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COMMISSION ACTIONS AUGUST 2010

The following are the agenda items from the Commission's regular meeting held August 24, 2010 at Commission headquarters.  The Commission's actions are in bold.

*** APPROVAL OF AGENDA.  THE AGENDA WAS APPROVED UNANIMOUSLY 7-0 (WITH ASSOCIATE COMMISSIONERS CARTER FOX AND JOHN MCCONAUGHA ABSENT FROM THE MEETING) AFTER ITEM 5, APPALACHIAN POWER COMPANY, #10,0658, WAS REMOVED FROM THE AGENDA BECAUSE A PROTEST WAS DROPPED BY THE ADJACENT PROPERTY OWNER AND THE MATTER CAN, AS A RESULT, BE HANDLED ADMINISTRATIVELY. 
 [Audio Agenda

1.  MINUTES of previous meeting.  THE MINUTES OF THE JULY MEETING WERE APPROVED 6-0, WITH ASSOCIATE COMMISSION KYLE SCHICK ABSTAINING.  [Audio Item 1]

2.  PERMITS (Projects over $50,000 with no objections and with staff recommendation for approval).  THESE 10 SO-CALLED PAGE-TWO ITEMS, DELINEATED BELOW IN DETAIL, WERE APPROVED 7-0.
[Audio Item 2]

3.  CONSENT AGENDA ITEMSCONSENT AGENDA ITEMS.  THESE TWO CONSENT ITEMS, DELINEATED BELOW IN DETAIL, WERE APPROVED 7-0.
[Audio Item 3]

4.  CLOSED MEETING FOR CONSULTATION WITH, OR BRIEFING BY COUNSEL.  A CLOSED MEETING WAS HELD TO DISCUSS THE BIDDISON APPEAL OF A GWYNN'S ISLAND BOATEL PROJECT APPROVED BY THE COMMISSION IN 2007.  THE RICHMOND CIRCUIT COURT RULED FOR THE COMMISSION ON APPEAL.
  [Audio Item 4a]  [Audio Item 4b]

5.  APPALACHIAN POWER COMPANY, #10-0658, requests permission to cross approximately 513 linear feet of State owned submerged land with a new 12 kV aerial distribution line, the new distribution line will cross the New River at SR 94 Bridge (new) in Grayson County.  The project is protested by an adjacent property owner.  THIS ITEM WAS PULLED FROM THE AGENDA AFTER THE PROTEST WAS DROPPED BY THE ADJACENT PROPERTY OWNER, ALLOWING THE MATTER TO BE HANDLED ADMINISTRATIVELY.   
[Audio Agenda]

6.  MARK DOUGLAS, #10-0921, requests authorization to construct two (2) low-profile timber groins extending 48 feet channelward of mean high water adjacent to his property situated along the York River at 1626 Jenkins Neck Road in Gloucester County.  The project requires both a subaqueous permit and a Coastal Primary Sand Dunes and Beaches permit.  THE PROJECT WAS APPROVED 7-0, AS RECOMMENDED BY STAFF, TO REQUIRE THE GROINS BE LOW PROFILE AND THAT THE GROIN CELL BE NOURISHED WITH 40 CUBIC YARDS OF SAND AS PROPOSED WITH A ROYALTY OF $10 FOR THE ENCROACHMENT OF THE GROIN OVER STATE-OWNED SUBMERGED LAND.
 [Audio Item 6]

7.  ROBERT WINFREE, #10-1025, requests authorization to reconstruct and reinforce an existing concrete block retaining wall/bulkhead structure and to install a 30-foot long concrete block groin structure extending up to 20 feet channelward of mean low water at his property situated along the James River at 112 Eagle Bluff Drive in the Town of Claremont in Surry County.  The project requires both a subaqueous permit and a Coastal Primary Sand Dunes and Beaches permit.  THE COMMISSION VOTED 7-0 TO DIRECT MR. WINFREE TO SUBMIT AN ENGINEERING ANALYSIS TO STAFF WITHIN 45 DAYS TO CONFIRM A PROPERLY ENGINEER PLAN TO ADDRESS THE FAILING BULKHEAD/RETAINING WALL THAT WOULD BE CONSIDERED BY THE COMMISSION AFTER 60 DAYS.  FAILURE TO PROVIDE A PLAN WOULD RESULT IN THIS MATTER BEING CONSIDERED AS A RESTORATION HEARING BY THE COMMISSION AT THE OCTOBER MEETING.
 [Audio Item 7]

8.  GUILFORD HEIGHTS ASSOCIATION, #10-0816, requests after-the-fact authorization to retain a previously installed and unauthorized 186 linear foot concrete block retaining wall/bulkhead structure at their property situated along the James River in Surry County.  The project requires a Coastal Primary Sand Dunes and Beaches permit.  THE COMMISSION VOTED 6-0 TO APPROVE THE PROJECT WITH THE REQUIREMENT THAT THE DOWNSTREAM RETURN PORTION OF THE WALL BE PROTECTED WITH RIPRAP.  THE COMMISSION ALSO ASSESSED A $1,800 CIVIL CHARGE AGAINST BOTH THE APPLICANT AND THE CONTRACTOR.  COMMISSIONER BOWMAN RECUSED HIMSELF FROM THE DISCUSSION AND VOTE IN ORDER TO AVOID A POTENTIAL CONFLICT OF INTEREST.
 [Audio Item 8]

9.  SARAH CARNEAL, #10-0686, requests authorization to construct a 12-foot wide by 85-foot long riprap breakwater with 156 cubic yards of sand placed landward of the breakwater as beach nourishment and to construct a 50-foot long vinyl groin adjacent to her property situated along the Piankatank River at 975 Wilton Creek Road in Middlesex County.  The project requires both a subaqueous permit and a Coastal Primary Sand Dunes and Beaches permit.  THE COMMISSION VOTED 7-0 TO APPROVE THE PROJECT AS PROPOSED BUT WITH APPROPRIATE SAND NOURISHMENT ADJACENT TO THE GROIN AND WITH A ROYALTY OF $100 FOR THE PROPOSED BEACH NOURISHMENT AND GROIN ENCROACHMENT OVER STATE-OWNED SUBMERGED LAND.
 [Audio Item 9]

10.  JAMES COVINGTON, #10-0898, requests authorization to remove three (3) deteriorated timber groins and to construct three (3) new vinyl groins extending 42 feet channelward of mean high water adjacent to his property situated along Fishing Bay at 443 Stove Point Road in Middlesex County.  The project requires both a subaqueous permit and a Coastal Primary Sand Dunes and Beaches permit.  THE COMMISSION VOTED 7-0 TO APPROVE THE PROJECT AS PROPOSED WITH A ROYALTY OF $15 FOR THE ENCROACHMENT OF THE GROIN OVER STATE-OWNED SUBMERGED LAND. 
 [Audio Item 10]

11.  STEVE JOHNSON, #10-0937, requests authorization to remove a deteriorated groin and to construct a new vinyl groin extending 50 feet channelward of a deteriorated bulkhead and to construct 50 linear feet of replacement vinyl bulkhead aligned a maximum of two feet channelward of the old bulkhead adjacent to his property situated along the Rappahannock River at 752 Felton Road in Middlesex County.  The project requires both a subaqueous permit and a Coastal Primary Sand Dunes and Beaches permit.  THE COMMISSION VOTED 7-0 TO APPROVE THE PROJECT AS PROPOSED WITH A ROYALTY OF $5 FOR THE ENCROACHMENT OF THE GROIN OVER STATE-OWNED SUBMERGED LAND.
 [Audio Item 11]

12.  CHINCOTEAGUE INN, RAYMOND BRITTON, MANAGER, Violation #10-09.  Consideration of the failure to comply with a Commission notice to remove from State owed submerged lands, the western 54-foot by 13.6- foot section of a floating platform installed as a restaurant sitting/dining area along Chincoteague Channel in the Town of Chincoteague.  THE COMMISSION VOTED 4-3 (WITH BOWDEN, HOLLAND AND SCHICK VOTING NO) TO FIND THE FLOATING PLATFORM TO BE AN UNLAWFUL USE OF STATE-OWNED SUBMERGED LAND AND DIRECTED REMOVAL WITHIN 10 DAYS.
 [Audio Item 12]

13.  BAYLOR GROUND ADJUSTMENT, NOMINI BAY, WESTMORELAND COUNTY.  Staff request for Commission approval of adjustment of Baylor Ground, originally created by Acts of the Assembly, Chapter 632, approved April 2, 1902.  Adjustment to correct encroachment upon upland land parcels.  Request is pursuant to Section 5, 28.2 553 (Reestablishment of lines of Baylor survey; procedure; evidence of reestablished lines) of the Code of Virginia.  THE COMMISSION VOTED 7-0 TO MAKE A TECHNICAL CHANGE TO ONE BOUNDARY OF PUBLIC OYSTER GROUNDS IN NOMINI BAY, AS PROPOSED BY STAFF.
 [Audio Item 13]

14.  PUBLIC COMMENTS:  WATERMAN J.C. WEST OF GLOUCESTER ASKED TO BE INCLUDED IN THE LIMITED-ENTRY DOGFISH FISHERY, BUT WAS REFUSED AT THIS POINT BECAUSE OTHER COMMERCIAL FISHERMEN IN SIMILAR CIRCUMSTANCES HAVE BEEN DENIED REQUESTS TO BE ALLOWED TO COMMERCIAL HARVEST THIS QUOTA-BASED SPECIES.  EXPANSION OF PARTICIPATING WATERMEN MAY BE POSSIBLE IN ENSUING YEARS. 
[Audio Item 14]

15.  PUBLIC HEARING:  Consideration of amendment to Regulation 4 VAC 20-270-20 et seq. "Pertaining to Crabbing" to continue the 5 a.m. to 1 p.m. daily time limit for crab pots and peeler pots through September in 2010.  THE COMMISSION DECLINED TO CHANGE SEPTEMBER'S COMMERCIAL CRABBING HOURS, AS REQUESTED BY SOME CRABBERS, BUT REFERRED THE MATTER TO THE CRAB MANAGEMENT ADVISORY COMMITTEE FOR IN-DEPTH DISCUSSIONS PRIOR TO SETTING NEXT YEAR'S CRAB REGULATIONS.
[Audio Item 15]

16.  VIRGINIA INSTITUTE OF MARINE SCIENCE, Presentation of Dr. Bob Orth's annual review of the status of Submerged Aquatic Vegetation including the VIMS request to authorize the renewal of the 507.90 acre set-aside area in Hog Island Bay, for seagrass restoration that was last established by the Commission at their August 23, 2005, meeting.  DR. ORTH BRIEFED THE COMMISSION ON PROP SCARRING AND IMPROVEMENTS TO THE QUANTITY OF SUBMERGED UNDERWATER GRASSES, PARTICULARLY IN THE SEASIDE BAYS, AS WELL AS FLEDGLING EFFORTS TO REINTRODUCE BAY SCALLOPS, WHICH IS A FISHERY THAT HAS BEEN ALL BUT EXTINCT ON THE EASTERN SHORE FOR GENERATIONS.  THE COMMISSION VOTED 7-0 TO APPROVE $21,000 FOR ADDITIONAL PROP SCARRING MONITORING AND TO SET ASIDE ALMOST 508 ACRES IN HOG ISLAND BAY FOR SEAGRASS RESTORATION.
[Audio Item 16]

17.  REQUEST FOR PUBLIC HEARING:  for the 2010-2011 public oyster season requiring amendments to Regulations 4VAC20-720-10 et seq, "Pertaining to Restrictions on Oyster Harvest", 4VAC20-650-10 et seq, "Establishment of Oyster Sanctuary Areas", and 4VAC20-260-10 et seq, "Pertaining to Designation of Seed Areas and Clean Cull Areas".  THE COMMISSION VOTED 5-0, AFTER ASSOCIATE COMMISSIONER J.T. HOLLAND AND ERNIE BOWDEN LEFT THE MEETING FOR PRIOR ENGAGEMENTS, TO HOLD A PUBLIC HEARING IN SEPTEMBER ON A SUITE OF REGULATIONS CHANGES PROPOSED FOR THE 2010-2011 OYSTER SEASON THAT BEGINS THIS FALL. 
[Audio Item 17]


18.  REQUEST FOR PUBLIC HEARING:  for amendments to Regulation 4VAC20-1230-10 et seq "Pertaining to Restrictions on Shellfish" regarding the use of identification tags for shellfish harvest containers.  THE COMMISSION VOTED 5-0 TO APPROVE A PUBLIC HEARING IN SEPTEMBER TO CONSIDER ENACTMENT OF A SHELLFISH HARVEST CONTAINER TAGGING PROGRAM TO MEET U.S. FOOD AND DRUG ADMINISTRATION REQUIREMENTS.  THE FDA IS REQUIRING STATES MANDATE SHELLFISH CONTAINERS BE TAGGED TO IDENTIFY WHO HARVESTED THE SHELLFISH AND WHERE THEY WERE HARVESTED.
[Audio Item 18]

19.  DISCUSSION:  concerning a Conservation and Replenishment Program project to allow the harvest of seed oysters by private planters from areas permitted for shell dredging in the upper James River between September 13 and September 24, 2010.  DR. JIM WESSON BRIEFED THE COMMISSION ON A PLAN TO ALLOW SOME PRIVATE OYSTER GROUND LEASE HOLDERS TO PAY TO COLLECT A LIMITED NUMBER OYSTER SHELLS WITH SEED ON THEM FROM A SEED AREA IN THE JAMES RIVER JUST PRIOR TO AN AGENCY OPERATION TO DIG UP FOSSILIZED SHELLS UP TO 40 FEET UNDER THE SITE FOR DISTRIBUTION ON PUBLIC OYSTER GROUNDS IN OTHER PARTS OF THE STATE.
[Audio Item 19]

20.  REQUEST FOR PUBLIC HEARING:  to consider the establishment of a Fishermen Identification Program as authorized by Section 28.2-302.1:1 of the Code of Virginia and to amend Regulation 4VAC20-1090-10 et seq. to raise saltwater recreational fishing license fees.  THE COMMISSION VOTED 5-0 TO HOLD A PUBLIC HEARING IN SEPTEMBER TO ESTABLISH THE VIRGINIA FISHERMAN IDENTIFICATION PROGRAM, AND TO RAISE RESIDENT SALTWATER FISHING LICENSE FEES TO PAY FOR IT.  THE FIP IS REQUIRED UNDER STATE LAW TO BE ESTABLISHED IN JANUARY TO COLLECT THE CONTACT INFORMATION FOR ALL ANGLERS IN VIRGINIA TIDAL WATERS OVER THE AGE OF 16 WHO FISH LEGALLY WITHOUT A LICENSE.  WHEN IN PLACE, EVERYONE OVER THE AGE OF 16 WHO FISHES IN VIRGINIA WATERS WILL NEED EITHER A FISHING LICENSE OR TO REGISTER FOR FREE WITH THE AGENCY.  THIS FREE STATE REGISTRATION WILL ALLOW VIRGINIA TO BECOME EXEMPT FROM AN EXISTING FEDERAL SALTWATER ANGLER REGISTRATION PROGRAM THAT WILL REQUIRE SALTWATER ANGLERS TO PAY UP TO $25 IN ANNUAL FEDERAL REGISTRATION CHARGES AS OF 2011.
[Audio Item 20]

THE FOLLOWING 10 SO-CALLED PAGE TWO ITEMS, WHICH ARE STAFF-RECOMMENDED PROJECTS OVER $50,000 THAT HAVE RECEIVED NO PUBLIC OBJECTIONS, WERE APPROVED 7-0:

2A.  THE GREEN ASSOCIATION, #10-1199, requests authorization to install 1,688 linear feet of quarry stone riprap revetment extending a maximum of ten (10) feet channelward of an existing, deteriorated timber bulkhead at several locations at their residential shoreline on Dead and Bones Cove of Carter Creek in Lancaster County. 

2B.  NORTHROP GRUMMAN SHIPBUILDING INC, #10-0518, requests authorization to mechanically maintenance dredge, on an as needed basis, up to 300,000 cubic yards of State owned bottom material from the James River to maintain depths of minus fifty (-50) feet below mean low water adjacent to Pier 3, minus thirty seven (-37) feet below mean low water adjacent to Pier 6, minus seventy two (-72) feet below mean low water at the Floating Dry Dock basin, and minus forty nine (-49) below mean low water adjacent to  Dry Dock 11.  All dredged material will be disposed of at Craney Island or an approved upland disposal location.

2C.  NORTHROP GRUMMAN NEWPORT NEWS, #05-1746, requests authorization to modify their existing permit to retain the 12,750 square foot platform associated with the previous steam generation facility at Pier 3 situated along the James River in Newport News.  The platform will be used for waterfront security.

2D.  DEPARTMENT OF THE NAVY, #10-0516, requests authorization to construct a 42-foot wide by 392-foot long armor stone breakwater with a maximum height of 7 feet above mean low water in the Chesapeake Bay between the Officers Beach and the Enlisted Beach directly adjacent to Joint Expeditionary Base Little Creek Fort Story-West in Virginia Beach.  A maximum of 3,000 cubic yards of sandy beach material will be placed on the beach and channelward of mean low water to create a temporary construction access. 

2E.  GRAVEYARD COVE DREDGE, LLC, #09-1320, requests authorization to install a total of 213 linear feet of inlet jetties consisting of composite bulkhead and marsh toe revetments, and maintenance dredge by mechanical method, approximately 738 cubic yards of State-owned submerged bottom to achieve maximum depths of -3.0 feet at mean low water adjacent to properties in the Kline Farm subdivision, situated along Graveyard Cove and the Eastern Branch of the Lynnhaven River in Virginia Beach.  Dredged spoils will be barged and offloaded at commercial marine property in Portsmouth.  Staff recommends a royalty of $153.00 for the 153 square feet of fill associated with the bulkhead portions of the jetties at $1.00 per square foot.

2F.  DEPARTMENT OF THE NAVY, #09-1712, requests authorization to construct a 23-foot wide by 137-foot long, open pile, concrete boat ramp; construct a 15-foot wide by 146-foot long floating tending pier/wave attenuator with a 5.3-foot wide by 35-foot long gangway; construct a 14-foot wide by 152- foot long floating pier along an existing bulkhead, with a 4-foot by-8 foot, open pile platform and a 5.3-foot wide by 35-foot long gangway for access to the pier; and install six (6) ladders and 24 concrete fender piles on the existing bulkhead along Ranger Avenue, to support operations at the V47 Combat Craft Facility situated along Willoughby Bay at Naval Station Norfolk in the City of Norfolk.  The proposed project also calls for the construction of portions of the boat ramp within a temporary 34-foot by 100-foot sheet pile cofferdam, and the temporary excavation and replacement of approximately 50 cubic yards of sandy bottom material to allow for the installation of the lowest pile caps of the ramp within the proposed cofferdam.

2G.  U.S. COAST GUARD, #10-0552, requests authorization to replace a previously existing floating pier with a new 6-foot wide by 76-foot long floating pier, and to install a new approximately 91-foot long floating tending pier with widths ranging between 6 and 9.5 feet along side an existing boat ramp, adjacent to the small boat piers situated along Craney Island Creek at U.S. Coast Guard Base Support Unit Portsmouth in the City of Portsmouth.

2H.  TOWN OF GLEN LYN, #10-0761, requests authorization to install a 6-inch diameter water line attached to the existing Route 649 bridge, crossing over 112 linear feet of the East River in Giles County.

2I.  U.S. ARMY CORPS OF ENGINEERS, #10-0905, requests authorization to install a 20-foot wide riprap toe protection structure extending 13 feet into the Little Calfpasture River, immediately downstream of the Goshen Dam and Lake Merriweather in Rockbridge County.

2J.  FIGG BRIDGE DEVELOPERS, LLC, #09-0797, requests authorization to modify their existing permit for the Jordan Bridge replacement project to extend the time period for removal of the existing Jordan Bridge such that “complete removal of the existing Jordan Bridge structure from State-owned subaqueous bottom shall occur within the timeframe required by the United States Coast Guard (USCG) permit number 1-09-5 and subsequent approvals".  The demolition activities authorized by the USCG are to be completed by October 11, 2011.  The VMRC permit required complete removal of the existing bridge structure one (1) year from the permit issuance date of August 25, 2010.

THE FOLLOWING TWO SO-CALLED PAGE THREE CONSENT AGENDA ITEMS WERE APPROVED 7-0:

3A. STEPHEN HOCK, #10-0522, requests after the fact authorization to retain a 134 foot replacement bulkhead adjacent to his property at 2205 River Drive situated along the Potomac River in King George County.  The applicant has agreed to pay a $600.00 civil penalty and a triple permit fee of $75.00 in lieu of any further enforcement action.

3B. FRANK B. NELMS, JR., #09-0909,
requests after-the-fact authorization to retain a previously constructed and unauthorized private-use pier, being 4.5-feet wide by 60-feet long, to include an 8-foot by 8-foot L-head, and one associated mooring dolphin, at the applicant's property situated along the Nansemond River at 2075 Wilroy Road in the City of Suffolk.  The pier represents a second riparian pier at the same property and is adjacent to an existing boat ramp.  The applicant has agreed to payment of triple permit fees of $75.00 and a civil charge of $1,800.00 in lieu of any further enforcement action.




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