustments

During the course of settlement negotiations, the Department may consider the respondent's good faith efforts to comply with the LAW to reduce the penalty as much as 20 percent below the proposed penalty, if such a reduction would serve the public interest. In no case is such a reduction mandated, and in no case should such a reduction occur in the absence of an appropriate showing by the respondent and finding by the Department. Additionally, any reduction on account of good faith efforts does not have to extend to the full 20 percent reduction.
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Special Circumstances/ Extraordinary Adjustments

Should a case arise in which the Department determines that there are no grounds for adjustment of the proposed civil penalty based on new or other facts, and that equity would not be served by adjusting the proposed penalty by a good faith attitude adjustment, the Department may approve a postponement to the proposed penalty for up one year from the date of the civil hearing.

The accused party(ies) would be required to keep their land free from designated noxious weeds for the next growing season. If the lands in violation are kept free of designated weeds during the stated period, the penalty will be forgiven. If the designated noxious weeds are allowed to set seed or reach a height in excess of twenty-four inches at any time during that period, the penalty will become due upon written notice from the Department. The defendants will also be charged with violation(s) of the noxious weed act for the current year with no further notice. This adjustment is only appropriate in extraordinary circumstances and is not to be used routinely.

If a "special circumstance" one year postponement of the proposed civil penalty is granted, the case file must include substantive reasons why the one year postponement of the civil penalty was appropriate, including: (1) setting forth the facts of the case; (2) why the penalty should be postponed; (3) how all other methods would not adequately resolve the inequity; and, (4) the manner in which the one year postponement of the penalty effectuated the purposes of the LAW.
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1 Independent violations which can be documented as both per site and weed species are to be calculated only as either per site or per weed speces, whichever is more appropriate based on the supporting documentation, and whichever approach yields the highest civil penalty. For example, if Person A has a violation involving 1 location and 2 different noxious weeds, and Person B has a violation involving 2 locations and 1 noxious weed, both persons would be charged for 2 violations of the LAW (Person A is charged for 2 weeds and Person B is charged for 2 locations).

Last Updated: Monday, 19-Mar-2007 09:38:36 EDT
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