United States of America v. Smith

Filing 145

Order entered on Phase II non-jury trial held on June 2-3,2014. Signed by Judge Kristi K. DuBose on 7/24/2014. (Attachments: # 1 Attachment A) (mcb)

The Court ADOPTS the following restoration plan, as revised:

RESTORATION PLAN
HAMILTON SMITH SITE
OVERVIEW OF RESTORATION REQUIREMENTS
In light of the Defendant’s claimed forestry purpose, the Proposed Restoration
Plan provides for reconfiguration of Dams A, B and D so that they are made eligible for
the forest road exemption, in part by eliminating the impounding effect of these Dams and
restoring the affected streams to a free-flowing condition. The Proposed Restoration plan
also remedies the impacts of the violations by providing for restoration of formerly
impounded areas by planting wetland tree species, and allowing natural regeneration of
wetland understory vegetation. In addition, this Restoration Plan also provides for a
possible reduction in the height and width of Dam D to minimize the impact of that very
large dam on waters of the United States, as required to meet the terms of the forest road
exemption.
Dam E does not serve a forestry purpose and cannot be made compliant with the
forest road exemption. The areas of Dam E and Impoundment E shall be fully restored
to their pre-violation conditions. This entails complete removal of fill material from
Creek E and its adjacent wetlands that were filled for the construction of Dam E,
draining the impoundment located upstream of the dam, and replanting the wetland
portion of the formally impounded area with wetland tree species.
The Defendant shall determine the sequence of restoration work. The
earthmoving, culvert installation, and planting activities required in this restoration plan
shall commence on or before October 1, 2014 and shall be finished on or before October
1, 2015. Annual maintenance of the wetland restoration areas shall occur for two (2)
years after completion of the restoration and will consist of hand removal of nuisance and
exotic plants. Annual monitoring of the survival of planted trees and photographs of the
restoration areas shall occur in September of each year. An Annual Monitoring Report
containing photographs and data on survival of planted trees shall be submitted to the
Court appointed monitor on or before December 15 of each year. Restoration will be
determined to be successful when at least 80% survival of the transplants survive for two
(2) consecutive years.
It is not known whether stream channels have silted in during the period of
impoundment, or if any earthmoving activities occurred in the creeks that are presently
impounded under Impoundments A, B, D, and E. If earthmoving or excessive siltation
have occurred to eliminate the original channels of impounded creeks, the creek channels
will require remediation. The Defendant shall notify the Court appointed monitor when
each Impoundment has been drained to schedule an inspection of the impoundment and
determine if stream restoration work is necessary. If the Court appointed monitor notifies
Defendant that stream restoration work is necessary, the Defendant will, within 30 days of
receipt of such notification, submit a stream restoration plan to the Court appointed
monitor for approval. Upon receipt of the Court appointed monitor’s approval, Defendant

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shall implement such stream restoration plan. Defendant shall notify the Court appointed
monitor when stream restoration work is complete, and the Court appointed monitor shall
perform a field inspection of restored creek bed and banks.
Restoration work may result in turbidity and erosion. Turbidity and erosion
control measures must be installed prior to earthmoving activities. An erosion control
plan shall be prepared by a qualified engineer and submitted to the Court appointed
monitor for review and approval at least 21 days before the scheduled start of
earthmoving activities. The approved erosion control plan shall be followed until all
restoration work is complete.
The Defendant shall hire a qualified engineering firm experienced in hydraulics
and culvert design to determine the type, size, number and placement of culverts that are
required in Dams A, B, and D. Round culverts may be used if they are buried a
minimum of one-foot deep in the stream bed. Bottomless culverts or buried round
culverts will provide the maximum environmental benefits of a congruous stream path.
The consulting engineer shall determine how the natural stream bed will react to the
placement of the culverts during all flow regimes and recommend protective measures
that are required to protect the culverts and dams from scour or aggradation.
The recommendations of the consulting engineer shall be submitted in a report to
the Court appointed monitor no later than 60 days from the date of entry of Judgment by
the Court concerning restoration of this Site for review and approval before
commencement of construction activities.
All plans submitted, and all work performed, shall be supervised by a qualified
engineer or environmental consultant.
DETAILED RESTORATION PLAN
Dam B

Dam B was constructed across Creek B. The culvert in Dam B was set high in the
dam face and resulted in creation of Impoundment B upstream of the dam. Restoration is
required to restore the flow, reach, and circulation of Creek B and restore the forested
wetlands that were flooded under Impoundment B.
After installation of approved initial erosion control measures, the existing culvert
in Dam B shall be removed, along with road fill at the culvert location, to allow the
drainage of Impoundment B. After the impoundment is drained, stream restoration shall
be performed if required, and culverts shall be placed in accordance with the engineer’s
approved recommendation. The roadway may then be reestablished in accordance with
its current configuration. Slopes shall be stabilized to prevent erosion into Creek B in
accordance with the approved erosion control plan.
Choice of culvert type, size, number, and placement shall be in accordance with
the consulting engineer’s approved recommendation.
The size of Impoundment B is currently 0.43 ac (18,730 ft²) (Figure 2). When
Impoundment B is drained, restoration of the impacted wetland area adjacent to Creek B
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shall consist of planting of a mix of wetland tree species on 10-foot centers (187 trees).
Planting of trees on 10-foot centers is required to assure a relatively uniform distribution
of wetland trees across the restoration area Transplants can be bare-root saplings or
container-grown plants and should be planted during a period of vegetative dormancy
(December through February). Wetland tree species to be planted include a mix of sweet
bay (Magnolia virginiana), swamp tupelo (Nyssa biflora), red maple (Acer rubrum), tulip
poplar (Liriodendron tulipifera), and cypress (Taxodium distichum). The percentage of
each tree species planted at this restoration area shall be determined by the Defendant’s
environmental consultant, subject to the Court monitor’s approval. Estimated cost of
trees for this restoration area is a total of $935 (at $5 per tree installed).
Natural revegetation of wetland understory vegetation is expected to occur in the
restoration area without planting. Annual maintenance of the restoration area is required
for two (2) years after completion of planting to eliminate the establishment and survival
of nuisance plant species, such as cattails, and non-native exotic species, such as
Japanese honeysuckle and Chinese tallow trees. Annual maintenance will consist of
hand-pulling nuisance and non-native plants that become established in the restoration
area and should occur concurrent with annual monitoring (September).
The wetland restoration area shall be monitored annually in September to
determine the survival of planted tree species and dead trees will be replaced.
Photographs shall be taken annually in September at three fixed locations. Photographs
and survival data shall be included in an Annual Monitoring Report submitted to the
Court appointed monitor by December 15 of each year. Wetland restoration will be
determined to be successful when at least 80% of the planted trees survive for two (2)
consecutive years. Annual monitoring and the submittal of Annual Monitoring Reports
will be discontinued after submittal of the second consecutive report that documents
achievement of success criteria.
Summary of Restoration Required at Dam B and Impoundment B
 After approved initial erosion control measures are in place, remove the existing
culvert in Dam B, along with road fill at the culvert location, and replace it with
properly sized and placed culverts as recommended in the engineer’s approved
recommendations
 Stabilize the slopes of Dam B to prevent erosion into Creek B
 Drain Impoundment B
 Restore Creek B stream channel if necessary
 Plant the wetland area currently under water in Impoundment B with 187 wetland
trees
 Annually maintain the restoration area in September by hand removing nuisance
and non-native exotic species that become established
 Annually monitor the survival of transplants in September and replant as required
 Annually photograph the restoration area in September from three fixed locations
 Submit an Annual Monitoring Report to the Court appointed monitor by
December 15, including photographs and data on survival of transplants, number
of transplants dead, and number replaced with live transplants
 Wetland restoration is successful when at least 80% of planted trees survive for
two (2) consecutive years and upon final inspection of the Court appointed
monitor.
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Dam A
Dam A was constructed across Creek A. Culverts in Dam A were set high in the
dam face and resulted in creation of Impoundment A upstream of the dam. Restoration is
required to restore the flow, reach and circulation of Creek A and restore the forested
wetlands that were flooded under Impoundment A.
After installation of approved initial erosion control measures, the existing culvert
in Dam A shall be removed, along with road fill at the culvert location, to allow the
drainage of Impoundment A. After the impoundment is drained, stream restoration shall
be performed if required, and culverts shall be placed in accordance with the engineer’s
approved recommendation. The roadway may then be reestablished in accordance with
its current configuration. Slopes shall be stabilized to prevent erosion into Creek B in
accordance with the approved erosion control plan.
Choice of culvert type, size, number, and placement shall be in accordance with
the consulting engineer’s approved recommendation.
The size of Impoundment A is currently 1.48 ac (64,469 ft²) (Figure 3). When
Impoundment A is drained, restoration of the impacted wetlands consists of planting of a
mix of wetland tree species on 10-foot centers (645 trees) within the boundaries of the
impounded wetland area at Impoundment A. Planting of trees on 10-foot centers is
required to assure a relatively uniform distribution of wetland trees across the restoration
area. Transplants can be bare-root saplings or container-grown plants and should be
planted during a period of vegetative dormancy (December through February). Wetland
tree species to be planted shall include a mix of sweet bay (Magnolia virginiana), swamp
tupelo (Nyssa biflora), red maple (Acer rubrum), tulip poplar (Liriodendron tulipifera),
and cypress (Taxodium distichum). The percentage of each tree species planted at this
restoration area shall be determined by the Defendant’s environmental consultant.
Estimated cost of trees for this restoration area is $3225 at $5 per tree installed.
Natural revegetation of wetland understory vegetation is expected to occur in the
restoration area without planting. Annual maintenance of the restoration area is required
for two (2) years after completion of planting to eliminate establishment and survival of
nuisance plant species, such as cattails, and non-native exotic species, such as Japanese
honeysuckle and Chinese tallow trees. Annual maintenance will consist of hand-pulling
nuisance and non-native plants that become established in the restoration area and shall
occur concurrent with annual monitoring (September).
The wetland restoration area will be monitored annually in September to
determine the survival of planted tree species and dead trees will be replaced.
Photographs shall be taken annually in September at three fixed locations. Photographs
and survival data shall be included in an Annual Monitoring Report submitted to the
Court appointed monitor by December 15 of each year. Wetland restoration will be
determined to be successful when at least 80% of the planted trees survive for two (2)
consecutive years. Annual monitoring and the submittal of Annual Monitoring Reports
will be discontinued after submittal of the third consecutive report that documents
achievement of success criteria.

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Summary of Restoration Required at Dam A and Impoundment A
 After approved initial erosion control measures are in place, remove the existing
culverts in Dam A, along with road fill at the culvert location, and replace it with
properly sized and placed culverts as recommended in the engineer’s approved
recommendation
 Stabilize the slopes of Dam A to prevent erosion into Creek A
 Drain Impoundment A
 Restore Creek A stream channel if necessary
 Plant the wetland area currently under water in Impoundment A with 645 trees
 Annually maintain the restoration area in September by hand removing nuisance
and non-native exotic species that become established
 Annually monitor survival of transplants in September and replant as required
 Annually photograph the restoration area from three fixed locations
 Submit an Annual Monitoring Report by December 15, including photographs
and data on survival of transplants, number of transplants dead, and number
replaced with live transplants
 Wetland restoration is successful when at least 80% of planted trees survive for
two (2) consecutive years.
Dam D
Dam D was constructed across Dennis Creek. Presently, Dam D disrupts the
movement of aquatic life and its construction resulted in excessive vegetative
disturbance. Restoration is required to restore the flow, reach and circulation of Dennis
Creek, and restore the forested wetlands that were flooded under Impoundment D.
Choice of culvert type, size, number and placement shall be in accordance with
the consulting engineer’s approved recommendation. After installation of approved
initial erosion control measures, the existing culvert in Dam D shall be reconfigured to
allow the drainage of Impoundment D. After the impoundment is drained, stream
restoration shall be performed if required, and culverts shall be placed in accordance with
the engineer’s approved recommendations. The slopes of Dam D must be stabilized to
prevent erosion into Dennis Creek and its adjacent wetlands in accordance with the
approved erosion control plan.
The maximum size of Impoundment D was 5.38 ac (234,352 ft²) (Figure 4).
When Impoundment D is drained, restoration of the impacted wetland area adjacent to
Dennis Creek shall consist of planting of a mix of wetland tree species on 10-foot centers
(2344 trees). Planting of trees on 10-foot centers is required to assure a relatively
uniform distribution of wetland trees across the restoration area. Transplants can be bareroot saplings or container-grown plants and should be planted during a period of
vegetative dormancy (December through February). Wetland tree species to be planted
include equal numbers of sweet bay (Magnolia virginiana), swamp tupelo (Nyssa
biflora), red maple (Acer rubrum), tulip poplar (Liriodendron tulipifera), and cypress
(Taxodium distichum). The percentage of each tree species planted at this restoration
area shall be determined by the Defendant’s environmental consultant. Estimated cost of
trees for this restoration area is $11,720 at $5 per tree installed.
Natural revegetation of wetland understory vegetation is expected to occur in the
restoration area without planting. Annual maintenance of the restoration area is required
for two (2) years after completion of planting to eliminate the establishment and survival
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of nuisance plant species, such as cattails, and non-native exotic species, such as
Japanese honeysuckle and Chinese tallow trees. Annual maintenance will consist of
hand-pulling nuisance and non-native plants that become established in the restoration
area and shall occur concurrent with annual monitoring.
The wetland restoration area shall be monitored annually in September to
determine the survival of planted tree species and dead trees will be replaced.
Photographs shall be taken annually in September at five fixed locations within the
wetland restoration area. Photographs and survival data shall be included in an Annual
Monitoring Report and submitted to the Court appointed monitor by December 15 of
each year. Wetland restoration will be determined to be successful when at least 80% of
the planted trees survive for two (2) consecutive years and upon final inspection by the
Court appointed monitor. Annual monitoring and the submittal of Annual Monitoring
Reports will be discontinued after submittal of the third consecutive report that
documents achievement of success criteria.
Summary of Restoration Required at Dam D and Impoundment D
 After approved initial erosion control measures are in place, remove the existing
culvert in Dam D along with road fill at the culvert location, and replace it with
multiple culverts, properly sized and placed, each with a maximum exposed
diameter of 60 inches, or as recommended in the engineer’s approved
recommendation
 Place a maximum of 2 feet of fill material on top of culverts
 Remove excess fill material consistent with reduced road size
 Stabilize the 1:2 slopes of the dam to prevent erosion into Dennis Creek and its
adjacent wetlands
 Drain Impoundment D
 Restore Dennis Creek channel if necessary
 Plant the wetland area currently under water in Impoundment D with 2344 trees
 Annually maintain the restoration area in September by hand removing nuisance
and non-native exotic species that become established
 Annually monitor the survival of transplants in September and replant as required
 Annually photograph the restoration area in September from five fixed locations
 Submit an Annual Monitoring Report to the Court appointed monitor by
December 15, including photographs, data on survival of transplants, number
of transplants dead, and number replaced with live transplants
 Wetland restoration is successful when at least 80% of planted trees survive for
two (2) consecutive years and upon final inspection by the Court appointed
monitor
Dam E
Dam E was constructed near the headwaters of Creek E and resulted in the
creation of Impoundment E. Restoration is required to restore the flow, reach and
circulation of Creek E, remove unauthorized fill from waters of the United States, and
restore the forested wetlands that were flooded under Impoundment E and buried under
Dam E. The volume of fill material within waters of the United States at this area is
equal to the width of the dam times the length that is in waters times the depth of the fill.
The width of the dam at the stream crossing is approximately 110 ft and the length of the
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dam within the creek is approximately 36 feet (total area = 110 ft x 32 ft = 3520 ft² (0.08
ac)). It is estimated that the depth of the fill is approximately 4 feet deep. The total
volume of the fill material is approximately 521 cy (total volume = 3520 ft² x 4 ft =
14,080 ft³ = 521 cy). Therefore, approximately 521 cy of fill material must be removed
from waters of the United States at this location. Based upon a cost of $10 per cy, the
approximate cost of removing fill material at this location is $5210.
Fill and the existing culvert should be removed until the original native soil layer
is observed. Approved turbidity and erosion control measures shall be implemented
during fill removal to minimize sedimentation in Creek E in accordance with the
approved erosion control plan.
Removal of Dam E will result in the drainage of Impoundment E. After
Impoundment E is drained, stream restoration shall be performed if required. The portion
of Impoundment E that is in wetlands is 415 feet long and 26 feet wide (Figure 5) (10,790
ft² = 0.25 ac) (Figure 2). After drainage of Impoundment E, restoration of the impacted
wetland shall consist of planting of a mix of wetland tree species on 10-foot centers (108
trees) within the wetland area of the impoundment. Planting of trees on 10-foot centers is

required to assure a relatively uniform distribution of wetland trees across the restoration
area. Transplants can be bare-root saplings or container-grown plants and should be
planted in a period of vegetative domancy (December through February). Wetland tree
species to be planted include a mix of sweet bay (Magnolia virginiana), swamp tupelo
(Nyssa biflora), red maple (Acer rubrum), tulip poplar (Liriodendron tulipifera), and
cypress (Taxodium distichum). The percentage of each tree species planted at this
restoration area shall be determined by the Defendant’s environmental consultant.
Estimated cost of trees for this restoration area is $540 at $5 per tree installed.

Natural revegetation of wetland understory vegetation is expected to occur in the
restoration area without planting. Annual maintenance of the restoration area is required
for two (2) years after completion of planting to eliminate the establishment and survival
of nuisance plant species, such as cattails, and non-native exotic species, such Japanese
honeysuckle and Chinese tallow trees. Annual maintenance shall occur concurrent with
annual monitoring (September) will consist of hand-pulling nuisance and non-native
plants that become established in the restoration area.
The wetland restoration area will be monitored annually in September to
determine the survival of planted tree species and dead trees will be replaced.
Photographs shall be taken annually in September at three fixed locations Photographs
and survival data shall be included in an Annual Monitoring Report submitted to the
Court appointed monitor by December 15 of each year. Wetland restoration will be
determined to be successful when at least 80% of the planted trees in the restoration area
survive for two (2) consecutive years and upon final inspection by the Court appointed
monitor. Annual monitoring and the submittal of Annual Monitoring Reports will be
discontinued after submittal of the third consecutive report that documents achievement
of success criteria.
Summary of Restoration Required at Dam E and Impoundment E
 After approved initial erosion control measures are in place, remove culvert and
approximately 587 cy of fill material within Creek E and its adjacent wetlands
 Stabilize the areas disturbed during dam removal to prevent erosion into Creek E
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and its adjacent wetlands
Drain Impoundment E
Restore Creek E stream channel if necessary
Plant the wetland area that is currently under water in Impoundment E with 108
wetland trees
Annually maintain the restoration area in September by hand removing nuisance
and non-native exotic species that become established
Annually monitor survival of transplants in September and replant as required
Annually photograph the restoration area in September from three fixed locations
Submit an Annual Monitoring Report to the Court appointed monitor by
December 15, including photographs and data on survival of transplants, number
of transplants dead, and number of dead transplants replaced with live
transplants
Wetland restoration is successful when at least 80% of planted trees survive for
two (2) consecutive years and upon final inspection by the Court appointed
monitor.

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SUMMARY OF TIME LINE FOR IMPLEMENTATION AND
COMPLETION OF THIS RESTORATION PLAN
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Begin onsite restoration activities on or before October 1, 2014
All restoration activities except maintenance of restored wetlands and
monitoring to be completed by October 1, 2015
Hire a professional engineer who shall submit a report for review and approval of
the Court appointed monitor no later than 60 days after entry on judgment by the
Court. The report shall include recommendations on the type, size, number, and
placement of culverts, and protective measures for culverts and dams
Following drainage of impoundments, schedule the inspection of the Court
appointed monitor to determine whether stream restoration is necessary, and
whether proposed culvert location should be adjusted in light of stream
channel location
If necessary, submit stream restoration plan to the Court appointed monitor
for approval
The wetland restoration areas shall be planted in winter months
Annual maintenance is required for two (2) years after the completion of
planting at each wetland restoration area. Maintenance shall occur concurrent
with annual monitoring (September)
Annual monitoring and photographs of the restoration areas shall occur in
September of each year until the success criterion is met
An Annual Monitoring Report of tree survival shall be submitted to the Court
appointed monitor no later than December 15 of each year until the success
criterion has been met
Final inspection of the Site by the Court appointed monitor will occur after receipt
of the final Annual Monitoring Report that documents that the success criterion
has been met

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FIGURES
Figure 1. Overview of the Hamilton Smith Site showing locations of dams and
impoundments.
Figure 2. Location of Dam B and Impoundment B restoration area.
Figure 3. Location of Dam A and Impoundment A restoration area.
Figure 4. Location of Dam D and Impoundment D restoration area.
Figure 5. Location of restoration area of Dam E and Impoundment E

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IMPOUNDMENT C

.53 acres

DAM B & ROAD
IN WETLANDS

.43 acres

IMPOUNDMENT B

Legend
Impoundments

CREEK B

Drainage
Dam & Road
Wetlands
Wetland Impact Areas

Creek B and Wetlands Area

August 16, 2011

0

75

150
Feet

DAM D

Peninsula

CREEK A
1.48 acres

IMPOUNDMENT A
.60 acres

DAM A & ROAD
IN WETLANDS

IMPOUNDMENT C

Legend
Impoundments
Drainage
Dam & Road
Wetlands
Wetland Impact Areas

Creek A and Wetlands Area

August 16, 2011

0

100

200
Feet