COMMISSION ACTIONS

COMMISSION ACTIONS JULY 2007

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

1. MINUTES of previous meeting. APPROVED UNANIMOUSLY.
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2. PERMITS (Projects over $50,000 with no objections and with staff recommendation for approval). APPROVED UNANIMOUSLY. (SEE BOTTOM AGENDA ITEMS FOR DETAILS)
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3. CLOSED MEETING FOR CONSULTATION WITH OR BRIEFING BY COUNSEL
HELD PURSUANT TO STATE LAW ON PENDING LITIGATION IN THE MATTER OF JEWETT V. MRC.
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4. H & H ENTERPRISES, INC., #06-1910, requests reconsideration of the royalty assessment associated with the Commission's December 8, 2006, approval of a permit for dredging and commercial pier construction adjacent to their property situated along the Western Branch of the Elizabeth River in Portsmouth. COMMISSION UNANIMOUSLY ENDORSED STAFF’S ESTIMATION OF THE “BOLD OUTLINE” OF THE FACILITY BASED ON INPUT PROVIDED BY THE APPLICANT, AND REAFFIRMED THE ROYALTY ASSESSMENT IN THE AMOUNT OF $39,450.00 FOR THE ENCROACHMENT OVER STATE-OWNED SUBAQUEOUS BOTTOM.
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5. BARBARA BERGMAN, #07-0651, requests authorization to maintenance dredge 225 cubic yards of subaqueous bottom material to provide maximum mean low water depths of minus four and one-half (-4.5) feet within a 320 foot long channel within Spirit Branch, a tributary of Edwards Creek and Milford Haven in Mathews County. The project is protested by a nearby property owner. THE COMMISSION UNANIMOUSLY APPROVED MAINTENANCE DREDGING TO MAXIMUM DEPTHS OF MINUS THREE AND ONE-HALF FEET (-3.5’) IN ACCORDANCE WITH THE STAFF RECOMMENDATION.
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6. PALMER AND PALMER, LLC, #06-1722, requests authorization to install an 80-foot long by 20-foot wide rock groin adjacent to their property situated along the James River in James City County. The project is protested by the adjacent property owners. THIS WAS TABLED INDEFINITELY AT THE REQUEST OF THE APPLICANT’S AGENT TO PERMIT STAFF AND THE APPLICANT TO INVESTIGATE A COMPROMISE STRUCTURE THAT WOULD PROVIDE THE SHORELINE PROTECTION SOUGHT WHILE ADDRESSING THE CONCERNS EXPRESSED BY VIMS AND STAFF.
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7. JOHN M. VAUGHAN, JR., EDWARD R. HOLDSWORTH, AND MICHAEL A. AND CHERYL G. JOHNSON, #06-1354, request authorization to construct a 6-foot by 100-foot fixed open-pile multi-user pier to include a 6-foot by 53-foot floating L-head with two (2) 4-foot by 24-foot finger piers, and two (2) 3-foot by 24-foot finger piers to create three wet-slips, within Jones Creek, to be accessed by an easement through the upland property of Mr. Vaughan, at 13300 Doggett Lane, Carrollton, VA, in Isle of Wight County. THE COMMISSION UNANIMOUSLY APPROVED A SINGLE 5-FOOT WIDE AND 100-FOOT LONG OPEN-PILE PIER WITHOUT ANY FINGER PIERS OR DEDICATED SLIPS TO PROVIDE ACCESS AND TEMPORARY
MOORING FOR THE HOLDSWORTHS AND JOHNSONS SINCE MR. VAUGHAN HAS AN EXISTING PRIVATE PIER THAT HE WAS UNWILLING TO REMOVE.
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8. RODNEY ELLIS, #07-1012, requests authorization to three (3) low-profile, timber groins extending 48 feet channelward of mean high water artificially nourished with approximately 230 cubic yards of clean sand, adjacent to his property situated along Portobago Bay in Caroline County. Both Wetlands and Subaqueous permits are required. THE COMMISSION UNANIMOUSLY APPROVED THE GROINS AND NOURISHMENT IN ACCORDANCE WITH THE STAFF RECOMMENDATION.
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9. DUANE HEITKEMPER, #07-1300, requests after-the-fact authorization to retain a 567 square foot flat roof boathouse with 6’ tall side walls and plywood siding at his property situated along The Thorofare in York County. The project is protested by an adjoining property owner and nearby residents. THE COMMISSION UNANIMOUSLY DENIED THE AFTER-THE-FACT PERMIT REQUEST, AND DIRECTED THAT THE HEITKEMPERS REMOVE THE UNAUTHORIZED FRAMED WALLS, PLYWOOD SIDING, LOWER LEVEL ENCLOSURE AND FLAT ROOF NO LATER THAN AUGUST 30, 2007. THE COMMISSION APPROVED, HOWEVER, THE RECONSTRUCTION OF AN ELEVATED A-FRAME BOATHOUSE ROOF PROVIDED THE APPLICANT SUBMITTED ADEQUATE PLAN AND SECTION VIEW DRAWINGS THAT WERE ACCEPTABLE TO STAFF PRIOR TO INITIATING CONSTRUCTION.
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10. DR. DAVID BEJOU, #03-2108, requests after-the-fact authorization to retain a 4-foot by 20-foot section of concrete retaining wall, and a portion of riprap that extends approximately 2 feet channelward of ordinary high water, for a length of 18 feet, and to extend an existing concrete boatramp up to 29 linear feet channelward of ordinary high water at the his property situated along the James River in Chesterfield County. THE COMMISSION UNANIMOUSLY GRANTED AFTER-THE-FACT APPROVAL FOR THE CONCRETE RETAINING WALL AND PERMISSION TO EXTEND THE CONCRETE BOAT RAMP GIVEN THE APPLICANTS STATED WILLINGNESS TO FOREGO CONSTRUCTION OF A PRIVATE NON-COMMERCIAL PIER AT THE SITE.
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11. TERRY MALARKEY, #07-0043, requests after-the-fact authorization to retain three (3) uncovered boatlifts, two (2) 10-foot by 4-foot fingers piers and one (1) 20-foot by 3-foot finger pier. Mr. Malarkey also requests authorization to install seven (7) uncovered boatlifts with lift poles and enlarge the remaining three finger piers to 20-foot by 3-foot, at his existing permitted ten-slip community pier along Chesconessex Creek, near Crystal Beach, in the Wise’s Point subdivision of Accomack County. THE COMMISSION UNANIMOUSLY APPROVED THE AFTER-THE-FACT PERMIT REQUEST AND IMPOSED TRIPLE PERMIT FEES AND ROYALTIES AS PROVIDED BY CODE. THE COMMISSION CHOSE NOT TO IMPOSE ANY CIVIL CHARGE GIVEN THE CIRCUMSTANCES INVOLVED.
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12. SPOTSYLVANIA COUNTY UTILITIES, #07-0712, requests after-the-fact authorization to retain unpermitted portions of, and to complete the installation of, 120 linear feet of riprap to stabilize an exposed section of the Massaponax Sewer Interceptor and the adjacent stream bank, as part of an emergency stabilization project within Massaponax Creek in Spotsylvania County. THE COMMISSION UNANIMOUSLY APPROVED THE COUNTY’S AFTER-THE-FACT PERMIT REQUEST AND CHOSE NOT TO IMPOSE ANY CIVIL CHARGE GIVEN THE EMERGENCY NATURE OF THE REPAIRS THAT WERE PERFORMED.
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13. TOUCHSTONE DEVELOPMENT, LLC, #06-2610, requests after-the-fact authorization to retain approximately 27 square feet of stone rip rap scour protection, channelward of ordinary high water, within Second Branch, at the applicant’s residential development in Chesterfield County. The applicant has a pending permit for a pipeline utility crossing at the same location. THE COMMISSION UNANIMOUSLY APPROVED THE AFTER-THE-FACT PERMIT REQUEST, BUT IMPOSED TRIPLE FEES AND ROYALTIES AS PROVIDED BY CODE, AND AGREED TO A CIVIL CHARGE IN THE AMOUNT OF $1200.00 IN LIEU OF ANY FURTHER ENFORCEMENT.
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14. PUBLIC COMMENTS.
DOUG JENKINS, PRESIDENT OF THE JAMES RIVER WATERMEN’S ASSOCIATION, COMMENTED THAT HE DISAPPROVED OF SOME ASPECTS OF THE PENDING RECOMMENDATIONS OF THE BLUE RIBBON NATIVE OYSTER PANEL. AN OTHER CITIZEN, CAPTAIN BOB JENSEN OF THE RAPPAHANNOCK PRESERVATION SOCIETY, SAID THE NAVY IS GIVING UP ITS AMMUNITION MOORING FACILITY IN THE JAMES RIVER AND SUGGESTED IT BE USED FOR OYSTER REPLENISHMENT EFFORTS.
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15. JOHN BECKWITH: Request to license and locate a pound net in Chesapeake Bay, west of Parkers Island. The proposal is protested. UNANIMOUSLY APPROVED PER STAFF RECOMMENDATION.
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16. RECOMMENDATIONS OF THE RECREATIONAL FISHING ADVISORY BOARD. THE COMMISSION UNANIMOUSLY APPROVED SPENDING $400,000 TO DEPLOY A LARGE QUANTITY OF DONATED CONCRETE PIPES TO REPLENISH MOST OF THE STATE’S ARTIFICIAL REEFS.
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17. DISCUSSION: Amendments to Regulation 4 VAC 20-755-10 et seq., "Pertaining to Artificial Reefs", to incorporate other established reef sites into this regulation that reserves reef sites for recreational fishing. Request for an August public hearing. UNANIMOUSLY APPROVED STAFF RECOMMENDATION.
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HERE ARE THE SEVEN APPLICATIONS LISTED IN AGENDA ITEM 2 THAT WERE UNANIMOUSLY APPROVED PER STAFF RECOMMENDATION AND WHICH RECEIVED NO PUBLIC OBJECTIONS:

2A. TWO RIVERS COUNTRY CLUB, #07-0842, requests authorization to maintenance dredge 9,800 cubic yards of sediment from the Governor’s Land marina entrance channel to restore maximum depths of minus eight (-8) feet below mean low water adjacent to their property situated along the James River in James City County.

2B. EQUITABLE PRODUCTION COMPANY, #07-0919, requests authorization to install a 12” diameter natural gas pipeline (BF-203), by directional bore method, beneath 85 linear feet of the McClure River approximately 200’ downstream of the Short Branch Tunnel in Dickenson County. Recommend a royalty assessment of $255.00 for the encroachment of the line beneath 85 linear feet of State-owned subaqueous land at a rate of $3.00 per linear foot.

2C. CITY OF SUFFOLK DEPARTMENT OF PUBLIC UTILITIES, #07-0104, requests authorization to install a 30-foot extension to an existing 8-inch concentrate discharge pipeline outfall, to include the addition of three diffuser ports requiring the excavation of approximately 60 cubic yards of State-owned subaqueous material within the Nansemond River, near the old Kings Highway Bridge.

2D. VIRGINIA DEPARTMENT OF TRANSPORTATION, #02-0950, requests a permit modification to allow for the installation of a temporary, 70-foot long by 40-foot wide, open-pile, work trestle adjacent to, and immediately south of the Queens Sound Bridge. The trestle will be used to offload construction materials in conjunction with the previously authorized construction of the new Chincoteague Channel and Black Narrows Channel Bridges. Recommend approval with all previous permit conditions to remain in effect, including a prohibition of dredging for construction access for all portions of the project. In addition, recommend complete removal of the work trestle structure upon completion of the new bridge construction and existing bridge removal.

2E. CITY OF NEWPORT NEWS, #93-0902, requests an administrative modification to their existing permit which requires them to file the results of their ongoing eight-year long Pre-Operational Icthyoplankton Monitoring Programs efforts by September 30th, in conjunction with their permit for the intake structure associated with the King William Reservoir Project. Recommend approval of a December 1st annual deadline for the submittal date. Special permit condition #23 would then be amended to read as follows:

By December 1 of each year, Permittee shall compile and file a report
with the Commission on its pre-operational monitoring efforts during
that year. Each such report shall contain: (i) the data collected during
that year's spawning season and (ii) a summary of all data collected in
the pre-operational monitoring program in prior years.

At the end of the eighth year the Permittee shall provide an analysis of
all such data with recommendations for Mattaponi River water temperature
triggers to signal the commencement and end of the Springtime pumping
hiatus.

2F. LOUDOUN COUNTY WETLANDS AND STREAM RESTORATION, LC, #07-1370, requests authorization to restore 1,423 linear feet of Sycolin Creek using the Natural Channel Design Process which includes creating riffles and pools and installing rock vanes as part of the Loudoun County Wetlands and Stream Bank Project in Loudoun County.

2G. CITY OF HARRISONBURG, #07-0757, requests authorization to install 20 linear feet of 24-inch waterline a minimum of three feet below Blacks Run and construct a 20-foot by 80-foot bridge above Blacks Run as part of the Erickson Avenue/Stone Spring Road Connection Project in the City of Harrisonburg in Rockingham County.

PROCEDURAL NOTE: AT THE REQUEST OF STAFF, THE COMMISSION AGREED TO CREATE A NEW CATEGORY OF PROJECTS ON UPCOMING AGENDAS DURING A 90-DAY TRIAL PERIOD. THIS “PAGE 3 CATEGORY” WOULD INCLUDE THOSE AFTER-THE-FACT PROJECTS THAT HAD BEEN SUBJECTED TO A PUBLIC INTEREST REVIEW AND WERE UNPROTESTED. STAFF WOULD WORK WITH THE VIOLATOR TO COME UP WITH A CONSENT AGREEMENT AND CIVIL CHARGE RECOMMENDATION FOR COMMISSION CONSIDERATION AND APPROVAL IN LIEU OF FURTHER ENFORCEMENT. DURING THE TRIAL PERIOD, STAFF AGREED TO PROVIDE THE COMMISSION WITH ABBREVIATED EVALUATIONS OF THE KEY ISSUES IN EACH OF THE ITEMS THAT WOULD BE MAILED OUT IN ADVANCE WITH THE COMMISSIONER’S BRIEFING PACKETS