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COMMISSION ACTIONS AUGUST 2008

The following are the agenda items from the Commission's regular meeting held August 26, 2008 at Commission headquarters. The Commission's actions are in bold.


** APPROVAL OF AGENDA. THIS WAS APPROVED UNANIMOUSLY, 8-0, WITH ASSOCIATE MEMBER CARTER FOX ABSENT FROM THE MEETING, AFTER ITEM 14 (THE DONALD PARK APPLICATION) WAS PULLED FROM CONSIDERATION AND RESCHEDULED FOR SEPTEMBER'S MEETING.

1. MINUTES of previous meeting. APPROVED 7-0-1, WITH ASSOCIATE MEMBER JOHN MCCONAUGHA ABSTAINING BECAUSE HE MISSED THE JULY COMMISSION MEETING.
[ Audio Item 1 ]

2. PERMITS (Projects over $50,000 with no objections and with staff recommendation for approval). APPROVED UNANIMOUSLY, 8-0, THESE SO-CALLED PAGE TWO ITEMS, DELINEATED BELOW. A TIME-OF-YEAR RESTRICTION OF JULY 1 - SEPTEMBER 30 WAS IMPOSED ON ITEM 2G, HARPER AVENUE LLC.
[ Audio Item 2 ]

3. CONSENT AGENDA ITEMS. ENDORSED THE SO-CALLED PAGE 3 CONSENT AGREEMENT DELINEATED BELOW, AS RECOMMENDED BY STAFF, AND APPROVED THE AFTER-THE-FACT PERMIT TO THE CITY OF DANVILLE (#3A) WITH NO CIVIL CHARGE AND A PERMIT FEE OF $300.00
[ Audio Item 3 ]

4. CLOSED MEETING FOR CONSULTATION WITH OR BRIEFING BY COUNSEL. COMMISSION WENT INTO CLOSED MEETING TO DISCUSS ITEMS #5, #7, #10 AND #24 ON THE AGENDA.
[ Audio Item 4 ]

5. BIRCHWOOD MOTEL, INC., #05-2780, requests authorization to install a 750-foot long, six (6) inch sewage discharge pipe under the already permitted 700-foot long by 5-foot wide community pier adjacent to their property along Chincoteague Channel in the Town of Chincoteague, Accomack County. The project is protested by a nearby oyster ground leaseholder and several property owners. The project was remanded to the Commission for rehearing by the Circuit Court of Accomack County. THE COMMISSION VOTED 7-1, WITH ASSOCIATE MEMBER WAYNE MCLESKEY VOTING NO, TO DENY THE APPLICATION BASED ON THE DOCUMENTS IN THE RECORD, THE BRIEFING, EVIDENCE, TESTIMONY AND ARGUMENTS PRESENTED, THE COMMISSION'S SUBAQUEOUS GUIDELINES AND THE FACTORS SET FORTH IN 28.2-1205 OF THE CODE, AS WELL AS STAFF'S ASSESSMENT THAT FOUND THE IMPOSITION OF A PROHIBITED ZONE OVER 15.7 ACRES OF POTENTIAL OYSTER PLANTING GROUND BY THE HEALTH DEPARTMENT DUE TO THE LINGERING POTENTIAL FOR PUBLIC HEALTH RISKS WAS UNREASONABLE AND NOT IN THE PUBLIC INTEREST.

NOTE: THE COMMISSIONER OPTED TO TAKE ITEMS #11- #17 NEXT (THE STAFFORD COUNTY APPLICATIONS) AND THE COMMISSION RECESSED FOR LUNCH IMMEDIATELY AFTERWARD. 
[ Audio Item 5 ]

6. JBH LLC, #07-1948. Consideration of Mr. Honeycutt's compliance with the Commission's March 25, 2008 decision regarding the pier he constructed at 475 Wind Mill Point Road along the Back River in Hampton. THE COMMISSION VOTED 6-2, WITH ASSOCIATE MEMBERS ED TANKARD AND KYLE SCHICK VOTING NO, TO APPROVE MR. HONEYCUTT'S EFFORTS AND PROPOSED PLANS TO COMPLY WITH THE COMMISSION'S MARCH 25, 2008 ORDER WITH NO CIVIL CHARGE IMPOSED.
[ Audio Item 6 ]

7. THORNTON HALL OF NORFOLK, LLC. Commission determination of whether any of the previously filled lands authorized for conveyance pursuant to 
Chapter 675, Acts 2008 (totaling 190,196 square feet or 4.367 acres), qualify as prior State-owned subaqueous lands and, if so, the appropriate terms, conditions and just compensation for that conveyance. THE COMMISSION VOTED UNANIMOUSLY TO CONCLUDE THE COMMONWEALTH HAD NO RIGHT, TITLE OR INTEREST IN THE FILLED LANDS DESCRIBED IN CHAPTER 675 ACTS 2008, FINDING THAT THE SUBJECT PROPERTY WAS NOT PREVIOUSLY FILLED STATE-OWNED SUBAQUEOUS LANDS SUBJECT TO THE PROVISIONS OF 28.2-1200 OF THE CODE OF VIRGINIA. 
[ Audio Item 7 ]

8. BAYMARK CONSTRUCTION CORPORATION, #08-0519, requests authorization to construct two floating piers with T-heads and finger piers for the mooring of 79 boats within the footprint of the existing Bay Creek Marina along Kings Creek in the Town of Cape Charles. Although the proposed piers and boat slips were previously permitted in 2001, they were never constructed. The applicant has requested that the Commission set a reduced royalty assessment. THE COMMISSION VOTED 5-2-1, WITH ASSOCIATE MEMBERS SCHICK AND MCLESKEY VOTING NO AND ASSOCIATE MEMBER J.T. HOLLAND ABSTAINING, TO APPROVE THE PROJECT AS PROPOSED WITH THE IMPOSITION OF A ROYALTY IN THE AMOUNT OF $115,970.00 FOR THE BOLD OUTLINE ENCROACHMENT OVER 115,970 SQUARE FEET OF STATE-OWNED BOTTOM AT THE RATE OF $1.00 PER SQUARE FOOT. 
[ Audio Item 8 ]

9. H. SPENCER MURRAY, #07-0792, requests authorization to modify his previously authorized permit by relocating and reconfiguring the single dredge and placement site into two smaller dredge and placement sites. The proposed project lies in the Chesapeake Bay at the mouth of Nassawadox Creek, Northampton County, approximately 500 feet west of the original authorized dredge area. THE COMMISSION VOTED UNANIMOUSLY TO APPROVE THE MODIFICATION AS REQUESTED, AND AUTHORIZED THE ONE-TIME UNCONFINED OVERBOARD PLACEMENT OF MATERIAL DREDGED FROM THE TWO SMALL DREDGE SITES IN THE CHESAPEAKE BAY TO THE SOUTH OF THE PROPOSED CUTS.
[ Audio Item 9 ]

10. HENRY S. JONES, JR., #2007-076S, requests authorization to lease 7.25 acres of Oyster Planting Ground in Smith Island Bay near Smith Island in Northampton County. The project is protested by a nearby property owner. THE COMMISSION VOTED 5-2, WITH ASSOCIATE MEMBERS TANKARD AND RICK ROBINS AGAINST AND ASSOCIATE MEMBER MCLESKEY ABSENT FOR THE REST OF THE MEETING, TO APPROVE THE LEASE OF THE 7.25 ACRES AS RECOMMENDED BY STAFF, INCLUDING THE SHELL PILE AREA IN THE CENTER.
[ Audio Item 10 ]

11. MR. AND MRS. RICHARD DECATUR, #08-1160, request after-the-fact authorization to retain a 38-foot by 28-foot enclosed roofed structure including a 22-foot by 16-foot sitting room, a 7-foot by 11-foot storage area, a boatlift, and PWC lift adjacent to their property along Aquia Creek in Stafford County. THE COMMISSION VOTED UNANIMOUSLY TO APPROVE THE DECATUR'S AFTER-THE-FACT APPLICATION AS RECOMMENDED BY STAFF WITH NO CIVIL CHARGE BEING IMPOSED. 
[ Audio Item 11-17a | Audio Item 11-17b]

12. CLARK CRIPPEN, #08-1179, requests after-the-fact authorization to retain an 18-foot by 27-foot enclosed roofed structure including an 8-foot by 13-foot storage shed and a boat slip adjacent to his property along Aquia Creek in Stafford County. THE COMMISSION VOTED UNANIMOUSLY TO APPROVE MR. CRIPPEN'S AFTER-THE-FACT APPLICATION AS RECOMMENDED BY STAFF, WITH THE INCLUSION OF A CIVIL CHARGE IN THE AMOUNT OF $600.00 IN LIEU OF ANY FURTHER ENFORCEMENT AS PROVIDED BY CODE. 
[ Audio Item 11-17a | Audio Item 11-17b]

13. MR. AND MRS. RAYMOND HEFLIN, #08-1205, request after-the-fact authorization to retain a 31-foot by 32-foot enclosed roofed structure including a 25-foot by 15-foot screened sitting area, a 6-foot by 11-foot storage area, and a boat slip adjacent to their property along Aquia Creek in Stafford County. THE COMMISSION VOTED UNANIMOUSLY TO APPROVE THE HEFLIN'S AFTER-THE-FACT APPLICATION AS RECOMMENDED BY STAFF WITH NO CIVIL CHARGE BEING IMPOSED. 
[ Audio Item 11-17a | Audio Item 11-17b]

14. DONALD PARKS, #08-1224, requests after-the-fact authorization to retain a 62-foot by 20-foot enclosed roofed structure including a 20-foot by 12.5-foot screened room, a 
20-foot by 20-foot kitchen/sitting area, a 20-foot by 12-foot attached roofed structure, and a boatlift adjacent to his property along Aquia Creek in Stafford County. DESPITE THEIR EARLIER AGREEMENT TO CONTINUE MR. PARKS' APPLICATION UNTIL SEPTEMBER, THE COMMISSION VOTED UNANIMOUSLY TO APPROVE HIS APPLICATION AS RECOMMENDED BY STAFF WITH NO CIVIL CHARGE BEING IMPOSED. IF MR. PARKS OBJECTS, THE COMMISSION WOULD BE WILLING TO RECONSIDER THIS ITEM AT THEIR NEXT MEETING. 
[ Audio Item 11-17a | Audio Item 11-17b]

15. PHYLLIS MARCERON, #08-1252, requests after-the-fact authorization to retain a 45-foot by 13-foot enclosed roofed structure including a 7-foot by 13-foot room, a 14-foot by 13-foot screened sitting area, and a boat slip adjacent to her property along Aquia Creek in Stafford County. THE COMMISSION VOTED UNANIMOUSLY TO APPROVE MS. MARCERON'S AFTER-THE-FACT APPLICATION AS RECOMMENDED BY STAFF WITH NO CIVIL CHARGE BEING IMPOSED.
[ Audio Item 11-17a | Audio Item 11-17b]

16. MR. AND MRS. CHARLES COUCH, #08-1305, request after-the-fact authorization to retain a 35-foot by 40-foot enclosed roofed structure including a 34-foot by 10-foot living space, a 14-foot by 8-foot storage room, and two boat slips adjacent to their property along Aquia Creek in Stafford County. THE COMMISSION VOTED UNANIMOUSLY TO APPROVE THE COUCH'S AFTER-THE-FACT APPLICATION AS RECOMMENDED BY STAFF WITH NO CIVIL CHARGE BEING IMPOSED.
[ Audio Item 11-17a | Audio Item 11-17b]

17. MR. AND MRS. LEO BUTTERBAUGH, #08-1426, request after-the-fact authorization to retain a 50-foot by 40-foot enclosed roofed structure, which includes two 10-foot by 23-foot sitting/storage areas, an 11-foot by 10-foot room and three boat slips adjacent to their property along Aquia Creek in Stafford County. THE COMMISSION VOTED UNANIMOUSLY TO APPROVE THE BUTTERBAUGH'S AFTER-THE-FACT APPLICATION AS RECOMMENDED BY STAFF, WITH THE INCLUSION OF A CIVIL CHARGE IN THE AMOUNT OF $600.00 IN LIEU OF ANY FURTHER ENFORCEMENT AS PROVIDED BY CODE.
[ Audio Item 11-17a | Audio Item 11-17b]

18. PUBLIC COMMENTS. COMMISSIONER BOWDEN SUGGESTED THE FINFISH MANAGEMENT ADVISORY COMMITTEE EXAMINE PARITY ISSUES WITH ACCESS TO MARYLAND FISHERIES FOR VIRGINIA GILL NETTERS AS WELL AS THE AVAILABILITY OF MARYLAND STRIPED BASS TAGS FOR VIRGINIA RESIDENTS COMPARED TO THE AVAILABILITY OF VIRGINIA STRIPED BASS TAGS FOR MARYLAND RESIDENTS.
ALSO, KEN SMITH, PRESIDENT OF THE VIRGINIA STATE WATERMAN'S ASSOCIATION URGED THE COMMISSION TO TAKE WATER QUALITY MORE INTO CONSIDERATION WHEN MAKING DECISIONS THAT IMPACT THE CHESAPEAKE BAY AND ITS TRIBUTARIES. 
[ Audio Item 18 ]

19. BLUE CRAB - Request for Public Hearing in October 2008 - Crab Pot Tagging, Latent Effort Reductions, Effort Transfer Program, and use of agents. THE COMMISSION ACCEPTED REVISED FISHERY STAFF RECOMMENDATIONS TO PUT A CRAB POT TAGGING SYSTEM AND AN EFFORT TRANSFER PROGRAM ON HOLD UNTIL DETAILS ARE WORKED OUT AND FUNDING BECOMES AVAILABLE. DISCUSSIONS ON FURTHER AGENT CONTROL AND LATENT EFFORT REDUCTIONS WILL CONTINUE WITH RECOMMENDATIONS FOR THE COMMISSION POSSIBLE FOR OCTOBER'S MEETING.
[ Audio Item 19 ]

20. SUBMERGED AQUATIC VEGETATION STATUS REPORT: Dr. Bob Orth, VIMS. THE COMMISSION APPROVED A $20,000 EXPENDITURE SO DR. ORTH CAN CONTINUE HIS EFFORTS TO REPLANT LOST SAV BEDS AND TO MONITOR PROP SCARRING OF SAV BEDS. DR. ORTH GAVE HIS ANNUAL UPDATE OF HIS EFFORTS, AND REPORTED THAT 192 ACRES OF COASTAL BAY SAV BEDS WERE REPLANTED IN 2007. BUT HE NOTED THAT DECLINING WATER CLARITY IN THE MAINSTEAM OF THE BAY AND ITS TRIBUTARIES, AS WELL IN THE CHINCOTEAGURE AREA, HAS HAMPERED SAV REGENERATION. THE BAYWIDE LOSS OF THESE PROTECTIVE HABITATS FOR A VARIETY OF SPECIES OVER THE PAST FEW DECADES HAS BEEN EXTENSIVE AND THE SITUATION IS DIRE, DR. ORTH REPORTED.
[ Audio Item 20 ]

21. OYSTERS: REQUEST FOR SEPTEMBER PUBLIC HEARING to establish the 2008/2009 harvest restrictions. THE COMMISSION UNANIMOUSLY APPROVED A PUBLIC HEARING FOR NEXT YEAR'S HARVEST REGULATIONS AND PASSED AN EMERGENCY MEASURE THAT WILL PERMIT EXTENDED HOURS OF OYSTER HARVESTING ON PRIVATE GROUNDS DURING SEPTEMBER. PREVIOUS REGULATIONS RESTRICTED HARVESTS FROM SUNRISE TO 10 A.M. BECAUSE OF HEALTH CONCERNS ASSOCIATED WITH WARM WATER. THE HEALTH DEPARTMENT HAS DETERMINED A NOON TIME LIMIT IS SUFFICIENT.
[ Audio Item 21 ]

22. STRIPED BASS: REQUEST FOR OCTOBER PUBLIC HEARING to establish 2008 recreational harvest restrictions. THE COMMISSION UNANIMOUSLY APPROVED A PUBLIC HEARING TO CONSIDER A RANGE OF OPTIONS FOR FALL STRIPED BASS REGULATIONS. PRELIMINARY INFORMATION INDICATES THAT THE 2007 RECREATIONAL HARVEST WAS WELL UNDER THE QUOTA, SUGGESTING THAT SOME HARVEST RESTRICTIONS COULD BE LIFTED THIS FALL.
[ Audio Item 22 ]

23. SUMMER FLOUNDER FISHERY: REQUEST FOR A SEPTEMBER PUBLIC HEARING. Industry request for modification of the open season and possession limits, for the offshore commercial summer flounder fishery. THE COMMISSION UNANIMOUSLY APPROVED A PUBLIC HEARING NEXT MONTH FOR A SERIES OF CHANGES TO OFFSHORE COMMERCIAL SUMMER FLOUNDER REGULATIONS.
[ Audio Item 23 ]

24. DIMITRI HIONIS: Reconsideration of forfeited priority rights to two pound nets. Applicant failed to purchase the licenses within the lawful time period. AT THE COMMISSION'S REQUEST, TWO COMMERCIAL POUND NET FISHERMEN WILL MEET TO TRY TO COME TO AN AGREEMENT OVER OWNERSHIP OF TWO CONTESTED LICENSES FOR POUND NETS LOCATED NEAR FIRST LANDING STATE PARK IN VIRGINIA BEACH. 
[ Audio Item 24 ]

THESE SO-CALLED PAGE 2 ITEMS WERE APPROVED UNANIMOUSLY:

2A. CITY OF VIRGINIA BEACH, #00-0057, requests authorization to reactivate and extend their previous permit to maintenance dredge approximately 20,000 cubic yards of subaqueous bottom, on an as-needed basis annually from the Long Creek municipal channel to restore maximum project depths of minus eight (-8) feet at mean low water. All dredged spoils will be offloaded at the Maple Street Site or the Lynnhaven Beach Facility and used for beach nourishment. Pre- and post-dredge surveys are required. The previous permit expired on May 28, 2008. If reactivated and extended, it will expire on February 28, 2010, the maximum of the Commission's allowance for a ten-year dredging permit. 

2B. TOWN OF SALTVILLE, #08-1296, requests authorization to replace an 8" pile-supported gravity sewer line and a 10" force main across 116 linear feet of the North Fork Holston River immediately upstream of the Harper Lane bridge in the Town of Saltville.

2C. PENINSULA PROPERTIES, LLC, #07-1650, requests authorization to construct a 6-foot wide by 65-foot long community pier with a 16-foot by 20-foot T-head platform, and a 4-foot by 12-foot aluminum ramp leading to a 12-foot by 70-foot floating platform with 4 mooring locations for three (3) townhouse units adjacent to property at 97 Marina Road situated along Sunset Creek in Hampton. Staff recommends a royalty in the amount of $4,917.00 for the bold outline of the pier and four proposed mooring locations.

2D. METROPOLITAN WASHINGTON AIRPORTS AUTHORITY, #08-1170, requests authorization to impact 3,368 square feet of Difficult Run as a result of the construction of the Dulles Corridor Metrorail Project in Fairfax County.

2E. LOUDOUN MITIGATION, LLC, #08-0413, requests authorization to impact 2,356 linear feet of Piney Run for the installation of rock toe protection, J-hook rock vanes and root-wads, and to relocate the channel as part of a stream restoration project at the Pipken site near the intersection of Harpers Ferry Road and Branchriver Road in Loudoun County.

2F. NAUTICUS, CITY OF NORFOLK, #08-1081, requests authorization to install a data buoy approximately 1,200 feet south-southeast of Hospital Point in the City of Portsmouth, across the Elizabeth River from Nauticus. The buoy will be deployed in approximate position 36 50' 40.10" N, 76 18' 1.74" W and will be incorporated into the National Oceanic and Atmospheric Administration's Chesapeake Bay Interpretive Buoy System (CBIBS).

2G. HARPER AVENUE, LLC, #08-1277, requests authorization to dredge, on an as-need basis, a maximum of 3,000 cubic yards of State-owned subaqueous material, per dredge cycle, to create maximum controlling depths of -27 feet at mean low water and widen the existing berth on the northwest side of Pier 1 at the Earl Industries facility situated along the Elizabeth River in the City of Portsmouth. Staff recommends a time-of-year restriction of July 1 - September 30 for any dredging given the proximity of the existing oyster reef and the inclusion of our standard dredging conditions related to the requirements for pre- and post-dredging bathymetric surveys. Staff Further recommends the assessment of a royalty in the amount of $1,350.00 for the dredging of 3,000 cubic yards of State-owned subaqueous material at a rate of $0.45 per cubic yard.

2H. COLUMBIA GAS TRANSMISSION CORPORATION, #07-2522, requests authorization to replace or repair, as needed, existing gas pipeline segments along a 60-mile section of Line VM-107 from Bickers Compression Station to Goochland Compression Station possibly requiring the excavation, exposure, and replacement of the pipeline along numerous stream crossings in Greene, Orange, Albemarle, Louisa, and Goochland Counties. Staff recommends a permit condition stating that the permittee agrees to notify the Commission of any line replacements 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.


THIS PAGE 3 ITEM WAS APPROVED UNANIMOUSLY:

3A. CITY OF DANVILLE, #08-1030, requests after-the-fact authorization to retain 50 linear feet of replacement 16-inch sewer line installed a minimum of ten (10) feet above ordinary high water over the Sandy River in the City of Danville. Staff recommends no civil charge and the City has agreed to a triple permit fee of $300.00



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