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COMMISSION ACTIONS MAY 28, 2013

** APPROVAL OF AGENDA.  THE MEETING AGENDA WAS APPROVED WITHOUT CHANGE. ALL ASSOCIATE COMMISSIONERS WERE PRESENT.
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1.  MINUTES of previous meeting. THE MINUTES OF THE COMMISSION’S APRIL MEETING WERE APPROVED UNANIMOUSLY. ASSOCIATE COMMISSION ROBINS ABSTAINED.
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2.  PERMITS (Projects over $500,000 with no objections and with staff recommendation for approval).  A SINGLE SO-CALLED PAGE TWO AGENDA ITEM, DELINEATED BELOW IN DETAIL IS ITEM 2A, WAS APPROVED UNANIMOUSLY.
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3.  CONSENT AGENDA ITEMSNONE.
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4.  CLOSED MEETING FOR CONSULTATION WITH, OR BRIEFING BY, COUNSEL.  NONE.
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5.  MATHEWS LAND CONSERVANCY, #12-1539. Appeal by 26 freeholders of the Mathews County Wetlands Board decision to approve the construction of a rowing and sailing center building on pilings extending over wetlands, two (2) 16-foot wide by 80-foot long floating piers with two (2) 12-foot by 23-foot gangways, an 8-foot wide open-pile pier extending 62 feet channelward of an existing bulkhead with a 14-foot wide by 100-foot long T-head deck, and a 182 linear foot riprap revetment with associated backfill along the East River at 1039 Williams Wharf Road in Mathews County.  THE COMMISSION VOTED UNANIMOUSLY TO REMAND THE CASE BACK TO THE MATHEWS WETLANDS BOARD FOR ADDITIONAL TESTIMONY, IN ORDER TO CORRECT A PROCEDURAL ERROR, AND FOR A NEW BOARD HEARING AND VOTE ON THE APPLICATION.
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6.  RICHARD A. HAWLEY, #12-1244, requests after-the-fact authorization to retain approximately 227 linear feet of timber retaining wall and 108 linear feet of vinyl bulkhead next to an existing boat ramp that was recently resurfaced, resulting in impacts to approximately 1,150 square feet of vegetated wetlands, adjacent to his property at 104 Cove Circle situated at the confluence of a manmade canal and the Eastern Branch of the Elizabeth River in Chesapeake.  The project will require a Wetlands permit.  THE COMMISSION VOTED UNANIMOUSLY TO GRANT THE AFTER-THE-FACT PERMIT WITH A $2,000 CIVIL CHARGE IN LIEU OF FURTHER ENFORCEMENT AND THE APPLICANT’S CREATION OF 1,150 SQUARE FEET OF NEW WETLANDS ON THE PROPERTY AS COMPENSATION FOR THE LOSS OF WETLANDS FROM THE WORK THAT WAS DONE.
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7.  PCN, LLC #12-1534, requests authorization for the use and development of tidal wetlands and for encroachment over State-owned bottom including the dredging of 1,144 cubic yards of State-owned bottom including a 30 linear foot temporary bulkhead for construction access, associated with the construction and installation of an approximately 2,654 linear foot steel sheet pile wall with riprap scour protection along Curles Neck Swamp tributary to the James River and extending from an existing earthen levee to a U.S. Army Corps of Engineers Dredge Material Management Area at Curles Neck Farm in Henrico County.  The project will require a tidal wetlands permit and a permit for use of State-owned bottomlands.  The project is protested by two adjacent property owners. AFTER AN ALMOST FIVE-HOUR PUBLIC HEARING, THE COMMISSION VOTED 6-2 TO APPROVE THE PROJECT WITH SEVERAL PERMIT CONDITIONS:  THE OWNERS WILL PAY FOR A THREE-YEAR, POST-CONSTRUCTION STUDY ON THE IMPACTS TO RIVER HERRING AND AMERICAN EEL SPAWNING IN CURLES NECK SWAMP AS A RESULT OF THE PROJECT; THAT THE WATER MANAGEMENT PLAN TO BE REVIEWED AND APPROVED BY COMMISSION STAFF; THAT ANY NECESSARY POST-CONSTRUCTION WATER MANAGEMENT PLAN AND FISHERY MONITORING PLAN CHANGES BE REVIEWED AFTER THREE YEARS, AND THAT THE OWNERS AND COMMISSION ENTER INTO A PROCESS TO MODIFY THE ORIGINAL PERMIT TO AMEND THE WATER MANAGEMENT PLAN.  ASSOCIATE COMMISSIONERS TANKARD AND FOX VOTED NO, PREFERRING TO TABLE THE PROJECT INDEFINITELY.  THE COMMISSION ALSO AUTHORIZED THE ISSUANCE OF THE ORIGINAL PERMIT IN THE NAME OF THE NEW OWNER.
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8.  WILLIAM AND TERESA MITCHELL, #13-0324, request authorization to construct 110 linear feet of timber pile bulkhead and associated backfill aligned a maximum of two (2) feet channelward of an existing deteriorating bulkhead resulting in impacts to 43 square feet of vegetated wetlands and 148 square feet of non-vegetated wetlands adjacent to 4104 Mingo Trail situated along the Indian River in Chesapeake.  The project requires a Wetlands permit.  THE COMMISSION VOTED UNANIMOUSLY TO APPROVE THE PROJECT AS REQUESTED, IN KEEPING WITH STAFF RECOMMENDATION.
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9.  GERALD WILSON, #13-0595, requests authorization to construct 116 linear feet of vinyl bulkhead and associated backfill aligned a maximum of one (1) foot channelward of an existing deteriorating bulkhead resulting in impacts to 58 square feet of vegetated wetlands adjacent to 3601 White Heron Run situated along Indian River in Chesapeake.  The project requires a Wetlands permit.  THE COMMISSION VOTED UNANIMOUSLY TO APPROVE THE PROJECT AS PROPOSED.
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10.  KEN SMITH, OYSTER PLANTING GROUND APPLICATIONS #2012-118 AND #2012-119, requests authorization to lease up to 75 and 100 acres respectively within the Chesapeake Bay near the mouth of Barnes Creek in Northumberland County.  Both applications are protested by numerous residents in the area.  THE COMMISSION VOTED UNANIMOUSLY TO DENY THE APPLICATION TO LEASE THE 75 ACRES OF WATER BOTTOM NEAR THE MOUTH OF BARNES CREEK, BUT VOTED 7-1 TO APPROVE THE LEASING OF 40 ACRES IN THE 100-ACRE TRACT MR. SMITH REQUESTED TO LEASE. ASSOCIATE COMMISSION PLUMLEE VOTED NO.
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11.  PUBLIC COMMENTS.  NORFOLK COMMERCIAL CRABBER PETE NIXON URGED COMMISION MEMBERS TO BE MORE PROACTIVE IN THEIR ATTEMPTS TO HELP THE SEAFOOD INDUSTRY.  ALSO, WATERMAN MARK BENDER COMPLAINED THAT HIS DAUGHTER WAS ISSUED A SUMMONS FOR SETTING 21 CRAB POTS ON A FISHING REEF.
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12.  REPORT on results from a Fisheries Management Staff and Industry meeting about user conflict in the Horseshoe Crab Fishery within Tom’s Cove.  FISHERIES STAFFER ADAM KENYON BRIEFED THE COMMISSION ON A COMPROMISE THAT STAFF MEDIATED BETWEEN GILL NETTERS AND HAND-HARVESTERS OF HORSESHOE CRABS IN TOM’S COVE IN CHINCOTEAGUE.  GILL NETS WILL BE SET FARTHER FROM SHORE AND FURTHER FROM EACH OTHER FROM JUNE 1-JUNE 30 OF EACH YEAR.  THE COMMISSION VOTED UNANIMOUSLY TO HOLD A PUBLIC HEARING AND VOTE AT ITS JUNE MEETING TO CODIFY THE AGREEMENT INTO REGULATION.   ASSOCIATE COMMISSION ROBINS RECUSED HIMSELF FROM THE DISCUSSION AND VOTE.
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13.  PUBLIC HEARING:  Proposed amendments to Chapter 4 VAC20-1090-10 et seq., “Pertaining to Licensing Requirements and Licensing Fees” to establish oyster user fees as provided by H 1400; with a request for a June public hearing to rescind or amend regulations that contain references to the Oyster Tax Harvest and Reporting System, effective July 1, 2013.  THE COMMISSION VOTED UNANIMOUSLY TO HOLD A JUNE PUBLIC HEARING TO REPEAL ALL OYSTER TAXES BY JULY 1, 2013, AND, IN THEIR PLACE, TO ENACT AN ANNUAL USER FEE ON ALL OYSTER HARVESTERS FROM PUBLIC AND PRIVATELY LEASED GROUNDS, PACKERS, SHUCKERS AND SHIPPERS.  THE FEES WILL BE USED FOR OYSTER REPLENISHMENT, WHICH PROVIDES A VARIETY OF ECOLOGICAL AND ECONOMIC BENEFITS TO THE OYSTER INDUSTRY.  THE FEES GO INTO EFFECT JULY 1, BUT MAY BE PAID FOR 2013 HARVESTS AS OF JUNE 1. DETAILS ON HOW THE USER FEE PROGRAM WILL BE ADMINISTERED WILL BE POSTED ON THE AGENCY’S WEBSITE.
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14.  REPEAT OFFENDERS.  THE COMMISSION VOTED UNANIMOUSLY TO PUT COMMERCIAL WATERMAN WILLIE SHIFLETTE JR. ON PROBATION FOR ONE YEAR BECAUSE HE ACCUMULATED THREE VIOLATIONS OF REGULATIONS OVER THE SPAN OF 12 MONTHS.
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15.  FAILURE TO REPORT:  Cases involving failure to report commercial harvests, in accordance with Chapter 4VAC20-610-10 et seq., “Pertaining to Commercial Fishing and Mandatory Harvest Reporting.”  THE COMMISSION VOTED UNANIMOUSLY TO SUSPEND A COMMERCIAL WATERMAN’S LICENSE UNTIL HE FILES ALL OF HIS HARVEST REPORTS, AS REQUIRED, AND PUT HIM ON TWO YEARS PROBATION FOR NOT FILING THEM ON TIME.THE COMMISSION ALSO PUT A SECOND COMMERCIAL WATERMAN ON PROBATION FOR TWO YEARS FOR FAILING TO FILE HIS HARVEST REPORTS ON TIME.
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16.  POUND NETS:  Cases involving protested locations for new pound nets, in accordance with Chapter 4VAC20-25-10 et seq., “Pertaining to Pound Net Siting Public Interest Review.”  THE COMMISSION APPROVED WATERMAN MARK BENDER’S APPLICATION TO CONSTRUCT TWO NEW POUND NETS ON THE EASTERN SHORE, AND DENIED THE APPLICATION FROM WATERMAN CLIFTON BURTON TO CONSTRUCT A POUND NET IN MATTOX CREEK, A TRIBUTARY OF THE POTOMAC RIVER THAT IS HEAVILY USED BY RECREATIONAL BOATERS AND ANGLERS.  ASSOCIATE COMMISSIONER ROBINS RECUSED HIMSELF FROM THE DISCUSSIONS AND VOTES.
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17.  RECOMMENDATIONS, from the Recreational Fishing Advisory Board, on funding projects from the Virginia Saltwater Recreational Fishing Development Fund.  THE COMMISSION VOTED UNANIMOUSLY TO APPROVE SEVEN RECREATIONAL FISHING PROJECTS TOTALLY $185,863 AND $75,000 FOR A CONTRACTOR TO TAKE FISHERMAN IDENTIFICATION PROGRAM REGISTRATIONS BY TELEPHONE.
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18.  REQUEST FOR JUNE PUBLIC HEARING to establish the 2013 and 2014 Virginia commercial bluefish quotas.  THE COMMISSION VOTED UNANIMOUSLY TO HOLD A PUBLIC HEARING AND VOTE IN JUNE TO ESTABLISH THE 2013 AND 2014 COMMERCIAL BLUEFISH QUOTAS.
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19.  REQUEST FOR JUNE PUBLIC HEARING to amend Chapter 4 VAC-20-490-10 et seq., to allow federal waters landings of spiny dogfish during May 1, 2010 through April 30, 2012 to serve as a basis for harvesters to be part of this limited access fishery.  THE COMMISSION VOTED UNANIMOUSLY TO HOLD A PUBLIC HEARING AND VOTE ON THIS MATTER AT ITS JUNE MEETING.
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20.  EMERGENCY REGULATION: for 4 VAC 20-270-10 et seq., “Pertaining to Crabbing,” to ensure that any harvest, possession or vessel limits are daily limits.  THE COMMISSION VOTED UNANIMOUSLY TO PASS AN EMERGENCY MEASURE THAT CLARIFIES THAT CRAB POSSESSION LIMITS ARE DAILY POSSESSION LIMITS, AND AGREED TO HOLD A PUBLIC HEARING AND VOTE AT ITS JUNE MEETING TO CODIFY THE CLARIFICATION INTO CRABBING REGULATIONS.
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THE FOLLOWING SO-CALLED PAGE TWO ITEM WAS APPROVED UNANIMOUSLY:

2A.  COLUMBIA GAS OF VIRGINIA, #13-0071, requests authorization to cross 495 linear feet of the James River from Buckingham County to Fluvanna County by directionally drilling a minimum of ten feet below the substrate to install a 24-inch steel natural gas line for the Dominion Bremo Bluff Power Plant in Fluvanna County.  Recommend approval with a royalty of $1,485 for the crossing of 495 linear feet of State-owned subaqueous bottom at a rate of $3.00 per linear foot.

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