NORFOLK WETLANDS BOARD May 11, Messrs. Dashiell (chairman), Janata, Kerry, Kimidy, Larkin. Messrs. Doyle, Robison; Mrs.

Transcription

1 NORFOLK WETLANDS BOARD May 11, 2011 MEMBERS PRESENT: MEMBERS ABSENT: ALSO PRESENT: Messrs. Dashiell (chairman), Janata, Kerry, Kimidy, Larkin Messrs. Doyle, Robison; Mrs. Stevenson-Clark Messrs. DuBois, Erwin, Johnson (VMRC); Mrs. Hall 1. Convene Meeting Mr. Dashiell read the wetlands policy and explained the procedure to be followed at today s meeting and administered the oath to all persons wishing to testify. II. Meeting Minutes March 9, 2011 The March 9, 2011 meeting minutes were approved as presented. III. Hearing Items Prior to the hearing items, Mr. DuBois presented information on the tide study data. He advised that the city has a contract with Fugro Atlantic to prepare information with regard to the tidal data in the city, explaining that they ve got an ongoing tidal study in the city with up to two years of tidal data at a number of tide stations around the city. One of the tide stations that Fugro has established is located at the Tidewater Bridge and other locations include: the downtown pump station, Sewell s Point, Haven Creek, Broad Creek, Little Creek, etc. He also explained how the Board determines jurisdiction without a site specific tide study for every project that would come before the Board, noting that the Wetlands Board jurisdiction will be an issue in one of the cases today. (Information on the tidal study data was provided in the hearing packets.) Mr. Dashiell stated that over the last couple of weeks, Fugro has gone through the raw data in a lot of detail and also have been on site throughout different waterways in the city for the last two years. He stated that it might be wise for the Board to request that additional tide studies be done in different water bodies, so that they can treat this as a living document and continue to refine it so they can treat each site much more accurately as they do with a broadband elevation. He further noted that staff has been working with Fugro and they ve got some very good information for the Lafayette River watershed. Mr. Dashiell further stated that he would like to take a motion on the document to continue refining the data for other bodies throughout the city and to use this information as accepted data for the Lafayette watershed.

2 On a motion made by Mr. Janata, seconded by Mr. Larkin, the Board agreed to use the Fugro data as a basis of information for the upper limits of wetlands for the Lafayette watershed. Mr. Janata asked if they wanted to consider the Elizabeth River watershed in this. In response, Mr. Dashiell stated that they should see if they can budget and do additional tide studies to hone this in because it would be beneficial to the Board and to residents in the city with their permit applications. A. Mr. and Mrs. Gary Laws - Application # W, 263 Sir Oliver Road on the North Branch of the Lafayette River Installation of living shoreline erosion control including approximately 120 linear feet of rock sill, 154 linear feet of coir log, sand fill, and native upland and wetlands plants to impact approximately 1,722 square feet of nonvegetated wetlands and create 1,556 square feet of vegetated wetlands and 576 square feet of nonvegetated wetlands. Mr. DuBois provided a general overview of the subject site, noting that there is an existing concrete seawall and riprap along the shoreline that faces the northeast and then there is wetlands vegetation along the other shoreline. The plan shows the location of existing intertidal wetlands and some high marsh saltbushes. The idea is to take down the concrete wall and move the concrete rubble out to create the sill and then the application includes biologs along the stretch. There is an eroded bank so there is a proposal for a rock sill to prop up the sand fill that would regrade the bank and make it stable. Staff suggested that the applicant extend the stone around the corner to protect that area from the northeast fetch making the wind and wave exposure parallel to the beach and not perpendicular to the shoreline. Any of the rock sill that is not vegetated qualifies as nonvegetated wetlands and that is the nonvegetated wetlands that would be created. The nonvegetated wetlands that would be impacted are in the area where there is no vegetation currently growing and that is proposed to be filled with sand and then planted, as depicted in the cross section diagrams. There is an existing block concrete wall that is starting to lean out and starting to fail. There is some rubble on the outboard side of the concrete wall. The cross section shows the stretch of shoreline where they will take the block from the wall and the rubble that s out in front of it, move it out to create the sill, fill the area and establish an intertidal marsh, and then grade the bank up and stabilize that with vegetation. Mr. DuBois noted that the elevation is slightly below mean-high water. There is some Spartina alterniflora and then graduate into the high marsh and it would be a mixture of salt marsh grasses and wetland shrubs in that area. Mr. Dashiell asked if filter fabric is needed on the back of the silt. In response, Mr. DuBois stated that filter fabric should be used and will make sure that it is included as a special condition in the recommendations

3 Mr. Dashiell also stated that they should tow it in a little bit, too. In response, Mr. DuBois stated that it will be included. Mr. DuBois noted that there is a section of the concrete wall that will remain to provide proper stabilization for the existing pier. VIMS Technical Assessment: ed to the Board on May 9, Staff Assessment: The living shoreline approach is the preferred method of erosion control at this site as it will protect existing wetlands, create new wetlands, and substitute natural vegetation erosion control for hardened shoreline sections. While some limited limbing of trees will be necessary to increase sunlight penetration for wetland growth, the plan adds erosion control for forested buffers where none currently exists. Planting salt tolerant shrubs interspersed with deep-rooted panic grass on the south facing steeper banked shoreline would provide enhanced erosion control. Staff recommended plan modifications and special conditions as outlined in the staff report. The plan would be modified to show the installation of filter fabric and the toe of the sill towed into the ground. (Copies were provided.) Mr. Dashiell asked if the applicant was in agreement with the special conditions as noted by staff. In response, Ms. Barbara Laws, 263 Sir Oliver Road, stated that they were in agreement and that a number of conditions were discussed with staff. She also stated that she was excited with the proposed plans. Mr. Ellis W. James, 2021 Kenlake Place, stated that he is delighted that the applicant is enthusiastic about this and that it is an excellent project. He also stated that every time the city gets a chance to develop living shorelines in appropriate locations that that is something that needs to be done for the long-term health of the city. Mr. Dashiell asked if anyone else in the audience wished to comment on the application. No further comments were made. On a motion made by Mr. Janata, seconded by Mr. Kimidy, the Board approved the application with plan modifications and special conditions as recommended by staff. * * * * * B. Highland Park Civic League - Application # W, Eastern terminus of 47 th Street on Knitting Mill Creek Installation of living shoreline erosion control including approximately 50 linear feet of coir log, sand fill, and native wetland plants to impact approximately 1,040 square feet of nonvegetated wetlands and create approximately 1,040 square feet of vegetated wetlands. The project also includes - 3 -

4 herbicide control of approximately 100 square feet of Phragmites and replacement with native wetland plants. Mr. DuBois provided a general overview of the subject site, noting that this is a citizen project on city land to stabilize a section of shore land. The applicant proposed to install biolog and remove an existing mulberry tree to open up the sunlight penetration to the wetland area and then mitigate for the tree in a grassy area at the end of the street. As depicted in the ground shots, there is an area along the shoreline with a little bit of Spartina alterniflora and one or two saltbushes and the rest mudflat. The area will be filled up to the mid-tide elevation and then planted with Spartina alterniflora. There is a natural seep that comes out of the ground and there were some concerns about planting in that zone and stabilizing that area. The plan calls for putting down coconut matting (coir mat 900), which will hold the sediment down as the water flows through it. VIMS Technical Assessment: ed to the Board on May 9, Staff Assessment: Staff has been working with the Highland Park Civic League, Lafayette Wetland Partnership, and adjacent private landowners to develop a comprehensive restoration for the subject cove off Knitting Mill Creek. In these protected waters, a living shoreline erosion control project will protect the shoreline and add valuable ecosystem services including water quality improvement and marine habitat enhancement. Staff recommended special conditions as outlined in the staff report. (Copies were provided.) Mr. Dashiell asked if the applicant was in agreement with the special conditions as recommended by staff. In response, Mr. Jim Hazel, 849 W. 49 th Street, applicant, agreed with the special conditions as recommended. Mr. Ellis W. James, 2021 Kenlake Place, stated that this is special and dear to his heart having worked with the people in Highland Park previously. He also stated that the applicants are showing and exhibiting the follow-through that is needed and hopefully will trigger the attention of the rest of the people on Colley Bay and in the area. He also stated that he fully supports the project. Mr. Dashiell asked if anyone else in the audience wished to comment on the application. No further comments were made. On a motion made by Mr. Janata, seconded by Mr. Larkin, the Board approved the application with special conditions as recommended by staff. * * * * * C. Gary Stull - Application # W, 528 Summers Drive on the North Branch of the Lafayette River Removal of approximately 60 linear feet of bulkhead and - 4 -

5 installation of 107 linear feet of new bulkhead with a 41-foot section located three feet landward of an existing 41-foot section (with three-foot returns) to remain to impact approximately 13 square feet of vegetated wetlands. Mr. DuBois provided a general overview of the subject site, noting that this is an item that the Board already rendered a decision on, but was remanded back by VMRC. The existing deteriorated bulkhead is to remain in place. There is wetland vegetation landward of the existing bulkhead. The new proposed bulkhead with some excavation to install it would result in impacts to the area of wetlands and then there was some fill proposed landward of the new bulkhead. The plan uses a mean-low water of minus 1.3, a mean-high water of 1.1, and upper limits of Wetlands Board jurisdiction at The data that staff presented from Fugro shows that the Wetlands Board jurisdiction is much higher than what s been shown on the applicant s drawings. When VMRC remanded this project back to the Board, the one thing that they asked the Board to look at was establishment of jurisdiction. The proposal is to do the bulkhead in the same location except for a section that was approximately three feet landward. Mr. Simon submitted a revised project to show the bulkhead to be installed in the same location, which was received on April 25 th, but has not been properly noticed and is not before the Board today as a project. Mr. Simon argues that the Board has no jurisdiction on this project. The approximate wetland boundary that staff established on the site is about three feet landward of the existing bulkhead and based on the upper limits of wetlands jurisdiction at Mr. Stull s property is upstream of the 2.8 upper limits of wetlands that have been established by Fugro as the proper upper limits of jurisdiction. Mr. DuBois noted that based on two years worth of data, the accepted linear interpolation method would argue that the upper limits of wetlands on this site is 2.8, not 2.69, which is even higher than what staff has flagged, not lower. On the adjacent wetland there is an intertidal marsh, a saltbush community, and some Rumex, which is one of the listed species. There are breaks in the bulkhead, which is deteriorated and is providing tidal flow through the structure and affecting that land. Some of the Rumex plants, as shown on the ground shots, are all on the list of 37 and led to staff s establishment of jurisdiction and also to the calculation of potential wetland impacts on this project. VIMS Assessment: Staff read the VIMS technical assessment into the record. (Copies were provided in the hearing packets.) Staff argued that VIMS assessment of the area of wetlands and the area of wetlands impact is underestimating the potential impact on the site. He also noted that none of the Rumex plants, which is on the list of 37 that define wetlands, were identified by VIMS. He further noted that Atriplex Patula is a FACW plant and is considered an indicator wetlands species, which extends throughout the area where staff has determined wetlands jurisdiction. It is not on the list of 37 that define wetlands

6 Staff Assessment: The project that was denied without prejudice by the Board is the one described in my opening remarks. In its remand, the Virginia Marine Resources Commission directed the Board to reconsider its jurisdiction in the matter. Mr. DuBois stated that Mr. Stull and Mr. Simon proposed an alternative to the current project, but the jurisdictional issues remain the same. Mr. Stull and Mr. Simon argue that the Board has no jurisdiction. Staff has shown based on the tidal data and the plant data that the Board does have jurisdiction. The project proposes to fill jurisdictional wetlands without compensation. Alternative strategies for erosion control exists that would not result in wetland impacts. Accordingly, the project does not meet the standards for permit issuance and staff would recommend that the Board affirm their previous decision, which would be to deny this project without prejudice. He further stated that the Board has the opportunity if it decides that if the applicant was willing to revise the plans, the Board could deem the application incomplete and Mr. Stull and Mr. Simon could propose a different alternative that would not impact the wetlands or at least provide for proper mitigation based on the Board s assessment of jurisdiction and the tidal data that the Board has accepted that s relevant at this location. Representing Mr. Stull, Mr. Robert Simon, Waterfront Consulting, congratulated the city on conducting an ongoing tide study for the last two years. He stated that since this new study has come to light, he asked for a 60-day deferral so they can see the tide study that the Board adopted. The jurisdiction of 2.8 is significantly higher and they would like to be able to look at the data that was adopted. Mr. Larkin asked if the Board is required to take action since this has come back to the Wetlands Board from VMRC. In response, Mr. Melita, City Attorney s Office, stated that he was present when the application was ultimately appealed and when the decision was made in February and he did represent the Board before the VMRC at the March hearing. He stated that Mr. DuBois more than adequately summarized the nature of that hearing and that the direction from the Commission on remand was to establish what the jurisdictional limits were so that this application could be resolved. He further stated that the application that was appealed and was remanded has to be resolved. Whether the applicant wants to withdraw it because they have a new application that they are in the process of completing so that it can properly be noticed and considered by the Board or whether a vote should be taken up or down, seems to be the two choices; but it is appropriate to have a resolution on the remand. In addition, Mr. Melita stated that his concern with the deferral is that ultimately the Board may be dealing with the new application becoming right for the Board s judgment as the rest of the requirements of the application are provided. The notice given at the same time that the Board would get back to dealing with the remand from what was done in February in so far as they are different applications, would create the question of whether there is some sort of inconsistency. He further stated that the Board may ask the applicant whether he would prefer a withdrawal to a deferral, but those are what the risks are with the deferral

7 Mr. Simon asked the Board to vote it up or down, stating that they have not had any time to examine the new tide data that the Board has adopted. Mr. Kimidy stated that nothing has changed from when it was reviewed in February other than the fact that the Board has expanded jurisdiction based on the tidal study. He further stated that there is no change that would warrant them to change their denial. On a motion made by Mr. Janata, seconded by Mr. Kimidy, the Board denied the application without prejudice. WETLANDS VIOLATIONS: (Mr. Dashiell read the violation statement into the record.) D. Barco Remediation Company LLC, 800 Indian River Road on the Eastern Branch of the Elizabeth River Excavation of wetlands to construct an earthen ramp to impact approximately 150 square feet of vegetated wetlands without a permit. Mr. DuBois noted that this has been before the Board and that they deferred action on the violation to afford Barco the opportunity to submit an after-the-fact application to permit the ramp and do whatever site modifications are necessary to make the ramp functional. Staff received correspondence from the agent indicating that their preference was to fill the ramp back in and re-stabilize the shoreline. Mr. Simon submitted a plan to show restoration of the existing shoreline, which the Board can handle as a restoration order as opposed to going through the permit process. The applicant proposed fill in the ramp area and replacement of stone or concrete debris along the shoreline. The cross section diagram shows an earthen berm would be installed to lay the foundation for the proper slope and revetment. The revetment would be towed in to mean-low water, filter fabric will be used, and the slope is 1.5:1, which is what the Board normally requires. Once it got above elevation six, the applicant proposes to have fill that would support vegetative stabilization on a 2:1 slope and a silt fence at the toe of the area until it became stabilized. They also propose the installation of Crush and Run at the top surface to provide additional stabilization of the flat area. Staff stated that the applicant s agent has signaled Barco Remediation s intent to fill the earthen ramp, and restore the shoreline condition. The Board could accommodate this request through the issuance of a restoration order with submitted plans, plan amendments, and requirements with the modification and special conditions as recommended in the staff report. Mr. Dashiell asked if the applicant was in agreement with the special conditions outlined by staff. In response, Mr. Spence, Barco Remediation, 410 Roosevelt Boulevard in Portsmouth stated that he was in agreement and asked if the Board required anything further for the fill, noting that they have 50/50 clay and topsoil

8 Mr. Dashiell inquired about the time frame for the duration for the restoration. In response, Mr. Spence stated that he is looking at six-to-eight months for the completion of the restoration. Mr. Dashiell asked about the construction of the riprap structure and the filling back in of the ramp. In response, Mr. Spence stated that that would be the first portion and would be the six-month phase. He stated that he is looking to complete the entire thing in that twomonth window six-to-eight months from now. Mr. Dashiell asked why such a delay. In response, Mr. Spence stated that he has to get approval from his superiors. Mr. Dashiell stated that the Board is looking for a speedier solution and that they are not given the option to not do this restoration. In response, Mr. Spence acknowledged that he understood. The agent, Mr. Robert Simon, Waterfront Consulting, stated that the main portion of the restoration is going to be the riprap portion at the bottom, to secure the shoreline and stop the runoff from coming down the ramp, and they should be able to have that installed within 90 days. Mr. Dashiell asked if that time frame included the infill of the ramp. In response, Mr. Simon stated that the infill of the ramp should follow immediately. Mr. Spence stated that it will follow immediately because they already have the soil on site. In summary, Mr. Dashiell stated within 90 days the bank will be stabilized, the ramp will be filled, and the riprap will be completed. He further noted that the total completion of the restoration project would be eight months. Mr. Simon responded that it will be. Mr. Dashiell asked if anyone else in the audience wished to comment on the application. No further comments were made. On a motion made by Mr. Janata, seconded by Mr. Kimidy, the Board ordered the restoration based on the plan submitted with the review of staff and the special conditions and then the time frame for the restoration of the ramp and the riprap revetment will be within 90 days and total project completion will be eight months. Mr. DuBois asked about the time frame for the payment of the mitigation for the wetlands. On a motion made by Mr. Janata, seconded by Mr. Kimidy, the Board ordered the payment for mitigation due within 30 days. (The Board addressed the civil charge portion of the violation.) - 8 -

9 Mr. DuBois stated that the environmental harm is a Group IV, Type IV, saltbush community and Group II, Type XV wetlands, sand/mudflat area of disturbance. It was a relatively minimal area of disturbance; however, there was some sedimentation into the river. In terms of the degree of noncompliance, staff had no prior contact with Barco Remediation, but they claimed to be environmental consultants for the Department of Defense with experience in shipyard operation, which staff considers that to be moderate non-compliance based on their level of experience. The matrix range for the civil charge assessment is $650 to $1,050. On a motion made by Mr. Larkin, seconded by Mr. Janata, the Board ordered the waiver of a $500 civil charge assessment if the site foreman attends the wetlands course within 12 months. Mr. Dashiell asked Mr. Simon, the agent, if he was in agreement with the aforementioned civil charge as stated. In response, Mr. Simon agreed to the civil charge as assessed. * * * * * D. Anton Bakker, 1054 West Ocean View Avenue on the Chesapeake Bay Installation of sculptures and pedestal bases in a coastal primary dune without a permit. Mr. DuBois stated that he provided the Board with a request from Mr. Bakker for a deferral on this case, which staff has no objection to granting the deferral. On a motion made by Mr. Janata, seconded by Mr. Kimidy, the Board deferred action on this case to the June 2011 hearing. IV. OTHER BUSINESS: Hermitage Foundation Mr. DuBois presented the Board with a letter from the Hermitage Foundation extending their sincere appreciation to the Wetlands Board for the $1,000 gift in support for the project. He provided a slide presentation on the completed living shoreline project that the Board approved several months ago. Highland Park Civic League 47 th Street Wetland Restoration Proposal Request monetary support from the Wetlands Board Mr. Jim Hazel, Highland Park Civic League, stated that since the 51 st Street project was such a success they were excited to begin a new restoration project off Knitting Mill Creek. They estimate that the wetlands portion of the project will cost more than $3,600 and also expect another $400 may be necessary to purchase plants for the upper portion of the - 9 -

10 city property. This protect will protect the shoreline and add valuable ecosystem services, which will be very beneficial to the surrounding neighborhood. He asked for a donation from the Wetlands Board to get the project moving forward to completion. Mr. Janata commented that while the Board would certainly like to support this project, he suggested that the civic league may want to look for some fundraising from other organizations throughout the City of Norfolk in addition to getting the word out. On a motion made by Mr. Janata, seconded by Mr. Larkin, the Board approved the amount of $1,000 for the Highland Park restoration project. There being no further business to consider, the meeting adjourned at 2:56 p.m. Respectfully submitted, Debra A. Hyman Deputy City Clerk/Stenographic Reporter