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COMMISSION ACTIONS JANUARY 2008

The following are the agenda items from the Commission's regular meeting held January 22, 2008 at Commission headquarters. The Commission's actions are in bold.

** APPROVAL OF AGENDA. APPROVED THE AGENDA AS MODIFIED. ITEM #10 WAS REMOVED BECAUSE THE PROTEST HAD BEEN WITHDRAWN AND THE LEASE COULD THEN BE HANDLED ADMINISTRATIVELY BY STAFF. 

1. MINUTES of previous meeting. COMMISSION APPROVED THE MINUTES 6-0-1 (WITH ASSOCIATE COMMISSIONER RICK ROBINS ABSTAINING AND ASSOCIATE COMMISSIONER CARTER FOX ABSENT FOR THE MEETING.)
[ Audio Item 1 ]

2. PERMITS (Projects over $50,000 with no objections and with staff recommendation for approval). THE COMMISSION APPROVED THE SO-CALLED"PAGE 2" ITEMS DELINEATED BELOW 7-0.
[ Audio Item 2 ]

3. CONSENT AGENDA ITEMS. THERE WERE NO CONSENT ITEMS PLACED BEFORE THE COMMISSION FOR CONSIDERATION. 

4. CLOSED MEETING FOR CONSULTATION WITH OR BRIEFING BY COUNSEL.  THE COMMISSION WENT INTO CLOSED MEETING TO DISCUSS THE STATUS OF THE SHORE LAND INVESTMENTS LLC CONSENT AGREEMENT THAT HAD BEEN EXTENDED BY THE COMMISSION AT THE DECEMBER 18, 2007 MEETING. SO FAR, COUNSEL FOR THE VIOLATORS HAD NOT AGREED TO THE $100,000 CIVIL CHARGE PROFFERED BY THE COMMISSION. ON RETURNING TO OPEN MEETING, THE COMMISSION UNANIMOUSLY VOTED (8-0) TO REFER THIS MATTER TO THE OFFICE OF THE ATTORNEY GENERAL FOR ENFORCEMENT, TO INCLUDE THE SEEKING OF CIVIL PENALTIES IN AN AMOUNT RANGING FROM $350,000 TO $2.1 MILLION.
[ Audio Item 4 ]

5. VININGS MARINE GROUP, LLC, #07 1161. Commission review on appeal by 32 Norfolk freeholders of the December 12, 2007, decision by the Norfolk Wetlands Board to approve a proposal to install 110 linear feet of riprap revetment and 123 linear feet of bulkhead, and to fill tidal wetlands to facilitate a planned upland residential development project situated along Fisherman's Cove (Little Creek) in the City of Norfolk.
THE COMMISSION UNANIMOUSLY VOTED 8-0 TO UPHOLD THE DECISION OF THE NORFOLK WETLAND BOARD, FINDING NO DEMONSTRABLE ERROR AND THAT SUCH A DECISION WAS WITHIN THE DISCRETION PROVIDED TO THE BOARD UNDER CHAPTER 13 OF TITLE 28.2.
[ Audio Item 5 ]


6. JBH LLC, #07 1948, requests authorization to retain a 180 foot long by 5 foot 10 inches wide private, non commercial pier with a 40 foot by 20 foot covered platform, a 12 foot 10 inches by 3 foot ramp over a 6 foot by 5 foot platform leading to a 14 foot by 16 foot 8 inches by 14 foot floating platform and a 10 foot by 12 foot floating platform adjacent to property at 475 Wind Mill Point Road situated along the Back River in Hampton.  THE COMMISSION VOTED UNANIMOUSLY (8-0) TO TABLE THIS MATTER UNTIL THEIR MARCH 25, 2008 MEETING TO ALLOW THE APPLICANT TIME TO SUBMIT REVISED DRAWINGS REFLECTING THE CONVERSION OF THE COVERED PLATFORM TO AN OPEN-SIDED BOATHOUSE, AND THE ELIMINATION OF THE ADDITIONAL UNPERMITTED FLOATING PLATFORMS. THE COMMISSION FURTHER VOTED 7-1 (ASSOCIATE COMMISSIONER ED TANKARD IN THE NEGATIVE) TO ABSOLVE THE CONTRACTOR, MR. JOHNSON T/A TIDEWATER DOCKMASTERS, FROM ANY CIVIL CHARGE FOR HIS COMPANY'S ROLE IN DRIVING THE SUPPORT PILINGS FOR THE STRUCTURE. 
[ Audio Item 6 ]

7. GREGORY GARRETT, Notice of Violation # 07-24. Commission consideration of a violation of 28.2-1203 of the Code of Virginia involving the unauthorized dredging of State-owned subaqueous land from an unnamed cove contiguous to The Thorofare at 122 Sandbox Lane in York County. Continued from the November 27, 2007, meeting.  THE COMMISSION VOTED UNANIMOUSLY (8-0) TO DISMISS THE VIOLATION, FINDING THAT A PLAUSIBLE EXPLANATION FOR THE ALLEGED DREDGING HAD BEEN PROVIDED; THAT NO DISCERNIBLE BENEFIT TO THE HOMEOWNER COULD BE DEDUCED; AND THAT STAFF HAD FAILED TO SATISFY THE BURDEN OF PROOF REQUIRED TO SUPPORT A FINDING OF VIOLATION, BEYOND A REASONABLE DOUBT, AS A CLASS 1 MISDEMEANOR.
[ Audio Item 7 ]

8. REBECCA L. JONES, #07 1591, requests after the fact authorization to retain a 16 foot by 16 foot enclosed pier house and authorization to construct a 24 foot by 16 foot open sided boathouse on the channelward side of the pier house at her private pier situated along Mill Creek in Middlesex County. THE COMMISSION VOTED UNANIMOUSLY (8-0) TO AUTHORIZE RETENTION OF THE 16' BY 16' ENCLOSED PIERHOUSE STRUCTURE TO SUPPORT A COMMERCIAL CRAB SHEDDING OPERATION. THE COMMISSION'S APPROVAL WAS CONDITIONED ON MS. JONES 86 YEAR-OLD FATHER'S CONTINUED ABILITY TO ENGAGE IN A LICENSED COMMERCIAL CRAB SHEDDING OPERATION. MS. JONES WAS ADVISED THAT THE COMMISSION'S CONDITIONAL APPROVAL WAS NOT TRANSFERABLE, AND SHE AGREED TO IMMEDIATELY REMOVE THE SIDES ONCE HER FATHER CEASED TO SHED CRABS OR SURRENDERED HIS COMMERCIAL CRABBING LICENSE. 
[ Audio Item 8 ]

9. SHERWOOD FOREST SHORES PROPERTY OWNERS ASSOCIATION, #06 1141, requests authorization to construct a 7-foot long by 21-inch wide, 37 inch high, uncovered fish cleaning station adjacent to the Association's existing community pier situated along the Little Wicomico River in Northumberland County. The project is protested by both adjacent property owners. THE COMMISSION VOTED 7-1 (TANKARD IN THE NEGATIVE) TO APPROVE THE UNCOVERED FISH CLEANING STATION AS PROPOSED, FINDING THAT THE STRUCTURE WAS DIMINIMIS WITHOUT A ROOF AND PROVIDED THE ADDITIONAL SIGNAGE, WASTE CONTAINERS AND EDUCATION OF ASSOCIATION MEMBERS CONCERNING PROPER USAGE AND DISPOSAL OF FISH WASTE AND CARCASSES RECOMMENDED BY STAFF WERE INCORPORATED. 
[ Audio Item 9 ]

10. JOHN MEEKINS AND ERIC WELLER, OYSTER PLANTING GROUND APPLICATION, #07 055. Application for oyster planting ground within the Lynnhaven River. The application is protested by Mr. Mark Sanford. THIS ITEM WAS REMOVED FROM THE COMMISSION AGENDA DUE TO THE WITHDRAWAL OF THE PROTEST. ASSIGNMENT TO BE HANDLED BY STAFF ADMINISTRATIVELY. 
[ Audio Item 10 ]

11. SHELLFISH GROUND WITHIN BROAD BAY PREVIOUSLY DESIGNATED AS NON LEASABLE BY THE COMMISSION. In February of 1984, the Commission designated a 19.08 acre area within Broad Bay, in the City of Virginia Beach, as non leasable for a term of 5 years with the option that it could be reviewed again at some point in the future. On April 4, 1989, Staff presented the area to the Commission for review. The Commission again set the area aside for another five year term. When that term expired in 1994, it appears the Chief Engineer, by memo, set the area aside for an indeterminate period of time. Request the Commission reaffirm this decision and agree to set-aside the area as public ground indefinitely. THE COMMISSION VOTED UNANIMOUSLY (8-0) TO SET ASIDE THE 19.08 ACRES OF GROUND IN BROAD BAY AS "PUBLIC GROUND" FOR AN INDEFINITE PERIOD OF TIME. 
[ Audio Item 11 ]

12. PUBLIC COMMENTS.  WATERMAN DALE TAYLOR ASKED FOR AN INCREASE IN THE PERMITTED NUMBER OF RECREATIONAL CRABBING POTS FROM 5-8 PER PERSON. THERE WAS NO RESPONSE FROM THE BOARD.  ALSO, WATERMAN ROGER PARKS ASKED TO BE ALLOWED TO SET A FISHING NET IN ITS HISTORICAL LOCATION, BUT WHICH WOULD NOW BE WITHIN 25 FEET OF A PRIVATE PIER. THE ATTORNEY GENERAL'S OFFICE WAS ASKED TO RESEARCH THE ISSUE A PROVIDE A LEGAL ANSWER AT A FUTURE BOARD MEETING.
[ Audio Item 12 ]

13. PUBLIC HEARING: Amendments to Regulation 4VAC20-530, "Pertaining to American Shad," to eliminate the by-catch fishery for American Shad in the spawning areas, to comply with the provisions of the Interstate Fishery Management Plan.  APPROVED UNANIMOUSLY (8-0) TO ADOPT THE PROVISION BUT TO ENCOURAGE THE VIRGINIA INSTITUTE OF MARINE SCIENCE TO USE SHAD BYCATCH FOR RESEARCH PURPOSES.
[ Audio Item 13 ]

14. PUBLIC HEARING: Consideration of an industry proposal to reopen the James River Hand Scrape Area and Thomas Rock Hand Scrape Area for the harvesting of oysters in February and March, 2008. APPROVED UNANIMOUSLY.
[ Audio Item 14 ]

15. PUBLIC HEARING: Amendments to Regulation 4VAC20-320, "Pertaining to the Taking of Black Drum", to allow the use of small mesh gill nets in the Management Area. APPROVED UNANIMOUSLY.
[ Audio Item 15 ]

16. PUBLIC HEARING: Amendments to regulation 4VAC20-1040, "Pertaining to Crabbing Licenses", to establish a control date of December 17, 2007, to serve as a basis in the development of future crab regulations. APPROVED UNANIMOUSLY TO SET THIS DATE AS A BASELINE FOR ANY FUTURE CONTROL EFFORTS.
[ Audio Item 16 ]

17. PRESENTATION of the report of the scientific review of Virginia's blue crab management plans and regulations. ACCEPTED A REPORT FROM SEVEN CRAB SCIENTISTS FROM FOUR STATES WHO RECOMMEND SHORTENING THE CRAB SEASON, INCREASING THE MINIMUM PEELER CRAB SIZE AND OTHER REGULATORY EFFORTS AIMED AT REDUCING THE 2008 HARVEST BECAUSE THE CRAB POPULATION IS DANGEROUSLY LOW. THE REPORT WAS SENT TO A CRAB REVIEW COMMITTEE AND THEN FOR A PUBLIC HEARING AND BOARD ACTION NEXT MONTH.
[ Audio Item 17 ]

18. REQUEST of the Fishery Management Division and Army Corps of Engineers to set aside from leasing certain areas of the Lynnhaven River for the purposes of native oyster restoration. UNANIMOUSLY AGREED TO SET ASIDE PORTIONS OF THE RIVER FOR OYSTER RESTORATION EFFORTS.
[ Audio Item 18 ]

19. Procurement procedures for the 2008 American Shad Restoration Program. UNANIMOUSLY DECIDED TO HIRE NINE WATERMEN TO CATCH SHAD BROOKSTOCK FOR A HATCHERY.
[ Audio Item 19 ]

20. Cases concerning failure to comply with the provisions of the Striped Bass Regulation. DECIDED THAT COMMERCIAL WATERMEN WHO SIGNIFICANTLY WENT OVER THEIR 2007 STRIPED BASS QUOTA WOULD HAVE TO PAY IT BACK FROM THEIR 2008 HARVEST. WATERMEN WHO WERE ONLY THREE PERCENT, OR LESS, OVER THEIR QUOTA, HOWEVER, WERE GIVEN ONLY A WARNING.
[ Audio Item 20 ]

21. Use of Gill Nets on ocean side of Eastern Shore: request for public hearing on requirements to attend nets while fishing or to retrieve nets before returning to the dock.
APPROVED UNANIMOUSLY.
[ Audio Item 21 ]

22. Summer Flounder: request for public hearing to establish management measures for the 2008 recreational fishery. APPROVED UNANIMOUSLY, AS WAS AN ONLINE POLL TO ASSESS ANGLER PREFERENCES TO THE OPTIONS BEING CONSIDERED.
[ Audio Item 22 ]

23. Black Sea Bass: request for public hearing to establish management measures for the 2008 commercial fishery. APPROVED UNANIMOUSLY.
[ Audio Item 23 ]

THE FOLLOWING WERE UNANIMOUSLY APPROVED AS PART OF ITEM 2 ON THE AGENDA:

2A. CHESTERFIELD COUNTY UTILITIES, #07 2282, requests authorization to replace an existing 12 inch water line with a new 16 inch ductile iron water line, by open trench method, to include stream bed riprap stabilization within Kingsland Creek in Chesterfield County. 

2B. LINWOOD HANBURY, ET AL, #07 1546, request authorization to dredge up to 4,066 cubic yards of State owned subaqueous bottomland within an unnamed cove of Bennett Creek, a tributary to the Nansemond River in the City of Suffolk adjacent to properties within the Bennetts Creek Harbor subdivision along Old Wharf Road. Recommend a royalty of $1,829.70 at a rate of $0.45 per cubic yard.

2C. PALMER AND PALMER LLC, #06 1722, requests authorization to install a 75 foot long by 20 foot wide breakwater, a 80 foot long by 20 foot wide breakwater, and place 550 cubic yards of sandy material landward of the breakwaters as beach nourishment adjacent to their property situated along the James River in James City County. Recommend a royalty of $356.95 for the placement of beach quality sand over 7,139 square feet of State owned submerged bottom at a rate of $0.05 per square foot.

2D. HAMPTON ROADS TRANSIT, #06 0441, requests authorization to modify their previously authorized permit to include an additional road crossing of Holt Channel resulting in 1,471 square feet of impacts to State owned submerged land as a result of construction of the Norfolk Light Rail in Norfolk.

2E. DAN ROSINSKI, ET AL, #07 0955, requests authorization to mechanically dredge 2,256 cubic yards of State owned subaqueous bottom to provide maximum depths of minus five (-5) feet below mean low water adjacent to 66, 68, and 70 Chowning Drive in the Colonial Acres Subdivision situated along Long Creek in Hampton. Recommend a royalty of $902.40 for the new dredging of 2,256 cubic yards of State owned subaqueous bottom material at a rate of $0.45 per cubic yard.

2F. UPPER OCCOQUAN SEWAGE AUTHORITY, #07 1765, requests authorization to replace 260 linear feet of existing gravity sewer requiring multiple crossings of Flatlick Branch and to remove and replace three (3) existing fords resulting in impacts to 242 square feet of Cub Run and Flatlick Branch as part of the Cub Run Gravity Delivery System Upgrade in Fairfax County.

2G. ALLEGHANY COUNTY PUBLIC WORKS DEPARTMENT, #07 1752, requests authorization to remove and replace an existing bridge and construct a new 26 foot 4 inch wide by 300 foot long, two lane bridge on Fork Farm Road (Route 727) crossing over 187 linear feet of the Jackson River in the Town of Iron Gate, Botetourt County. In addition, separate temporary detour and work bridges are proposed to be constructed on the upstream side of the project site and will be removed immediately after the bridge replacement project is finished.

2H. THREE TUNNELS INVESTMENTS, LLC, #07 2196, requests authorization to construct two (2) 26 foot wide clear span bridges, the first crossing over approximately 55 linear feet of Dunlap Creek and the second crossing over approximately 55 linear feet of Jerry's Run, associated with the Three Tunnels development project in Alleghany County. Recommend the assessment of a royalty in the amount of $2,860.00 for the bridges' encroachments over 2,860 square feet of State owned subaqueous bottom at a rate of $1.00 per square foot.

2I. BRISTOL VIRGINIA UTILITIES, #08-0007, requests authorization to remove approximately 3,600 cubic yards of bottom material adjacent to and within their existing raw water intake on the South Holston Lake Reservoir in Washington county to ensure a safe drinking water supply to area residents.

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