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COMMISSION ACTIONS MARCH 27, 2012

** APPROVAL OF AGENDA. THE COMMISSION APPROVED THE AGENDA 7-0 AFTER AMENDING IT TO REMOVE ITEM 20, FAILURE TO REPORT CASES. ASSOCIATE COMMISSIONER CARTER FOX WAS ABSENT FROM THE MEETING.
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1.  MINUTES of previous meeting.  THE MINUTES OF THE FEBRUARY MEETING WERE APPROVED 6-0, WITH ASSOCIATE COMMISSIONER ED TANKARD ABSTAINING.
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2.  PERMITS (Projects over $500,000 with no objections and with staff recommendation for approval).  NONE.
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3.  CONSENT AGENDA ITEMSTHESE TWO CONSENT AGENDA ITEMS, DELINEATED BELOW AS AGENDA ITEMS 3A AND 3B, WERE APPROVED 7-0, IN KEEPING WITH STAFF RECOMMENDATIONS.
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4.  CLOSED MEETING FOR CONSULTATION WITH, OR BRIEFING BY, COUNSEL.  NONE.
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5.  GAMESA ENERGY USA, LLC, #12-0149, requests authorization to install a single 5-Megawatt offshore wind turbine generator prototype and its supporting infrastructure approximately three miles south west of Cape Charles Harbor in the lower Chesapeake Bay, west of Northampton County.  THE COMMISSION VOTED 8-0 TO APPROVE THE CONSTRUCTION OF A 479-FOOT-TALL, FIVE-MEGAWATT WIND TURBINE GENERATOR PROTOTYPE IN THE LOWER CHESAPEAKE BAY, THREE MILES OFF THE EASTERN SHORE TOWN OF CAPE CHARLES. THE CONSTRUCTION OF THE PROTOTYPE TURBINE IS SCHEDULED TO BE COMPLETED IN LATE 2013, WHICH WOULD BE BEFORE OTHER OFFSHORE WIND ENERGY PROJECTS ARE SLATED TO BE BUILT IN OTHER PARTS OF THE COUNTRY.  APPROVAL CAME WITH EIGHT SPECIAL CONDITIONS AGREED TO BY THE APPLICANTS AND PAYMENT OF A ONE-TIME ROYALTY ASSESSMENT FOR THE UNDERGROUND CABLE CROSSING UNDER 15,219 LINEAR FEET OF STATE-OWNED SUBMERGED LAND AT $3.00 PER LINEAR FOOT, FOR THE STONE RIPRAP SCOUR PROTECTION AT A RATE OF $0.35 PER SQUARE FOOT, AND FOR THE STEEL MONOPOLE AT A RATE OF $5.00 PER SQUARE FOOT FOR A TOTAL ROYALTY OF $52,667.10.  ALSO, THE APPLICANT AGREED TO CONDUCT A COMPREHENSIVE SCIENTIFIC STUDY OF THE TURBINE'S UNDERWATER ACOUSTICAL POTENTIAL IMPACT ON MARINE LIFE UNDER A VARIETY OF WIND AND WEATHER CONDITIONS.
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6.  ELIZABETH RIVER CROSSING OPCO LLC, #11-1116, requests authorization to install a new Midtown Tunnel under 2,860 linear feet of State-owned subaqueous bottom as part of the Downtown Tunnel/Midtown Tunnel/Martin Luther King Extension Project.  This project will require the dredging of 1,278,354 cubic yards of State-owned subaqueous bottom, placement of 737,715 cubic yards of fill, installation of a 315 linear foot bulkhead and backfilling 14,375 square feet of State-owned subaqueous bottom, installation of three H-pile/sheet pile "support of excavation" walls extending 138 linear feet, 335 linear feet and 321 linear beyond mean low water, installation of 50 temporary 36" steel piles along an existing bulkhead/pier, installation of three temporary 37-pile mooring dolphins, and installation of three temporary piers encroaching over 38,680 square feet of State-owned subaqueous bottom along the Elizabeth River in the Cities of Portsmouth and Norfolk. THE COMMISSION VOTED 7-0, WITH ASSOCIATE COMMISSIONER BRYAN PLUMLEE ABSTAINING, TO APPROVE THE PROJECT WITH A SPECIAL CONDITION REQUIRING A SEDIMENT PLUME MONITORING PLAN DURING DREDGING OPERATIONS WITHIN A SPECIFIC DREDGING SEGMENT WHEN DREDGING OPERATIONS ARE CONDUCTED BETWEEN FEBRUARY 15 AND JUNE 30 OF ANY YEAR.  THE MONITORING PLAN IS DESIGNED TO PROTECT RIVER HERRING DURING SPAWNING MIGRATIONS AND WOULD STIPULATE A CESSATION OF DREDGING OPERATIONS WHEN TURBIDITY LEVELS EXCEED A SPECIFIC THRESHOLD.  A LONGER EXPIRATION DATE FOR THE PERMIT, TO 2018, ALSO WAS AUTHORIZED TO ACCOMMODATE THE EXTENSIVE PROJECT.
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7.  CITY OF VIRGINIA BEACH, #11-1830, requests authorization to maintenance dredge (mechanically or hydraulically) approximately 25,000 cubic yards of State-owned bottom on an annual as-needed basis to maintain maximum navigable depths of minus eight (-8) feet mean low water in the Long Creek municipal channel in Virginia Beach.  All dredged spoils will be offloaded at either the Maple Street Placement Site or the Lynnhaven Inlet Placement Site and used for future beach nourishment.  The proposal is protested by numerous adjoining property owners.  THE COMMISSION VOTED 7-0 TO APPROVE THE PROJECT WITH THE INCLUSION OF STANDARD DREDGING CONDITIONS INCLUDING PRE-DREDGE MEETINGS AND POST-DREDGE SURVEYS.
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8.  NEABSCO LANDING LC, #12-0201, requests after-the-fact authorization to retain a previously permitted travel lift and the associated 6-foot 8-inch by 50-foot finger piers (#95-1690) located 23 feet upstream from the permitted alignment and currently positioned approximately eight (8) feet from the western property line at their Hampton's Landing Marina situated along Neabsco Creek in Prince William County.  An adjacent property owner protests this project.  THE COMMISSION VOTED 8-0 TO APPROVE THE AFTER-THE-FAT MODIFICATION WITH A TRIPLE PERMIT FEE OF $300 AND A CIVIL CHARGE OF $600.00 IN LIEU OF FURTHER ENFORCEMENT ACTION, IN KEEPING WITH STAFF RECOMMENDATIONS.
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9.  NEABSCO LANDING LC, #10-0917, requests authorization to construct a 270-foot long by 6-foot 6-inch wide floating dock system at the channelward end of the upstream travel lift finger pier at their Hampton's Landing Marina situated along Neabsco Creek in Prince William County.  An adjacent property owner protests this project.  THE COMMISSION VOTED 8-0 TO APPROVE THE PROJECT AS REQUESTED.

10. DISCUSSION:  Habitat Management Advisory Committee (HMAC) recommendation for update of the Civil Charge Matrix and factors to assess the degree of impact and degree of deviation or non-compliance to be used by Commission Staff and the Commission for determining Civil Charges as authorized by Code Section 28.2-1213 for encroachments in, on or over State-owned bottoms without the required permit from the Virginia Marine Resources Commission pursuant to Code Chapter 12 of Title 28.2.  THE COMMISSION VOTED 8-0 TO ADOPT THE REVISED CIVIL CHARGE MATRIX AS REVIEWED ANDRECOMMENDED BY THEIR HABITAT MANAGEMENT ADVISORY COMMITTEE.  THIS WAS THE SECOND TIME THE COMMISSION INCREASED THESE CHARGES IN LIEU OF FURTHER ENFORCEMENT ACTION FOR PERMIT VIOLATIONS SINCE THEY WERE INSTITUTED IN 1990.  THE LAST INCREASE WAS IN 1999. 
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11. PUBLIC COMMENT.  AT THE REQUEST OF ASSOCIATE COMMISSIONER RICK ROBINS, ACTING FISHERIES CHIEF ROB O'REILLY GAVE A BRIEF UPDATE ON THE LISTING BY THE FEDERAL GOVERNMENT OF ATLANTIC STURGEON TO THE ENDANGERED SPECIES LIST.  HE SAID THE ATLANTIC STATES MARINE FISHERIES COMMISSION WILL GIVE STATES FURTHER GUIDANCE ON WHETHER A STATE SPECIFIC SECTION 10 INCIDENTAL TAKE PERMIT OR SECTION 7 PERMIT WOULD BE REQUIRED.  THE ASMFC ALSO ASKED STATES TO PARTICIPATE IN A LETTER TO THE NATIONAL MARINE FISHERIES SERVICE TO BOTH MOVE BACK THE EFFECTIVE DATE FOR THE ENDANGERED SPECIES LISTING FROM APRIL 6TH, 2012 AND TO SUPPORT THE OPTION OF POSSIBLY DELISTING THE SPECIES.
ALSO, ASSOCIATE COMMISSIONER JOE PALMER COMMENTED ON THE SEASONAL CLOSURE OF THE CRAB SANCTUARY AND WHETHER THAT WAS A ONE-TIME OCCURRENCE OR WHETHER IT WAS WRITTEN INTO REGULATION.  STAFF CONFIRMED THAT THE CLOSURE WAS WRITTEN INTO REGULATION.  MR. PALMER ALSO COMMENTED ON AND REQUESTED AN EMERGENCY REGULATION TO REDISTRIBUTE THE HORSESHOE CRAB QUOTA EAST OF THE COLREGS LINES.CURRENT FEDERAL RULES ALLOW FOR ONLY 40% OF VIRGINIA'S STATE-WIDE QUOTA TO BE ALLOCATED EAST OF THE COLREGS LINES. VIRGINIA'S QUOTA IS ALLOCATED BY GEAR TYPE, WITH THE TRAWL FISHERY HAVING ITS OWN QUOTA, WHICH CAN ONLY BE HARVESTED EAST OF THE COLREGS LINES AFTER JUNE 7.  CURRENTLY THE ONGOING DREDGE FISHERY IS HARVESTING HORSESHOE CRABS EAST OF THE COLREGS LINE, AND THERE IS A CONCERN THAT THE FEDERAL ALLOWANCE EAST OF THE COLREGS LINE WILL BE HARVESTED PRIOR TO JUNE 7, EFFECTIVELY MAKING THE TRAWL QUOTA UNUSABLE.   AS A RESULT OF THE DISCUSSION, THE COMMISSION ADOPTED AN EMERGENCY REGULATION TO REDISTRIBUTE THE HORSESHOE CRAB ALLOCATION EAST OF THE COLREGS LINE BETWEEN THE TRAWL FISHERY AND OTHER GEARS, EFFECTIVE MARCH 29, 2012.  
IN FURTHER PUBLIC COMMENT, MICHELLE PEABODY REQUESTED THE COMMISSION ALLOW VESSELS TO POSSESS BOTH THE VIRGINIA AND NORTH CAROLINA HARVEST LIMITS OF BLACK SEA BASS IN VIRGINIA WATERS, CONSISTENT WITH THE CURRENT PROVISIONS FOR SUMMER FLOUNDER PUT IN PLACE LAST MONTH.  THE COMMISSION THEN ADOPTED AN EMERGENCY REGULATION ALLOWING VESSELS TO POSSESS THE NORTH CAROLINA BLACK SEA BASS LIMIT IN ADDITION TO THE VIRGINIA LIMITS, EFFECTIVE MARCH 29, 2012. 
LASTLY, HARRY DOERNTE ASKED THE COMMISSION TO READDRESS THE TILEFISH REGULATIONS ADOPTED AT THE FEBRUARY COMMISSION MEETING.  HE REQUESTED RESTORATION OF THE 300-POUND BLUE TILEFISH BYCATCH LIMIT.  THE COMMISSION AGREED TO HOLD A PUBLIC HEARING AND VOTE ON THIS ISSUE IN APRIL. 

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12. WILLIAM R. DAVENPORT, III:  Request to license and locate a pound net near Dividing Creek. THE COMMISSION VOTED 7-0 REQUEST TO APPROVE THE POUND NET AS REQUESTED BY THE APPLICANT.
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13. PUBLIC HEARING: Proposed amendments to Regulation 4VAC20-620-10 et seq., "Pertaining to Summer Flounder," to modify the commercial fishery possession limit for summer flounder.  THE COMMISSION VOTED 7-0 TO FINALIZE THE COMMERCIAL SUMMER FLOUNDER POSSESSION LIMITS FOR 2012 THAT WERE ESTABLISHED BY EMERGENCY ACTION IN THE FEBRUARY 2012 COMMISSION MEETING.  THE MOVE ALLOWS VESSELS TO POSSESS BOTH NORTH CAROLINA AND VIRGINIA LIMITS ON BOARD. 
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14. PUBLIC HEARING:  Proposed amendments to Regulation 4VAC20-900-10 et seq., "Pertaining to Horseshoe crabs," to establish time of day and harvest limits for the harvest of horseshoe crabs by gill net.  THE COMMISSION VOTED 7-0 TO FINALIZE THE TIME OF DAY AND HARVEST LIMITS FOR THE HARVEST OF HORSESHOE CRABS BY GILLNETS THAT WAS ESTABLISHED BY EMERGENCY ACTION DURING THE FEBRUARY 2012 COMMISSION MEETING. 
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15. PUBLIC HEARING:  Proposed amendments to Regulation 4VAC20-950-10 et seq., "Pertaining to Black Sea Bass," to establish the 2012 recreational fishing season.  THE COMMISSION VOTED 7-0 TO ESTABLISH THE 2012 RECREATIONAL BLACK SEA BASS FISHING SEASON. 
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16. PUBLIC HEARING:  Proposed amendments to Regulation 4VAC20-1260-10 et seq., "Pertaining to River Herring," to clarify the moratorium on river herring and to make it lawful to import river herring when accompanied by a bill of lading or commercial invoice.  THE COMMISSION VOTED 7-0 TO APPROVE PROPOSED AMENDMENTS TO CLARIFY THE MORATORIUM ON RIVER HERRING APPLIES TO TIDAL WATERS, NOT TO FRESHWATER IMPOUNDMENTS THAT ARE NOT LINKED TO THE STATE'S RIVER SYSTEM, AND TO MAKE IT LAWFUL TO IMPORT RIVER HERRING WHEN ACCOMPANIED BY A BILL OF LADING OR COMMERCIAL INVOICE. 
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17. PUBLIC HEARING:  Proposed amendments to Regulation 4VAC20-960-10 et seq., "Pertaining to Tautog," to establish a control date for the future management of the commercial fishery.  THE COMMISSION TOOK NO ACTION ON THE CONTROL DATE FOR THE TAUTOG FISHERY.  THE ITEM WAS DEFERRED TO THE FINFISH MANAGEMENT ADVISORY COMMITTEE FOR DISCUSSION AND A RECOMMENDATION.
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18. PUBLIC HEARING: Proposed amendments to Regulation 4VAC20-1250-10 et seq., "Pertaining to the Tagging of Shellfish," to clarify tagging requirements for shellfish.  THE COMMISSION POSTPONED THIS ISSUE UNTIL THE MAY COMMISSION MEETING.
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19. PHILLIP BLEEKER:  Appeal of decision to deny an exception to the two year waiting period for a Commercial Fisherman Registration License.  THE COMMISSION DECLINED TO ACT ON THE APPLICANTS' REQUEST TO BE EXEMPTED FROM THE TWO YEAR WAITING REQUIREMENT, EFFECTIVELY DENYING HIS APPEAL ON THE GROUNDS THAT HE DOES NOT QUALIFY FOR AN EXCEPTION.
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20. CASES CONCERNING FAILURE TO REPORT COMMERCIAL HARVEST.  THIS ITEM WAS REMOVED FROM THE MEETING AGENDA.

THERE WERE NO PAGE TWO CONSENT AGENDA ITEMS

NONE

THE FOLLOWING TWO PAGE THREE CONSENT AGENDA ITEMS WERE APPROVED 7-0:

3A. STEPHEN FAWLEY, #11-1800,
requests after-the-fact authorization to retain an 18-foot by 20-foot low-water bridge crossing consisting of five (5) 30-inch culverts and to install a 6-inch concrete cap to make the current crossing permanent over Turley Creek in the Town of Broadway in Rockingham County.  Staff recommends approval with triple permit fees in the amount of $75.00. 

3B. NANCY WELLS DRURY, #11-0524,
requests after-the-fact authorization to retain one osprey pole which includes a 3-foot by 3-foot nesting platform situated adjacent to her property along the Chesapeake Bay at 4620 Peaceful Shores Drive in the Jamesville area of Northampton County.  The applicant has agreed to pay a civil charge in the amount of $600.00 in lieu of further enforcement action.  Staff recommends approval and acceptance of the aforementioned civil charge.



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