NORTHAMPTON COUNTY WETLANDS BOARD Minutes December 15, 2010 This was the regular meeting of the Northampton County Wetlands Board held on Wednesday, December 15, 2010, in the former Northampton Middle School located at 7247 Young Street in Machipongo, Va., for the purpose of conducting regular business. Those members present were Vice-Chair Bowdoin Lusk, Mark Gates, Dot Field, Nancy Wells Drury, John Chubb and Robert Meyers. The member absent was Marshall Cox, Chair. Also attending were Hank Badger with the Virginia Marine Resources Commission (VMRC), Melissa Kellam, Zoning Administrator; Katrina Hickman, Zoning Inspector; and Kay Downing, Secretary to the Board. The Vice-Chair called the meeting to order at 11:34 a.m. and established a quorum and those wishing to speak at today s meeting were sworn in. It is noted for the record that Ms. Hickman, Zoning Inspector, had left the county office at 9:00 a.m. today with those Board members present to conduct the scheduled field visits with the exception of Mr. Lusk who was not present at that time. Public hearing: A. VMRC 2010-1739: P. Richard Anderson has applied to augment existing sill structures and install approximately 10 feet of new sill length as previously permitted, repair approximately 115 feet of a storm damaged rip rap structure, and install approximately 148 feet of new rip rap. The property, located on the cul-de-sac of Peaceful Way Drive, is described as being Tax Map 12C, double circle 1, parcel A with frontage on the Chesapeake Bay. Ms. Kellam then presented the decision tree information submitted to the Board as follows. As of the writing of this memorandum: (1) no VIMS report was available. When this report is received, it will be forwarded to immediately for your review; and (2) no adjacent property owners have commented on the proposed project. Below you will find a decision tree completed by County staff in conjunction with a site visit conducted on November 30, 2010. During your site visit on December 15, 2010, Katrina Hickman, Zoning Inspector, will have the file copy of the decision tree available if the Board wishes to revise the decision tree path based on their finding on-site. Minutes Dec. 15, 2010 Wetlands Board. 1
DECISION TREE FOR UNDEFENDED SHORELINE AND THOSE WITH FAILED STRUCTURED 1. What type of bank erosion is present? Low proceed to 1a. High and / or undercut proceed to 2. 1a. Is the shoreline forested? Yes 1a. (1). VEGETAION MANAGEMENT: FOREST STEWARDSHIP No 1a. (2). VEGETAION MANAGEMENT OF MARSH AND / OR RIPARIAN AREA 2. Is the shoreline forested? Yes proceed to 2a. No proceed to 3. 2a. What is the bank height? 0 30 ft. 2a (1). MANAGE THE FOREST TO PREVENT TREE FALL AND PROCEED TO 5. Greater than 30 ft. 2a. (2). GRADE THE BANK AND USE GOOF UPLAND MANAGEMENT PRACTICES TO PREVENT FURTHER EROSION AND PROCEDD TO 5. 3. Does the structure or other improvement location prohibit grading? Yes 3a. MOVE THE IMPROVEMENT, IF POSSIBLE; CONSULT WITH AN EXPERT No Proceed to 4. 4. GRADE BANK AND VEGETATE AND Proceed to 5. 5. Is there marsh present? Yes, <15 ft. wide Proceed to 5a. Yes, >or =to 15 ft. wide Proceed to 5b. No Proceed to 6. 5a. How long is the fetch? Low (<½mile) 5a. (1). EXPAND THE MARSH, USE A FIBER LOG FOR TOE PROTECTION Moderate or High (>or =to ½mile) 5a. (2). EXPAND THE MARSH, USE A SILL FOR MARSH TOE PROTECTION 5b. How long is the fetch? Low (< ½ mile) 5b. (1). MANAGE RIPARIAN BUFFER AND MARSH VEGETATION TO PREVENT FURTURE EROSION Moderate or High (>or =to ½mile) 5b. (2). BUILD A ROCK SILL FOR TOE PROTECTION 6. Is there a beach? Minutes Dec. 15, 2010 Wetlands Board. 2
Yes 6a. NOURISH THE BEACH WITH SAND; ADD SILL OR BREAKWATER WHERE NECESSARY No Proceed to 7. 7. How long is the fetch? Low (<½mile) Proceed to 7a. Moderate (between ½ mile and 2 miles) Proceed to 7b. High (>2 mile) Proceed to 7c. 7a. What is the near shore water depth? Shallow (at 30 ft. channel ward for MLW, water depth is < or = to 3 ft.) - 7a. (1). CREATE A MARSH, PROTECT THE TOE WITH FIBER LOG Deep (at 30 ft. channel ward for MLW, water depth is > 3 ft.) 7a. (2). CONSTRUCT A REVETMENT, PLACE IT ONSHORE TO THE EXTENT POSSIBLE 7b. What is the near shore water depth? Shallow (at 30 ft. channel ward for MLW, water depth is <or = to 3 ft.) 7b. (1). CREATE A MARSH, PROTECT THE TOE WITH A SILL Deep (at 30 ft. channel ward for MLW, water depth is > 3 ft.) 7b. (2). CONSTRUCT A REVETMENT, PLACE IT ONSHORE TO THE EXTENT POSSIBLE 7c. CONSTRUCT A BREAKWATER AND ADD BEACH NOURISHMENT Ms. Kellam noted that the VIMS report had been received and read the recommendations as follows. VIMS RECOMMENDATIONS SUMMARY: *Improve revetment and sill designs as proposed *Grade the bank to move revetment landward *Consider beach nourishment to further increase the level of erosion protection At this time Ms. Ellen Grimes, agent for the applicant, submitted a formal written request asking the Board to defer this matter at this time. The letter was read into the record by Ms. Kellam as follows. RE: Anderson VMRC # 10-1739 Ms. Kellam: With this letter CRM, LLC is requesting a defferal from the Wetalnds Board regarding a discussion and decision on the above referneced VMRC application for shoreline work on Mr Anderson s lot in Peaceful Beach. The reason for the request is that the applicant has reassessed his goals for the project and believes these goals can be better met by devising another project plan. Minutes Dec. 15, 2010 Wetlands Board. 3
The rip rap structure previously installed along the embankment has now failed. The current request is to repair and add to the length of that structure. The embayment created by the construction of the two northern most breakwaters continues to seek equilibrium by progressing landward. One of VIMS s suggestions pertaining to the currently submitted plans is to grade the embankment landward to accommodate the embayment. We believe, while being a good idea, this lot is not suited to this approach because the lot is surrounded on three sides by the 100-foot RPA buffer. Cutting into the bank would further diminish the size of the lot s building envelope. Therefore, we are entertaining the idea of, with revised drawings and re-advertising, re-building the two northern breakwaters farther from the shoreline and installing a toe protection rip rap structure with bank grading at the base of the embankment. The dimensions and encroachment of the rebuilt breakwater structures are uncertain at this pint but plans for same will be provided as soon as they become available. To recap, we are respectfully requesting a deferral of this application to said time as revised drawings can be submitted, reviewed by staff and re-advertised so that this application may be brought before the Wetlands Board. I am available to answer any questions at 757 442 5640. Thank you for your time Sincerely, Ellen R Grimes MS MFS Coastal Resource Management, LLC 14 December 2010 Ms. Grimes explained that the original application plan was to cut into the upland and massage the area but the applicant has changed plans as outlined in the written request to defer. The goal of revising the plan is to preserve as much upland building envelope as possible while maintaining and preserving the shoreline. Mr. Meyers voiced his support of the new plan and to defer this matter until a later time. Mr. Chubb asked if the sill would still be topped as originally proposed and Ms. Grimes stated yes. When asked by the Board she noted that the two northern sills would be moved slightly and that the footprint may be increased. No oral or written public comments were received on this matter. Mr. Chubb noted that the matter would need to be re-advertised if the Board defers as requested by the applicant. Action Motion to defer this matter until such time new drawings and plans are submitted was made by Mr. Meyers. Second was made by Mr. Gates and the motion carried unanimously with a 6 to 0 vote. Minutes Dec. 15, 2010 Wetlands Board. 4
When asked by Mr. Lusk, Ms. Hickman explained that the bay measurement was taken at the top of the sill for the Anderson application and not at the toe of the slope. Mr. Badger stated that in order to determine the area of the Board s jurisdiction measuring should commence at the top of the sill in this case or if a bulkhead existed then the measurement should be taken at the bulkhead. Ms. Grimes added that the toe of the slope will probably be moved backwards horizontally as new plans are finalized. Old Business The Board then discussed the status of Susan Emerson s as built drawings. Upon reviewing the drawings Mr. Chubb noted that the green stone area was not as built. Ms. Grimes stated he was right and that the green area is proposed. She explained that George Dilley, the contractor, had placed flags along the beach to prevent channelward encroachment. It was noted that staff was to do a field inspection before any additional work is done just to make sure the flags were placed correctly. Ms. Hickman stated that a field inspection was conducted and the placement approved per the Board s recommendation. Ms. Grimes also stated that there is Class III stone in the revetment that is not visible due to the smaller stone placed on top; therefore, there is no need to try to place additional large stone in the revetment. Action Motion was made by Mr. Gates to accept the as-built drawings as presented which was seconded by Mr. Meyers. The motion was approved with a 6 to 0 vote. Motion was made by Mr. Meyers to grant an extension for county wetlands permit #10-0347 (Susan Emerson) to expire June 1, 2011. Second was made by Mr. Chubb and carried unanimously with a 6 to 0 vote. The Board then discussed the status of the Cherrydale violation on property owned by Paul Forst. It was noted that Karen Duhring of VIMS had conducted a field inspection of the violation area along with Mr. Badger and Ms. Hickman. Ms. Duhring s letter describing her observations of the violation was reviewed and is included as part of the official record as follows. December 8, 2010 Northampton County Wetlands Board Northampton County P.O. Box 538 Eastville, VA 23347 Minutes Dec. 15, 2010 Wetlands Board. 5
Subject: VIMS inspection of Cherrydale by the Sea Community Pier Dr. Paul Forst VMRC #05-2688 Dear Northampton Wetlands Board Members: The Northampton Wetlands Board requested a VIMS site visit and recommendations for tidal marsh restoration actions at the Cherrydale community pier. Your questions included whether the site has been properly restored and if not, what additional actions should be taken. I first reviewed information and photographs provided by Katrina Hickman, Zoning Inspector. I also looked at aerial photographs taken before and after the pier was constructed (2002, 2007, 2009). I then conducted a site visit on November 30, 2010 with Katrina Hickman and Hank Badger (VMRC). It is my opinion based on site observations and other supporting information that no additional restoration actions are necessary at this time. The reasoning behind this conclusion includes the following: 1) There has been noticeable recovery of desirable tidal wetland vegetation in all areas disturbed by pier construction equipment. Natural recover is expected to continue. 2) There is no evidence of new Phragmites australis invasion into the disturbed areas next to the pier (does not include other upland and marsh areas away from pier). 3) While parallel ruts are still visible in Section 1 between the upland and marsh island, completely removing these ruts would likely require significant new land disturbance actions. The high marsh in this area appears to be recovering normal functions and vegetation patterns. New land disturbance does not appear to be necessary. 4) Some of the non-vegetated areas present now were not vegetated in 2002, prior to pier construction. Natural limiting factors on vegetation growth are still present in these areas, such as tidal channels, small tidal ponds, and salt panes with high salinity levels in the soil (for example, see photos of Section 2-A below). Additional sand fill and/or planting marsh vegetation would likely be compromised by these natural features. Minutes Dec. 15, 2010 Wetlands Board. 6
Sec. 2 A 2007 Sec. 2 A November 30, 2010 Note small tidal channel in center of non vegetated area. If the additional pier extension and boat slips authorized by VMRC #08-0103 will be constructed in the future, then additional considerations for access should be made at that time to prevent new tidal marsh impacts in the recovering areas. Please contact me if there are any questions about this evaluation or if you need additional information or advice from VIMS. Minutes Dec. 15, 2010 Wetlands Board. 7
Sincerely, Karen A Duhring, Marine Scientist e-copy: Hank Badger, VMRC Mr. Meyers stated his opinion that the VIMS evaluation should close this violation. However, Mr. Lusk was concerned that a precedent would be set if the Board releases the landowner from any further actions as it was his opinion that the area had not been adequately restored. Ms. Hickman stated that the county could still monitor the site. Ms. Kellam added that if the landowner is notified that the violation matter is closed then no future access to the site would be afforded to staff or Board without date specific permission from the landowner which does not have to be automatically granted. Ms. Kellam suggested that the landowner be notified that the Board and staff will want to reinspect the violation area again no later than July 30, 2012. Mr. Chubb suggested that the VIMS letter be kept as part of the official file record and that the landowner be informed that it is the intention of the Board to re-inspect the area in the future. Mr. Meyers suggested that if a letter is sent from the Board then the landowner should be thanked for his current efforts in trying to correct the violation; that it is the desire of the Board to re-inspect the area in 2012; and that the landowner is encouraged to do everything possible in the meantime to protect and maintain the area. Ms. Field noted that at the Board s last meeting it was our intent to abide with whatever was reported by VIMS on this matter after a field inspection was conducted. It was her opinion that the violation area would never to be completely restored as it was originally because the aspects of the area have changed with the installation of the commercial pier. Mr. Lusk was of the opinion that the Board wanted the damaged area repaired and restored period. Mr. Meyers reiterated his previous statement about notifying the landowner and suggested that the landowner be encouraged to document any future damages that may occur from storm impacts, etc., in order to keep the county informed about the status of the property. Ms. Field inquired as to how much time is generally involved for a violation to be fully processed from beginning to end. Ms. Hickman responded that a violation can take an average of 3 to 5 years especially when marshland or resource protection area buffers are involved. Mr. Lusk added that the original project was difficult to install due to existing topography and the applicant was warned about that; and it was his opinion that the contractor, in this case, was negligent while installing the pier. However, the property owner is ultimately responsible. Minutes Dec. 15, 2010 Wetlands Board. 8
Ms. Field noted that the landowner had planted grasses in the damaged area and that the Board did do a field inspection a year later. Ms. Drury stated that VIMS anticipates 3 to 5 years for complete restoration and that Mr. Forst should be informed of this. Mr. Lusk agreed noting that the Board should let the landowner know that this matter is not yet closed. He stated his concern again about a precedent being set in future violation cases if the Board determines that such wetlands damage is impossible to repair and landowners are not held responsible. Mr. Meyers suggested that VIMS should inform the landowner that this case would take 3 to 5 years before a determination is made that the violation can be closed. Mr. Lusk agreed and stated that the Board should defer this matter back to VIMS and that VIMS be made aware of the Board s concerns. When asked, Mr. Badger noted that such violation cases can be worrisome to resolve but that a friendly approach is always the best way to proceed in such matters. Mr. Meyers added that conflict resolution is worth the effort in most cases. Ms. Kellam explained the county process in such cases whereby the landowner is sent a violation notice, then a compliance notice and next a notice of a final deadline. If the landowner does not comply after three notices, the matter is taken to the district court for a decision. Ms. Hickman asked if fill was installed in the damaged area as Ms. Duhring had observed that the rut areas appeared not be filled as was required. Mr. Badger stated his opinion that it was a precarious area to fill but the damaged area is definitely improved and is healing better than he expected. However, Mr. Meyers stated it was evident that the low areas are causing some channeling as witnessed in the photograph contained in the VIMS letter. The Board then discussed the status of the Raccoon Island/Holly Bluff violation. It was noted that Ms. Hickman and Mr. Badger had conducted a recent field inspection of the site. Ms. Hickman explained that the landowner had been issued an emergency joint permit application to place concrete blocks behind the existing bulkhead only. However, it is evident that the area backfilled is greater in scope and that concrete was placed in front of the bulkhead as well along with concrete poles, mat and fill. It was her observation that rubble was basically dumped and pushed around and there is some metal interspersed among the debris as well. She noted that the geo-tube area was cut in and unstable rock installed. It was estimated that 1,200 tons of rock have been placed in this violation area. Mr. Lusk stated his opinion that nothing was done as approved in the emergency joint permit application that was issued. Minutes Dec. 15, 2010 Wetlands Board. 9
The Board asked that staff submit to each Board member all previous background information involving this property along with copies of permits and photos that are available as soon as possible. Mr. Chubb asked if the Army Corp of Engineers had made any concerns known to staff. Mr. Meyers added that the beach area is the dredged material placed there by the Corp many years ago. Ms. Kellam noted that the Corp was concerned about the excavator that went to the backside or south end of the island where dredging appears to have taken place. Then the dredged material was transported to the violation area. Ms. Hickman added that Mr. Robert Cole with the Corp did see the dredged area when he visited the island during the field inspection trip and verified that no dredge permit was issued. Staff added that there are three existing violations for this property: (1) a dredging violation; (2) a buffer violation; and (3) an erosion and sediment control violation. At this time Ms. Kellam relayed Mr. Val Valentine s concerns about being treated fairly by the Wetlands Board due to his past history with the county. She noted that Mr. Ben Mears is now consulting and providing advice to the property owner who is not Val Valentine. Mr. Lusk stated that the permit is not in Mr. Valentine s name nor is he the responsible party in this case. He also noted that the property owner is the responsible party and added that the Board treats everyone fairly. The Board then deferred discussion and action on the existing Wetlands Board By-Laws until the Chair returns. New Business Ms. Kellam reported that there may be three new applications to come before the Board next month. Ms. Hickman offered no new information in the Zoning Inspector s report. Statements from the Public: none received. Consideration of Minutes: The minutes of the October 20, 2010 were considered and approved with the following corrections: the date should be corrected in the heading and in the first paragraph; page 3, paragraph 3, first sentence, insert be after the word to ; and in paragraph 4, the second sentence the word country should be changed to county. Motion to approve as amended was made by Mr. Chubb and seconded by Mr. Gates. The motion carried with a unanimous vote of 6 to 0. Minutes Dec. 15, 2010 Wetlands Board. 10
Adjournment There being no other business the meeting was adjourned at 11:40 a.m. upon proper motion. Chairman Secretary Minutes Dec. 15, 2010 Wetlands Board. 11