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COMMISSION ACTIONS DECEMBER 2007

The following are the agenda items from the Commission's regular meeting held December 18, 2007 at Commission headquarters. The Commission's actions are in bold.

** APPROVAL OF AGENDA. THE COMMISSION UNANIMOUSLY APPROVED THE AGENDA AND ADDED A DISCUSSION ITEM ON CRABS AT THE REQUEST OF ASSOCIATE COMMISSIONER ROBINS. ASSOCIATE COMMISSIONER BOWDEN WAS ABSENT FOR THE MEETING.

1. MINUTES of previous meeting. THE COMMISSION UNANIMOUSLY APPROVED THE MINUTES AS CIRCULATED.
[ Audio Item 1 ]

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

3. CONSENT AGENDA ITEMS. THE COMMISSION UNANIMOUSLY APPROVED BY SUBSTITUTE MOTION AFTER-THE FACT AUTHORIZATION FOR THE RECONSTRUCTION OF THE TOWN OF COLONIAL BEACH'S MUNICIPAL PIER WITH NO CIVIL CHARGE, AND ONLY A TRIPLE PERMIT FEE OF $300.00.
[ Audio Item 3 ]

4. CLOSED SESSION FOR CONSULTATION WITH OR BRIEFING BY COUNSEL. THIS WAS NOT HELD BECAUSE LEGAL COUNSEL COULD NOT ATTEND THE MEETING.

5. BARRY HELLMAN, #07-1893. Commission review of the November 14, 2007 decision by the Norfolk Wetlands Board to approve the installation and backfilling of 40 linear feet of replacement bulkhead without compensation for the wetlands lost, at the applicant's property situated along a cove of the North Branch of the Lafayette River in the City of Norfolk. THE COMMISSION VOTED 6-2 WITH ASSOCIATE COMMISSIONERS FOX AND TANKARD VOTING NO TO UPHOLD THE DECISION OF THE NORFOLK WETLANDS BOARD.
[ Audio Item 5 ]

6. 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 un-named tidal creek tributaries of Underhill Creek adjacent to the "Port Scarburgh" subdivision in Accomack County. Continued from the November 27, 2007 Commission meeting. BY SUBSTITUTE MOTION, THE COMMISSION AGREED BY A VOTE OF 5-3 TO LEVY A $100,000 CIVIL CHARGE AGAINST SHORE LAND INVESTMENTS, IN LIEU OF ANY FURTHER ENFORCEMENT OPTIONS AS PROVIDED BY CODE.

ASSOCIATE COMMISSIONERS FOX, TANKARD AND SCHICK VOTED NO, PREFERING A LARGER FINE. TANKARD SUGGESTED $200,000.

THE COMMISSION ALSO DECIDED TO REQUIRE SHORE LAND TO PLANT WETLANDS VEGETATION IN A MANNER ACCEPTABLE TO VMRC STAFF AND VIMS ON THE AREAS WHICH HAD BECOME INTERTIDAL DUE TO THE DREDGING. COUNSEL FOR THE VIOLATORS WAS NOT WILLING TO AGREE TO THE CIVIL CHARGE OR WETLANDS MITIGATION WITHOUT FURTHER CONSULTING WITH HIS CLIENT. SHOULD THE CORPORATION NOT AGREE TO THE CIVIL CHARGE, THIS MATTER WILL BE REFERRED TO THE OFFICE OF THE ATTORNEY GENERAL FOR FURTHER ENFORCEMENT.
[ Audio Item 6 ]

7. YORK RIVER YACHT HAVEN ASSOCIATES, #07-2052, requests authorization to construct a 125-foot by 300-foot multilevel dry stack boat storage facility designed to accommodate 137 boats at their marina facility situated along Sarah Creek in Gloucester County. They also propose to construct 1,050 linear feet of replacement bulkhead, replace an open-pile pier and boathouse with reconfigured floating piers, install a 75-foot long fuel pier, and to dredge 257 cubic yards of subaqueous material to create a 20-foot wide channel with a maximum depth of minus seven (-7) feet to provide access into the facility. The project is protested by a nearby property owner. THE COMMISSION UNANIMOUSLY VOTED TO APPROVE THE PROJECT IN ACCORDANCE WITH THE STAFF RECOMMENDATION. 
[ Audio Item 7 ]

8. DAMERON PROPERTIES I, L.C., #07-1592, requests authorization to construct 130 linear feet of timber replacement bulkhead, install two (2) 20-foot by 10-foot floating piers, install a 2-inch PVC raw water intake line, 15 new free-standing mooring piles, and deploy 500 2-foot by 3-foot floating mesh bags associated with a proposed commercial oyster hatchery and grow-out facility on Carter Cove at the end of Rt. 222 in Weems, Lancaster County. The project is protested by an adjacent property owner. THE COMMISSION UNANIMOUSLY VOTED TO APPROVE THE PROJECT IN ACCORDANCE WITH THE STAFF RECOMMENDATION.
[ Audio Item 8 ]

9. TIM AND SUSAN HILL, #07-1230, request authorization to retain twenty (20) 2-foot by 4-foot oyster aquaculture floats, a 10-foot by 12-foot floating work platform, and three (3) pilings that were installed without prior authorization and request authorization to deploy ten (10) additional 2-foot by 4-foot aquaculture floats and twenty (20) 2-foot by 8-foot aquaculture floats and to convert an existing pier to commercial use and establish a 34-foot by 25-foot area adjacent to the pier as a temporary storage and work area adjacent to his property situated along Pepper Creek at 350 Pepper Cove Way in Mathews County. The project is protested by several nearby property owners. THE COMMISSION UNANIMOUSLY APPROVED THE APPLICATION WITH THE CONDITIONS RECOMMENDED BY STAFF AND ASSESSED TRIPLE FEES AND TRIPLE ROYALTIES FOR THE AFTER-THE-FACT PORTIONS OF THE PROJECT. NO OTHER CIVIL CHARGES WERE REQUIRED.
[ Audio Item 9 ]

10. HAMPTON DEPARTMENT OF PUBLIC WORKS, #07-1853, requests authorization to mechanically dredge 4,388 cubic yards of material to restore maximum depths of minus four (-4) feet below mean low water adjacent to City property situated along Cooper's Creek and the Southwest Branch of the Back River in Hampton. The project is protested by several nearby property owners. THE COMMISSION UNANIMOUSLY APPROVED THE PROJECT AS PROPOSED, IN ACCORDANCE WITH THE STAFF RECOMMENDATION. 
[ Audio Item 10 ]

11. STEVEN BLAND, #06-2484, requests authorization to construct a 700-foot long by 5-foot wide private, noncommercial, open-pile pier crossing a tidal marsh and small unnamed tidal creek within the marsh and then extending 265 feet channelward of mean high water adjacent to his property situated along La Grange Creek at 183 Shell Court in Middlesex County. The project is protested by several nearby property owners. THE COMMISSION UNANIMOUSLY VOTED TO APPROVE THE BRIDGE PORTION OF THE APPLICATION IN ACCORDANCE WITH THE RECOMMENDATIONS OF STAFF.
[ Audio Item 11 ]

12. RICHARD J. ZIMA, #07-2051, requests authorization to remove an existing pier and construct a new private, noncommercial, open-pile pier extending 250 feet channelward of mean high water with an 18-foot by 38-foot open-sided boathouse near the channelward end of the pier and to install a piling to support an osprey nesting platform approximately 75 feet channelward of the new pier adjacent to his property situated along the North River at 7835 Berkshire Lane in Gloucester County. The project is protested by an adjoining property owner. THE COMMISSION UNANIMOUSLY APPROVED THE APPLICATION IN ACCORDANCE WITH THE RECOMMENDATIONS OF STAFF. 
[ Audio Item 12 ]

13. JOHN R. MCCLOUD, #07-1791, requests authorization to construct an 8-foot by 
10-foot open-sided shelter on the existing private, noncommercial pier adjacent to his property situated along a cove of the North River at 6 Little Cove Way in Mathews County. The project is protested by an adjoining property owner. THE COMMISSION UNANIMOUSLY APPROVED THE PROJECT IN ACCORDANCE WITH THE RECOMMENDATIONS OF STAFF. 
[ Audio Item 13 ]

14. DANIEL W. FORREST AND DEBORAH PINKARD, OYSTER PLANTING GROUND APPLICATION #2007-010, request to lease approximately 1.50 acres of shellfish ground within Whitehouse Cove, a tributary to Bennetts Creek in the City of Poquoson. The application is protested by Mr. David Barke, an adjacent highland property owner. THE COMMISSION VOTED UNANIMOUSLY WITH COMMISSIONER BOWMAN ABSTAINING TO APPROVE THE LEASE IN ACCORDANCE WITH THE RECOMMENDATIONS OF STAFF. 
[ Audio Item 14 ]

15. DECEMBER PARTNERS CONVEYANCE. Commission consideration of the appropriate terms, conditions and just compensation for the conveyance of 32,631 square feet (0.749 acres) of previously filled State-owned subaqueous lands in Norfolk as authorized by Chapter 884, Acts of Assembly 2007. THE COMMISSION UNANIMOUSLY VOTED TO APPROVE THE CONVEYANCE OF THE PREVIOUSLY FILLED SUBAQUEOUS LANDS AS AUTHORIZED BY THE GENERAL ASSEMBLY, FOR A FEE IN THE AMOUNT OF $31,924.72. THIS REPRESENTS THE FILLED LANDS COMPRISED IN PARCELS 2 AND 3, AND IN KEEPING WITH THE PROCEDURES SET FORTH IN 2 OF THE ACT OF ASSEMBLY. THIS FEE WAS BASED ON 25% OF THE AVERAGE ASSESSED VALUE FOR THE PARCELS OVER THE PRECEDING TEN-YEAR PERIOD. THE COMMISSION FOUND THAT NO UNIQUE CIRCUMSTANCES EXISTED TO WARRANT A LESSER AMOUNT AS PERMITTED BY 3 OF THE ACT OF ASSEMBLY. ASSOCIATE COMMISSIONER MCLESKEY RECUSED HIMSELF AT THE OUTSET FROM ANY PARTICIPATION IN THE DISCUSSION OR VOTE ON THIS MATTER, AND LEFT THE MEETING ROOM.
[ Audio Item 15 ]

16. PUBLIC COMMENTS:

SUSAN MITCHELL OF THE STATE FAIR PRESENTED AN AWARD OF EXCELLENCE FOR THE AGENCY'S "OUTSTANDING'' PRESENTATION AT THE FAIR. THIS WAS THE SECOND YEAR IN A ROW THAT THE AGENCY HAS WON THE TOP AWARD FOR ITS WORK AT THE STATE FAIR.

ALSO, THE COMMISSION UNANIMOUSLY APPROVED A MOTION BY ASSOCIATE COMMISSIONER ROBINS TO ADVERTISE FOR A PUBLIC HEARING TO SET DEC. 17, 2007 AS THE BASELINE OF EFFORT AND MORTALITY WHEN SETTING FUTURE BLUE CRAB REGULATIONS.

ALSO DURING PUBLIC COMMENTS, TWO COMMERCIAL WATERMEN ASKED THAT THE OYSTER SEASON BE EXTENDED IN PARTS OF THE JAMES RIVER UNTIL THE END OF MARCH, AND THE COMMISSION VOTED 7-1 TO HOLD A HEARING IN JANUARY ON THE REQUEST. ASSOCIATE COMMISSIONER TANKARD VOTED NO.
[ Audio Item 16A | Audio Item 16B]

17. PUBLIC HEARING: AMENDMENTS TO REGULATION 4VAC20-620, "Pertaining to Summer Flounder", to establish provisions for a by catch fishery during the fourth quarter, to move the second quarter quota to the first quarter, and to set the opening date of the fishery in the first quarter. THE COMMISSION VOTED 7-0 WITH ASSOCIATE MEMBER SCHICK ABSTAINING TO MERGE THE 2008 FIRST AND SECOND QUARTER FLOUNDER QUOTAS AND TO OPEN THE SEASON IN EARLY FEBRUARY, AFTER NORTH CAROLINA STOPS FLOODING THE FLOUNDER MARKET.
[ Audio Item 17 ]

18. PUBLIC HEARING: AMENDMENTS TO REGULATION 4VAC20-252, "Pertaining to Striped Bass", to establish new requirements and penalties for the tagging of striped bass and to establish the 2008 harvest quotas for commercial and recreational fisheries. A SLIGHT INCREASE FOR BOTH THE RECREATIONAL AND COMMERCIAL STRIPED BASS QUOTA WAS SET FOR THE 2008 SEASON, BY UNANIMOUS VOTE.

ALSO, THE COMMISSION DECIDED TO TIGHTEN SOME PENALTIES AND CLOSE SOME LOOPHOLES IN STRIPED BASS TAGGING REGULATIONS. AS A RESULT, NO LONGER MAY RECREATIONAL ANGLERS OR WATERMEN POSSESS IN THEIR VESSELS STRIPED BASS TAGS FOR MULTIPLE STATES AND/OR THE POTOMAC RIVER. THE COMMISSION MADE ONE EXCEPTION, AFTER HEARING OBJECTIONS FROM TWO COMMERCIAL WATERMEN AND ASSOCIATE COMMISSIONER SCHICK: THE AREA WEST OF THE SOUTHERN TIP OF TANGIER ISLAND, STRETCHING DIRECTLY NORTH TO THE MARYLAND BORDER, WILL BE OPEN TO POSSESSION OF MULTIPLE JURISDICTION STRIPED BASS TAGS.
[ Audio Item 18 ]

19. PUBLIC HEARING: AMENDMENTS TO REGULATION 4VAC20-150, " Pertaining to the Dredging of Conchs", to correct boundary markers for certain dredge areas. APPROVED UNANIMOUSLY, PER STAFF RECOMMENDATION.
[ Audio Item 19 ]

20. REQUEST FOR PUBLIC HEARING (AMERICAN SHAD): To repeal Regulation 4VAC20-530-32, "Spawning Reaches By catch Area Fishery", as required by the Interstate Fishery Management Plan for American Shad. APPROVED UNANIMOUSLY, PER STAFF RECOMMENDATION.
[ Audio Item 20 ]


THE FOLLOWING WERE UNANIMOUSLY APPROVED AS PART OF ITEM 2 ON THE AGENDA:

2A. AQUIA HARBOUR PROPERTY OWNERS ASSOCIATION, #06-0209, requests authorization to maintenance dredge on an as-needed basis, up to 20,620 cubic yards of State-owned subaqueous material from within new and previously dredged portions of the natural limits of Aquia Creek, for the purposes of maintaining navigable channels of either 30 or 60 feet in width, with two to one side slopes and maximum controlling depths of minus five (-5) or minus six feet (-6) at mean low water respectively, beginning approximately 225 feet downstream of the point where Aquia Drive crosses Aquia Creek, and ending adjacent to a point approximately 350 feet downstream of the intersection of Coal Landing Road and Barge Lane in Stafford County. Recommend the assessment of a royalty in the amount of $972.00 for the new dredging of 2,160 cubic yards of State-owned subaqueous material at a rate of $0.45 per cubic yard and a time-of-year restriction, which would preclude all dredging activities from March 15th to June 30th to minimize adverse impacts to anadromous fish.

2B. CITY OF NORFOLK, #07-2147, requests authorization to dredge approximately 1,500 cubic yards of State-owned subaqueous bottom material to create maximum controlling depths of minus four (-4) feet at mean low water, with an additional one-foot overdredge tolerance, within a 50-foot wide channel with 3:1 side slopes along the southernmost 350 feet of Haven Creek adjacent to a public boat ramp in the City of Norfolk.

2C. BAE SYSTEMS NORFOLK SHIP REPAIR, #07-2033, requests authorization to rehabilitate their existing North Wharf by installing a new concrete wharf within the same footprint, with a 37 linear foot section being extended four feet channelward of the existing wharf, adjacent to their ship repair facility situated along the Southern Branch of the Elizabeth River in the City of Norfolk.

2D. RIVERHOUSE APARTMENTS, LLC, #07-1614, requests authorization to install 711 linear feet of riprap revetment at the toe of an existing bulkhead and to replace an existing 10-foot wide marginal wharf with an 8-foot wide by 1,319-foot long, open-pile marginal wharf for pedestrian use and temporary (day use only) dockage, adjacent to their property situated along Haven Creek in the City of Norfolk. Recommend the assessment of a royalty in the amount of $3,162.30 for the wharf's encroachment over 10,541 square feet of State-owned subaqueous bottom at a rate of $0.30 per square foot, and the inclusion of a permit condition which precludes the permanent or overnight moorage of vessels at the proposed wharf.

2E. SUFFOLK DEPARTMENT OF PUBLIC WORKS, #07-2041, requests authorization to remove and replace the existing Harvest Drive bridge, utilizing a 10-foot by 6-foot re-enforced concrete pipe culvert, to include dredging and widening of Kingsland Swamp up to 90 feet both up and downstream of the bridge structure, and to place rip rap stabilization along the altered stream bank, within the City of Suffolk.

2F. VIRGINIA NATURAL GAS, #07-1036, requests authorization to install, by directional drill method, 6,744 linear feet of 24-inch diameter natural gas pipeline below the Elizabeth River in Norfolk. Staff recommends a royalty in the amount of $20,232.00 for the encroachment under 6,744 linear feet of subaqueous bottom at a rate of $3.00 per linear foot.

2G. W3 MARINE, #07-2066, requests authorization to repair, replace, and backfill 410 linear feet of existing bulkhead within the same alignment, adjacent to their ship repair facility situated along the Eastern Branch of the Elizabeth River in the City of Norfolk.

2H. VIRGINIA ELECTRIC AND POWER COMPANY, #07-1739, requests authorization to install ductwork extending over 5,536 square feet of State-owned subaqueous lands along the James River in conjunction with a proposed power plant upgrade for a wet flue gas desulfurization system at the applicant's Chesterfield Power Station in Chesterfield County. Recommend a royalty of $11,072.00 for the encroachment over 5,536 square feet of State-owned subaqueous lands at a rate of $2.00 per square foot.

THE FOLLOWING WAS UNANIMOUSLY APPROVED AS PART OF ITEM 3 ON THE AGENDA:

3A. TOWN OF COLONIAL BEACH, #07-2357, requests after-the-fact authorization to retain its municipal pier that was reconstructed after Tropical Storm Ernesto. The pier is adjacent to Town property situated along the Potomac River in Westmoreland County. The pier was reconstructed in its original configuration but the Town initiated repairs without the proper authorization. The applicant has agreed to the payment of a $1,200.00 civil charge and triple permit fees in lieu of further enforcement action. APPROVED AS PART OF ITEM 3 ON THE AGENDA.

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