The following are the agenda items from the Commission's regular meeting held
November 25, 2008 at Commission
headquarters. The Commission's actions are in bold.
** APPROVAL OF AGENDA. THE COMMISSION AGREED UNANIMOUSLY, 9-0, TO AMEND THE AGENDA TO INCLUDE A BRIEFING BY STAFF ON A OCT. 9, 2008 LETTER FROM SECRETARY BRYANT CONTAINING HIS SUGGESTIONS FOR COMMISSION CONSIDERATION IN DETERMINING "UNIQUE CIRCUMSTANCES" WHEN ASSESSING THE COMPENSATION RATE FOR SUBAQUEOUS CONVEYANCES. THE COMMISSION AGREED TO CONSIDER THIS BRIEFING JUST PRIOR TO ITEM #9, PUBLIC COMMENTS, AS INDICATED BY THE ASTERISK (*). THE ENTIRE COMMISSION WAS IN ATTENDANCE.
1. MINUTES of previous meeting. APPROVED WITH ONE CORRECTION.
[Audio Item 1]
2. PERMITS (Projects over $50,000 with no objections and with staff recommendation for approval). ITEMS #2A - #2D (LISTED BELOW IN DETAIL) WERE APPROVED 9-0 AS RECOMMENDED BY STAFF. ITEM #2E WAS APPROVED 8-0-1 WITH ASSOCIATE COMMISSIONER HOLLAND ABSTAINING.
3. CONSENT AGENDA ITEMS: NONE FOR THIS MEETING.
[Audio Items 2-3]
4. CLOSED MEETING FOR CONSULTATION WITH OR BRIEFING BY COUNSEL: THE COMMISSION WENT INTO CLOSED MEETING TO DISCUSS LEGAL ISSUES SURROUNDING AGENDA ITEMS #5 AND #8, AND THE RECENT COURT DECISION IN THE CASE OF HOLLOWELL V. MRC, WHICH SEEKS TO OVERTURN THE COMMISSION'S BAN ON THE WINTER DREDGING OF CRABS.
[Audio Item 4]
5. GREGORY N. PACKETT, #08-1262. Commission review on appeal of the August 28, 2008, decision of the Richmond County Wetlands Board which resulted in the denial of a request for a 16-slip community dock at his property situated along Totuskey Creek in Richmond County. THE COMMISSION UNANIMOUSLY VOTED TO REVERSE THE RICHMOND COUNTY WETLANDS BOARD DECISION, FINDING THAT THE BOARD ACTED IN EXCESS OF THEIR JURISDICTION DUE TO A LACK OF ANY DIRECT IMPACTS FROM THE PROJECT TO TIDAL WETLANDS.
[Audio Item 5]
6. WATERVIEW LANDING, LLC, #08 0534. Commission review on appeal by 31 freeholders, of the August 12, 2008, decision by the Middlesex County Wetlands Board to approve a revised proposal to construct an 8 foot wide by 210 foot long community pier with a 6 foot wide by 40 foot long pier head and a 41 foot long canoe and kayak launching platform adjacent to property situated along Harry George Creek in Middlesex County. Continued from the September 23, 2008, meeting. THE COMMISSION VOTED 6-3 WITH COMMISSIONER BOWMAN AND ASSOCIATE COMMISSIONERS LAINE AND FOX AGAINST, TO UPHOLD THE DECISION OF THE MIDDLESEX COUNTY WETLANDS BOARD.
[Audio Item 6]
7. CHERRYDALE BY THE SEA, LLC, #08-0103, requests authorization to change the use of their 1,400-foot long by 5-foot wide private pier to a community-use structure to serve the lot owners in the "Cherrydale" subdivision, and extend the existing 30-foot by 10-foot T-head an additional 700-foot to accommodate the mooring of up to 21 community boats. The project is situated along a small tributary to Ramshorn Channel adjacent to Lots #13, #14 and #15 in the "Cherrydale" subdivision of Northampton County. No riparian piers will be permitted in the subdivision if this is approved. THE COMMISSION UNANIMOUSLY APPROVED THE PROJECT AS PROPOSED, CONDITIONED ON THE SUBMITTAL OF A HURRICANE EVACUATION PLAN, A REQUIREMENT TO INSTALL CROSS BRACE SUPPORTS WITH TWO (2) BOLTS EACH, THE INSTALLATION OF MOORING WHIPS, AND A PROHIBITION AGAINST THE MOORING OF ANY VESSEL LARGER THAN 25 FT LENGTH AND A BEAM OF 10 FT.
[Audio Item 7]
8. EASTERN SHORE OF VIRGINIA BROADBAND AUTHORITY, #08-1716, requests authorization to install 82,000 linear feet of fiber optic cables across the mouth of the Chesapeake Bay from the City of Virginia Beach to Northampton County. The fiber optic cables will be installed within the existing Chesapeake Bay Bridge and Tunnel cable trays. The Authority has asked for Commission consideration of a reduced royalty assessment. THE COMMISSION UNANIMOUSLY APPROVED THE AUTHORITY'S REQUEST FOR A REDUCED ROYALTY ASSESSMENT IN THE AMOUNT OF $100, GIVEN THAT THE AUTHORITY IS A PUBLIC ENTITY, THE PROJECT BENEFITS THE PUBLIC, AND THAT THE AUTHORITY WOULD QUALIFY FOR A 40-YEAR PERMANENT EASEMENT FOR $100 UNDER THE PROVISIONS OF §28.2-1208.A.
[Audio Item 8]
* DURING A BRIEF BREAK IN THE AGENDA, FORMER COMMISSIONER BILL PRUITT AWARDED FORMER ASSOCIATE MEMBER WAYNE MCLESKEY A DISTINGUISHED SERVICE PLAQUE FROM THE AGENCY FOR EIGHT DEDICATED YEARS OF SERVICE ON THE COMMISSION.
[Audio Item 8A]
* HABITAT CHIEF BOB GRABB BRIEFED THE COMMISSION ON NATURAL RESOURCES SECRETARY L. PRESTON BRYANT'S OCT. 9, 2008 LETTER, DETAILED ABOVE.
[Audio Item 8B]
9. PUBLIC COMMENTS: A SEAFOOD WHOLESALER FROM MATHEWS COUNTY ASKED THE COMMISSION TO CONSIDER ALLOCATING SOME FEDERAL BLUE CRAB FISHERY DISASTER FUNDS TO SEAFOOD WHOLESALERS. ALSO, AN OYSTERMAN REQUESTED THE COMMISSION AUTHORIZE THE RETURN OF A HAND SCRAPE THAT WAS CONFISCATED BY LAW ENFORCEMENT FOR A VIOLATION ON THE RAPPAHANNOCK RIVER. THE COMMISSION VOTED 9-0 TO RETURN THE EQUIPMENT WITH A STERN WARNING THAT FUTURE VIOLATIONS COULD MEAN A LICENSE SUSPENSION.
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10. PUBLIC HEARING: Proposed amendments to Regulation 4VAC20-1040-10 et seq., "Pertaining to Crabbing Licenses", to control latent effort in the crab pot and peeler pot fisheries. THE COMMISSION VOTED UNANIMOUSLY TO PLACE 524 DORMANT CRAB HARD POT LICENSES AND 343 PEELER POT LICENSES ON A WAITING LIST, BANNING THEM FROM USE UNTIL THE CHESAPEAKE BAY CRAB POPULATION REBOUNDS AND REMAINS AT ACCEPTABLE LEVELS FOR THREE CONSECUTIVE YEARS. THESE LICENSES HAVE NOT BEEN USED SINCE AT LEAST 2003. A HARDSHIP APPEAL PROVISION WAS ALSO APPROVED FOR THOSE 867 LICENSES.
[Audio Item 10]
11. PUBLIC HEARING: Proposed amendments to Regulation 4VAC20-950-10 et seq., "Pertaining to Black Sea Bass", to establish the 2009 commercial quotas for the directed and bycatch fisheries. THE COMMISSION UNANIMOUSLY APPROVED THE INDUSTRY-SOUGHT QUOTA ADJUSTMENT.
[Audio Item 11]
12. PUBLIC HEARING: Proposed regulation to establish a Fishing Guide License and to limit the sale of that license. APPROVED 8-1, WITH ASSOCIATE COMMISSIONER RICK ROBINS AGAINST BECAUSE HE WANTED MORE WORK DONE ON THE ISSUE, TWO SEPARATE FISHING GUIDE LICENSES FOR CHARTER BOAT CAPTAINS. ONE IS A LIMITED ENTRY LICENSE THAT ALLOWS LICENSE HOLDERS ACCESS TO MARYLAND WATERS AS PART OF A LONG-SOUGHT RECIPROCITY AGREEMENT WITH MARYLAND FISHERY REGULATORS. THE SECOND IS A LICENSE OPEN FOR ALL CHARTER BOAT CAPTAINS TO PLY VIRGINIA WATERS.
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13. CASES CONCERNING FAILURE TO REPORT COMMERCIAL HARVEST: THE COMMISSION VOTED UNANIMOUSLY TO PUT TWO WATERMEN ON PROBATION FOR TWO YEARS FOR FAILING TO FILE TIMELY HARVEST REPORTS. THE LICENSES OF AN ADDITIONAL 12 WATERMEN WERE SUSPENDED BECAUSE THEY FAILED TO ATTEND THE MEETING FOR A HEARING FOR HARVEST REPORTING VIOLATIONS.
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14. ERNEST L. GEORGE: Request to license and locate a pound net in the Rappahannock River about two miles west of Windmill Point Light. The proposal is protested by the Windmill Point Condo Association homeowners. THE COMMISSION UNANIMOUSLY APPROVED THIS POUND NET APPLICATION.
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15. DIRK SANFORD: Request to license and locate two pound nets in Chesapeake Bay between Lynnhaven Inlet and Cape Henry. The project is protested by onshore property owners, fishermen and others. THE COMMISSION UNANIMOUSLY DENIED, PER STAFF RECOMMENDATION, THIS POUND NET APPLICATION, CITING THE HIGH NUMBER OF DOLPHIN DEATHS IN NETS IN THIS PARTICULAR AREA OF THE LOWER CHESAPEAKE BAY. OVER THE PAST 10 YEARS, AT LEAST 40 DOLPHIN DEATHS WERE ATTRIBUTED TO EXISTING POUND NETS IN THE VICINITY, AND COMMISSION MEMBERS SAID THEY FEARED ADDITIONAL MARINE MAMMAL DEATHS COULD RESULT IN A FEDERAL BAN ON ALL POUND NETS IN VIRGINIA WATERS.
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16. RECOMMENDATIONS OF THE RECREATIONAL FISHING ADVISORY BOARD: THE COMMISSION UNANIMOUSLY APPROVED THE PROJECT FUNDING PRIORITIES RECOMMENDED BY THE RFAB.
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17. REPEAT OFFENDER: A WATERMAN WAS PLACED ON ONE YEAR OF PROBATION, STARTING WITH THE SPRING 2009 OPENING OF CRAB SEASON, FOR REPEAT VIOLATIONS OF CRAB CONSERVATION MEASURES. THE WATERMAN CITED HEALTH AND EQUIPMENT PROBLEMS AS THE CAUSE OF THE VIOLATIONS.
[Audio Item 17]
THE FOLLOWING SO-CALLED PAGE 2 ITEMS WERE APPROVED:
2A. NORTHROP GRUMMAN SHIPBUILDING, #08-1998, requests authorization to replace support pilings for bulkhead fendering on Drydock 12 with 14 groups of four (4) pilings on 15 foot centers immediately channelward of the existing bulkhead adjacent to property situated along the James River in Newport News.
2B. PICKLE PROPERTY, LLC, #08-1155, requests authorization to dredge on an as-needed basis 84,500 cubic yards of State-owned subaqueous material to create maximum depths of -10 to -17 feet at mean low water; to construct a 13-foot wide by 462-foot long, commercial, floating concrete pier with an 8-foot wide by 50-foot long gangway and ten (10) 9-pile mooring dolphins; to construct a 13-foot wide by 50-foot long floating pier adjacent to an existing travel lift; to install seven (7) new support piles for the existing travel lift; to construct a 60-foot wide by 75-foot long wharf extending approximately 45 feet channelward of mean low water; to install approximately fourteen (14) 19-pile and two (2) 9-pile mooring dolphins; and to install approximately 130 linear feet of riprap marsh-toe sill channelward of mean low water, adjacent to their South Norfolk Aggregate and Marine Yard situated along the Eastern Branch of the Elizabeth River in the City of Norfolk. Staff recommends the inclusion of standard dredging conditions and the assessment of a royalty in the amount of $33,300.00 for the new dredging of 74,000 cubic yards of State owned subaqueous bottom at a rate of $0.45 per cubic yard.
2C. VIRGINIA INSTITUTE OF MARINE SCIENCE, CHESAPEAKE BAY NATIONAL ESTUARINE RESEARCH RESERVE, #08-1973, requests authorization to establish three (3) stations for long-term water quality monitoring purposes. One site is proposed east of Goodwin Islands in York County. A second site is proposed adjacent to the York River State Park pier on Taskinas Creek in James City County and the third site is proposed approximately 300 feet downstream of the remains of the Clay Bank pier in Gloucester County. Each site will require the installation of a single piling to support scientific water quality monitoring equipment. The proposed site adjacent to Goodwin Islands is located in Public Oyster ground set aside under §28.2 647 of the Code of Virginia.
2D. ONESTEEL, #08-1312, requests authorization to maintenance dredge, by mechanical method, with upland disposal at the Craney Island Dredge Material Management Area, up to 3,000 cubic yards of material from an existing berth to maintain maximum depths of minus 35 feet at mean low water adjacent to their facility on the Southern Branch of the Elizabeth River at 2649 South Military Highway in Chesapeake.
2E. BAYMARK CONSTRUCTION CORP., #08-1605, requests a one-time extension to Special Condition #19, which states "the dredging will be confined to the period of October 1 through November 30 in order to minimize the adverse effects to the clam and oyster industries that may be present in or near the project area." This extension would give the permittee a one-time extension up thru December 15, 2008 to complete the maintenance dredging of the access channel from Cherrystone Channel (north of Cape Charles Harbor) to the Bay Creek Marina in Kings Creek, Northampton County. All other permit conditions would remain in effect. The two major adjacent oyster ground leaseholders (Cherrystone Aqua Farms and G. F. Hogg) have agreed to the extension.