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COMMISSION ACTIONS SEPTEMBER 2009

The following are the agenda items from the Commission's regular meeting held September 22, 2009 at Commission headquarters.  The Commission's actions are in bold.


** APPROVAL OF AGENDA.  THE AGENDA WAS APPROVED UNANIMOUSLY, 9-0, WITH ALL COMMISSIONERS PRESENT, AFTER CONTINUING ITEM 10, AND DROPPING ITEMS 11 AND 17 FROM CONSIDERATION AT THIS MEETING. 
[Audio Item Agenda]

1.  MINUTES of previous meeting.  UNANIMOUSLY APPROVED BOTH JULY AND AUGUST MINUTES.     
[Audio Item 1]

2.  PERMITS (Projects over $50,000 with no objections and with staff recommendation for approval).  THE COMMISSION UNANIMOUSLY APPROVED THESE EIGHT SO CALLED-PAGE 2 ITEMS, DELINEATED BELOW IN DETAIL, AS RECOMMENDED BY STAFF. 
[Audio Item 2]

3.  CONSENT AGENDA ITEMS.  THIS SO-CALLED PAGE 3 ITEM, DELINEATED BELOW IN DETAIL, WAS UNAMIOUSLY APPROVED.
[Audio Item 3-4]

4.  CLOSED MEETING FOR CONSULTATION WITH OR BRIEFING BY COUNSEL.  NOT REQUIRED. 

5.  JOHN MUNICK, #09-0304.  Commission review of the Newport News Wetland Board's August 17, 2009, decision to approve the construction of 30 linear feet of riprap in front of an existing bulkhead that will impact vegetated tidal wetlands at his property on Fisher's Creek in Newport News without any requirement for compensation.  THE COMMISSION UNANIMOUSLY APPROVED A REMAND OF THIS MATTER TO THE NEWPORT NEWS WETLAND BOARD FOR RECONSIDERATION AND REHEARING.
[Audio Item 5]

6.  KEVIN SIMS, #08-1197, requests authorization to dredge approximately 708 cubic yards of State-owned submerged bottom in an effort to obtain maximum depths of minus five (-05) feet mean low water for navigation adjacent to his property situated along the Narrows/Linkhorn Bay in Virginia Beach.  The project is protested by the North Alanton Water Recreation Committee.  THE COMMISSION UNANIMOUSLY APPROVED THE APPLICATION AS PROPOSED, WITH THE EXCEPTION THAT DREDGING WAS ONLY AUTHORIZED TO MINUS FIVE FEET (MLW) WITH A SIX INCH TOLERANCE AS OPPOSED TO THE MINUS SIX FEET REQUESTED. THE COMMISSION ALSO ASSESSED A ROYALTY AT THE RATE OF $0.60 PER CUBIC YARD AS PERMITTED BY CODE BECAUSE THE DREDGED MATERIAL WOULD BE PUT TO USE ON-SITE DURING CONSTRUCTION. 
[Audio Item 6]

7.  HUNTON CREEK IMPROVEMENT ASSOCIATION, #06-0322, requests authorization to modify their existing permit to allow the sandy material hydraulically dredged from the Hunton Creek entrance channel project to be placed in Geotubes® along the upper portion of the beach and dune located on the northwest side of the channel.  The project requires both a Coastal Primary Sand Dune/Beach permit and a subaqueous permit modification.  THE COMMISSION UNANIMOUSLY APPROVED THE REQUEST.
[Audio Item 7]

8.  JACK T. STILLMAN, #02-1978, requests authorization to modify his existing permit to allow his existing enclosed floating boathouse to be relocated from its currently authorized location to a private pier on his adjacent lot situated along Woodas Creek in Mathews County. The project is protested by a nearby property owner.  THE COMMISSION APPROVED THE REQUEST ON A 5-4 VOTE, WITH COMMISSIONER BOWMAN AND ASSOCIATE COMMISSIONERS FOX, TANKARD AND LAINE AGAINST, IN ACCORDANCE WITH THE RECOMMENDATIONS OF STAFF.
[Audio Item 8]

9.  TED HEMMERT, #09-1155, requests authorization to install 85 linear feet of Class II riprap revetment at his property situated at the confluence of Chisman Creek, the Poquoson River and the Chesapeake Bay in York County. A beaches and dunes permit is required.  THE COMMISSION UNANIMOUSLY APPROVED THE PROJECT IN ACCORDANCE WITH THE RECOMMENDATIONS OF STAFF.
[Audio Item 9]

10. MARK CROSSLAND, #09-0548, requests after-the-fact authorization to retain a 448 square foot flat‑roofed boathouse, an 18-foot by 26-foot L-head and a 41-foot by 15-foot deck (1,085 square feet of deck) adjacent to his property at 18336 Possum Point Road, situated along Quantico Creek in Prince William County.  CONTINUED TO THE NOVEMBER 24, 2009 MEETING IN ACCORDANCE WITH THE REQUEST OF THE APPLICANT.
[Audio Item Agenda]

11. BILL BARNES, #09-0033, requests authorization to add an additional 1,316 square feet of marginal wharf decking to his existing private-use pier, and to construct a dual slip open-sided boathouse roof measuring 26.5 feet by 26.5 feet at his property situated along the James River in Chesterfield County.  The project is protested by both adjoining property owners.  THIS ITEM WAS PULLED FROM THE AGENDA AT THE REQUEST OF STAFF. THE PROTEST HAS BEEN RESOLVED AND THE PERMIT CAN BE ISSUED ADMINISTRATIVELY BY STAFF.
[Audio Item Agenda]

12. ENFORCEMENT ACTION:  Commission review of information indicating a possible violation of Chapter 12 of Title 28.2 of the Code of Virginia, specifically unauthorized construction of rip rap groins and the removal of aquatic vegetation by Mr. Brad Martin at or near properties situated along Potomac Creek at 37 and 51 Louie Lane in Stafford County.  Continued from the August 25, 2009, Commission meeting.  TABLED UNTIL THE OCTOBER 27, 2009 MEETING. 
[Audio Item 12]

13. VIRGINIA PORT AUTHORITY CONVEYANCE.  Commission adoption of Resolution and approval of Deed of Easement conveying a permanent easement and right-of-way to use 462.74 acres more or less, of State-owned subaqueous lands lying in the Cities of Norfolk and Portsmouth, to the Virginia Port Authority, its successors and assigns, for the purpose of constructing the eastward expansion of Craney Island in accordance with Chapter 734, Acts of Assembly 2008.  THE COMMISSION UNANIMOUSLY APPROVED THE ADOPTION OF AN AMENDED DEED AND RESOLUTION AS RECOMMENDED BY LEGAL COUNSEL. 
[Audio Item 13]

14. PUBLIC COMMENTS.   ELLIS JAMES OF CHESAPEAKE ASKED THAT THE COMMISSION STUDY THE FEEDING PATTERNS OF SHARKS AND WARN THE PUBLIC OF THE POTENTIAL DANGERS OF SWIMMING IN THE EARLY MORNINGS AND AT NIGHT. SHARKS HAVE AN IMPORTANT ECOLOGICAL ROLE, HE NOTED. ALSO, A WATERMAN ASKED THAT HIS OYSTER PERMIT BE RETURNED AFTER HE WAS ISSUED A SUMMONS FOR NOT COVERING HIS OYSTER CATCH. THE COMMISSION VOTED UNANIMOUSLY TO DO SO.  IN ADDITION, THE COMMISSION VOTED TO MOVE THE DECEMBER MONTHLY MEETING FROM THE FOURTH TUESDAY TO THE THIRD TUESDAY, DECEMBER 15.
[Audio Item 14]

15. PUBLIC HEARING:  Consideration of Emergency Regulation 4VAC20-620, "Pertaining to Summer Flounder," to allow for the possession of certain summer flounder tagged by the Virginia Institute of Marine Science.  THE COMMISSION VOTED UNANIMOUSLY TO WAIVE FLOUNDER POSSESSION REGULATIONS FOR ANYONE WHO CATCHES FLOUNDER TAGGED WITH DATA RECORDING DEVICES AFFIXED AS PART OF A STUDY BY THE VIRGINIA INSTITUTE OF MARINE SCIENCE.
[Audio Item 15]

16. PUBLIC HEARING: Consideration of amendments to Regulation 4VAC20-720, "Pertaining to Restrictions on Oyster harvest," to establish the 2009/2010 oyster harvest rules.  AFTER A LENGTHY DISCUSSION OVER THE EFFECTIVENESS OF VIRGINIA'S CURRENT OYSTER MANAGEMENT EFFORTS, THE COMMISSION VOTED UNANIMOUSLY TO CONTINUE THE ROTATIONAL HARVEST PLAN IN THE RAPPAHANNOCK RIVER ENACTED TWO YEARS AGO, AND TO MOVE UP OPENING DATES FOR TWO OTHER HARVEST AREAS, FROM NOV. 1 TO OCT. 1, TO ALLOW WATERMEN TO GAIN A MARKET ADVANTAGE BECAUSE OF LATER OYSTER SEASON OPENINGS IN SOME GULF COAST STATES.  ALSO, THE COMMISSION UNANIMOUSLY APPROVED ANOTHER YEAR OF A BUYBACK PROGRAM OF LARGE OYSTERS, MEASURING OVER 4.25 INCHES, IN ONE OF THE RAPPAHANNOCK RIVER ROTATIONAL HARVEST ZONES, AS WELL A REQUEST FOR PUBLIC HEARING IN OCTOBER TO CLOSE A LOOPHOLE IN REGULATIONS THAT CURRENTLY PERMIT WATERMEN TO BECOME AGENTS IMMEDIATELY AFTER BEING CITED FOR VIOLATING SOME OYSTER REGULATIONS.
[Audio Item 16]

17. PUBLIC HEARING: Consideration of amendments to Regulation 4VAC20-950, "Pertaining to Black Sea Bass," to close the recreational black sea bass fishery until the end of the year. THIS ITEM WAS REMOVED FROM CONSIDERATION BECAUSE THE ATLANTIC STATES MARINE FISHERIES COMMISSION DECLINED TO CLOSE THE COASTAL BLACK SEA BASS SEASON, AS HAD BEEN ANTICIPATED.
[Audio Item Agenda]

18. REQUEST FOR PUBLIC HEARING: Pound net leader modifications to protect sea turtles and marine mammals.  THE COMMISSION VOTED UNANIMOUSLY TO HOLD A PUBLIC HEARING IN OCTOBER TO CONSIDER REQUIRING POUND NET AND FYKE NET LEADERS YEAR-ROUND ON ALL OF THESE FIXED FISHING DEVICES LOCATED EAST OF THE CHESAPEAKE BAY BRIDGE TUNNEL, IN ORDER TO HELP PROTECT MARINE MAMMALS. CURRENTLY, THOSE LEADERS ARE REQUIRED FROM MAY 6 THROUGH JULY 15 ON POUND NETS LOCATED WEST OF THE CBBT TO ABOUT HALFWAY UP VIRGINIA'S PORTION OF THE CHESAPEAKE BAY IN ORDER TO HELP CONSERVE SEA TURTLES.
[Audio Item 18]

19. REQUEST FOR PUBLIC HEARING:  Gill net and spiny dogfish limited fishery access proposals.  THE COMMISSION UNANIMOUSLY APPROVED THIS REQUEST FOR A PUBLIC HEARING IN OCTOBER.
[Audio Item 19]

20. REQUEST FOR PUBLIC HEARING: Proposed amendments to Regulation 4VAC20-490, "Pertaining to Sharks," to restrict the processing of smooth dogfish at sea.  THE COMMISSION UNANIMOUSLY APPROVED THIS REQUEST FOR A PUBLIC HEARING IN OCTOBER.
[Audio Item 20]

21. RIVER HERRING: Discussion of response to ASMFC declaration of a moratorium on January 1, 2012.  THE COMMISSION DISCUSSED AT LENGTH ASMFC'S PLAN TO DECLARE A COASTWIDE MORATORIUM ON RIVER HERRING, AND INSTRUCTED STAFF TO WORK ON A BYCATCH TOLERANCE PLAN THAT MAY BE ACCEPTABLE TO ASMFC AND WOULD ALLOW INADVERTANT RIVER HERRING CATCHES BY POUND NETTERS.
[Audio Item 21]

22. STRIPED BASS: Discussion of proposal to open the ocean commercial fishery during January.  THE COMMISSION VOTED UNANIMOUSLY TO RE-EXAMINE THIS ISSUE IN SIX MONTHS TO SEE IF IT IS LOGISTICALLY POSSIBLE TO OPEN A COMMERCIAL STRIPED BASS FISHERY IN JANUARY 2011.
[Audio Item 22]

23. RECOMMENDATIONS OF THE RECREATIONAL FISHING ADVISORY BOARD AND COMMERCIAL FISHING ADVISORY BOARD.   THE COMMISSION VOTED UNANIMOUSLY TO APPROVE THE RECOMMENDATIONS OF THE RECREATIONAL AND COMMERCIAL FISHING ADVISORY BOARDS AND FUND ROUGHLY $875,000 IN PROJECTS TO BENEFIT THE STATE'S RECREATIONAL ANGLING COMMUNITY.
[Audio Item 23] 

24. DISCUSSION:  Use of by-catch reduction devices in recreational crab pots.  Dr. Rom Lipcius (VIMS).  DR. LIPCIUS PRESENTED THE RESULTS OF A SCIENTIFIC STUDY THAT SHOWS TURTLE EXCLUDER DEVICES, TECHNICALLY KNOWN AS BYCATCH REDUCTION DEVICES, ARE EFFECTIVE AND DO NOT REDUCE CRAB CATCHES IN THE CRAB POTS CONFIGURED WITH THOSE DEVICES.  THE COMMISSION APPROVED HIS REQUEST TO WORK WITH THE FISHERIES STAFF TO PREPARE POTENTIAL REGULATIONS THAT WOULD REQUIRE USE OF THOSE DEVICES IN RECREATIONAL CRAB POTS ONLY.  THOSE POTS ARE MORE OFTEN SET IN SHALLOW WATERS AND NEAR SHORELINES, WHICH IS MORE COMMON HABITAT FOR ECOLOGICALLY IMPORTANT TURTLES, INCLUDING ENDANGERED TERRAPINS.
[Audio Item 24]

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

THE FOLLOWING SO-CALLED PAGE TWO ITEMS WERE APPROVED UNANIMOUSLY:

2A. ACCOMACK COUNTY, #09-0730, requests authorization to dredge on an as needed basis 150 cubic yards of subaqueous bottom, replace the northern of the three boat ramp tending piers and the attached breakwater within the existing foot print situated adjacent to the Johnsons Landing County Facility along Hunting Creek near the Town of Hopkins in Accomack County.  The applicant also requests authorization to retain the two 14-foot wide concrete boat ramps, the two other 4-foot wide tending piers with attached breakwaters and the 180-foot long by 12-foot wide County pier which includes a 36-foot by 12-foot T-head.  The County facility has existed in some form or another for over 100 years. 

2B. JOSEPHINE CASALE, #09-0866, requests authorization to install a private, noncommercial, riparian mooring buoy at 37° 30' 14" North Latitude, 76° 18' 32" West Longitude, approximately 2,000 feet channelward of her property situated along the Piankatank River at 997 Old Ferry Road on Gwynns Island in Mathews County.  The mooring will encroach on "Additional Public Ground."

2C. HAMPTON DEPARTMENT OF PUBLIC WORKS, #09-0417, requests authorization to mechanically dredge approximately 42,910 cubic yards of State-owned subaqueous bottom from the Hampton River main channel and eight ancillary channels to a maximum depth of minus five and a half (-5.5) feet below mean low water from the Booker T. Washington Bridge at Settler's Landing Road to Bromley Drive in Hampton.  All dredged material will be taken by barge to Craney Island, or an approved alternate upland site, for disposal.

2D. HOPEWELL DEPARTMENT OF RECREATION AND PARKS, #08-2086, requests authorization to dredge up to 2,700 cubic yards of State-owned subaqueous bottomlands to a depth of -10 feet mean low water at the City of Hopewell marina facility situated along the Appomattox River and located at 100 West City Point Road.

2E. LYNCHBURG COLLEGE, #09-0912, requests authorization to construct a 12-foot wide by 45-foot long, concrete arch span bridge, crossing over approximately 25 linear feet of the Big Otter River at their Claytor Nature Facility property off Woods Road (Route 682) in Bedford County.  Staff recommends the assessment of a royalty in the amount of $600.00 for the encroachment over 300 square feet of State-owned subaqueous land at a rate of $2.00 per square foot.

2F. MEADWESTVACO CORPORATION, #09-0297, requests a modification to a previously authorized project to now replace an existing sanitary sewer line exposed in the streambed of Dunlap Creek by installing an aerial, three-inch diameter, double wall, sanitary sewer line supported by an approximately 5-foot 6-inch wide box frame truss crossing over approximately 85 feet of Dunlap Creek, a minimum of 27 feet 10 inches above ordinary high water, immediately upstream of the Jackson River at their Covington facility in Alleghany County.  Staff recommends the assessment of a royalty in the amount of $1,190.00 for the sewer line's encroachment over 85 linear feet of State-owned subaqueous land at a rate of $3.00 per linear foot and for the truss' maximum encroachment over 467.5 square feet of State-owned subaqueous land at a rate of $2.00 per square foot.

2G. BEACH COVE VILLAS CONDO OWNERS ASSOCIATION, #09-0507, requests authorization to construct two (2) 180-foot long, one (1) 80-foot long quarry stone breakwater and one (1) 50-foot long stone spur, extend and armor two (2) existing stone and concrete block groins, and place 2,800 cubic yards of beach-quality sand over 26,500 square feet of State-owned subaqueous bottom channelward of mean low water adjacent to their property on the Rappahannock River near Windmill Point in Lancaster County.  Recommend approval with a royalty in the amount of $1,325.00 for the placement of the sandy material channelward of low water at the rate of $0.05 per square foot.

2H. QWEST CONSTRUCTION, #09-1088, requests authorization to install by directional bore method, 15 linear feet of HDPE conduit and fiber optic cable beneath Hazel Run, and 550 linear feet of HPDE conduit and fiber optic cable that will be attached to, and cross over the Rappahannock Bridge in Fredericksburg.  These fiber optic lines are part of the Terrapin South Project being constructed in Stafford and Prince William Counties. Recommend approval with a royalty of $1695.00 for the crossing of 565 linear feet of State-owned submerged land at a rate of $3.00 per linear foot.

PAGE 3 ITEMS Consent Agenda Items.

THE FOLLOWING TWO CONSENT AGENDA ITEMS WERE APPROVED UNANIMOUSLY:

3A.  ELIZABETH JORDAN, #09-0329, requests after‑the‑fact authorization for the construction of a replacement vinyl bulkhead at her property situated along Sarah Creek in Gloucester County.  The bulkhead was constructed prior to the execution of her VMRC permit, and it measures approximately 15 feet longer than that indicated in the application drawings. The contractor has accepted full responsibility for the violation and has agreed to the payment of a $600.00 civil charge and triple permit fees of $300.00 in lieu of further enforcement action.




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