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COMMISSION ACTIONS JULY 2009

The following are the agenda items from the Commission's regular meeting held July 28, 2009 at Commission headquarters. The Commission's actions are in bold.

Seven board members were present (Associate Commissioners Ed Tankard and John McConaugha were absent). Carl Josephson of the Attorney General's Office was absent but teleconferenced in for Item #5.

** APPROVAL OF AGENDA:  THE AGENDA WAS APPROVED AS AMENDED.  AGENDA ITEM #12 WAS REMOVED DUE TO COMPLETION OF THE DREDGING PROJECT, NEGATING THE NEED FOR AN EXTENSION. 
[Audio Agenda]

1.  MINUTES of previous meeting.  APPROVED UNANIMOUSLY, 7-0.
[Audio Item 1]

2.  PERMITS  (Projects over $50,000 with no objections and with staff recommendation for approval).  THESE 10 SO-CALLED PAGE TWO ITEMS, DELINEATED IN DETAIL BELOW, WERE APPROVED UNANIMOUSLY PER STAFF RECOMMENDATIONS.
[Audio Item 2]

3.  CONSENT AGENDA ITEMS:  THE COMMISSION UNANIMOUSLY APPROVED THE CONSENT AGREEMENT RECOMMENDED BY STAFF FOR COLUMBIA GAS OF VIRGINIA (ITEM #3B, LISTED IN DETAIL BELOW). THE COMMISSION UNANIMOUSLY DECLINED, HOWEVER, TO APPROVE THE CONSENT AGREEMENT RECOMMENDED BY STAFF FOR WILLIAM M. WINN (ITEM #3A, DELINEATED BLOW). INSTEAD, THE COMMISSION DIRECTED THAT MR. WINN AND HIS CONTRACTOR BE DIRECTED TO ATTEND A FUTURE MEETING TO FURTHER DISCUSS THE CIRCUMSTANCES SURROUNDING HIS NON-COMPLIANCE.
[Audio Item 3]

4.  CLOSED MEETING FOR CONSULTATION WITH OR BRIEFING BY COUNSEL:  NONE REQUIRED. 

5.  U.S. ARMY CORPS OF ENGINEERS/CITY OF VIRGINIA BEACH, #09-0427, requests a permit modification to expand the beach nourishment proposal for the Cape Henry Beach area of Virginia Beach situated along the Chesapeake Bay.  The modification request now includes the westernmost section of Cape Henry Beach, lying between Jade Street and the Lesner Bridge.  The project is protested by a riparian property owner within the project limits. THE COMMISSION UNANIMOUSLY VOTED TO APPROVE THE MODIFICATION AS REQUESTED, FINDING THAT THE PUBLIC INTEREST AND BENEFITS IN THE EXPANDED PROJECT WAS COMPELLING AND OUTWEIGHED THE POTENTIAL PRIVATE DETRIMENTS. THE DECISION WAS REACHED AFTER A SHORT CLOSED SESSION TO DISCUSS LEGAL ISSUES WITH ATTORNEY CARL JOSEPHSON, WHO PARTICIPATED VIA CONFERENCE CALL.
[Audio Item 5]

6.  MR. AND MRS. ROBERT HALL, #09 0576.  Commission review of the June 15, 2009, decision by the Westmoreland County Wetlands Board to approve the Hall's request to install 130 linear feet of riprap revetment that will eliminate approximately 260 square feet of vegetated wetlands at their property adjacent to Murphy's Mill Creek. THE COMMISSION UNANIMOUSLY VOTED TO REMAND THIS MATTER TO THE WESTMORELAND COUNTY WETLANDS BOARD FOR RECONSIDERATION AND REHEARING, AS RECOMMENDED BY STAFF AND AS REQUESTED BY THE AGENT FOR THE APPLICANT. 
[Audio Item 6]

7. DEPARTMENT OF CONSERVATION AND RECREATION, #09-0431, requests authorization to install 60 Prothonotary Warbler bird nest boxes on 3/4" conduit pipe in the Northwest River, and an unnamed tributary thereof, located a maximum of six (6) feet channelward of the shoreline of the Northwest River State Natural Area Preserve in Chesapeake.  The project is protested by an adjoining property owner.  Continued from the June 23, 2009, Commission meeting.  THE COMMISSION UNANIMOUSLY APPROVED THE MODIFIED PROPOSAL, AS RECOMMENDED BY STAFF. 
[Audio Item 7]

8.  CARL SALERA, #08-1281, requests authorization to install a private, noncommercial, non-riparian mooring buoy in Mill Creek at 37 35' 18.24" North Latitude and 76 25' 31.14" West Longitude, approximately 900 feet channelward of a common deeded access parcel adjacent to The Winding Trail road in Middlesex County.  The project is protested by several nearby property owners.  THE COMMISSION VOTED 4-3, WITH ASSOCIATE COMMISSIONERS CARTER FOX, RICK ROBINS AND BILL LAINE VOTING NO, TO APPROVE THE PROJECT AS REQUESTED. APPROVAL INCLUDED A PERMIT ISSUING FEE OF $25 AND A ROYALTY OF $100 FOR A NON-RIPARIAN MOORING IN ACCORDANCE WITH THE COMMISSION'S RENT AND ROYALTY SCHEDULE. 
[Audio Item 8]

9.  DECEMBER PARTNERS, LLC. Commission adoption of Resolution and approval of Deed conveying 32,631 square feet (0.749 acres +/ ) of previously filled State owned subaqueous lands in the City of Norfolk to December Partners, LLC, and its successors and assigns, in accordance with Chapter 884 Acts of Assembly 2007. CONTINUED UNTIL THE AUGUST 25, 2009 MEETING.
[Audio Items 9-11]

10. MOON OF NORFOLK, LLC. Commission adoption of Resolution and approval of Deed conveying 108,466 square feet (2.49 acres +/ ) of previously filled State owned subaqueous lands in the City of Norfolk to Moon of Norfolk, LLC, and its successors and assigns, in accordance with Chapter 884 Acts of Assembly 2006 and limited by Chapter 879 Acts of Assembly 2007.  CONTINUED UNTIL THE AUGUST 25, 2009 MEETING.

11.  FORT NORFOLK, LLC. Commission adoption of Resolution and approval of Deed conveying 4,489 square feet (0.103 acres +/ ) of previously filled State owned subaqueous lands in the City of Norfolk to Fort Norfolk, LLC, and its successors and assigns, in accordance with Chapter 673 Acts of Assembly 2008.  CONTINUED UNTIL THE AUGUST 25, 2009 MEETING.

12.  U.S. ARMY CORPS OF ENGINEERS, #99-0941, requests an extension for aadditional two weeks beyond the Commission's established ten-year expiration in order for them to complete the current maintenance dredging of the Greenvale Creek Federal Project Channel in Lancaster County.  THIS WAS REMOVED FROM CONSIDERATION WHEN THE DAY'S MEETING AGENDA WAS APPROVED. 
[Audio Agenda]

13. MARY HILL AND MARIE HILL, OYSTER PLANTING GROUND APPLICATION, #2006 176. Applicant is requesting to lease approximately 160 acres of oyster planting ground within Chuckatuck Creek on both sides of the Chuckatuck Creek, Route 17, highway bridge in the City of Suffolk and Isle of Wight County. The application is protested by a nearby oyster ground leaseholder.  THE COMMISSION VOTED 5-0-2, WITH COMMISSIONER STEVEN G. BOWMAN AND ASSOCIATE COMMISSIONER J.T. HOLLAND ABSTAINING, TO APPROVE THE LEASE AND FEES AS RECOMMENDED BY STAFF. COMMISSIONER BOWMAN WAS ABSENT FROM THE DISCUSSION AND MR. HOLLAND CHAIRED THIS PORTION OF THE MEETING.
[Audio Item 13]

14PUBLIC COMMENTS:  COMMERCIAL FISHERMAN ROBERT HOLLOWELL ASKED FOR A CLARIFICATION OF HAUL SEINE REGULATIONS TO ENSURE HE CAN LEGALLY CONTINUE TO HAUL SEINE FROM SHORE. THE COMMISSION UNANIMOUSLY APPROVED AN EMERGENCY MEASURE TO CLEARLY PERMIT THE ACTIVITY AND ADVERTISED FOR A PUBLIC HEARING IN AUGUST TO MAKE THE CLARIFICATION PART OF REGULATIONS.
[Audio Item 14]

15.  CRAB LICENSE BUY-BACK PROGRAM: Approval of procurement procedures and request for public hearing to amend Regulation 4VAC20-1040 to incorporate the buy-back program.  THE COMMISSION UNANIMOUSLY APPROVED PROCUREMENT PROCEDURES FOR A CRAB LICENSE BUYBACK PROGRAM THAT WILL BEGIN THIS FALL. THE FIRST OF ITS KIND PROGRAM IN VIRGINIA WAS UNVEILED AND WILL ALLOW COMMERCIAL CRABBERS WHO WISH TO VOLUNTARILY EXIT THE FISHERY TO SUBMIT AN OFFER FOR THEIR LICENSES. THE COMMISSION WILL THEN ACCEPT OR REJECT EACH OFFER. THE AIM OF THE PROGRAM IS TO REDUCE HARVEST PRESSURE AS THE BLUE CRAB POPULATION IS REBUILT. THE MONEY TO BE USED TO BUY BACK LICENSES WAS PART OF FEDERAL AID IN THE WAKE OF A BLUE CRAB FISHERY DISASTER DECLARATION. A PUBLIC HEARING AND FINAL VOTE ON THE PROGRAM WAS SET FOR AUGUST.
[Audio Item 15]

16.  FINAL APPEALS FROM INDIVIDUALS WHOSE CRAB LICENSE HAS BEEN PLACED ON THE WAITING LIST.  THE COMMISSION DENIED THE APPEALS OF THREE WATERMEN WHOSE CRAB LICENSES WERE PLACED ON A WAITING LIST DUE TO INACTIVITY. SUCH LICENSES WILL BE REACTIVATED WHEN THE CRAB POPULATION REBOUNDS TO A HIGHER DEGREE OF ABUNDANCE.
[Audio Item 16]

17.  CASES CONCERNING FAILURE TO REPORT COMMERCIAL HARVEST:  ONE WATERMAN'S COMMERCIAL LICENSE WAS REVOKED FOR FAILING TO FILE MANDATORY HARVEST REPORTS. ANOTHER WATERMAN'S LICENSE WAS REINSTATED AFTER HE BROUGHT HIS HARVEST REPORTS UP TO DATE, AND WAS PLACED ON ONE YEAR OF PROBATION.
[Audio Item 17]

18. RECOMMENDATIONS OF THE RECREATIONAL FISHING ADVISORY BOARD:  ALL OF THE RECOMMENDATIONS OF THE ADVISORY BOARD WERE ADOPTED UNANIMOUSLY.
[Audio Item 18]

19. REQUEST FOR PUBLIC HEARING:  To amend Regulation 4VAC20-1090 and Regulation 4VAC20-1180 to establish non-resident fees for all recreational fishing.  THIS STAFF REQUEST FOR A PUBLIC HEARING AT AUGUST'S MEETING WAS APPROVED UNANIMOUSLY.
[Audio Item 19]

20. REQUEST FOR PUBLIC HEARING: To amend Regulation 4VAC20-252 to establish the 2009 recreational striped bass harvest controls.  THIS STAFF REQUEST FOR A PUBLIC HEARING AT AUGUST'S MEETING WAS APPROVED UNANIMOUSLY.
[Audio Item 20]

21. REQUEST FOR PUBLIC HEARING:  To amend Regulation 4VAC20-610 to clarify commercial harvest reporting requirements.  THIS STAFF REQUEST FOR A PUBLIC HEARING AT AUGUST'S MEETING WAS APPROVED UNANIMOUSLY.
[Audio Item 21]

22. REQUEST FOR PUBLIC HEARING:  To establish a new regulation setting minimum distances between any net and a fixed fishing device, as directed by HB 2256 (2009 Session). THIS STAFF REQUEST FOR A PUBLIC HEARING AT AUGUST'S MEETING WAS APPROVED UNANIMOUSLY.
[Audio Item 22]

PAGE 2 ITEMS (Projects over $50,000 with no objections and with staff recommendation for approval).

THESE 10 SO-CALLED PAGE TWO AGENDA ITEMS WERE APPROVED UNANIMOULSY:

2A. STAFFORD COUNTY, #06 2815, requests authorization to modify an existing permit by constructing an open pile footbridge over Austin Run instead of a clear span bridge as proposed. The new bridge will be 10 feet wide and cross over approximately 50 feet of Austin Run, and is associated with the Government Island Historical Trail Improvement Project in Stafford County.

2B. QWEST GOVERNMENT SERVICES INC., #09 0450, requests authorization to install two (2) 150 feet, 1.5 inch HDPE conduits and one (1) 150 foot optic cable a minimum of 10 feet beneath the bottom of the Occoquan River, adjacent to VDOT property situated along the Occoquan River in Prince William County. The lines will be installed by directional bore method.

2C. TAZEWELL COUNTY PUBLIC SERVICE AUTHORITY, #09-0575, requests authorization to install a submerged sewer line beneath 747 linear feet of stream channel to facilitate construction of the Baptist Valley Sewer East Phase I Project in Tazewell County. Recommend approval with our standard instream permit conditions and the agreement to conduct any necessary mussel and fish surveys/relocations and adhere to any instream work time-of year restrictions as recommended by the Department of Game and Inland Fisheries.

2D. TOWN OF SMITHFIELD, #09 0649, requests authorization to construct up to six (6) pedestrian walkway bridges and two observation decks over tidal marches and streams; to construct an 8 foot wide by 101 foot long fishing pier, with a 12 foot by 40 foot T head; to construct an 8 foot by 131 foot fixed kayak/canoe launch pier, to include a 16 foot by 20 foot floating dock with gangway access from the fixed pier to include two floating 5 foot by 15 foot kayak/canoe launch ramps along the floating platform all being along tidal stream tributaries of and within Cypress Creek in the Town of Smithfield in Isle of Wight County.

2E. RUTH B. CASSIDY, #09 0533, requests authorization to construct one 250 foot long by 30 foot wide offshore stone breakwater and three 150 foot long by 30 foot wide offshore stone breakwaters and nourish the beach with beach quality sand adjacent to her property situated along the Chesapeake Bay, north of the YMCA Camp in the Silver Beach area of Northampton County. Staff recommends the assessment of a royalty in the amount of $2,325.00 for the beach nourishment fill of 46,500 square feet of State owned subaqueous bottom at a rate of $0.05 per square foot.

2F. NORFOLK SOUTHERN CORPORATION, #09-0382, requests authorization to replace existing timber approach trestles, with approximately 31-foot wide concrete/steel, open-pile, approach trestles extending channelward of mean low water, across the Eastern Branch of the Elizabeth River, approximately 275 feet on the north end and 660 feet on the south end of their existing V-2.8 railroad bridge and swing span, crossing between the City of Norfolk in the north and the Cities of Norfolk and Chesapeake in the south, immediately west of the mouth of the Indian River. The proposed project will also include the construction of temporary, open-pile work bridges to accommodate the proposed construction/replacement activities. Staff recommends the inclusion of a permit condition, which requires the removal of the temporary work bridges within 30-days of the completion of each of the north and south segments of the proposed project, and the assessment of a royalty in the amount of $57,970.00 for the new trestles' bold-outline encroachment over 28,985 square feet of State-owned submerged land at a rate of $2.00 per square foot.

2G. DEPARTMENT OF THE NAVY, #09-0552, requests authorization to create four (4) submerged cable trenches by dredging approximately 37, 290 cubic yards of State-owned subaqueous material to accommodate the installation of Y and Z power cable loops within an approximately 700-foot by 2,000-foot area adjacent to their Lambert's Point Deperming Station in the Cities of Portsmouth and Norfolk. The cables will be laid within the trenches and on the river bottom, as well as directionally bored beneath the station's main slip between Piers A and B. The proposed project also includes the backfilling of the cable trenches with approximately 10,500 cubic yards of non-magnetic gravel, as well the construction of three (3), small, open-pile power/cable support platforms with sheds, along the northwest, southwest, and southeast perimeter of the proposed cable loop.

2H. E.I. DU PONT DE NEMOURS & COMPANY, #09-0769, requests authorization to install approximately 450 linear feet of streambank stabilization extending approximately 20 feet channelward of ordinary high water, consisting of a riprap scour-protection toe, fabric-encapsulated soil lifts, and woody debris fish habitat, adjacent to their property situated along the South River and Rockfish Run (Jones Hollow) in the City of Waynesboro. Staff recommends the assessment of a royalty in the amount of $8,784.00 for the fill encroachment over 2,928 square feet of State-owned subaqueous bottom at a rate of $3.00 per square foot.

2I. MGW TELEPHONE COMPANY, #09-0822, requests authorization to install two (2) fiber optic and one (1) copper communication cables crossing approximately 90 feet across and 26 feet above the Cowpasture River, immediately downstream of State Route 39 in Bath County. Staff recommends the assessment of a royalty in the amount of $810.00 for the three utility lines' encroachment over a total of 270 linear feet of State-owned submerged land at a rate of $3.00 per linear foot.

2J. CITY OF NORFOLK, #09-0879, requests authorization to rehabilitate and extend two(2) separate, existing 30-inch diameter stormwater outfall pipes by an additional 90 linear feet into the Chesapeake Bay in the vicinities of Warwick Avenue and Inlet Road in the City of Norfolk. Approximately 239 cubic yards of State-owned subaqueous material will be dredged in order to accommodate the extension of these existing outfall pipes. 

PAGE 3 ITEMS Consent Agenda Items.

THE FOLLOWING SO-CALLED PAGE 3 ITEM WAS APPROVED UNANIMOUSLY, AS RECOMMENDED BY STAFF:

3A. WILLIAM M. WINN, #04 0979, requests after the fact authorization for additional pier, additional wave screen structure, and additional encroachment of a bulkhead structure over State owned bottomlands in excess of those authorized at the applicant's commercial marina facility situated along the James River at Jordan Point in Prince George County.  The applicant has agreed to a civil charge of $1,800.00 in lieu of any further enforcemetn as permitted by Code.  THE COMMISSION UNANIMOUSLY DECLINED TO APPROVE THE CONSENT AGREEMENT RECOMMENDED BY STAFF FOR WILLIAM M. WINN, AND INSTEAD DIRECTED THAT MR. WINN AND HIS CONTRACTOR ATTEND A FUTURE MEETING TO FURTHER DISCUSS THE CIRCUMSTANCES SURROUNDING HIS NON-COMPLIANCE.

3B. COLUMBIA GAS OF VIRGINIA, #09-0749, requests after-the-fact authorization to retain a four-inch diameter gas line that was installed by directional bore method, beneath 20 linear feet of Rockfish Run (Jones Hollow) in the city of Waynesboro.  Due to the emergency nature of the replacement activity, staff would not recommend the assessment of a civil charge, but would recommend triple permit fees in the amount of $75.00, as well as a royalty assessment in the amount of $180.00 for the gas line's encroachment beneath 20 linear feet of State-owned subaqueous bottom at the tripled rate of $9.00 per linear foot as permitted by Code.  THE COMMISSION UNANIMOUSLY APPROVED THE CONSENT AGREEMENT RECOMMENDED BY STAFF FOR COLUMBIA GAS OF VIRGINIA



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