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COMMISSION ACTIONS NOVEMBER 2007

The following are the agenda items from the Commission's regular meeting held November 27, 2007 at Commission headquarters. The Commission's actions are in bold.

** APPROVAL OF AGENDA. 

1. MINUTES of previous 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 AND 2B BY A VOTE OF 8-0 IN ACCORDANCE WITH THE STAFF RECOMMENDATION.
[ Audio Item 2 ]

3. CONSENT AGENDA ITEMS. THE COMMISSION ENDORSED THE STAFF RECOMMENDATION TO APPROVE THE AFTER-THE-FACT AUTHORIZATION SOUGHT BY CENTEX HOMES (#07-1926) CONTINGENT ON THE APPLICANT'S AGREEMENT TO PAY A TRIPLE PERMIT FEE OF $300.00, TRIPLE ROYALTIES IN THE AMOUNT OF $2376.00 FOR THE ENCROACHMENT AUTHORIZED, AND A CIVIL CHARGE OF $3,600.00 IN LIEU OF FURTHER ENFORCEMENT AS PROVIDED BY CODE. 
[ Audio Item 3 ]

4. CLOSED SESSION FOR CONSULTATION WITH OR BRIEFING BY COUNSEL. THE COMMISSION WENT INTO CLOSED MEETING TO DISCUSS APPEALS AND ADMINISTRATIVE REVIEWS OF LOCAL WETLAND BOARD ENFORCEMENT ACTIONS. UPON RETURNING TO OPEN SESSION, THE COMMISSION FORMALLY ADOPTED AND APPROVED ITS PRIOR INTERPRETATION AND PROCEDURE WHICH WAS THAT THE JURISDICTION AND PROCEDURES TO REVIEW ENFORCEMENT DECISIONS OF LOCAL WETLAND BOARDS LAY WITH THE CIRCUIT COURT, NOT THE COMMISSION.
[ Audio Item 4 ]

5. MR. & MRS. JOEL HEFLEY, #07-1473. Commission review on appeal by the applicants, of the October 9, 2007, decision by the Northumberland County Wetlands Board to deny their application to install and backfill 199 feet of timber bulkheading impacting 752 square feet of vegetated and nonvegetated wetlands at their property situated along Glebe Creek. THE COMMISSION VOTED 8-0-1, WITH ASSOCIATE COMMISSIONER MCLESKEY ABSTAINING, TO UPHOLD THE DECISION OF THE NORTHUMBERLAND COUNTY WETLANDS BOARD FINDING THAT THE BOARD'S DECISION DID NOT PREJUDICE THE APPLICANT'S RIGHT TO PROTECT HIS PROPERTY. 
[ Audio Item 5 ]

6. ALAN CRAWFORD, #07-1697. Commission review of the Hampton Wetland Board's October 23, 2007, decision to approve the construction of 75 linear feet of replacement bulkheading, and require compensation for only 225 square feet of vegetated wetland impacts, instead of the 477 square feet of impacts listed in the assessment provided by the Virginia Institute of Marine Science adjacent to property situated along Newmarket Creek in Hampton. THE COMMISSION UNANIMOUSLY MOVED TO REMAND THIS MATTER TO THE HAMPTON WETLANDS BOARD WITH DIRECTION TO REHEAR THIS PROJECT AFTER BOARD STAFF AND VIMS PERSONNEL HAD AN OPPORTUNITY TO MEET ON SITE TO RESOLVE THE ISSUE ABOUT THE AMOUNT OF SQUARE FOOTAGE OF TIDAL WETLANDS THAT WERE TO BE IMPACTED BY THE PROPOSED PROJECT.
[ Audio Item 6 ]

7. CHASE PROPERTIES, INC., #07-1622, is requesting authorization to construct a ten-slip community pier to serve a new residential subdivision that will extend up to 90 feet channelward of mean low water into Dymer Creek in Lancaster County. The project is protested by several nearby property owners. CONTINUED INDEFINITELY AT THE REQUEST OF THE APPLICANT. 
[ Audio Item 7 ]

8. SHORE LAND INVESTMENTS, LLC (Willie A. Davis III, Manager, and 
Newman Thomas Scott Jr.), Notice of Violation #07-25. Hearing concerning violations of Chapter 12, Subtitle III of Title 28.2 of the Code of Virginia, more specifically, the unauthorized dredging and filling of two small unnamed tidal creeks tributaries of Underhill Creek adjacent to the "Port Scarburgh" subdivision in Accomack County. CONTINUED TO THE DECEMBER 18, 2007 MEETING UPON THE REQUEST OF THE COUNSEL FOR THE PARTIES INVOLVED.
[ Audio Item 8 ]

9. PUBLIC COMMENTS: MR. MICHAEL JEWETT, ALONG WITH TWO POQUOSON CITY COUNCILMEN (MESSRS FREEMAN AND MARIE) AND THE POQUOSON CITY MANAGER (MR. CHARLES BURGESS), APPEARED AND REQUESTED THAT THE COMMISSION FIND THAT A LETTER DATED NOVEMBER 26, 2007 FROM MR. CORNWELL, A STRUCTURAL ENGINEER, BE DEEMED TO QUALIFY AS AN ACCEPTABLE PLAN AND SATISFY THE REQUIREMENT CONTAINED IN THE COMMISSION'S JANUARY 25, 2005 ORDER WHICH WAS UPHELD BY THE YORK COUNTY CIRCUIT COURT.

THE COMMISSION FOUND THAT THE LETTER FELL SHORT OF QUALIFYING AS THE COMPREHENSIVE PLAN ENVISIONED BECAUSE IT FAILED TO OUTLINE THE SPECIFIC STEPS REQUIRED, TIME INVOLVED, OR REPAIRS NECESSARY TO RENDER THE FACILITY STRUCTURALLY SOUND ENOUGH TO PROVIDE THE LOADING NECESSARY TO SUPPORT A COMMERCIAL SEAFOOD OFFLOADING OPERATION, THE TRADITIONAL AND CUSTOMARY USE OF THE FACILITY. THE LETTER ALSO FELL SHORT OF THE ORDER IN THAT IT DID NOT CERTIFY THE STRUCTURE TO BE STRUCTURALLY SOUND. THE COMMISSION WAS, HOWEVER, GRATIFIED TO LEARN THAT THE CITY WAS WILLING TO SHOULDER THE RESPONSIBILITY TO ASSIST MR. JEWETT IN DEVELOPING SUCH A PLAN, TO MONITOR HIS EFFORTS AND COMPLIANCE WITH THAT PLAN, AND TO ENFORCE THROUGH ITS ZONING AND POLICE POWER AUTHORITIES, MR. JEWETT' COMPLIANCE WITH THE PLAN, EVEN TO THE POINT OF COMMITTING CITY RESOURCES TO ENSURE ITS COMPLETION. BASED ON THE FOREGOING, AND THE CITY'S AGREEMENT TO FACILITATE A RESOLUTION TO THIS MATTER, THE COMMISSION AGREED TO WORK TOWARD THE RETENTION OF WATKINS DOCK, SUBJECT TO FOUR CONDITIONS. 

1. ALL UNAUTHORIZED STRUCTURES, SPECIFICALLY THE FINGER PIERS AND WALKWAY THAT WERE THE SUBJECT OF THE JANUARY 2005 ORDER ARE TO BE REMOVED BY DECEMBER 1, 2007.

2. MR. JEWETT IS REQUIRED TO SUBMIT A COMPLETE AND COMPREHENSIVE PLAN OUTLINING THE SPECIFIC PILING REPAIRS AND CONSTRUCTION ACTIVITIES, ALONG WITH THE NECESSARY TIMEFRAME INVOLVED, WHICH MUST BE UNDERTAKEN TO MAKE THE FACILITY STRUCTURALLY SOUND AND CAPABLE OF SUPPORTING A COMMERCIAL SEAFOOD OFFLOADING OPERATION. SUCH PLAN MUST BE SUBMITTED BY DECEMBER 1, 2007, AND ALL OF THE ACTIVITIES OUTLINED THEREIN MUST BE ACCOMPLISHED WITHIN 6 MONTHS.

3. UNTIL ALL NECESSARY REPAIRS HAVE BEEN MADE, OR THE FACILITY IS DEEMED TO BE STRUCTURALLY SOUND, ONLY BOATS OWNED BY MR. AND MRS. JEWETT MAY BE MOORED AT THE FACILITY. 

4. THERE SHALL BE NO OVERNIGHT OCCUPANCY, HABITATION OR OTHER NON-WATER DEPENDENT USES MADE OF THE STRUCTURE. ONLY THOSE ACTIVITIES DIRECTLY RELATED TO THE STRUCTURES HISTORIC USE AS A COMMERCIAL SEAFOOD OFFLOADING FACILITY MAY BE UNDERTAKEN, AND NO COMMERCIAL ACTIVITIES MAY OCCUR UNTIL THE FACILITY IS DEEMED TO BE STRUCTURALLY SOUND. 

IF THESE ARE COMPLETED, TO THE SATISFACTION OF THE COMMISSIONER, THE COMMISSION WILL CONSIDER ITS ORDER TO HAVE BEEN SUBSTANTIALLY

IN OTHER PUBLIC COMMENTS, MR. TIM MCCULLOCH APPEARED AND REQUESTED THAT THE COMMISSION HEARING ON THE GARRETT VIOLATION, PREVIOUSLY SCHEDULED FOR TODAYS HEARING BUT CONTINUED UNTIL THE DECEMBER 18, 2007 HEARING, BE FURTHER CONTINUED UNTIL THE JANUARY 22, 2007 HEARING BECAUSE HE WOULD BE OUT OF TOWN ON VACATION. THE COMMISSION UNANIMOUSLY MOVED TO CONTINUE THE GARRETT HEARING UNTIL ITS JANUARY MEETING. 

ALSO DURING THE PUBLIC COMMENT PERIOD, THE COMMISSION UNANIMOUSLY APPROVED A PREWRITTEN EMERGENCY REGULATION TO ALLOW A 10 PERCENT SUMMER FLOUNDER COMMERCIAL BYCATCH FOR THE REMAINDER OF THE CALENDAR YEAR. THE REQUEST CAME FROM THE INDUSTRY AND WAS URGED TO BE ADOPTED DURING PUBLIC COMMENTS.
[ Audio Item 9 ]

10. PUBLIC HEARING: Proposed amendments to Regulation 4VAC20-960, "Pertaining to Tautog", to reduce harvest during the 2008 fishing season by 25.6 percent. THE COMMISSION VOTED UNANIMOUSLY TO CLOSE THE RECREATIONAL TAUTOG SEASON FROM MAY 1 TO JUNE 24, TO LOWER THE RECREATIONAL POSSESSION LIMIT FROM SEVEN TO FOUR FISH, AND TO CLOSE THE COMMERCIAL TAUTOG SEASON FROM APRIL 16 TO OCT. 2 AND AGAIN FROM DEC. 1 TO DEC. 14.
[ Audio Item 10a | Audio Item 10b ]


11. PUBLIC HEARING: Proposed amendments to Regulation 4VAC20-1040, Pertaining to Crabbing Licenses", to extend the moratorium on the sale of additional licenses. THE LONGSTANDING MORATORIUM ON THE SALE OF NEW CRAB LICENSES WAS EXTENDED FOR ANOTHER THREE YEARS BY UNANIMOUS VOTE.
[ Audio Item 11 ]

12. PUBLIC HEARING: Proposed amendments to Regulations 4VAC20-610 and 4VAC20-1090, to establish product owner and harvester permits, require reporting aquaculture harvests, and to adjust the permit fees. THE COMMISSION VOTED 8-1, WITH ASSOCIATE COMMISSIONER FOX AGAINST, TO REQUIRE PERMITS FOR SHELLFISH PRODUCT OWNERS AND HARVESTERS, AND FOR PRODUCT OWNERS TO REPORT THEIR HARVEST DATA. THIS IS AN EFFORT TO COLLECT DATA FOR FUTURE FISHERIES MANAGEMENT DECISIONS.
[ Audio Item 12 ]

13. PUBLIC HEARING: To establish Regulation 4VAC20-1130, "General Permit for Temporary Protective Enclosures for Shellfish." THE COMMISSION UNANIMOUSLY ADOPTED A GENERAL PERMIT FOR PROTECTIVE SHELLFISH ENCLOSURES ON LEASED GROUNDS, WITH SPECIFIC LOCATIONS TO BE APPROVED OR DISAPPROVED AT THE DISCRETION OF THE COMMISSIONER OF VMRC. THE PRESENCE OF THOSE CAGES WILL BE POSTED AND MARKED WITH REFLECTIVE PLACARDS TO ALERT BOATERS TO THEIR PRESENCE. ALL APPLICATIONS FOR THE GENERAL PERMIT WILL BE POSTED ON THE AGENCY'S WEBSITE.
[ Audio Item 13 ]

14. RECOMMENDATIONS OF THE RECREATIONAL FISHING ADVISORY BOARD. THE COMMISSION VOTED 7-1 WITH COMMISSIONER BOWMAN AGAINST TO FUND 10 PROJECTS RECOMMENDED BY THE RFAB. 
[ Audio Item 14 ]

15. REQUEST FOR PUBLIC HEARING: (Black Drum) To consider amendments to Regulation 4VAC20-320-50, to allow for the use of small mesh gill nets in the Special Management Area. APPROVED UNANIMOUSLY.
[ Audio Item 15 ]

16. REQUEST FOR PUBLIC HEARING: (Striped Bass) To consider amendments to Regulation 4VAC20-252, to establish the 2008 harvest quotas and to adjust requirements and penalties for the possession and tagging of commercially harvested striped bass. APPROVED UNANIMOUSLY.
[ Audio Item 16 ]

17. REQUEST FOR PUBLIC HEARING: (Summer Flounder) To consider amendments to Regulation 4VAC20-620, to eliminate the directed offshore commercial fishery during the second quarter and add the second quarter quota to the first quarter. APPROVED UNANIMOUSLY. 
[ Audio Item 17 ]

18. REQUEST FOR PUBLIC HEARING: (Conch) To consider amendments to Regulation 4VAC20-150, to update the description of certain boundary lines. APPROVED UNANIMOUSLY.
[ Audio Item 18 ]

2A. FAIRFAX COUNTY PARK AUTHORITY, #07-1185, requests authorization to construct a 11-foot by 32-foot bridge above Cub Run behind the Cub Run Recreation Center as part of the Cub Run Pedestrian Trail in Fairfax County. APPROVED IN A BLOC VOTE WITH 2B, PER STAFF RECOMMENDATIONS.

2B. U.S. ARMY CORPS OF ENGINEERS, ET AL, #06-2751, requests authorization to dredge a portion of the Thimble Shoals Federal Navigational Channel, located in the Chesapeake Bay just east of the Chesapeake Bay Bridge Tunnel, to a maximum depth of -68 feet mean low water to provide beach quality sand for future beach nourishment associated with the Virginia Beach Hurricane Protection Project. Approximately one million cubic yards of sand will be removed by hopper dredge and then placed along the oceanfront between Rudee Inlet and 89th Street in Virginia Beach. APPROVED IN A BLOC VOTE WITH 2A, PER STAFF RECOMMENDATION.

3A. CENTEX HOMES, #07-1926, requests after-the-fact authorization to retain 132 linear feet of utility lines installed approximately 4 feet below Sycolin Creek in the Rokeby Hamlets subdivision in Loudoun County. The three-inch and four-inch waterlines were installed by the open trench method utilizing a temporary diversion channel. After installation the streambed was returned to its original grade and conditions. The applicant has agreed to a civil charge in the amount of $6,276.00, including triple permit fees. APPROVED UNANIMOUSLY PER STAFF RECOMMENDATION.


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