VA Riparian & Waterfront Property Rights at May 2019 VMRC Meeting

“VMRC decisions have direct and immediate consequences affecting the riparian property rights of Virginia's waterfront property owners. The VMRC makes these decisions at monthly meetings which are open to public. We attend the monthly VMRC meetings to represent our clients or as observers, and provide our readers a summary of the important cases.”

The applicant did not appear at the meeting. Similarly, the protestors were not present. Commissioner Bowman noted that the VMRC staff works hard to evaluate the application and stated that, in the future, “it would be in the best interest of the applicant to appear” to support his or her application.

The Virginia Marine Resources Commission (VMRC) is the state agency that manages Virginia’s marine resources. The VMRC regulates the fisheries and shellfish industries and issues permits for encroachments over state-owned submerged lands. It also manages the Virginia Wetlands Act, and the Coastal Primary Sand Dune Protection Act. VMRC decisions have direct and immediate consequences affecting the riparian property rights of Virginia's waterfront property owners. The VMRC makes these decisions at monthly meetings which are open to public. We attend the monthly VMRC meeting to represent our clients or as observers, and provide our readers a summary of the important cases.

The May meeting of the Virginia Marine Research Commission was held on May 28, 2019 in the VMRC’s offices located on Fort Monroe in Hampton, Virginia. All nine Commission members were present.

The first eight permit items were uncontested infrastructure applications for projects with a cost greater than $500,000.00. “Uncontested” means that no one submitted a written protest to the project. The VMRC staff recommended approval for each project. The Commission approved all eight on a unanimous 9-0 vote.

The eight uncontested high dollar infrastructure projects were as follow:

1. Advansix Resins & Chemicals, LLC (JPA #19-0424): Install two turning dolphins and a 36 foot long steel walkway at the end of its pier in the James River in Hopewell, Virginia.
   
   
2. US Army Corps of Engineers (JPA #19-0282): Place 10,000 cubic yards of dredge spoils at a 103 acre overboard site in Chincoteague Bay or at a 78 acre overboard site in the Atlantic Ocean. These spoils are material removed from the Chincoteague Inner Channel as part of a federal navigation project.
   
   
3. King George County (JPA #18-2014): Install a 1,005 linear revetment offshore an eroding bluff on the Potomac River in King George County.
   
   
4. US Army Corps of Engineers and City of Virgijnia Beach (JPA #19-0145): Use 250,000 cubic yards of sand dredged from the Lynnhaven Inlet federal channel to expand the beach between First Landing State Park and the Lesner Bridge.
   
   
5. Norfolk Southern Railway Company (JPA #15-1667): At the March 27, 2018 meeting, the Commission approved JPA #15-1667 authorizing Norfolk Southern to install 860 linear feet of bulkhead about 5 feet channelward of a shorter existing bulkhead, at the Norfolk Southern Coal Terminal Yard at Lambert’s Point on the Elizabeth River, along with stone and riprap to stabilize the new bulkhead. The approval was contingent on Norfolk Southern funding a $54,034.00 oyster reef expansion project or new reef project in the Elizabeth River watershed. Norfolk Southern now seeks permission to purchase “advanced sediment restoration credits”, in the amount of $54,034.00, from the Living River Restoration Trust for the Elizabeth River, instead of funding an oyster reef expansion project or new reef project. The trust uses its funding to purchase urban parcels in the Elizabeth River watershed, or to purchase conservation easements on such parcels, so that the land is preserved as open space. These open space parcels reduce the flow of sediment and other pollutants into the river, as compared to developed parcels.
   
   
6. Norfolk Department of Public Works (JPA #19-0345): Install 510 feed of riprap breakwater along Ocean View Beach, in the vicinity of 11^th View Street in Norfolk.
   
   
7. National Park Service (JPA #17-0921): This project is associated with the Dyke Marsh Wildlife Preserve on the Potomac River, adjacent to the George Washington Memorial Parkway, in Northern Virginia. The permit was approved at the March 27, 2018 Commission meeting, but under unusual conditions insofar as the National Park Service wanted to do the project one way and the VMRC staff wanted it done another way. Prior to the Commission meeting in March 2018, the two agencies (i.e. the VMRC and the NPS) invested a lot of effort in an unsuccessful attempt to find common ground. The National Park Service brought the project before the Commission at the March 2018 meeting, arguing for the design that the National Park Service preferred. The Commission, on a 5-to-2 vote rejected the National Park Service design and approved the version favored by the VMRC staff. Now, at the May 2019 Commission meeting, the National Park Service proposes to modify the approval it obtained last year by allow construction of a 1,600 linear feet of rock sill. The VMRC staff recommended approval and, so, this time the matter sailed through on a 9-0 vote.
   
   
8. McAllister Towing (JPA #19-0231): Install a 30 foot riprap revetment and a 50 foot long gangway at a pier on the Elizabeth River near Southampton Avenue in Norfolk.
   
   

Baylor Corporation (JPA #18-1446): This is a wetlands board hearing for a project in the City of Chesapeake. The VMRC conducts the hearing because Chesapeake rescinded its Wetlands Zoning Ordinance. The project site is on Michael Drive, adjacent to Julian Creek, in Chesapeake. The applicant wants to extend Michael Drive, create three commercial building sites, and construct a series of three stormwater ponds, and an outfall to a tidal marsh along Julian Creek that will receive overflow from the ponds during high rain events. Most of this stormwater management infrastructure will be built on the upland but the terminus of the stormwater outfall will impact 107 square feet of vegetated tidal wetlands. The applicant proposes to mitigate the impact to vegetated tidal wetlands by purchasing 107 credits at the New Mill Creek Tidal Mitigation Bank. There is no opposition to the project. The VMRC staff recommended approval. Associate Commissioner Everett questioned whether the credits should be purchased at a 2:1 ratio (meaning that the applicant would need to purchase 214 credits, instead of 107) but the VMRC staff advised that 1:1 is the proper ratio for the type of wetlands impacted in this project. Associate Commissioner France moved to adopt the staff recommendation. Associate Commissioner Minor furnished a second for the motion. The Commission unanimously approved the project on a 9-0 vote.

Chesapeake Department of Public Works (JPA #18-1573): This is a wetlands board hearing for a project in the City of Chesapeake. The VMRC conducts the hearing because Chesapeake rescinded its Wetlands Zoning Ordinance. The timber bulkhead (constructed in the 1950’s) is failing on a timber-bulkhead-lined-tidal-stormwater-drainage-ditch running between two homes on Christopher Drive in Chesapeake. The ground is collapsing around the foundation of the two homes on either side of the ditch. The City proposes to fill the ditch and install 36-inch pipe to convey the stormwater to a riprap outfall landward of the marsh along Baileys Creek. 200 square feet of nonvegetated wetlands and 25 square feet of vegetated wetlands will be lost when the ditch is filled. The City proposes to mitigate the 200 square feet of nonvegetated wetlands that will be lost by 50 square feet of native wetland vegetation at the terminus of the fill. As for the 25 square feet of vegetated wetlands lost due to the fill, the City proposes to purchase 25 credits at New Mill Creek mitigation bank. There is no opposition to the project. The VMRC staff recommended approval. Commissioner Bowman noted that failing stormwater drainage ditches is a widespread problem in Isle of Wight County and offered his compliments to the City of Chesapeake for “taking ownership” of the problem and fixing it. Associate Commissioner Everett asked whether the reduction in habitat value associated with the loss of saltbushes at the project were accounted for in the wetlands compensation strategy. The VMRC staff said that the wetlands compensation strategy applied to this project is in accordance with the VMRC guidelines. Associate Commissioner France moved to adopt the staff recommendation. Associate Commissioner Minor furnished a second for the motion. The Commission unanimously approved the project on a 9-0 vote.

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Brandon F. Beach (Oyster Planting Ground Application 2017-101): Mr. Beach applied for two parcels. One is 1.6 acres and the other is 6.4 acres, for a total of 8 acres. Associate Commissioner Lusk recused because Mr. Beach works for her company. Two protest letters were submitted, both claiming that the project would interfere with navigation. The VMRC staff recommended approval. The applicant did not appear at the meeting. Similarly, the protestors were not present. Commissioner Bowman noted that the VMRC staff works hard to evaluate the application and stated that, in the future, “it would be in the best interest of the applicant to appear” to support his or her application. Associate Commissioner Minor moved to adopt the staff recommendation. Associate Commissioner Everett provided a second for the motion. The lease was approved on an 8-0 vote (Associate Commissioner Lusk recused).

Public Hearing

The Commission convened a public hearing on a regulation to create a “Fast Track” permit process for disposal of dredge spoils. The Army Corps of Engineers has stopped dredging shallow draft channels. Localities, however, would like to see these channels dredged to provide deep water access to residents and to support watermen. Delegate Keith Hodges has taken a particular interest in clearing the shoaling that blocks channels used by watermen. (He represents counties of Essex, Gloucester, King and Queen, Mathews and Middlesex, and part of King William County.) Among other initiatives designed to eliminate shoaling, he sponsored legislation requiring the VMRC to adopt a regulation that “fast-tracks” the VMRC permit process for the selection and use of sites in Hampton Roads for disposal of dredge spoils. The legislation was adopted in the 2018 session of the General Assembly. It required VMRC to issue the regulation not later than July 1, 2019. The Commission unanimously approved the new “Fast Track” regulation on a 9-0 vote; the regulation took effect on June 1. The link will take you to a copy of the new regulation.

Audio of the meeting is available at http://mrc.virginia.gov/calendar.shtm.