SD3 - Virginia Marine Resources Commission Response to Senate Joint Resolution 309 (2019)

Executive Summary:

Virginia Marine Resources Commission (Commission) staff, in accordance with Sections § 28.2-1203 and § 28.2-1204 of the Code of Virginia, has processed multiple applications for submerged fiber optic telecommunication lines and one submerged energy cable project within the last five years - a copy of our most recent draft permit to encroach upon State-owned submerged lands, just approved by the Commission on December 17, 2019, and issued to GU Holdings Inc., is included in this report as an example. Given that the projects exceeded $500,000 in cost, they were unanimously approved by our full Commission at previous monthly public hearings.

Every proposal came to the Commission via the submittal of a standard Joint Permit Application (JPA), which is reviewed concurrently by the local government (City of Virginia Beach for these projects), and the U.S. Army Corps of Engineers. Each application must receive an exemption or approval from all three regulatory entities. Furthermore, the Commission will not consider permitting such a request without proof of the City's approval or exemption.

The Commission staff subjected all of the application requests to a standard public and agency interest review. This included developing a formal project description for a local newspaper advertisement and notifying all adjoining property owners. The goal of such a thorough public and agency interest review is to ensure that all concerns regarding the proposals are received and addressed. Commission staff also contacted various State and Federal agencies requesting comments or concerns on the proposals. Given the proximity of these projects to nearby military bases in Virginia Beach, notifications were also sent to the Virginia National Guard and the Department of the Navy. With these specific projects, we wanted to ensure that any perceived or direct impact to fisheries resources, commercial or federal navigation, military resources, sand mining resources, or utility conflicts would be immediately identified. The identification of any "user-conflicts" would have initiated an immediate review and discussion with the applicant and affected stakeholder.

Requests to impact State-owned submerged lands are never processed by the Commission staff in a vacuum - all proposed impacts are fully advertised and shared publically to aid in the formal Commission's ultimate decision of issuing a permit. Although there were questions with each application, including requests for clarification and additional information, Commission staff never received any objections or protests to the proposals. After exhausting the JP A review process for all of the referenced applications, Commission staff was fully comfortable in recommending that the full Commission approve each request for a permit to encroach upon State-owned submerged bottomlands. Every request was ultimately approved by the full Commission as consent agenda items during public hearings. To the Commission's staff knowledge, there were never any applicant complaints regarding the process or length of the application review/ permitting process.

Throughout the various application reviews and the meetings and discussions held pursuant to Senate Joint Resolution No. 309, Commission staff never perceived that the current JPA review and permit process is too difficult, confusing, or overly complicated. We are not of the opinion that creating some type of fiber optic cable protection zone would benefit either commercial applicants or government regulators. To the contrary, an attempt to establish such a protection zone may generate additional concerns or problems regarding its identification, security, and potential cable loading. The Commission just approved a new trans-Atlantic fiber optic cable to land in Virginia Beach; recently a JPA was submitted for four new telecom cable portals to be installed along the coast of Virginia Beach; and this past summer a prospective wind-energy company contacted the Commission regarding a future submerged transmission connection into Virginia Beach. A formal fiber optic cable protection zone would be extremely difficult to legally manage and incorporate all of the existing cables and/or future proposals, especially given that existing lines and future proposals are located at different points along the City's Atlantic shoreline. Furthermore, from the local City of Virginia Beach perspective, such a formal cable protection zone may adversely affect the City's ability to attract future telecommunication partners and/or utilize existing upland infrastructure.

At least to this point in our Commonwealth's brief history of processing such submerged fiber optic cable requests, the standard JP A review process has efficiently served its purpose, and facilitated the appropriate permitting of submerged fiber optic cables to enter into the Commonwealth through the Atlantic Ocean and the City of Virginia Beach.

If the General Assembly feels that it is absolutely necessary to establish additional measures to safeguard existing or future submerged fiber optic cables, a modification to Section § 28.2-106.2 of the Code of Virginia may be an option. Currently this Code Section allows the Commission authorization "to establish, by regulation, state water safety zones and restricted areas within the tidal waters of the Commonwealth wherein public access shall be restricted or prohibited in the interest of public safety." This could be amended to also identify protection zones for telecommunication cables in specific areas, and incorporate such patrols, restrictions, or enforcement as the Commonwealth or Commission deems necessary.