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COMMISSION ACTIONS MAY 2008

The following are the agenda items from the Commission's regular meeting held May 27, 2008 at Commission headquarters. The Commission's actions are in bold.

** APPROVAL OF AGENDA. APPROVED WITH NO CORRECTIONS OR ADDITIONS.

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

2. PERMITS (Projects over $50,000 with no objections and with staff recommendation for approval). APPROVED 8-0. ASSOCIATE MEMBER KYLE SCHICK WAS ABSENT FROM THE MEETING.
[ Audio Item 2 ]

3. CONSENT AGENDA ITEMS. THE COMMISSION UNANIMOUSLY APPROVED (8-0) THE FOUR SETTLEMENT AGREEMENTS PROPOSED BY STAFF -- AND LISTED IN DETAIL BELOW -- IN THE CASES OF STAFFORD COUNTY (#99-2064), U.S. ARMY CORPS OF ENGINEERS (#08-0665), RICK LOY (#06-0939) AND EUGENE TURLINGTON (#07-0253).
[ Audio Item 3 ]

4. CLOSED MEETING FOR CONSULTATION WITH OR BRIEFING BY COUNSEL. THE COMMISSION WENT INTO CLOSED MEETING TO DISCUSS THE MICHAEL JEWETT CASE AND THE RECENT DECISION BY COURT OF APPEALS OF VIRGINIA IN THE CASE FO HARRIXON V. MRC AND BOONE. UPON COMING BACK INTO PUBLIC MEETING, THE COMMISSION UNANIMOUSLY VOTED (8-0) TO FIND THAT MR. JEWETT HAD SUBSTANTIALLY SATISFIED THE COMMISSION'S JANUARY 25, 2005 ORDER. THE COMMISSION EXPRESSED GRATIFICATION THAT THE CITY OF POQUOSON WAS TAKING A DIRECT ROLE IN ENSURING MR. JEWETT'S CONTINUED COMPLIANCE WITH ALL APPLICABLE LOCAL ZONING AND USE REQUIREMENTS FOR WATKINS DOCK, BUT REITERATED THAT THE MOORING OF ANY BOATS OTHER THAN THOSE OWNED BY THE JEWETTS, WOULD REQUIRE A SEPARATE AUTHORIZATION AND ADDITIONAL APPROVAL BY THE COMMISSION AND OTHER AGENCIES. 
[ Audio Item 4a | Audio Item 4b | Audio Item 4c]

5. CITY OF VIRGINIA BEACH, #07-2035, requests authorization to install a 48-inch diameter concrete stormwater outfall line that will discharge approximately 940 feet channelward of mean low water into the Atlantic Ocean from a new stormwater pump station to be constructed at the intersection of Atlantic Avenue and 61st Street in Virginia Beach. The project is protested by several nearby property owners. Continued from the April 22, 2008, meeting. THE COMMISSION UNANIMOUSLY VOTED (8-0) TO APPROVE THE CITY'S REQUEST, BUT IN MODIFIED FORM. SPECIFICALLY, THE COMMISSION APPROVED THE INSTALLATION OF THE 48-INCH STORMWATER OUTFALL LINE BUT REQUIRED THAT THE PIPE EXTEND 2000 FEET CHANNELWARD OF MEAN LOW WATER. WITH THAT EXTENSION, THE COMMISSION FELT THAT THE INSTALLATION OF ANY ADDITIONAL BUOY OR TERMINATION MARKING WAS UNNECESSARY. <
[ Audio Item 5 ]

6. COMPTON AND ASSOCIATES, #06-1000. Commission review, on appeal by the applicant, of the March 20, 2008 decision by the Suffolk Wetlands Board to deny the applicants' request for after-the-fact authorization to retain multiple previously installed floating piers and previously constructed pier and deck structures, as well as requesting after-the-fact authorization to retain an enclosed expansion of an existing restaurant at the applicants' marina/restaurant facility situated at the terminus of Ferry Road, along Bennetts Creek, a tributary to the Nansemond River. The applicant also requested and was denied authorization to install additional floating pier sections. Review deferred from the April 22, 2008, meeting. THE COMMISSION UNANIMOUSLY VOTED (8-0) TO DEFER THEIR REVIEW FOR AN ADDITIONAL 60-DAYS TO PERMIT LEGAL COUNSEL WITH AN OPPORTUNITY TO FURTHER RESEARCH THE ISSUE OF WHETHER A LOCAL WETLAND BOARD WAS AUTHORIZED TO CONSIDER SECONDARY AND INDIRECT IMPACTS TO WETLANDS WHEN MAKING THEIR DECISIONS. IN THE INTERIM, THE COMMISSION MOVED TO CONTINUE TO ENJOIN MR. COMPTON FROM MAKING ANY USE OF THE ILLEGAL STRUCTURES OTHER THAN THOSE SLIPS THAT WERE IN ROUGH JUXTAPOSITION WITH THE MARINA AS IT EXISTED PRIOR TO HURRICANE ISABEL. THIS INCLUDED A PROHIBITION AGAINST THE USE OF THE OPEN-PILE DECK AND WAITING AREA. SINCE THE WETLAND BOARD HAD NOT ADDRESSED THE RESTAURANT ENCLOSURE, OR THE ADDITIONAL FIXED DOCK ALONG THE SHORELINE, THE COMMISSION CHOSE NOT TO ENJOIN MR. COMPTON'S UTILIZATION OF THESE FEATURES. THE COMMISSION ALSO DIRECTED THAT THE FLOATING DOCK SECTIONS THAT MR. COMPTON WAS REMOVING, SHOULD BE PLACED ON THE ADJACENT UPLAND, NOT IN VEGETATED OR NON-VEGETATED WETLAND AREAS. 
[ Audio Item 6 ]

7. COMPTON AND ASSOCIATES, #06-1000, requests after-the-fact Commission authorization to retain multiple previously installed floating piers and previously constructed pier and deck structures, as well as after-the-fact authorization to retain an enclosed expansion of an existing restaurant at the applicants marina/restaurant facility situated at the terminus of Ferry Road, along Bennetts Creek, a tributary to the Nansemond River in the City of Suffolk. The applicant also requests authorization to install additional floating pier sections. The project is protested by a nearby landowner and oyster ground leaseholder. Project deferred from the April 22, 2008, meeting. THE COMMISSION UNANIMOUSLY VOTED (8-0) TO DEFER THE SUBAQUEOUS PORTION OF THIS APPLICATION FOR 60 DAYS PENDING A DECISION ON THE WETLANDS REVIEW.
[ Audio Item 7 ]

8. JOHN AELLEN, #07-1919, requests authorization to install 36 linear feet of stone riprap and repair an existing wooden groin at his property situated along Onancock Creek in the Bailey Neck area of Accomack County. The groin will be nourished with beach quality sand. Both a Coastal Primary Sand Dune/Beach permit and a subaqueous permit are required. THE COMMISSION UNANIMOUSLY VOTED (8-0) TO APPROVE THE PROJECT IN ACCORDANCE WITH THE RECOMMENDATIONS OF STAFF. 
[ Audio Item 8 ]

9. MARK SCERBO, #08-0258, requests authorization to construct and backfill 280 linear feet of vinyl replacement bulkheading aligned a maximum of 2 feet channelward of an existing, failing bulkhead adjacent to the applicant's marina situated at the confluence of the Coan River and the Potomac River in Northumberland County. The project is protested by an adjacent property owner. THE COMMISSION UNANIMOUSLY VOTED (8-0) TO APPROVE THE PROJECT IN ACCORDANCE WITH THE RECOMMENDATIONS OF STAFF.
[ Audio Item 9 ]

10. COUNTY OF MIDDLESEX, #06-1937, requests authorization to remove two pilings and install a total of four (4) new pilings adjacent to the existing public pier adjacent to the public landing along Locklies Creek off State Route 621 in Middlesex County. The project is protested by both adjacent property owners. THE COMMISSION VOTED UNANIMOUSLY (8-0) TO APPROVE THE PROJECT IN ACCORDANCE WITH THE RECOMMENDATIONS OF STAFF. 
[ Audio Item 10 ]

11. R.R.PAYNE, INC., et al, #08-0024, requests authorization to remove an existing community use pier and boat ramp and to construct a new 12 -foot wide by 24-foot long boat ramp and a 5-foot wide by 48-foot long community use pier at a parcel designated for use by the Queens Estates subdivision situated along Postle Cove off Belle Isle Lane in Mathews County. The project is protested by an adjoining property owner. THE COMMISSION VOTED UNANIMOUSLY (8-0) TO APPROVE THE PROJECT IN ACCORDANCE WITH THE RECOMMENDATIONS OF STAFF. 
[ Audio Item 11 ]

12. PUBLIC COMMENTS: CHESAPEAKE RESIDENT ELLIS JAMES WARNED OF INCREASING OCEAN DESERTS AND SUGGESTED THE COMMISSION PLAN ACCORDINGLY. WATERMAN DOUG JENKINS SHOWED PICTURES OF BLUE CATFISH HE CAUGHT THAT CONTAINED CRABS, CONTENDING THAT BLUE CAT PREDATION IS A SIGNIFICANT FACTOR IN THE DECLINE OF THE CHESAPEAKE BLUE CRAB. AND WATERMAN PETE FREEMAN TOLD THE COMMISSION THAT HE TRIED THE NEW, LARGER CULL RINGS IN SOME OF HIS CRAB POTS AND FOUND HE CAUGT 25 PERCENT FEWER CRABS.
[ Audio Item 12 ]

13. PUBLIC HEARING: Final consideration of Emergency Regulations, adopted April 22, 2008, to prevent overfishing of the blue crab resource. APPROVED 7-1, WITH ASSOCIATE COMMISSIONER ERNIE BOWDEN VOTING NO, EMERGENCY REGULATIONS THAT REQUIRE A 15 PERCENT CRAB POT REDUCTION IN 2008 AND A 30 PERCENT REDUCTION IN PEELER POTS THIS YEAR AS WELL AS THE INSTALLATION OF LARGER CULL RINGS BY JULY 1, 2008. THE STANDARDS MIRROR REQUIREMENTS PASSED LAST MONTH AS EMERGENCY REGULATIONS FOR THE 2008 CRAB SEASON.
[ Audio Item 13 ]

14. PUBLIC HEARING: Consideration of proposed regulations pertaining to crab pot identification, to improve enforcement of crab pot limits. THE COMMSSION VOTED 8-0 TO REQUIRE CRABBERS TO PLACE ONLY ONE SET OF IDENTIFICATION NUMBERS ON THEIR CRAB POTS, EXCEPT FOR POTS USED IN NEIGHBORING JURISDICTIONS THAT ISSUE SEPARATE LICENSE NUMBERS. THOSE PARTICULAR POTS MAY HAVE BOTH NUMBERS ON THEM. THIS MEASURE GOES INTO EFFECT ON MARCH 17, 2009, THE OPENING OF NEXT YEAR'S CRAB SEASON.
[ Audio Item 14 ]

15. BLUE CRAB TIMELINE: Proposed schedule of events for the 2009 implementation of a crab pot tagging program and other blue crab management measures. ACCEPTED A TWO-YEAR TIMELINE FOR ADDITIONAL CRAB REGULATION CHANGES, INCLUDING IMPLEMENTATION OF A CRAB POT TAGGING SYSTEM AND EITHER A TEMPORARY OR PERMANENT TAG TRANSFER SYSTEM.
[ Audio Item 15 ]

16. PUBLIC HEARING: Consideration of proposed amendments to Regulation 4VAC20-450, "Pertaining to the Taking of Bluefish", to establish the 2008 commercial quota. APPROVED 8-0 THE 2008 COMMERCIAL BLUEFISH HARVEST QUOTA OF 1.048 MILLION POUNDS, A SLIGHT INCREASE FROM LAST YEAR'S LIMIT.
[ Audio Item 16 ]

17. RECOMMENDATIONS OF THE RECREATIONAL FISHING ADVISORY BOARD AND COMMERCIAL FISHING ADVISORY BOARD. THE COMMISSION RECEIVED A BRIEFING ON RFAB AND CFAB FINANCES AND UNANIMOUSLY APPROVED A SERIES OF PROJECTS FUNDED WITH RECREATIONAL SALTWATER LICENSE FUNDS AND COMMERCIAL FISHING LICENSE FUNDS.. 
[ Audio Item 17 ]

ALL THESE SO-CALLED PAGE TWO ITEMS WERE APPROVED UNANIMOUSLY AT THE BEGINNING OF THE MEETING:


2A. FAIRFAX COUNTY PARK AUTHORITY, #08-0176, requests authorization to replace two existing fair weather trail crossings and to construct two new fair weather trail crossings impacting 7,442 square feet of Pohick Creek as a result of improvements to the Pohick Creek Stream Valley Trail in Fairfax County.

2B. DEPARTMENT OF THE ARMY, #08-0255, requests authorization to remove Pier 645 and replace it with a 172-foot long by 12-foot wide pier and remove Pier 686 and replace it with a 250-foot long by 14-foot wide pier adjacent to property situated along Gunston Cove at Fort Belvoir in Fairfax County.

2C. LOUDOUN MITIGATION, LLC, #08-0270, requests authorization to impact 8,060 linear feet of the North Fork of Catoctin Creek for the installation of rock cross-vanes, riffles, root wads, J-hooks, and rock toe protection and relocate sections of the channel as part of a stream restoration project at the Daley Farm site in Loudoun County.

2D. U. S. COAST GUARD, #06-0269, requests a permit modification to shift the installation of a 50-foot by 39-foot drive-on floating dock from its easternmost pier to their westernmost pier at their existing training facility situated on Wormley Creek in York County.

2E. COUNTY OF YORK, #08-0337, requests authorization to construct an 87-foot long nearshore breakwater, 65 linear feet of extensions to an existing breakwater and place 10,000 cubic yards of beach nourishment material along the York River to provide additional shoreline protection along the Yorktown waterfront in York County.

2F. JAMES CASTLEBERRY, et al, #08-0269, requests authorization to install a 100 linear foot, near-shore rip rap breakwater with a 20-foot base, a 100-foot long rip rap marsh sill with a 9-foot base width and a 50-foot long (mlw), continuous height, riprap jetty and the filling of 5,000 square feet of submerged lands with beach quality sand to create an intertidal tombola, adjacent to the applicants' property situated at the confluence of Whays Creek and the Great Wicomico River in Northumberland County. Staff recommends a royalty in the amount of $2,500.00 for the filling of 5,000 square feet of subaqueous bottom at a rate of $0.50 per square foot.

2G. GEORGE CLARKE, ET AL, #07-1632, requests authorization to install approximately 706 linear feet of riprap, the toe of which may extend a maximum of 7 feet channelward of mean low water, for shoreline protection of properties situated along Little Neck Creek in Virginia Beach. 

2H. COLUMBIA GAS TRANSMISSION CORP., #07-2521, requests authorization to replace or repair existing gas pipeline segments along a 22-mile section of Line VM-108 from Valve 19 in Isle of Wight County to Norfolk, possibly requiring the excavation, exposure, and replacement of the 16-inch diameter pipeline under Western Branch Reservoir, the Nansemond River, and a tributary to Burnetts Mill Creek in Suffolk, and the Southern Branch of the Elizabeth River in Chesapeake. Staff recommends approval including a permit condition requiring the Permittee to notify the Commission of any line replacements needed, at which time a royalty at the rate of $3.00 per linear foot for the encroachment under State-owned subaqueous bottom will be assessed.

2I. CITY OF NORFOLK, #08-0550, requests authorization to install five (5) approximately 40-foot wide by 125-foot long armor stone breakwaters approximately 250 feet channelward of mean low water, situated along the Chesapeake Bay between 17th Bay and 22nd Bay Streets in the City of Norfolk.

2J. RIVANNA WATER AND SEWER AUTHORITY, #08-0041, requests authorization to replace the existing Meadow Creek Interceptor, sanitary sewer line with new ductile iron pipe and/or other suitable pipe material ranging between 36 and 42 inches in diameter, crossing above or below a total of 221 linear feet of Meadow Creek at five locations in the City of Charlottesville and Albemarle County.

2K. DEPARTMENT OF CONSERVATION AND RECREATION, #08-0074, requests authorization to mechanically dredge approximately 19,700 cubic yards of bottom material from Hungry Mother Lake to restore access to existing dock/boating areas at Hungry Mother State Park in Smyth County. Recommend approval contingent on a March 1 through June 30 in-stream time-of-year work restriction to protect finfish spawning periods.

THESE SO-CALLED PAGE 3 ITEMS WERE UNANIMOUSLY APPROVED AT THE BEGINNING OF THE MEETING:

3A. STAFFORD COUNTY, #99-2064, requests after-the-fact authorization for the removal of a cofferdam during the time-of-year restriction imposed for in-stream work (March 15 through 30 June). The cofferdam was removed on or about April 11, 2008. The applicant has agreed to the payment of a $600.00 civil charge and triple permit fees of $300.00 in lieu of further enforcement action. 

3B. U.S. ARMY CORPS OF ENGINEERS, #08-0665, requests after-the-fact authorization to retain a temporary offshore work platform (trestle) constructed over the 42nd Street stormwater outfall pipe structures that extend out into the Atlantic Ocean in Virginia Beach. The trestle was constructed in October of 2007 to allow for maintenance and repair activities of the outfall structures and will remain in the ocean until January of 2009. During maintenance activities the 30-foot wide by 200-foot long trestle will be reconstructed and moved to different access points along the approximate 2000-foot long outfall. Upon completion of all activities the entire trestle will be removed. Staff recommends approval with triple permit fees of $300.00 and no civil charges.

3C. RICK LOY, #06-0939, requests after-the-fact authorization to reclassify the use of an existing, open-pile pier from a private, non-commercial structure to a multi-user, community pier, and to retain a recent, unauthorized, 29-foot by 48.9-foot pier expansion, which included a single boat slip with boat lift, decking platforms, and two (2) 6.5-foot wide finger piers, adjacent to his property situated along Aquia Creek in Stafford County. Prior to the unauthorized expansion, the existing 6-foot wide pier extended approximately 112 feet channelward of the shore, and included approximately 780 square feet of L- and T-head platforms, two (2) boat lifts, three (3) individual mooring piles, and one (1) triple pile mooring dolphin. The community pier is intended to serve the applicant and several upland property owners, which have deeded access to use the pier. The applicant has agreed to triple permit fees of $300.00 and a civil charge in the amount of $1,200.00 commensurate with minimal environmental impact and a moderate degree of non-compliance. In addition, staff recommends the assessment of a royalty in the amount of $6,379.50 for the community pier's encroachment over 4,253 square feet of State-owned submerged land at a rate of $1.50 per square foot.

3D. EUGENE TURLINGTON, #07-0253, requests after-the-fact authorization to retain a 27-foot long by 4-foot wide addition to his community pier along Onancock Creek in the Bailey Neck area of Accomack County. The pier is now 173-foot long by 4-foot wide with ten mooring piles and is used for the mooring of five family member's boats. The applicant has agreed to a triple permit fee of $75.00 and a civil charge in the amount of $600.00 based on minimal environmental impact and minimal degree of deviation.



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