COMMISSION ACTIONS

COMMISSION ACTIONS MAY 2007

The following are the agenda items from the Commission's regular meeting held May 22, 2007 at Commission headquarters. The Commission's actions are in bold.

APPROVAL OF AGENDA. Approved.

1. MINUTES: Previous meeting - Approved; March 12 Special meeting - Approved
[ Audio Item 1 ]

2. PERMITS (Projects over $50,000 with no objections and with staff recommendation for approval). The Commission approved Items 2A – 2D, and 2F. Item 2E was pulled because of a protest by the Sierra Club regarding potential impacts to marine mammals. The protest was resolved and Item 2E was later approved by the Commission between Items 7 and 8.
[ Audio Item 2 ] [ Audio Item 2E ]

3. CLOSED MEETING FOR CONSULTATION WITH OR BRIEFING BY COUNSEL. The Commission went into closed meeting to discuss the recent decision by Judge Thomas in the case of Sarah Harrison v. MRC and Ronald Boone. Upon returning to open the meeting, the Commissioner indicated that the Commission had decided to ask the Attorney General to appeal the Norfolk Circuit Court decision. The appeal was for the specific purpose of challenging Judge Thomas’ opinion as it related to long-standing Commission procedures, particularly in light of a prior official opinion by the Attorney General which confined Commission review to the direct impacts on adjacent and nearby properties.
[ Audio Item 3 ]

4. HARBOUR ON INDIAN CREEK, LLC, #07-0500, requests authorization to complete a previously authorized community pier project to include two (2) 100-foot long, 4-slip T-head community piers each with four (4) uncovered boatlifts and two (2) 24-foot finger piers, and complete a third, 12-slip community pier with uncovered boat lifts in each slip, extending a maximum of 50 feet channelward of the face of an existing wharf, all to serve the 24-unit Harbour on Indian Creek residential development on Pitmans Cove in Lancaster County. The project is protested by numerous residents along the cove upstream of the property. The Commission voted unanimously to approve the project in modified form as recommended by staff. Specifically approved were modifications in the design and length of piers #3 and #4. Each would still contain a maximum of four slips each, and each of the slips could contain boatlift structures if desired. Pier #2 was acceptable as proposed. Commission approval was conditioned upon the receipt of revised drawings acceptable to staff which accurately reflected the Commission approval, and which provided additional details regarding any proposed boatlift structures.
[ Audio Item 4 ]

5. CHERYL E. WALKER, #07-0622, requests authorization to construct a 15-foot by 100-foot riprap breakwater and to place 600 cubic yards of sandy material landward of the breakwater, as beach nourishment, adjacent to her property situated along the Piankatank River at 8639 Freewelcome Lane in Gloucester County. The project is protested by an adjoining property owner. The Commission voted unanimously to approve the project in accordance with the staff recommendation.
[ Audio Item 5 ]

6. B. KEITH TRAMMELL, #06-2705, requests authorization to construct a 12-foot by 16-foot open-sided roofed structure over a portion of his existing private, noncommercial pier situated along the Piankatank River at 154 Twiggs Ferry Road in Mathews County. The project is protested by an adjoining property owner. The Commission unanimously approved the project in accordance with the staff recommendation.
[ Audio Item 6 ]

7. FRANCIS K. GATES, III, #06-2895, requests authorization to construct a 41-foot by 20-foot open-sided boathouse adjacent to his property situated along Hampton Roads in Hampton. The project is protested by an adjacent property owner. The Commission unanimously denied the project as proposed, and approved the construction of an open-sided boathouse no larger than 700 square feet, in keeping with that provided in Code.
[ Audio Item 7 ]

8. SUNSET BAY, LLC, #07-0228, requests authorization to create 11 new boat slips and reconfigure 13 permitted boat slips with finger piers and mooring piles; install a 44-foot long by 5-foot wide open-pile pier and retain a 40-foot by 8-foot T-head and mooring piles along Chincoteague Channel adjacent to Sunset Bay Town Homes in the Town of Chincoteague, Accomack County. The total number of slips along Chincoteague Channel will increase from the previously permitted 16 to a total of 24. (The total wet-slips at the marina/town homes will increase from 63 to 72.) The project is protested by an adjacent property owner. The Commission voted 8-1 to approve an expansion in the number of publicly accessible slips within the Commission’s jurisdiction to 24, as requested by the permittee. The Commission also voted to retain a previous permit condition (#3-1873) which prohibits the conversion, or privatization of these public slips for use solely by Association members. The Commission also assessed triple permit fees and a civil charge in the amount of $1200.00, given the after-the-fact nature of the 40-foot by 8-foot T-head that had been constructed without proper authorization, and assessed a royalty at the rate of $1.50 per square foot for any encroachment over state-owned subaqueous bottom based on the bold outline of the structures permitted.
[ Audio Item 8 ]

9. VA TIMBERLINE, LLC, hearing concerning violation of the Code of Virginia 28.2-1203, more specifically, the disturbance and alteration to subaqueous lands of the Commonwealth of Virginia within several tidal tributaries of Lawnes Creek in Isle of Wight County without prior authorization. Notice of Violation # 06-17. Continued to June 26, 2007 Commission meeting for the purpose of further discussion regarding the nature and amount of an appropriate civil charge in lieu of further enforcement actions as provided by Code.
[ Audio Item 9 ]

10. DESMOND OWENS, #06-093, requests to lease up to 190 acres of oyster planting ground within the North River between Silver Creek and Ware Neck Point in Gloucester County. The application is protested by a number of residents in the area. The Commission voted unanimously to approve the lease application as modified to exclude the two deep water areas in the North River.
[ Audio Item 10 ]

11. PEYTON JONES, JR., #06-029; ROY LEE ROBERTSON, SR., AND KENNETH ROBERTSON, #06-144; CHARLES M. CLAGGETT JR., MARSHALL CLAGGETT, AND LARRY A. CLAGGETT, SR., #06-200, request to lease oyster planting ground within Burwells Bay near Tylers Beach in the James River in Isle of Wight County. A portion of the Jones application is protested by the Claggetts. All of the Robertsons' application is protested by the Claggetts. The Claggett application overlaps a portion of the Jones application and all of the Robertson application. The Commission voted unanimously to approve the leases in modified form as recommended by staff.
[ Audio Item 11 ]

12. DISCUSSION: Presentation on mean low water determination (how it is calculated and surveyed). Continued until the June 26, 2006 Commission meeting.
[ Audio Item 12 ]

13. PUBLIC COMMENTS: Mr. Gerald Parks asked for an emergency regulation to allow him to gill net in the Hampton Roads Management Area during the summer months. The matter was referred to the Fisheries Management Advisory Committee.
[ Audio Item 13 ]

14. PUBLIC HEARING: Request to establish an artificial fishing reef at Bluefish Rock. The Commission, on a vote of 6-2, approved the establishment of a new recreational fishing reef near Bluefish Rock. The site chosen is southeast of the original proposal. The site was relocated because of tugboat traffic.
[ Audio Item 14 ]

15. PUBLIC HEARING: ASMFC- required amendments to Regulation 4 VAC 20-380-10 et seq., “Pertaining to Grey Trout (Weakfish)”, to establish a 6-fish recreational possession limit and 150-pound commercial by-catch possession limit. The Commission unanimously approved lowering the recreational possession limit from 7 fish to 6 fish and decreasing the commercial bycatch limit from 300 lbs to 150 lbs. The measures were required by ASMFC.
[ Audio Item 15 ]

16. PUBLIC HEARING: Request to incorporate April emergency amendments that establish warm water shellfish harvest restrictions, to promote public health, as permanent parts of Regulation 4 VAC 20-720-10 et seq. The Commission unanimously approved regulations that will limit shellfish harvest from sunrise to 10:00 A.M. and require refrigeration after that time. The measures were requested by the Health Department.
[ Audio Item 16 ]

17. PUBLIC HEARING: Fisheries Management Division-Conservation and Replenishment Department - Planned deployment of 150 hollow, 1-foot tall and 1.5-foot diameter, concrete "oyster reef balls" on the windward side of a one-acre intertidal oyster reef(s) to act as erosion protection. Each "oyster reef ball" covers a 7.065 square foot area for a total impact of 1,060 square feet. The location of the deployment will be in Public Ground No. 19 in Magothy Bay, at 37°09'11" and 75°55'34", in Northampton County. The Commission voted unanimously to approve the deployment of these donated structures which will be constructed by school children and deployed as a means of controlling erosion near certain oyster reefs.
[ Audio Item 17 ]

18. REQUEST FOR EMERGENCY AMENDMENTS TO CHAPTER 4 VAC 20-1120-10 et seq.: “Pertaining to tilefish and groupers” to correct nomenclature. The Commission voted unanimously to approve these technical changes.
[ Audio Item 18 ]

19. REQUESTS FOR FUNDING PROJECTS BY THE RECREATIONAL AND COMMERCIAL FISHING ADVISORY BOARDS. The Commission voted 8-1 to provide $284,331 from the Recreational Fund and $50,000 from the Commercial Fund, for a total of $334,331 for the menhaden socio-economic study. In addition to funding, Dr. Kirkley must submit a report within 90 days, indicating stakeholder involvement and any updates to the study methodologies. Also, the Commission voted 8-0 to fund five additional projects from the Commercial Fund, and voted 8-0 to fund 13 additional projects from the Recreational Fund.
[ Audio Item 19 ]

20. REPORT OF THE HARD CLAM AQUACULTURE TASK FORCE ON AQUACULTURE LICENSE ISSUES. No action taken.
[ Audio Item 20 ]

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

2A. TOWN OF MOUNT JACKSON, #06-2615, requests authorization to install 60 linear feet of 24-inch sanitary sewer pipe adjacent to an existing 12-inch sewer pipe below the North Fork of the Shenandoah River in Shenandoah County. Staff recommends a time-of-year restriction on instream activities from April 15 - June 15 and August 15 -September 30 to protect mussel species.

2B. VULCAN CONSTRUCTION MATERIALS, #07-0539, requests authorization to install and backfill 340 linear feet of new sheetpile bulkhead a maximum of two feet seven inches channelward of an existing deteriorating bulkhead adjacent to property situated along the Southern Branch of the Elizabeth River in Norfolk. Staff recommends a royalty of $1,700.00 for the filling of 850 square feet of State-owned subaqueous bottom at a rate of $2.00 per square foot.

2C. CITY OF HAMPTON, #06-2904, requests authorization to install a 45-foot long by 5-foot wide open-pile boardwalk with a 20-foot by 15-foot L-head platform and attached 85.5-foot long by 4-foot wide community pier with a 13-foot by 15-foot floating platform, 1,266 square feet of riprap, and fill 345 square feet of subaqueous bottom adjacent to River Street Park situated along the Hampton River in Hampton.

2D. COVE POINT CONDOMINIUMS, #05-2207, requests authorization to modify an existing permit to include the installation of floating wharf and finger pier sections instead of fixed sections for the private use marina situated along Little Neck Creek in Virginia Beach. Recommend no additional royalties provided that the design changes occur as proposed within the previously configured bold outline.

2E. DEPARTMENT OF THE ARMY, #06-0270, requests authorization to modify an existing permit to allow the installation of a temporary 3,000-foot long elevated pier in conjunction with joint training exercises to be conducted between July 15 and August 30, 2007, adjacent to the Omaha Beach and Utah Beach Training Areas at Fort Story along the Chesapeake Bay in Virginia Beach.

2F. DOMINION VIRGINIA POWER, #07-1045, requests authorization to install 396 feet of power cable approximately four feet below Smith Creek underneath the Brambleton Avenue bridge in Norfolk. Staff recommends a royalty of $1,188.00 for the encroachment beneath 396 linear feet of State-owned submerged bottom at a rate of $3.00 per linear foot. Staff’s recommendation for permit approval is conditioned on expiration of the public notice on May 23, 2007 without receipt of project opposition.