Virginia CZM Program: 2010 Coastal Grant Project Description and Final Summary

Project Task:

53 

Grantee:

Middle Peninsula Planning District Commission 

Project Title:

Floating Structures - The Policy and Permitting Complexities 

Project Description as Proposed:

As many coastal localities struggle with becoming less rural and more suburban, balancing growth, preserving coastal character, and encouraging and permitting new coastal uses predicated on innovative ideas, become more complex.
Over the past decade, aquaculture is quickly becoming a mainstay within the Middle Peninsula regional economy. While traditional shellfish harvesting focused on wild populations from the State’s public resources, shellfish aquaculture has evolved from planting “shell on bottom” to more intensive, contained, aquaculture utilizing cages, racks, and floats. Aquaculture is supplementing the diminishing wild harvests.  The industry is experiencing innovation and growth which is not easily approved within the local and state permitting process. Therefore, as the scale and intensity of aquaculture technology increases, localities across the coastal zone and in particular the Middle Peninsula as well as state agencies are faced with considering complicated policy changes and permitting options to keep pace with such advances. 
In summer 2012, Anderson’s Neck LLC submitted an application to establish an aquaculture business using an “Oysterplex” to grow native Crassostrea Virginia in Morris Bay (King & Queen County, Virginia). The proposed project would include several thousand floating oyster cages as well as two floating structures (28ft x 20ft) that would be moored by four mooring balls, as well as four stand-alone 20 foot by 8 foot solar powered upweller platforms. As this was the first proposed project of this size and intensity, both local governments and state agencies were not equipped to quickly remit permits for this proposed project, particularly with regard to the floating structures.   All agencies involved stumbled over the classification of the “Oysterplex” i.e. is it a vessel, is it a floating building, is it a floating structure (note- the US Supreme Court in  LOZMAN v. CITY OF RIVIERA BEACH, FLORIDA has ruled in January 2013 what constitutes a floating structure versus a floating home and this decision will play a role in future classifications of such)

In past efforts the Middle Peninsula Planning District Commission (MPPDC) staff worked to understand the policy implications of floating homes from a local government perspective. MPPDC staff considered the “use” of floating homes and focused on three classifications: (1) marina moorage, (2) private pier moorage, and (3) random moorage along waterfront moorage. As these categories encompassed the breadth of floating structures within the region at the time, the proposal of the Oysterplex, which included two floating structures in open water used for commercial use rather an residential use, now  presents new permitting, regulatory and jurisdictional questions to local governments and state agencies.

For this project MPPDC staff proposes the following:

1. Review the lessons learned with the proposal approval of the Oysterplex. What permitting issues and process breakdowns were encountered with the proposal of the Oysterplex.  How can these breakdowns be avoided in the future?

2. Create a Floating Structures Committee with local staff and state agency staff (ie. Virginia Marine Resource Commission, Virginia Department of Health, and Virginia Department of Housing and Community Development) to discuss permitting barriers and seek a memorandum of agreement related to process for future applicants as well as strategies for possible guidance for permitting of floating commercial structures in the future. MPPDC staff will also initiate discussions of local and state agency roles and responsibilities regarding floating structures as well as pose policy and management recommendations to local and state governments. Some questions to be addressed include:
 a. Who regulates the structure?
 b. Who permits the structure? 
 c. Who inspects the structure?
 d. What would an inspection look like?
 e. How is this structure taxed?

3. The Standard Joint Permit Application (JPA) is used by the United States Army Corps of Engineers, VMRC, VDEQ, and Local Wetland Boards for permitting projects that involve impacts to tidal waters, wetlands and dunes/beaches. However there is currently no mechanism or guidance to inform a locality’s planning administrator of these new types of projects which involve land use, zoning, septic pump and haul permits etc. MPPDC staff will work with Committee to develop the necessary policy and guidance to include local planning administrators/departments in the JPA process.

Federal Funding:

$14,890 

Project Contact:

Jackie Rickards; 804.758.2311; jrickards@mppdc.com 

Project Status:

4/15/2013 - 9/30/2013; Project Completed 

Final Product Received:

Floating Structures: The Policy and Permitting Complexities Final Report (pdf) 

Project Summary Provided by Grantee:

In summer 2012, Anderson’s Neck, LLC submitted a Joint Permit Application (JPA) to Virginia Marine Resources Commission (VMRC) to establish an aquaculture business using an “Oysterplex” that would be used to harvest, clean, tag, and bag oysters in Morris Bay (King & Queen County). This Oysterplex was described by the applicant as “basically a barge with a building on it, walls, windows, doors, a roof, and solar panels on the roof to power upwellers.” As this was the first time any State or Local entity was presented with a floating structure of this nature, it triggered new permitting questions.

For this project, MPPDC staff worked to understand the permitting challenges and breakdowns of the Anderson’s Neck project and explored ways to improve permitting processes for future innovative projects. To assist with gathering this information, MPPDC staff created a Floating Structures Committee that consisted of representatives from State and Local entities. Through extensive discussions with the Committee it became clear that each State entity has a very specific lens in which they consider a proposed project that is based on the agency’s authority and mission. Nevertheless there were two questions consistently asked amongst these entities: (1) what is the location of the floating structure, and (2) what are the intended uses of the structure? As these questions typically guide the agency in the direction of remitting the proper permit(s), State agencies advised that each submitted JPA project has unique details that are taken into consideration on a case-by-case basis.

As another outcome of working with Committee, communication was identified as an essential aspect of the permitting process that moves a project along in a timely manner. It was found that State entities need to work amongst each other as well as with local entities to provide a holistic solution to a proposed project. Additionally, JPA applicants are encouraged to provide as much detailed information about the project and the proposed business plan. This will assist State and Local entities with their permitting decisions. If information changes through the permitting process, this may alter the permitting course of the project and delay the project altogether.

The Anderson’s Neck Oysterplex project proved to be challenging, and as the scale and intensity of aquaculture technology and water uses change, localities across the coastal zone, as well as State agencies, will continue to face complicated policy questions and permitting options. While localities may need to acknowledge their jurisdiction over water and/or even consider zoning over water which is consistent with the 2011 Virginia Supreme Court ruling JENNINGS v. BOARD OF SUPERVISORS OF NORTHUMBERLAND COUNTY, State agencies may need to redefine traditional uses and their approach to projects. Regardless, however the permitting of Anderson’s Neck pushed State and Local entities to think outside their traditional box and work through the permitting process. Overall, each entity gained an experience that will be a reference for the permitting of future projects.   

Disclaimer: This project summary provides the federal dollars initially awarded to the grantee. Due to underexpenditure or reprogramming of grant funds, this figure may change. For more information on the allocation of coastal grant funds, please contact Laura McKay, Virginia Coastal Program Manager, at 804.698.4323 or email: Laura.McKay@deq.virginia.gov

A more detailed Scope of Work for this project is available. Please direct your request for a copy to Virginia.Witmer@deq.virginia.gov

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Virginia Department of
Environmental Quality
P.O. Box 1105
Richmond, VA 23218
(804) 698-4000


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