COMMISSION ACTIONS June 27, 2017

** APPROVAL OF AGENDA.

1. MINUTES of previous meeting. APPROVED AS WRITTEN 5-0 [audio]

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

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

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

5. MARIE JUSTICE, #17-0601 Requests authorization to construct 145 linear feet of riprap revetment, landward of an existing deteriorated bulkhead, along the Eastern Branch Elizabeth River, at residence of 106 Lenwill Drive in Chesapeake. The project requires a wetlands permit. UNANIMOUSLY APPROVED AS PROPOSED [audio]

6. VIRGINIA ELECTRIC AND POWER COMPANY, #13-0408, Requests authorization to cross State-owned bottomlands to construct a new 27.75 mile overhead transmission line known as the Surry, Skiffs Creek, Whealton Substation project that will span the James River from Surry County to James City County and includes crossings of Wood Creek in James City County and Skiffs Creek between James City County and Newport News, as well as Lee-Hall and Harwood's Mill reservoirs. The project is protested by a number of organizations and residents. UNANIMOUSLY APPROVED WITH THE FOLLOWING SPECIAL CONDITIONS: 1. ALL INSTREAM PILING INSTALLATION SHALL UTILIZE BUBBLE CURTAINS, ISOLATION CHAMBERS, CUSHION BLOCKS AND RAMP UP METHODS. 2. NO HOLLOW STEEL PILINGS SHALL BE INSTALLED BETWEEN FEBRUARY 15 THROUGH JUNE 15 OF ANY YEAR. 3. INSTREAM PILE DRIVING OF HOLLOW STEEL PILINGS SHALL BE CONFINED TO TWO TOWER LOCATIONS AT A TIME. AND WITH A ROYALTY IN THE AMOUNT OF $170,083.00 FOR THE ENCROACHMENT OF THE STRUCTURES OVER STATE-OWNED SUBAQUEOUS BOTTOMLANDS. [audio]

7. COLONIAL PIPELINE COMPANY, #15-1211 Requests authorization to modify an existing permit to allow for the installation, by directional bore method, of a 14-inch diameter petroleum transmission replacement line, in an existing easement, a minimum 80 feet beneath a 4,200 linear foot wide section of the Nansemond River in the City of Suffolk. The project is protested by an oyster ground leaseholder. UNANIMOUSLY APPROVED THE MODIFICATION WITH THE ASSESSMENT OF A ROYALTY IN THE AMOUNT OF $12,600.00, FOR ENCROACHMENT BENEATH 4,200 LINEAR FEET OF STATE-OWNED SUBMERGED LAND AT A RATE OF $3.00 PER LINEAR FOOT OF ENCROACHMENT. [audio]

8. PEACOCK HOLDINGS VA LLC, Violation #17-07 Consideration by the Commission to allow submittal of an after-the-fact application or proceed to a restoration hearing for a violation involving the construction of two screened roof additions, to include use as a restaurant, bar, seating and preparation areas located on a previously permitted marina pier at the Oyster Farm Marina situated along Kings Creek in the Town of Cape Charles. UNANIMOUSLY AGREED TO ACCEPT AN AFTER-THE-FACT APPLICATION TO RETAIN THE UNAUTHORIZED STRUCTURES AND DIRECTED SUBMITTAL OF THE AFTER-THE-FACT APPLICATION WITHIN 90 DAYS. [audio]

9. BRIEFING AND REQUEST FOR PUBLIC HEARING Proposed "Living Shoreline Group 2 General Permit for Certain Living Shoreline Treatments Involving Submerged Lands, Tidal Wetlands, and/or Coastal Primary Sand Dunes and Beaches." This second general permit regulation is being developed pursuant to §28.2-104.1 of the Code of Virginia. UNANIMOUSLY AGREED TO DIRECT STAFF TO MOVE FORWARD WITH DISTRIBUTING THE DRAFT GENERAL PERMIT TO THE WETLANDS BOARDS AND OTHER INTERESTED PARTIES FOR COMMENT AND TO ADVERTISE THE PROPOSED GENERAL PERMIT FOR PUBLIC HEARING AT THE SEPTEMBER 26, 2017, COMMISSION MEETING IN ORDER TO CONSIDER ADOPTION OF THE GENERAL PERMIT. [audio]

10. PUBLIC COMMENTS Mike Avery, representing the Virginia Saltwater Sportfishing Association, spoke during the public comment period, requesting the Commission repeal the ban on using a gaff to land cobia caught recreationally. He provided testimony about the safety concern of having to use a net to land large cobia, and that a petition with 562 signatures (as of June 25th, 2017) showed the majority never wanted a gaffing prohibition in the first place. Mr. Avery wanted the repeal immediately stating he did not think there needed to be a public hearing. Counsel advised the Commission a public hearing would be needed to change the regulation. The Commission noted that it would be setting a dangerous precedent if it repealed this rule without any new information having come to light since the original decision was made. Also, several board members noted the fact that the prohibition was part of a suite of regulations set for the 2017 recreational cobia fishery, so the entire management scheme would need to be discussed again in a future public hearing. Thus, the Commission took no action. Mr. Cole Winchester came before the Commission to ask for reinstatement of his commercial registration card. Mr. Winchester missed the deadline to renew his card by two days and had previously submitted an exception request to the Chief of Fisheries. Staff can only allow exceptions for medical purposes, by regulation. The Commission unanimously voted to let staff look further into this situation and gave the Commissioner the authority to allow an exception to the missed deadline for this case if needed. [audio]

11. OFFENDERS: THE COMMISSION HEARD 4 CASES OF OFFENDERS WITH NATURAL RESOURCE VIOLATIONS. [audio]

12. PUBLIC HEARING Proposal to rescind the commercial fee increase that was scheduled to go into effect in December 2017. THE COMMISSION UNANIMOUSLY APPROVED TO RE-ADVERTISE THIS ITEM FOR A JULY 2017 PUBLIC HEARING. [audio]

13. PUBLIC HEARING Proposed amendments to Chapter 4 VAC 20-490-10 et seq., "Pertaining to Sharks," that would establish the May 1, 2017 through April 30, 2018 commercial spiny dogfish harvest quota as 4,220,814 pounds and remove the weekly buyer reporting requirement. DUE TO AN ADVERTISING ERROR THIS ITEM WAS HEARD AS AN EMERGENCY REGULATION. THE COMMISSION UNANIMOUSLY APPROVED STAFF RECOMMENDATION TO ADOPT THE 2017-18 COMMERCIAL SPINY DOGFISH HARVEST QUOTA AT 4,220,814 POUNDS AND STREAMLINE THE BUYER REPORTING PROCESS. THE COMMISSION ALSO APPROVED ADVERTISEMENT FOR A JULY 2017 PUBLIC HEARING. [audio]

14. PUBLIC HEARING Proposal to amend Chapters 4 VAC 20-270-10 et seq., "Pertaining to Crabbing"; 4 VAC 20-1140-10 et seq., "Prohibition of Crab Dredging in Virginia Waters"; and, 4 VAC 20-752-10 et seq., "Pertaining to the Blue Crab Sanctuary." DUE TO AN ADVERTISING ERROR THIS ITEM WAS HEARD AS AN EMERGENCY REGULATION. THE COMMISSION VOTED 6:1 TO APPROVE STAFF RECOMMENDATION FOR THE FOLLOWING: 1)CHAPTER 4 VAC 20-270-10 ET SEQ., "PERTAINING TO CRABBING", EMERGENCY 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. 3)CHAPTER 4 VAC 20-752-10 ET SEQ., "PERTAINING TO THE BLUE CRAB SANCTUARY". STAFF RECOMMENDS NO ACTION AT THIS TIME AND REQUESTS THE COMMISSION HOLD A PUBLIC HEARING IN JULY 2017 TO REVIEW PROPOSALS THAT WOULD MODIFY THE START DATE ON THE PROHIBITION OF COMMERCIAL CRABBING IN AREA 2 (THE 1942 SANCTUARY AREA) THAT IS CURRENTLY MAY 9 TO MAY 16 AND ESTABLISH A PARTIAL OPENING OF SANCTUARY AREA 4 THAT IS A COASTAL SANCTUARY. THE COMMISSION ALSO APPROVED ADVERTISEMENT FOR A JULY 2017 PUBLIC HEARING. [audio]

15. DISCUSSION To increase Virginia's portion of the coast wide total allowable catch of menhaden, in accordance with recent ASMFC actions. THE COMMISSION UNANIMOUSLY APPROVED STAFF RECOMMENDATION TO ADVERTISE FOR PROPOSED AMENDMENTS TO 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]

16. DISCUSSION Recreational blue crab fishery issues concerning cull ring use and practices involved in fishing recreational crab pots. THE COMMISSION UNANIMOUSLY APPROVES FOR STAFF TO BRING THIS ISSUE BEFORE THE CRAB MANAGEMENT ADVISORY BOARD AND THE REGULATORY REVIEW COMMITTEE FOR FURTHER DISCUSSION. [audio]

PLEASE NOTE: OWING TO A PUBLICATION ERROR BY ONE OF THE THREE NEWSPAPERS REQUIRED, BY SECTION 28.2-209 OF THE CODE OF VIRGINIA, FOR PUBLICATION OF THE REGULATIONS SLATED FOR PUBLIC HEARING, THESE REGULATIONS WILL BE PROPOSED AT THIS MEETING AS EMERGENCY REGULATIONS. BECAUSE OF THIS UNIQUE SITUATION, THE COMMISSIONER WILL TAKE PUBLIC COMMENTS AT THE HEARING ON JUNE 27, 2017 AND AGAIN AT THE JULY MEETING.

PAGE 2 ITEMS [audio]

A. KINDER MORGAN OPERATING L.P. “C”, #17-0648 Requests authorization to maintenance dredge up to 80,000 cubic yards, on an annual dredge cycle to maintain depths of -38 and -52 feet mean low water along the James River for Piers IX and X of their facility located at 1900 Harbor Access Road in the City of Newport News. UNANIMOUSLY APPROVED THE PROJECT AS PROPOSED.

PAGE 3 ITEMS [audio]

A. GLEN MALSTROM, #17-0649 Requests after-the-fact authorization to retain 70 linear feet of vinyl replacement bulkheading, aligned a maximum of two feet channelward of a deteriorating bulkhead, situated along Chincoteague Bay adjacent to Lot #1320 on Blackbeard Road in the Captains Cove subdivision, Accomack County. The agent/contractor has agreed to pay a civil charge of $3,000.00, in lieu of further enforcement action. Staff recommends approval contingent on the acceptance of the aforementioned civil charge, triple royalties of $420.00 and a triple permit fee of $75.00. UNANIMOUSLY APPROVED THE PROJECT CONDITIONED UPON THE CONTRACTOR'S AGREEMENT TO PAY A CIVIL CHARGE OF $3,000.00, IN LIEU OF FURTHER ENFORCEMENT ACTION AND WITH THE ASSESSMENT OF TRIPLE ROYALTIES OF $420.00 FOR THE FILLING OF 140 SQUARE FEET OF STATE-OWNED SUBAQUEOUS LAND AT A RATE OF $3.00 PER SQUARE FOOT AND A TRIPLE PERMIT FEE OF $75.00.