COMMISSION ACTIONS October 30, 2018

** APPROVAL OF AGENDA. THE AGENDA WAS UNANIMOUSLY APPROVED AS MODIFIED TO INCLUDE (ITEM #16) CONSIDERATION OF THE SHELLFISH MANAGEMENT ADVISORY COMMITTEE'S (SMAC) RECOMMENDED ADJUSTMENTS TO THE CURRENT 2018-2019 PUBLIC OYSTER HARVEST SEASON AND AN UPDATE ON THE HARVEST OF JAMES RIVER SEED OYSTERS. [audio]

1. MINUTES of previous meeting. THE MINUTES WERE APPROVED AS WRITTEN BY UNANIMOUS VOTE. [audio]

2. PERMITS (Projects over $500,000.00 with no objections and with staff recommendation for approval). ITEM 2A WAS APPROVED BY UNANIMOUS VOTE. [audio]

3. CONSENT AGENDA ITEMS. ITEM 3A WAS APPROVED BY A VOTE OF 8 TO 0 WITH 1 ABSTENTION (COMMISSIONER BOWMAN). [audio]

4. CLOSED MEETING FOR CONSULTATION WITH, OR BRIEFING BY, COUNSEL. THE COMMISSION RECONVENED IN CLOSED SESSION FOR THE PURPOSES OF CONSULTATION WITH LEGAL COUNSEL AND BRIEFINGS BY STAFF MEMBERS PERTAINING TO ACTUAL OR PROBABLE LITIGATION, OR OTHER SPECIFIC LEGAL MATTERS REQUIRING LEGAL ADVICE BY COUNSEL AS PERMITTED BY SUBSECTION (A), PARAGRAPH (7) OF § 2.2-3711 OF THE CODE OF VIRGINIA. [audio]

5. BRIAN RECHTENBAUGH, #17-1334 Requests after-the-fact authorization to retain fill within vegetated tidal wetlands, and 150 linear feet of riprap revetment to aid in flood mitigation along a tributary to the Southern Branch Elizabeth River at 700 Seagrass Reach in the City of Chesapeake. The project requires a wetlands permit. Continued from the September 25, 2018, Commission meeting. THE COMMISSION APPROVED BY UNANIMOUS VOTE, PER STAFF'S RECOMMENDATION, THIS AFTER-THE-FACT REQUEST CONTINGENT ON THE APPLICANT'S AGREEMENT TO PURCHASE 1,250 TIDAL WETLANDS CREDITS FROM THE NEW MILL CREEK MITIGATION BANK AND THE ACCEPTANCE OF A CIVIL CHARGE OF $6,000 IN LIEU OF FURTHER ENFORCEMENT ACTION. [audio]

6. DRUM POINT PROPERTIES, LLC, #16-1552 Requests authorization to construct a 114-foot long by 5-foot wide open-pile timber community pier with a 16-foot by 16-foot L-head platform, a 4-foot by 16-foot PVC kayak boarding dock and a 16-foot by 8-foot floating dock, along the Western Branch Elizabeth River, on Lot C of the Martins Point Subdivision, located off Bruce Road in the City of Chesapeake. This project requires a subaqueous and wetlands permit. APPROVED UNANIMOUSLY PER STAFF'S RECOMMENDATION. [audio]

7. MARK E. BOSWELL, Oyster Planting Ground Application #2014-295 Requests authorization to lease up to ten (10) acres within Little Oyster Creek in Lancaster County. The application is protested by three nearby property owners. THE COMMISSION APPROVED BY UNANIMOUS VOTE THE LEASE ASSIGNMENT OF 7.51 ACRES AS RECOMMENDED BY STAFF. [audio]

8. THOMAS H. JAMES III, Oyster Planting Ground Application #2017-184 Requests authorization to lease 0.76 acres of Oyster Planting Ground in Nassawadox Creek adjacent to the Chesawadox subdivision in the Occohannock Neck area of Northampton County. The project is protested by nearby property owners. THE COMMISSION UNANIMOUSLY DENIED THE LEASE REQUEST IN ACCORDANCE WITH STAFF RECOMMENDATION. [audio]

9. THOMAS H. JAMES III, Oyster Planting Ground Application #2017-183 Requests authorization to lease 1.09 acres of Oyster Planting Ground in Nassawadox Creek in the Occohannock Neck area of Northampton County. The project is protested by nearby property owners. THE COMMISSION APPROVED BY A VOTE OF 5 TO 4 THE LEASE ASSIGNMENT OF APPROXIMATELY 0.4 ACRES, REFERRED TO AS AREA 1 IN THE STAFF EVALUATION. THIS AREA IS LOCATED SOUTH OF THE ADJACENT PROPERTY OWNER'S (GLEN NORDSTROM) RIPARIAN LEASE APPLICATION ALONG APPROXIMATELY 225 LINEAR FEET OF THE MEAN LOW WATER SHORELINE. COMMISSIONER BOWMAN AND ASSOCIATE COMMISSIONERS NEIL, ZEDRON AND TANKARD VOTED NAY. [audio]

10. PUBLIC COMMENTS Thomas James, on behalf of himself and his friend Harry Bowen, asked the Commission to review the rules regarding applications for aquaculture leases on subaqueous bottom where submerged aquatic vegetation has previously been determined to be present. Commissioner Bowman responded that the Aquaculture Working Group is currently reviewing this matter. [audio]

11. LICENSE STATUS REVIEW: THE COMMISSION HEARD 2 CASES OF LICENSE STATUS REVIEWS. [audio]

12. PUBLIC HEARING Proposal to amend Chapter 4 VAC 20-995-10 et seq., "Pertaining to Commercial Hook-and-Line," to modify and clarify existing language. THE COMMISSION UNANIMOUSLY APPROVED STAFF RECOMMENDATION TO AMEND CHAPTER 4 VAC 20-995-10 ET SEQ. TO: 1) CREATE DEFINITIONS OF "IMMEDIATE FAMILY" AND "CREW MEMBER LIST"; 2) CLARIFY EXISTING LANGUAGE CONCERNING TRANSFERS AND ELIGIBILITY AS APPROVED BY THE COMMISSION IN OCTOBER 2000; 3) PROVIDE CLARIFYING LANGUAGE ON CREW MEMBER LISTS AND REQUIRE A VERIFIED LIST BE ONBOARD THE VESSEL DURING COMMERCIAL HOOK-AND-LINE FISHING ACTIVITIES. [audio]

13. PUBLIC HEARING Proposal to amend Chapter 4 VAC 20-910-10 et seq., "Pertaining to Scup (Porgy)," to increase the trip limit from 18,000 pounds to 28,500 pounds for the commercial Winter II period fishery of October 1 through December 31. THE COMMISSION UNANIMOUSLY APPROVED STAFF RECOMMENDATION TO AMEND CHAPTER 4 VAC 20-910-10 ET SEQ., "PERTAINING TO SCUP (PORGY)," TO INCREASE THE TRIP LIMIT FROM 18,000 POUNDS TO 28,500 POUNDS FOR THE COMMERCIAL WINTER II PERIOD FISHERY OF OCTOBER 1 THROUGH DECEMBER 31. [audio]

14. REQUEST FOR PUBLIC HEARING Proposed amendments to Chapter 4 VAC 20-950-10 et seq. "Pertaining to Black Sea Bass," to establish the commercial back sea bass fishery quota for 2019. THE COMMISSION UNANIMOUSLY APPROVED STAFF RECOMMENDATION TO ADVERTISE FOR A PUBLIC HEARING TO AMEND CHAPTER 4 VAC 20-950-10 ET SEQ., "PERTAINING TO BLACK SEA BASS," TO ESTABLISH THE COMMERCIAL BLACK SEA BASS FISHERY QUOTA FOR 2019. [audio]

15. REQUEST FOR PUBLIC HEARING Proposal to amend Chapter 4 VAC 20-1180-10 et seq., "Pertaining to Fishing Guides," to clarify the exact number of Class A fishing guide licenses available for purchase from the Commission each year. THE COMMISSION UNANIMOUSLY APPROVED STAFF RECOMMENDATION TO ADVERTISE FOR A PUBLIC HEARING TO AMEND CHAPTER 4 VAC 20-1180-10 ET SEQ., "PERTAINING TO FISHING GUIDES," TO CLARIFY THE EXACT NUMBER OF CLASS A FISHING GUIDE LICENSES AVAILABLE FOR PURCHASE FROM THE COMMISSION EACH YEAR. [audio]

16. REQUEST FOR AN EMERGENCY AMENDMENT The Shellfish Management Advisory Committee (SMAC) recommended adjustments to the current 2018-2019 Public Oyster Harvest Season and an update on the harvest of James River Seed Oysters. THE COMMISSION UNANIMOUSLY APPROVED AN EMERGENCY AMENDMENT TO CHAPTER 4 VAC 20-720-10 ET SEQ., "PERTAINING TO RESTRICTIONS ON OYSTER HARVEST," TO ADJUST THE OPENING DATES OF RAPPAHANNOCK AREA 3 FROM JANUARY 1, 2019 THROUGH FEBRUARY 28, 2019 TO NOVEMBER 12, 2018 THROUGH JANUARY 10, 2019 AND TO LOWER THE BUSHEL LIMIT IN THE PATENT TONG AREAS FROM TEN BUSHELS TO EIGHT BUSHELS PER LICENSED HARVESTER. THE COMMISSION UNANIMOUSLY APPROVED STAFF RECOMMENDATION TO ADVERTISE FOR A PUBLIC HEARING AT THE DECEMBER COMMISSION MEETING TO MAKE THESE AMENDMENTS PERMANENT. AFTER BEING BRIEFED BY STAFF AND CONSULTING WITH THE FULL COMMISSION, THE COMMISSIONER AGREED TO EXERCISE HIS AUTHORITY TO CEASE GRANTING OUT-OF-STATE TRANSFER PERMITS FOR THE JAMES RIVER SEED AREA SINCE SOME AREAS ARE BECOMING DEPLETED AND THE ADDITIONAL GRANTING OF SUCH PERMITS COULD SERIOUSLY INJURE THE SEED AREAS. [audio]

PAGE 2 ITEMS [audio]

A. SHIRLEY CONTRACTING COMPANY, LLC, #18-1148 Requests authorization to replace the existing eastbound and westbound bridge crossings with new six-lane bridge crossings over Queen Creek on Interstate 64 as part of the I-64 Capacity Improvements-Segment III Design Build project in York County. Staff recommends approval with sound attenuation conditions for driving steel hollow piles that include ramp-up procedures, cushion blocks, and a confined bubble curtain. Permittee shall also execute a transfer of this permit to the Virginia Department of Transportation upon their acceptance of the structures. THE PROJECT WAS APPROVED BY UNANIMOUS VOTE PER STAFF'S RECOMMENDATION.

PAGE 3 ITEMS [audio]

A. MARK RUTTER, #15-0816 Requests authorization to retain a second 5-foot wide open-pile private pier extending 15 feet channelward of mean low water with a 10-foot by 20-foot L-head deck along Adams Creek at 2310 Island Road in Gloucester County. The applicant has agreed to pay a civil charge in the amount of $1,000.00 and a triple permit fee in lieu of further enforcement action. THE COMMISSION APPROVED BY UNANIMOUS VOTE THE AFTER-THE-FACT REQUEST FOR THE UNAUTHORIZED PIER CONTINGENT ON THE APPLICANT'S AGREEMENT TO PAY A $1,000 CIVIL CHARGE AND TRIPLE PERMIT FEES IN LIEU OF FURTHER ENFORCEMENT ACTION.