VMRC remands Wyatt Landing outfall appeal to Portsmouth Wetlands Board; asks VIMS for review

VMRC remands Wyatt Landing outfall appeal to Portsmouth Wetlands Board; asks VIMS for review

The Virginia Marine Resources Commission on May 27 remanded an appeal by Wyatt Landing Development LLC back to the Portsmouth Wetlands Board, directing the local board to focus its review on the project’s jurisdictional tidal-wetland impacts, to request a written recommendation from the Virginia Institute of Marine Science (VIMS), and to require compensatory mitigation for any permissible impacts.

The commission’s action follows an April 2 denial by the Portsmouth Wetlands Board, which voted unanimously to deny the applicant’s request after public testimony that included concerns about the broader residential development and stormwater design. VMRC staff told commissioners that the local board’s deliberations had focused heavily on upland stormwater and development concerns outside the wetlands board’s jurisdiction.

Chief Randy Owen summarized the appeal and staff evaluation. He said the project proposes two stormwater outfalls for a planned 17-lot subdivision adjacent to Lily Creek and that the permit record showed the board’s discussion included factors outside of wetland impacts. "After careful review of the record, staff has recommended that the matter be remanded to the Portsmouth Wetlands Board with specific instruction to limit their review to the jurisdictional impacts of tidal wetlands," Owen said.

Applicant representative Dustin Pringle of Bay Environmental provided the on-the-record wetland impact totals the record contained: outfall A would affect 369 square feet of tidal wetlands (136 square feet vegetated, 233 non‑vegetated) and outfall B would affect 543 square feet (188 vegetated, 355 non‑vegetated), for a total of 912 square feet of tidal-wetland impacts. Pringle said the applicant proposed to mitigate vegetated tidal-wetland loss by purchasing 324 square feet of compensatory mitigation credits from a New Mill Creek tidal mitigation bank owned by Chesapeake Land Development, and he stated the project had already received U.S. Army Corps of Engineers review.

Commissioners and staff debated the proper scope of review on appeal. Counsel and staff cited the Commission’s statutory appellate standard — that VMRC may modify, remand or reverse a wetlands-board decision when the board failed to fulfill responsibilities under the Wetlands Zoning Ordinance, or when the record shows unlawful procedure, excess of authority, or decisions unsupported by the evidence on the record considered as a whole. Staff recommended remand, asking the local board to consider only tidal-wetland jurisdictional impacts and to solicit VIMS input.

Several commissioners preferred a remand that explicitly requested a written VIMS recommendation. Commissioner Headley said VIMS input often provides critical ecological detail: "VIMS has input on a lot of projects that come before us, give us a whole lot more insight than we can see on our own." After public comment and motion, the commission voted to accept staff recommendations in full.

The commission’s formal motion — to remand back to the Portsmouth Wetlands Board; to formally request a written recommendation from VIMS; and to require compensation for any permissible tidal-wetland impacts — was approved by recorded voice vote. The chair announced the motion carried and the matter will return to the local board for further action limited to the wetland impacts and with VIMS review.