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COMMISSION ACTIONS July 25, 2017

** APPROVAL OF AGENDA. UNANIMOUSLY APPROVED AGENDA AS WRITTEN WITH EXCEPTION THAT ITEM #11 BE PULLED DUE TO RESOLUTION OF THE PROTEST [audio]

1. MINUTES of previous meeting. APPROVED AS SUBMITTED 5-0-2 WITH ASSOCIATE COMMISSIONERS BALLARD AND EVERETT ABSTAINING [audio]

2. PERMITS (Projects over $500,000.00 with no objections and with staff recommendation for approval). APPROVED ITEMS 2A & 2B UNANIMOUSLY [audio]

3. CONSENT AGENDA ITEMS. APPROVED ITEM 3A UNANIMOUSLY [audio]

4. CLOSED MEETING FOR CONSULTATION WITH, OR BRIEFING BY, COUNSEL. NONE [audio]

5. CRAIG STARIHA, #17-0782 Requests authorization to install two (2) rows of 12-inch diameter sand-filled filter socks, staked and spaced 3.5 feet apart on center, approximately 15 feet landward of mean low water and encircling the vegetated upper elevations of a 0.04 acre island, north of Tar Bay in the James River in Prince George County. The area between the two socks will be stabilized with wetland plantings spaced at one-foot centers. The project requires a wetlands permit. UNANIMOUSLY APPROVED PER STAFF RECOMMENDATION WITH THE FOLLOWING SPECIAL CONDITIONS: 1. THE PERMITTEE AGREES TO MONITOR THE PROJECT AND PROVIDE POST CONSTRUCTION MONITORING REPORTS TO THE COMMISSION AT 6 MONTH INTERVALS FOR TWO YEARS FOLLOWING COMPLETION OF THE PROJECT. PHOTO STATIONS WILL BE ESTABLISHED, ONE AT EACH OF THE 4 COMPASS POINTS ON THE ISLAND. MONITORING REPORTS WILL CONTAIN PHOTOGRAPHS AT EACH STATION TAKEN AT, OR NEAR LOW TIDE. ELEVATION CHANGES WILL BE MEASURED AND REPORTED AT EACH OF THE PHOTO STATION LOCATIONS, TO DOCUMENT THE ACCRETION OR LOSS OF SAND. 2. THE PERMITTEE WILL MONITOR THE WETLAND PLANTINGS AND GUARANTEE TO REPLACE DEAD OR MISSING PLANTS, ONE YEAR FOLLOWING THE COMPLETION OF THE PROJECT, TO MAINTAIN A 90% SURVIVAL RATE. [audio]

6. VIRGINIA BEACH PUBLIC WORKS, #16-0516 Requests authorization to mechanically dredge approximately 55,000 cubic yards of submerged bottomlands to achieve maximum depths of -4.5 feet mean low water as part of the Chesopeian Colony neighborhood dredging proposal within Pinetree Branch, London Bridge Creek, and associated tributaries, including the installation of 18 new channel markers. The project is protested. THE PROJECT WAS APPROVED 7-1, PER STAFF RECOMMENDATION, WITH ASSOCIATE COMMISSIONER EVERETT OPPOSED. THE APPROVAL INCLUDED TWO FUTURE ADDITIONAL MAINTENANCE CYCLES PROVIDED THAT THE COMMISSION PERMIT HAS NOT EXPIRED AND THAT THE DESIGNATED OFFLOADING LOCATION HAS ALL REQUISITE REGULATORY APPROVAL. THE PERMIT ADDITIONALLY WAS CONDITIONED ON VMRC'S STANDARD DREDGING CONDITIONS TO INCLUDE A PRE-DREDGE MEETING WITH THE APPLICANT AND CONTRACTOR AND THE REQUIREMENT THAT A POST-DREDGE BATHYMETRIC SURVEY BE SUBMITTED WITHIN 30 DAYS OF THE COMPLETION OF THE DREDGING. [audio]

7. CITY OF NEWPORT NEWS, #17-0348 Requests authorization to install two (2) stormwater outfalls, 54-inches and 60-inches in diameter, two (2) breakwaters 18 feet wide by 92 feet long and 21 feet wide by 58 feet long, 810 square feet of riprap armor stone upon the proposed storm water outfalls, and two (2) temporary cofferdams at 225 River Road in the City of Newport News. The project is protested. APPROVED 7-1 PER STAFF RECOMMENDATION, WITH ASSOCIATE COMMISSIONER EVERETT OPPOSED. [audio]

8. RAPPAHANNOCK RIVER OYSTERS LLC, #17-0570 Requests authorization to install oyster aquaculture structures within a nine (9) acre area and a one (1) acre area of their 61.57 acre oyster ground lease (Plat File # 21229) in Watts Bay, Accomack County. The project is protested by nearby property owners. UNANIMOUSLY APPROVED PER STAFF RECOMMENDATION WITH THE FOLLOWING SPECIAL CONDITIONS:1. A SURETY BOND FOR PHASE ONE IN THE AMOUNT OF $18,750.00 TO COVER THE COST OF REMOVAL OF ALL 10,000 BASKETS OR FLOATS, POSTS, LINES, AUGERS, REBAR, ETC. IN THE EVENT OF FAILURE. THIS WOULD INCREASE TO $37,500.00 IF EXPANDED TO PHASE TWO. 2. AN ANNUAL ROYALTY FOR PHASE ONE IN THE AMOUNT OF $869.50 BASED ON THE BOLD OUTLINE OF THE ENTIRE AQUACULTURE STRUCTURES IN PHASE ONE (173,900 SQUARE FEET OVER STATE OWNED SUBMERGED LAND) AT A RATE OF $0.005 PER SQUARE FOOT. THIS WOULD INCREASE TO $1,522.00 (304,400 SQUARE FEET OVER STATE OWNED SUBMERGED LAND) AT A RATE OF $0.005 PER SQUARE FOOT IF EXPANDED TO PHASE TWO (2). 3. THE PERMIT SHALL NOT BE ISSUED UNTIL THE SURETY BOND IS ISSUED. 4. THE PERMIT AND AUTHORIZATION TO RETAIN THE STRUCTURES SHALL BE VALID FOR A PERIOD OF FIVE YEARS. AFTER FIVE YEARS, THE PERMITTEE MAY REQUEST THE COMMISSION RE-EVALUATE THE PROJECT AND SEEK AUTHORIZATION TO CONTINUE THE ACTIVITY FOR AN ADDITIONAL PERIOD OF TIME. 5. THE PUBLIC SHALL NOT BE EXCLUDED FROM ANY AREAS NOT PHYSICALLY OCCUPIED BY THE AUTHORIZED STRUCTURES. 6. THE PERMITTEE SHALL PROPERLY MAINTAIN ALL STRUCTURES AND SHALL REMOVE ALL STRUCTURES WITHIN FIVE (5) DAYS UPON THEIR FALLING INTO A STATE OF DISREPAIR OR UPON CESSATION OF THEIR USE AS AQUACULTURE STRUCTURES. 7. THE STRUCTURES MUST BE MARKED AND LOCATED IN ACCORDANCE WITH ยง28.2-607 OF THE CODE OF VIRGINIA AND VMRC REGULATION 4VAC20-290-30. 8. SHOULD UNFORESEEN CONFLICTS ARISE, THE COMMISSION MAY ELECT TO HOLD AN ADDITIONAL PUBLIC HEARING, AT WHICH TIME THEY MAY ELECT TO REVOKE THE PERMIT AND DIRECT REMOVAL OF ANY OR ALL OF THE AUTHORIZED FLOATS. 9. ALL COMMERCIAL AQUACULTURE ACTIVITIES CONDUCTED IN ASSOCIATION WITH THE STRUCTURES AUTHORIZED HEREIN SHALL BE CONDUCTED IN COMPLIANCE WITH ALL RELEVANT VMRC AND DEPARTMENT OF HEALTH REGULATIONS. 10. THE PERMITTEE SHALL BE REQUIRED TO REMOVE OR RELOCATE ANY OF THE STRUCTURES WHICH ARE DETERMINED TO BE IN THE WAY OF ANY APPROVED SHORELINE PROJECTS REQUESTED BY THE ADJACENT UPLAND PROPERTY OWNER WITHIN THEIR RIPARIAN AREA. 11. THE APPLICANT WILL ADHERE TO THE STORM CONTINGENCY PLAN DATED RECEIVED JULY 13, 2017. [audio]

9. REBECCA SMITH, #16-1982 Requests authorization to install 438 linear feet of riprap revetment, channelward of an existing bulkhead, along the Lafayette River, at the residence of 17 Holly Lane in Norfolk. This project is protested by an adjacent property owner. UNANIMOUSLY APPROVED AS PROPOSED. [audio]

10. MICHAEL H. GIBSON, Oyster Planting Ground Applications #2014-283 and #2014-285 Requests authorization to lease 14.74 acres of oyster planting ground in Chincoteague Bay near Swans Gut in Accomack County. The project is protested by an adjacent oyster ground leaseholder. UNANIMOUSLY APPROVED AS REQUESTED. [audio]

11. CALVIN WAYNE WEST, Oyster Planting Ground Application #2015-304 Requests authorization to lease approximately 32.00 acres of oyster planting ground within Monday Creek in Gloucester County. The application is protested by a nearby property owner. THE PROJECT WAS REMOVED FROM THE AGENDA DUE TO RESOLUTION OF THE PROTEST. [audio]

12. STEPHEN EDWARD TOPPING BRICE, Oyster Planting Ground Application #2015-120 Requests authorization to lease approximately 60 acres of oyster planting ground within the Rappahannock River in Lancaster County. The application is protested by nearby residents. THE LEASE APPLICATION WAS APPROVED UNANIMOUSLY CONTINGENT ON A REDUCTION OF THE INSHORE SECTION OF THE LEASE TO MINIMIZE IMPACTS WITH EXISTING RECREATIONAL USES OF THE NEARSHORE. STAFF WAS DIRECTED TO STRIKE A NEW LINE FROM POINT #4 SOUTH TO A POINT AT OR NEAR POINT #10 THAT WAS MINIMALLY 400 FEET OFFSHORE. [audio]

13. STEPHEN EDWARD TOPPING BRICE, Oyster Planting Ground Application #2015-139 Requests authorization to lease approximately 70 acres within the Rappahannock River in Lancaster County. The application is protested by nearby residents. THE LEASE APPLICATION WAS DENIED UNANIMOUSLY WITH THE UNDERSTANDING THAT THE APPLICANT COULD EITHER FILE A JOINT PERMIT APPLICATION FOR A PERMIT FOR OYSTER CAGES OR COULD RE-APPLY FOR TWO SMALLER LEASES THAT AVOIDED/MINIMIZED IMPACTS TO BEACH CREEK AND EXISTING RECREATIONAL USES IN THE NEARSHORE. [audio]

14. PUBLIC COMMENTS Michael Greene asked the Commission to reconsider its decision, rendered in January of 2016, to revoke his commercial licenses and tidal fishing privileges for a period of two years in light of the recent amendments to the license revocation statute adopted by the 2017 General Assembly. Following a great deal of discussion, the Commission voted to reinstate all of Mr. Greene's licenses and privileges except for his oyster licenses. His oyster licenses will remain revoked through the original revocation period. The Commission further authorized the Commissioner to place cases on the monthly agenda in which a person wishes to have a decision to revoke his licenses or privileges reviewed if the person notifies the Commissioner in writing of his desire for such review. Michael Gibson asked the Commission to allow transfer of hand harvest Horseshoe crab permits. The Commissioner directed Mr. Gibson to talk with Chief O'Reilly and ask him to refer this matter to the appropriate Advisory Committee for review and recommendations. [audio]

15. OFFENDERS: THE COMMISSION HEARD 5 CASES OF OFFENDERS WITH NATURAL RESOURCE VIOLATIONS. [audio]

16. PUBLIC HEARING To incorporate emergency amendments as final amendments to Chapter 4 VAC 20-490-10 et seq., "Pertaining to Sharks." The emergency amendments were adopted by the Commission on June 27, 2017 and established the May 1, 2017 through April 30, 2018 commercial spiny dogfish harvest quota as 4,220,814 pounds and removed the weekly buyer reporting requirement. THE COMMISSION UNANIMOUSLY APPROVES STAFF RECOMMENDATION TO ADOPT EMERGENCY AMENDMENTS AS PERMANENT REGULATION TO SET THE 2017-18 COMMERCIAL SPINY DOGFISH HARVEST QUOTA AT 4,220,814 POUNDS AND STREAMLINE THE BUYER REPORTING PROCESS. [audio]

17. PUBLIC HEARING To incorporate emergency amendments as final amendments to chapters 4 VAC 20-270-10 et seq., "Pertaining to Crabbing"; and, 4 VAC 20-1140-10 et seq., "Prohibition of Crab Dredging in Virginia Waters." The emergency amendments were adopted by the Commission on June 27, 2017 and established: 1) an end of season date of November 30, 2017 and a 2018 season start date of March 17, for the crab pot fishery; 2) reduced bushel limits for November 1 through 15 that are the same as current bushel limits during November 16 through the end of the crab pot season; and, established a prohibition on the crab dredge season during December 1, 2017 through March 31, 2018. THE COMMISSION UNANIMOUSLY APPROVED STAFF RECOMMENDATION TO ADOPT EMERGENCY AMENDMENTS AS PERMANENT REGULATION TO AMEND THE FOLLOWING: 1) CHAPTER 4 VAC 20-270-10 ET SEQ., "PERTAINING TO CRABBING", THE AMENDMENTS WILL ESTABLISH THE 2017 ENDING DATE OF THE CRAB POT SEASON AS NOVEMBER 30 AND THE LAWFUL CRAB POT SEASON START DATE OF MARCH 17 IN 2018. THE AMENDMENTS WILL MODIFY THE START DATE OF THE LOWER BUSHEL LIMITS FROM NOVEMBER 16 TO NOVEMBER 1, 2017. 2)CHAPTER 4 VAC 20-1140-10 ET SEQ., "PROHIBITION OF CRAB DREDGING IN VIRGINIA WATERS", THE AMENDMENTS WILL ESTABLISH A PROHIBITION OF A CRAB DREDGE SEASON DURING THE DECEMBER 1, 2017 THROUGH MARCH 31, 2018 PERIOD. [audio]

18. PUBLIC HEARING Proposal to amend Chapter 4 VAC 20-1270-10 et seq., "Pertaining to Atlantic Menhaden," to increase Virginia's portion of the coast wide total allowable landings of menhaden, in accordance with recent Atlantic States Marine Fisheries Commission actions. THE COMMISSION UNANIMOUSLY APPROVED STAFF RECOMMENDATION TO AMEND CHAPTER 4 VAC 20-1270-10 ET SEQ., "PERTAINING TO ATLANTIC MENHADEN," TO INCREASE VIRGINIA'S PORTION OF THE COAST-WIDE TOTAL ALLOWABLE LANDINGS OF MENHADEN AND TO MODIFY THE NON-PURSE SEINE BAIT SECTOR GEAR-SPECIFIC QUOTA ALLOCATIONS. [audio]

19. PUBLIC HEARING Proposal to rescind the commercial license fee increase that was scheduled to go into effect in December 2017. THE COMMISSION UNANIMOUSLY APPROVED STAFF RECOMMENDATION TO RESCIND CHAPTER 4 VAC 20-1090-10 ET SEQ., SO THE COMMERCIAL LICENSE FEES WILL NOT BE INCREASED ON DECEMBER 1, 2017. [audio]

20. PUBLIC HEARING Proposal to amend Chapters, 4 VAC 20-752-10 et seq., "Pertaining to the Blue Crab Sanctuary, to establish a limited-area open crab fishery along the near-coastal area blue crab sanctuary that is closed to commercial crabbing from May 9 through September 15. In addition, the Commission will decide whether to change the date when the historical sanctuary area is initially closed to commercial crabbing. THE COMMISSION UNANIMOUSLY APPROVED A MOTION TO TABLE THIS DISCUSSION UNTIL THE MARCH 2018 COMMISSION MEETING, AT WHICH TIME STAFF WILL HAVE MORE INFORMATION FROM THE VIRGINIA INSTITUTE OF MARINE SCIENCE. [audio]

21. REQUEST FOR PUBLIC HEARING Amendments to Chapter 4 VAC 20-720-10 et seq., "Pertaining to Restrictions on Oyster Harvest," to establish the 2017-2018 areas of public harvest, public oyster harvest seasons, and management measures. THE COMMISSION UNANIMOUSLY APPROVED STAFF RECOMMENDATION TO ADVERTISE FOR AN AUGUST 2017 PUBLIC HEARING TO MAKE AMENDMENTS TO CHAPTER 4 VAC 20-720-10 ET SEQ., "PERTAINING TO RESTRICTIONS ON OYSTER HARVEST," TO ESTABLISH THE 2017-2018 AREAS OF PUBLIC HARVEST, PUBLIC OYSTER HARVEST SEASONS, AND MANAGEMENT MEASURES. [audio]

PAGE 2 ITEMS [audio]

A. DEPARTMENT OF THE NAVY, #17-0674 Requests authorization to remove and replace the existing wharf and fender system along Wharf E, and to remove and replace existing structures along Pier A and the Small Craft Basin, at the U.S. Navy Craney Island Fuel Terminal, located along the Elizabeth River, on the east side of Craney Island, in Portsmouth. THE PROJECT WAS UNANIMOUSLY APPROVED.

B. VIRGINIA ELECTRIC AND POWER COMPANY, #17-0265 Requests authorization to remove and replace two steel lattice electric transmission towers, on existing concrete foundations in the James River and to replace one (1) circuit (11 lines) of 500kV electric transmission lines, a minimum 180 feet above a 4,109 linear foot section of the James River, from Wilcox Wharf to Windmill Point, in Charles City and Prince George Counties. Staff recommends approval with a royalty of $40,280.00 for tower encroachment over 20,140 square feet of State-owned submerged lands at a rate of $2.00 per square foot, and $12,327.00 for encroachment of aerial transmission lines over 4,109 linear feet of State-owned submerged land at a rate of $3.00 per linear foot. THE PROJECT WAS UNANIMOUSLY APPROVED.

PAGE 3 ITEMS [audio]

A. TOWN OF COLONIAL BEACH, #17-0400 Requests, on behalf of their licensees, Mr. and Mrs. Edward Jones, after-the-fact authorization to retain and complete the construction of a 78.5-inch wide by 133-inch tall, roofed security gate, adjacent to town property situated along Monroe Bay at 1004 Monroe Bay Avenue in Westmoreland County. The licensees have agreed to a $1,000.00 civil charge, triple royalties and triple permit fees in lieu of further enforcement action. UNANIMOUSLY APPROVED THE PROJECT CONDITIONED UPON THE APPLICANT'S AGREEMENT TO PAY A CIVIL CHARGE OF $1,000.00, IN LIEU OF FURTHER ENFORCEMENT ACTION, AND WITH THE ASSESSMENT OF A TRIPLE PERMIT FEE OF $75.00 AND A TRIPLE ROYALTY OF $184.50 FOR THE ENCROACHMENT OVER 41 SQUARE FEET OF STATE-OWNED SUBMERGED LANDS AT A RATE OF $4.50 PER SQUARE FOOT.



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