COMMISSION ACTIONS

COMMISSION ACTIONS APRIL 2007

The following are the agenda items from the Commission's regular meeting held April 24, 2007 at Commission headquarters. The Commission's actions are in bold.

APPROVAL OF AGENDA. Approved as modified. Item #14 (Staff presentation on mean low water and how it is calculated and surveyed) was postponed to the May Commission meeting.

1. MINUTES of previous meeting. The Commission voted unanimously to approve the minutes as written. The minutes of the special meeting of the Commission will be voted on at the May Commission meeting due to Associate Member McLeskey’s absence.

2. PERMITS (Projects over $50,000 with no objections and with staff recommendation for approval). The Commission voted unanimously to approve the permits with staff recommendations.

3. CLOSED MEETING FOR CONSULTATION WITH OR BRIEFING BY COUNSEL. There was no need for a closed meeting.

[Audio Items 1-3]

4. U.S. ARMY PRESENTING AN AWARD TO COMMISSIONER BOWMAN FOR AGENCY’S WORK WITH RESERVES
Commissioner Bowman was presented a certificate by Lt. Col. Hence, Commander, Southern Transportation Unit-Fort Eustis.
[Audio Item 4]

5. DISCUSSION: Commission action in response to Judge Norman Thomas' ruling in the case of Sarah Harrison v. Virginia Marine Resources Commission and Ronald W. Boone (Civil Action No: CL06-1664). Agency counsel (Senior Assistant Attorney General Carl Josephson) informed the Commission that Judge Thomas’ ruling was only a letter opinion at this point, and that the Court Order had not yet been made final. As a result, this matter was still before the Court and the Commission had not authority to take any action.
[Audio Item 5]

6. LAWNES POINT SERVICE COMPANY, #06-2324, requests authorization to install a 6-inch treated wastewater outfall pipe and diffuser, to service a planned residential development, into Lawnes Creek, a tributary to the James River, in Isle of Wight County. The application is protested by a nearby oyster ground leaseholder. The Commission was informed that the protest has been withdrawn, and subsequently voted 8-0 to approve the project with the conditions recommended by staff. These conditions included a time-of-year construction restriction of February 15 to June 30 to protect anadromous spawning fish species, the requirement to cease any discharge if the Health Department were to impose a prohibition of shellfish harvest downstream, and a royalty of $75.00 for the encroachment of the outfall pipe on state-owned subaqueous bottoms.
[Audio Item 6]

7. FRED OBRECHT, #06-1725, requests authorization to construct a 288-foot long by 5-foot wide L-shaped community pier to include a 53-foot long by 12-foot wide T-head and eight (8) finger piers adjacent to the Obrecht Subdivision proposed along Underhill Creek, a tributary of Pungoteague Creek in Accomack County. The community pier will be used to moor up to 18 community boats. The project is protested by nearby property owners. The Commission voted 7-1 to approve the project in modified for as recommended by staff. Approved was a community pier with a maximum of five slips that extended no further than ¼ of the way across the waterway, and possessed a T-hear not to exceed 400 square feet and two finger piers. Approval was also conditioned on the applicant recording the appropriate assessment of a royalty based on the square footage of the bold outline footprint encompassed by the pier, slips and any appurtenances, based on the receipt of revised drawings, at the rate of $1.50 per square foot.
[Audio Item 7]

8. COASTAL DESIGN & CONSTRUCTION, INC., #06-2740, requests authorization to install two (2) commercial mooring buoys in the Southwest Branch of the Severn River, approximately 600 feet channelward of the Broad Marsh area and approximately 1,200 feet southwest of the Severn Wharf Marina, in Gloucester County. The project is protested by two nearby property owners.
The Commission voted 8-0 to approve the project in accordance with the staff recommendations, and assessed a royalty in the amount of $500.00 for the private use of state-owned bottom for each of the moorings.
[Audio Item 8]

9. TRICOUNTY FARMS, INC., #05-2246, requests authorization to construct 405 linear feet of 8-foot wide open-pile pier with attached wave baffles, finger piers and mooring piles to create 21 wetslips, a 75-foot long timber wave baffle near an existing travel lift, and to install 500 linear feet of pilings spaced 8 to 10 inches apart intended to protect the facilities from wave damage adjacent to their existing pier and travel lift facility situated along the Rappahannock River in Middlesex County. The Commission voted 8-0 to approve the project in modified form, in keeping with a revised project design agreed to by the applicant and including the recommendations of staff. Specifically, the applicant agreed to delete the proposed offshore soldier pile breakwater, to reduce the number of in-water slips to ten (10) to preclude the imposition of an additional seasonal condemnation, and to provide a minimum of 2 feet of clearance between the substrate and the bottom of the wave baffle attached to the pier. The Commission also directed immediate removal of any pier or pilings in the event they were damaged due to storm winds or waves.
[Audio Item 9]

10. VULCAN CONSTRUCTION MATERIALS, #07-0405, requests authorization to construct a 4’ wide by 65’ long open-pile commercial pier with a 4’ by 10’ T-head and install two (2) 5-pile timber dolphins to facilitate the temporary mooring of tugboats calling on their existing quarry facility situated along the James River in the City of Richmond. Both wetlands and subaqueous permits are required.
The Commission voted 8-0 to approve the project as recommended by staff.
[Audio Item 10]

11. YORK COUNTY, #06-1431, requests authorization to replace the Allens Mill Road culvert crossing of West Chisman Creek to reduce roadway flooding in York County. The project is protested by a York County resident. The Commission voted 8-0 to approve the project as recommended by staff.
[Audio Item 11]

12. HARBOUR ON INDIAN CREEK, #06-1969, requests authorization to install one (1) forklift-style boatlift and formal, after-the-fact authorization to retain a change from an approved four-slip T-head community pier to an L-head pier with three (3) four-foot wide finger piers, two (2) uncovered boatlifts, and a 12-foot by 10-foot floating dock adjacent to their residential development on Pitman's Cove off Indian Creek near Kilmarnock in Lancaster County. The Commission entertained three votes on this project. They first voted 8-0 to approve those aspects of the project that had previously been erroneously approved by staff. They then voted 8-0 to approve the installation of a boatlift in slip #3 and to approve the installation of an additional boatlift adjacent to slip #1 with no civil charge assessment. Finally, the Commission voted 7-1 to allow the floating dock to remain, provided it was relocated to what was previously identified as slip #4, and provided further that there was a prohibition against any motorized watercraft, including jet skis, from mooring thereto.
[Audio Item 12]

13. 3304, LLC, #06-2284, requests after-the-fact authorization to retain a 22-slip commercial marina, including two (2) main floating piers with their associated pilings, finger piers, and access ramps, intended to replace a previously existing marina facility adjacent to their property situated along the Occoquan River in the Town of Occoquan, Prince William County. The Commission voted 6-2 to approve the reconstructed marina, as built, but agreed to impose triple permit fees and a civil charge given the after-the-fact nature of the request, and in lieu of further enforcement as provided by Code, based on a minimal environmental impact and minimal degree of non-compliance.
[Audio Item 13]

14. DISCUSSION: Staff presentation on mean low water and how it is calculated and surveyed. Postponed until the May 22nd Commission meeting.

15. PUBLIC COMMENTS. The Commission heard a request by Doug Jenkins to extend the oyster season until June 30, 2007. The Commission also heard comments from several York County residents regarding past erosion and sediment control problems and water quality issues related to the City of Newport News’ Harwoods Mill Dam project and York County’s Moores Creek stormwater project with their resulting impacts on water quality and navigability due to siltation in Chisman Creek, Moores Creek, and the Poquoson River.
[Audio Item 15]

16. PUBLIC HEARING: Proposed amendments to Regulation 4VAC20-490. "Pertaining to Sharks," to establish a commercial trip limit of 3000 pounds for Spiny Dogfish for the May 1-April 30 fishing season. The Commission voted unanimously to approve the amendments.
[Audio Item 16]

17. PUBLIC HEARING: Proposed amendments to Regulation 4VAC20-370,"Pertaining to the Culling of Crabs," and Regulation 4VAC20-752,"Pertaining to Blue Crab Sanctuaries," to repeal the prohibition on the harvest of dark colored sponge crabs and to extend the sanctuary from the mouth of Chesapeake Bay to the North Carolina line. The Commission voted unanimously to repeal the ban on the harvest of dark culled sponge crabs for the period July 15 to the end of the year. The ban will remain in effect during the period April 1 through July 15. VIMS indicated they will conduct a comprehensive study of crab harvest mortality later this year. The Commission also unanimously approved the expansion of the sanctuary to include the area off Virginia Beach.
[Audio Item 17]

18. PUBLIC HEARING: Proposed amendments to Regulation 4VAC20-900, "Pertaining to Horseshoe Crab," to define male horseshoe crab and to establish buyer permitting and reporting requirements. The Commission voted unanimously to approve staff recommendations.
[Audio Item 18]

19. PUBLIC HEARING: Proposed amendments to Regulation 4VAC20-890, "Pertaining to Channeled Whelk," to repeal limits on the use of horseshoe crabs, define bait bag, establish buyer permits and reporting requirements, and increase the daily vessel trip limit to 120 bushels, when two conch pot licensees are on board the same vessel. The Commission voted unanimously to accept staff recommendations.
[Audio Item 19]

20. PUBLIC HEARING: Proposed regulation for Sheepshead to establish a 4- fish recreational fishing possession limit and 500-pound commercial fishing possession limit. The Commission voted, 5-2, to accept staff recommendations.
[Audio Item 20]

21. PUBLIC HEARING: Proposed regulations for Tilefish and Grouper to establish recreational and commercial possession limits. The Commission voted unanimously to approve staff recommendations, with the exception that the recreational possession limit on tilefish shall be 7 fish rather than 10 fish.
[Audio Item 21]

22. JOHN E. BECKWITH: Request to locate a new pound net near the mouth of Matchotank Creek on the Eastern Shore. The proposal is protested by recreational fishermen and others. Mr. Beckwith’s request was withdrawn.
[Audio Item 22]

23. RECOMMENDATIONS OF THE RECREATIONAL FISHING ADVISORY BOARD. The Commission voted unanimously to accept staff recommendation to increase the annual operating budget to $214,000 for this year and subsequent years.
[Audio Item 23]

24. BOB JENSEN: Rappahannock Preservation Society Community Service Update: oysters and kids. No action taken.
[Audio Item 24]

25. REQUEST FOR PUBLIC HEARING: To establish recreational fishing limits for Tautog that are necessary for compliance with the ASMFC Tautog Fishery Management Plan. The Commission voted unanimously to hold a public hearing at the May 22nd Commission Meeting.
[Audio Item 25]

26. REQUEST FOR PUBLIC HEARING: To amend the recreational possession limit and commercial by-catch limit for Grey Trout. The Commission voted unanimously to hold a public hearing at the May 22nd Commission Meeting.
[Audio Item 26]

27. REQUEST FOR EMERGENCY REGULATION AND PUBLIC HEARING: To establish alternative methods for complying with certain summertime oyster harvest restrictions related to public health. The Commission voted unanimously to approve the emergency regulation effective May 15, and hold a public hearing at the May 22nd Commission meeting.
[Audio Item 27]

28. FAILURE TO REPORT HARVEST IN ACCORDANCE WITH REGULATION 4VAC20-610. No action taken.
[Audio Item 28]

29. REPEAT OFFENDER. No action taken.
[Audio Item 29]

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

2A. CHERRYSTONE CAMPGROUND, #07-0355, requests authorization to remove three (3) existing campground piers and construct three new piers within the original footprints. The proposed piers will be 330 feet long by 6 feet wide, 404 feet long by 6 feet wide and 260 feet long by 6 feet wide respectfully and each will include 40-foot by 20-foot T-heads adjacent to the Cherrystone Campground property along Cherrystone Creek in Northampton County. The northern pier will also be used for the mooring of 16 (rental and registered guest) boats. Staff recommends a royalty of $19,854.00 for the encroachment over 13,236 square feet of State- owned submerged land at a rate of $1.50 per square foot.

2B. COUNTY OF FRANKLIN, #07-0555, requests authorization to construct a 12’ wide by 80’ long clearspan bridge across the Pigg River to facilitate pedestrian access to athletic fields at Waid Park in Franklin County.

2C. METRO MACHINE CORPORATION, #07-0271, requests authorization to maintenance dredge approximately 21,000 cubic yards of State-owned submerged materials to restore maximum depths of –59 feet below mean low water to the 40,000 LT Dry Dock adjacent to their property situated at the confluence of the Eastern and Southern Branches of the Elizabeth River in Norfolk.

2D. DEPARTMENT OF CONSERVATION AND RECREATION, #06-2936, requests authorization to hydraulically maintenance dredge approximately 1,650 cubic yards of accumulated sediment to restore maximum depths of minus six (–6) feet below mean low water at the York River State Park Croaker Landing Boat Ramp in James City County.

2E. DOMINION TRANSMISSION INC., #07-0304, requests authorization to install 50 linear feet of new 30-inch diameter natural gas pipeline a minimum of three feet below Tuscarora Creek in Leesburg in Loudoun County. Staff recommends a royalty of $150.00 for the encroachment under 50 linear feet of State-owned submerged lands at a rate of $3.00 per linear foot.

2F. NEWPORT NEWS SHIPBUILDING AND DRY DOCK CORP., #00-0583, requests authorization to modify their previously authorized permit to dredge 18,942 cubic yards of State-owned submerged land to maximum depths of –25 feet below mean low water in the area of the demolished Pier 4 adjacent to their property situated along the James River in Newport News. Staff recommends a royalty of $8,523.90 for the new dredging of 18,942 cubic yards of State-owned subaqueous bottom at a rate of $0.45 per cubic yard. Staff also recommends mitigation for the dredging impact to approximately 4,675 clams by the planting of market size clams at a rate of 1.33:1, which equates to a total of 6,217 clams, within one year of the dredging. The planting shall be coordinated with VMRC fisheries staff.

2G. APPALACHIAN POWER COMPANY, #06-2379, requests authorization to dredge approximately 2,000 cubic yards of State-owned subaqueous material from a 60-foot by 110-foot area, and to maintenance dredge approximately 2,000 cubic yards of State-owned subaqueous material from a second 60-foot by 110-foot area, and to conduct maintenance dredging in both areas on an as-needed basis, to create and maintain maximum controlling depths ranging between minus six (-6) and minus eighteen (-18) feet at ordinary high water, adjacent to the Glen Lyn Plant's intake screen house forebay situated along the New River in Giles County. Staff recommends a royalty in the amount of $900.00 for the new dredging of 2,000 cubic yards of State-owned subaqueous material at a rate of $0.45 per cubic yard.

2H. PHARRELL WILLIAMS, ET AL, #06-2644, requests authorization to install approximately 462 linear feet of fiberglass bulkhead, aligned a maximum of 2 feet channelward of mean low water and a failing aluminum bulkhead, at his property in the Great Neck Point subdivision situated along Long Creek in Virginia Beach. Staff recommends a royalty of $760.00 for the filling of 760 square feet of State-owned submerged bottom at a rate of $1.00 per square foot.

2I. CHRISTCHURCH SCHOOLS IN DIOCESE OF VA., #07-0296, requests authorization to construct an 8-foot wide by 325-foot long pier with a 96-foot by 18-foot pier-head, a 16-foot by 8-foot "testing platform", and two uncovered boatlifts adjacent to their property situated along the Rappahannock River in Middlesex County. Staff recommends a royalty in the amount of $4112.00 for the encroachment on 4112 square feet of State-owned submerged land at a rate of $1.00 per square foot.

2J. LEWIS R. LITTLE, #06-2996, requests authorization to construct a 34-foot by 35-foot open-sided dual slip boathouse roof adjacent to the applicant’s property situated along the Pagan River at 1 Purdie Avenue in the town of Smithfield in Isle of Wight County.

2K. RIVERMONT ASSOCIATES, LLC, #06-2780, requests authorization for multiple road crossings of Johnson Creek and un-named stream tributaries in conjunction with a proposed residential and commercial development in Chesterfield County. Recommend standard instream permit conditions and that no work be done between February 15 and June 30 of any year to protect andaromous fish species. Recommend a royalty of $2,310.00 for the encroachment over 1,540 square feet at a rate of $1.50 per square foot.

2L. RICHMOND REGION 2007, #07-0044, requests authorization to add an additional 140 linear feet to the previously authorized 24-foot wide by 500-foot long floating causeway that the Commission approved on February 27, 2007. This temporary causeway (total length 640 linear feet) will be used to support the mooring of period vessels (Godspeed, Schooner Virginia, Kalmar Nyckel & Lady Maryland as well as the Pride of Baltimore) within the James River, adjacent to the City of Richmond Intermediate Terminal (3101 Water Street), in May 2007as part of the Jamestown 2007 celebration.