ORDER

KRISTI K. DUBOSE, District Judge.

This matter came before the Court for a non-jury trial on June 2-3, 2014 ("Phase II"), at which time the issue of remedies concerning Dams/roads A, B, D and E, were tried. Upon consideration of the arguments, and documentary and testimonial evidence presented, and all other pertinent portions of the record including the parties' post-trial briefs (Docs. 137-142), the Court finds as follows.

I. Statement of the Case & Factual Background

This is a civil action arising under the Clean Water Act ("CWA" ).1 The purpose of the CWA is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters. 33 U.S.C. § 1251(a). Accordingly, the CWA prohibits all discharges of pollutants, including dirt, rock, clay and other materials, into "waters of the United States" except as authorized by a "Section 404 permit" granted under the CWA, or as provided in one of the statute's permit exemptions. Section 404 requires that, before discharging dredged infill material into jurisdictional waters of the United States, you must obtain a permit from the Secretary of the Army.

Defendant Hamilton Smith ("Smith")'s family owns (and Smith manages) approximately 800 acres of real property in Baldwin County, Alabama. The property contains wetlands and streams that are protected by the CWA, including Dennis Creek and three (3) unnamed tributaries that flow into Dennis Creek, which are referred herein as Creek A, Creek B, and Creek E. Dennis Creek flows directly into the Tensaw River, which is three (3) miles away from Smith's property, and ultimately into Mobile Bay, approximately 15 miles down the Tensaw River. Between approximately 1998-2004, Smith built five (5) dams on his property at the cost of $180,000 (Doc. 90 at 56; Doc. 103 at 69), which provided roads and resulted in several lakes, referenced herein as Dams/roads A, B, C, D, and E.2 Smith did not request permission from the Government before making these improvements, and did not apply for Section 404 CWA permits.3 As such, the Government sued Smith for CWA Section 404 permit violations.

The Government has established, and Smith does not dispute, that the tributaries at issue are jurisdictional waters of the United States and that he built the dams/roads using point sources that discharged pollutants. Smith also does not contest that one (1) dam/road, Dam/road E, was built in violation of the CWA Section 404 permitting requirement.

At the Phase 1 trial (liability only), Smith contended that Dams A-D did not require a Section 404 permit because they were built in compliance with the CWA permitting exemption for forest roads (and for silviculture).4 The forest roads exemption covers the discharge of dredged or fill material "for the purpose of construction or maintenance of farm roads or forest roads . . . where such roads are constructed and maintained, in accordance with best management practices, [BMPs] to assure that flow and circulation patterns and chemical and biological characteristics of the navigable waters are not impaired, that the reach of the navigable waters is not reduced, and that any adverse effect on the aquatic environment will be otherwise minimized." 33 U.S.C. § 1344(f)(1)(E). This permitting exemption requires that the roads be constructed in accordance with 15 mandatory Best Management Practices ("BMPs"). 33 C.F.R. § 323.4(a)(6)(i-xv); 40 C.F.R. § 232.3(c)(6)(i-xv). To qualify for the forest roads exemption, Smith bore the burden of establishing that his activities satisfied the exemption's requirements. U.S. v. Brink, 795 F.Supp.2d 565, 582 (S.D. Tex. 2011); Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 926 (5th Cir. 1983); U.S. v. Akers, 785 F.2d 814715 F.2d 897, 819 (9th Cir. 1986); In re Carsten, 211 B.R. 719, 732 (Bkrtcy. D. Mont. 1997).

At trial, the Government argued that Smith failed to comply with the mandatory BMPs such that he could not avail himself of the forest road exemption, and moreover, even if he could, he still would not be entitled to the exemption because his activities were subject to "recapture"5 — an exception to the forest roads exemption. To support recapture applying to Smith's dams/roads, the Government asserted that because they altered the ecosystem and affected the hydrology of the jurisdictional waters, the use and the reduction or reach/circulation of the waters was altered.

During the Phase I trial, which dealt only with liability, the jury heard the testimony and evidence, and considered Smith's CWA liability for Dams/roads A, B, C, and D. The jury found Smith liable for Dams/roads A and B (that the forest road exemption applied but so did recapture which removed that exemption).6 The jury found Smith was not liable for Dams/roads C and D (that the forest road exemption applied and recapture did not). Thereafter, the Government filed a post-trial motion for judgment as a matter of law regarding Dams/roads C and D (Doc. 100), which the Court granted as to D7 but denied as to C (upholding the jury's verdict on C). (Doc. 106). At a later date, this case proceeded to Phase II of the trial (remedies only) regarding Dams/roads A, B, D and E. For purposes of Phase II, the Parties agreed that Dams/Roads A, B and D are located in protected streams and/or wetlands and that each of the dams/roads created impoundments of water of various sizes that inundated protected streams and/or wetlands. Smith also admitted liability for Dam/road E. Phase II then addressed the remedies and damages for the admitted or adjudicated CWA violations by Smith for Dams/roads A, B, D and E.

As damages, the Government seeks injunctions, compensatory mitigation, and civil penalties. Specifically, the Government asserts the following relief against Smith:

III. Conclusions of Law

Guiding the Court's analysis of the appropriate relief to be awarded in this case is the principle that while CWA violations may be remediated in a variety of ways, restoration of a violation site to its pre-violation condition is the preferred remedy. United States v. Cumberland Farms of Conn., Inc., 826 F.2d 1151, 1161-1165 (1st Cir. 1987); U.S. v. Bedford, 2009 WL 1491224, *14 (E.D. Va. May 22, 2009). See also Ohio v. United States Dep't of the Int., 880 F.2d 432, 443-444, 457 (D.C. Cir. 1989) (recognizing that the common law concept of "legal" damages was unacceptable to Congress and that restoration was the preferred remedy). Restoration, meaning to offset the impacts of violations and remove the violations themselves to return the site to its pre-violation state. The Court agrees that site restoration is a foremost consideration, and as such, has given great weight to the significance of accomplishing restoration, over other remedies, when assessing remedies. The Court has also considered that the main purpose of imposing any civil penalties is deterrence — to deter the violator and others from committing future violations. Tull v. United States, 481 U.S. 412, 422-425 (1987); United States v. Smithfield Foods, 972 F.Supp. 338, 352 (E.D. Va. 1997).

A. Injunctive Relief

The Government seeks entry of: 1) a permanent injunction prohibiting Smith's discharge of pollutants into waters of the United States without a permit in violation of CWA section 301(a), 33 U.S.C. § 1311(a); and 2) a temporary injunction requiring Smith, as his own expense and at the EPA's direction, to fully restore the site via its proposed restoration plan.10 (See also Doc. 133 at 4; Doc. 137 at 5, 7).

In the event of a violation, the CWA authorizes civil judicial enforcement, allowing the United States to seek "appropriate relief, including a permanent or temporary injunction, for any violation." 33 U.S.C. § 1319(b). However, an injunction does not issue automatically upon a finding of a CWA violation. Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982); Amoco Production Co. v. Village of Gambell, AK, 480 U.S. 531 (1987).11 District courts are not "mechanically obligated to grant an injunction for every violation of the law." Weinberger, 446 U.S. at 313. More specifically, the CWA does not require a district court to grant injunctions for all violations of the act, but instead the CWA "permits the district court to order that relief it considers necessary to secure prompt compliance with the Act." Id. at 320.

1. Permanent Injunction

As to the Government's request for entry of a permanent injunction, there is no basis for this request and such is DENIED. A permanent injunction prohibiting Smith from violating the CWA and Section 404 permit requirements (i.e., to permanently enjoin Smith from constructing any further dams, discharging and/or creating impoundments), is superfluous and redundant. Smith, as a matter of federal law, is already "so prohibited." In the event Smith violates the CWA and/or Section 404 permit requirements again, that is a matter for another day. Indeed, before the Court could enter such an order, the Government would have to show the likelihood of a future CWA violation by Smith. United States v. Sea Bay Dev. Corp., 2007 WL 1378544, *3 (E.D. Va. May 8, 2007); United States v. Fabian, 522 F.Supp.2d 1078, 1094-1095 (N.D. Ind. Mar. 2, 2007). The Government has presented no such evidence. Additionally, implementation of the plan will cure the harm caused by the prior actions.

2. Temporary Restorative Injunction (Restoration)

As part of restoring and maintaining the chemical, physical and biological integrity of the Nation's waters, the CWA authorizes the Government to commence a civil action for appropriate relief, including injunctions, for any violation for which it is authorized to issue a compliance order under 33 U.S.C. § 1319(a). Restoration of illegally destroyed wetlands is one type of injunctive relief contemplated by the CWA. 33 U.S.C. § 1319. Courts have recognized a mandatory duty to restore intentionally filled wetlands, unless the equities weigh against restoration. See, e.g., United States v. Cumberland Farms, 826 F.2d 1151, 1161-1165 (1st Cir. 1987); United States v. Van Leuzen, 816 F.Supp. 1171, 1180 (S.D. Tex. 1993). "Primary guidance for the imposition of the restoration remedy is contained in U.S. v. Sexton Cove Est., Inc., 526 F.2d 1293, 1301 (5th Cir. 1976)." U.S. v. Weisman, 489 F.Supp. 1331, 1342 (M.D. Fla. 1980) (involving the identification of point source equipment used to build a road across a wetland to a private residence).

Courts have held that injunctive relief via a restoration plan must: 1) confer maximum environmental benefits tempered with a touch of equity, 2) be practical and feasible from an environmental and engineering standpoint, and 3) bear an equitable relationship to the degree and kind of wrong the plan is intended to remedy (considers the financial recourses of defendant), and 4) include consideration of a defendant's objections. U.S. v. Bailey, 571 F.3d 791, 805 (8th Cir. 2009); U.S. v. Cundiff, 555 F.3d 200, 216 (6th Cir. 2009); U.S. v. Deaton, 332 F.3d 698, 714 (4th Cir. 2003); EPA Injunctive Relief Requirements in Section 404 Enforcement Action at 2 (Sept. 29, 1999), http://water.epa.gov/type/wetlands/outreach/fact15.cfm (last visited July 17, 2014) (citing Cumberland Farms, 826 F.2d at 1164); U.S. v. Sexton Cove Est., Inc., 526 F.2d 1293, 1301 (5th Cir. 1976)); U.S. v. Donovan, 466 F.Supp.2d 595, 598 (D. Del. 2006); United States v. Robinson, 570 F.Supp. 1157, 1164 (M.D. Fla. 1983); United States v. Weisman, 489 F.Supp. 1331, 1342-1343 (M.D. Fla. 1980).

The CWA grants district courts the authority to order restoration of jurisdictional wetlands that have been unlawfully filled to remedy the harm resulting from the violations. Ogeechee—Canoochee Riverkeeper, Inc. v. T.C. Logging, Inc., 2010 WL 1009797, at *2 n. 2 (S.D. Ga. Mar. 18, 2010); United States v. Donovan, 466 F.Supp.2d 595, 598 (D. Del. 2006). And courts frequently order restoration of damaged or destroyed wetlands as injunctive relief for violations of wetland permitting requirements. United States v. Deaton, 332 F.3d 698, 714 (4th Cir. 2003); United States v. Cumberland Farms of Conn., Inc., 826 F.2d 1151, 1164-1165 (1st Cir. 1987). There are two (2) prerequisites to be satisfied before any consideration of the restoration plan itself: 1) the court must have jurisdiction over the portion of the property or activity to be directly affected by the restoration plan, and 2) the court must conduct a hearing in which the merits, demerits, and alternatives to the restoration plan are fully developed. See, e.g., Weisman, 489 F. Supp. at 1342-1343 (applying the factors). Once these preliminaries are satisfied, federal courts analyze the 3-4 factors (depending on the court) referenced supra. "The record should establish `that the court's choice of the specific restoration ordered was based upon a comprehensive evaluation of the environmental factors involved and the practicalities of the situation.' Weisman, 489 F. Supp. at 1342-1343 (citing Weiszmann v. Dist. Eng., U.S. Army Corps of Eng., 526 F.2d 1302, 1304 (5th Cir. 1976)). Further, courts have found restoration orders equitable even when it placed a "heavy burden" on the defendant, because he had no one but himself to blame for the predicament. Cumberland Farms of Conn., Inc., 826 F.2d at 1165.

As for the prerequisites to a restorative injunction, there is no dispute that this Court has jurisdiction over the affected portions of the site on Smith's property, and moreover, the hearing requirement is satisfied as the restoration plan was part of the Phase II bench trial on remedies. Having satisfied these prerequisites, the Court finds that from all the evidence and in keeping with the CWA's goal of "restoring and maintaining the chemical, physical, and biological integrity of the Nation's waters" 33 U.S.C. § 1251(a) — that entry of a restoration plan and temporary restorative injunction is proper as restoration of the Smith property is necessary and justified. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 193 (2000) (federal courts should narrowly frame relief to fit the precise facts of the case).

The Government's expert, Dr. Kruczynski, explained that the trees located within the wetland area of Smith's property drop their leaves forming an organic material known as detritus. This detritus, if not absorbed within the wetland area, normally would be flushed out into the estuaries and waters through the tidal creek, in combination of natural water movement. The detrital material, according to testimony, forms the base of the food chain and is relied upon by many aquatic organisms which "man is the ultimate beneficiary." Weisman, 489 F. Supp at 1345. The dams/roads fill covered and destroyed acres of wetland vegetation, thereby eliminating this acreage from performing these food chain productions. Additionally, despite the culverts Smith placed under the fill, the dams/roads impede the flow of water which may carry and distribute detritus. As stated in Weisman, 489 F. Supp. at 1346-1347 and applicable to the facts of this case:

Thus, the Court finds that restoration will confer maximum environmental benefits to the subject site, tempered with a touch of equity.

Second, as to practicality, "Nile question is whether the proposed restoration plan, which theoretically could provide the maximum environmental benefits, is achievable as a practical matter . . . This calls for consideration of the feasibility and cost-effectiveness of the proposed plan." Weisman, 489 F. Supp. at 1348. In this regard, evidence indicates that the approximate cost of restoration will be $89,000, which the Court finds to be reasonable.

Third, regarding the equitable relation to degree of wrong, "[t]he duty to restore an intentionally filled wetland is mandatory, absent equities." U.S. v. Van Leuzen, 816 F.Supp. 1171, 1180 (S.D. Tex. 1993) (finding that the landowner lacked any equities and, thus, had mandatory duty to completely restore wetland he intentionally had filled, remediate damage caused by lost use of wetland, and take steps to undo damage inflicted upon wetlands permit program by his open and notorious violations of permit requirements of CWA, and by his disregard for cease and desist orders issued by Corps and EPA). The Court must assess whether the proposed restoration is equitable to Smith in light of the degree and kind of wrong it is intended to remedy (looking at for instance, the degree of harm caused and a defendant's financial inability to comply). Intentional conduct on the part of a defendant eviscerates any equitable arguments against restoration. United States v. Pozsgai, 999 F.2d 719, 736 (3rd Cir. 1993) (holding that "repeated noncompliance with the Act and with the Corps' directives to stop filling foreclose any such equitable argument[]"); United States v. Robinson, 570 F.Supp. 1157, 1165 (M.D. Fla. 1983) (assessing a defendant's financial resources and finding defendants' objection that they lacked financial means to accomplish the restoration plan lacked merit). Upon consideration of all the evidence and testimony at trial, the Court finds that the proposed restoration is equitable to Smith.

Fourth, the Court has considered Smith's objections with regard to the specifics of the restoration plan. In part, the Government has agreed (post-trial) with some of Smith's objections and as such, mooted those via filing an amended restoration plan (Doc. 141-1). The Court has addressed the remaining objections in the approved restoration plan.

Accordingly, the Government's request for entry of a temporary restorative injunction against Smith is GRANTED in part and the Court ADOPTS in part the Government's amended restoration plan (Doc. 141-1) as revised by this Court. (See Attachment A hereto). Moreover, it is ORDERED that the Annual Reports regarding the status of the restoration plan shall be filed with this Court.

B. Compensatory Mitigation

Smith opposes the Government's request for compensatory mitigation, and justifiably so based on the wording of the regulations.12 Specifically, this case primarily concerns an exemption to the Section 404 permit requirements, such that there are no permits involved and there is no indication that there will be permits involved in the future. There has also never been a "mitigation site" designated on Smith's property — an item which is a necessary point of measure/reference for these regulations. In other words, this is a non-permit case and the compensatory mitigation regulations are simply inapplicable.

As to Dam/road E, Smith conceded that such was not an exempt forest road. According to the Government, "Dam E does not serve a forestry purpose and cannot be made compliant with the forest road exemption. . . . [so the plan] . . . proposes . . . E be fully restored to . . . pre-violation conditions." (Doc. 138-1 at 1). In otherwords, the Government seeks full restoration of Dam/road E, and no permit. As to the remaining dams/roads, the jury concluded that Dam/road C was an exempt forest road. The jury found that while they were forest roads, recapture applied to Dams/roads A and B, and the Court concluded that Dam/road D did not meet two (2) of the 15 BMPs even though it was a forest road. According to the Government, "the Proposed Restoration Plan provides for reconfiguration of Dams A, B and D so that they are made eligible for the forest road exemption[.]" (Doc. 138-1 at 1). Regardless, either party's proposed restoration plan will bring all of these violations into compliance with the forest road exemption criteria, such that all of Smith's dams/roads will be fully exempt under Section 404(f)(1)(A) as forest roads — i.e., no Section 404 permit ("after the fact" or otherwise) will be required.

Moreover, the following excerpts from the compensatory mitigation regulations highlight their apparent inapplicability to non-permitted (exempt) scenarios:

Despite the Government's assertion that an award of temporal losses in this case is "consistent with federal regulations" "[u]nder the plain language of the statute" (Doc. 137 at 6-7), such is not the case as the regulations only concern permitted situations.13

Further, the Court has been unable to find a single case where compensatory mitigation was awarded when no permits were involved and an exemption applied. And while given the opportunity to do so, the Government failed to provide the Court with any case law showing compensatory mitigation awarded as a remedy without a permit and with an exemption. Instead, the cases relied upon and cited by the Government, to assert that the compensatory mitigation law (mitigation banks and/or temporal loss) applies here, actually deal with distinguishable permitting situations.14

Under the unique circumstances of this case15 and given the other forms of relief available to the Government to remedy Smith's CWA violations, the undersigned is not inclined to grant a form of relief when no basis for same has been provided. Even if the Court had the authority it would decline to require compensatory mitigation because the restoration and monetary penalties imposed adequately address the violations. As such, the Government's request for compensatory mitigation is DENIED.

C. Civil Penalties

Before substantively addressing civil penalties, the Government's requested amount should be viewed in context of how it has litigated this potential remedy. This case was filed in August of 2012. Throughout this case, the Government failed to notify either Smith or this Court of the actual amount of civil penalties sought for the CWA violations. At most, the Government only (inadvertently) disclosed and presented such evidence during discovery — via the deposition testimony of EPA representative Mike Wylie — for a potential civil penalty range of $50,000-$150,000. (Doc. 110; Doc. 110-2 at 3 (Dep. Wiley at 149-150)). However, the Government would not — and did not even at trial — commit to that penalty range. Additionally, in the Government's May 13, 2014 jointly filed proposed pretrial document for the Phase II trial, the Government failed to specify the total civil penalties sought (Doc. 107 at 5-7) and instead, generally discussed civil penalties for CWA Section 404 violations and simply stated that per statute "[f]or violations occurring after January 30, 1997, the maximum penalty is $27,500 per day." (Id. at 6). As such, on May 15, 2014, the Court ordered the Government to file a Supplement to the proposed pretrial document specifying the damages sought against Smith (and also, as discussed at the Final Pretrial Conference to explain how it arrived at that figure). (Doc. 109 at 2).

In its May 19, 2014 Supplement, the Government stated that it sought to recover $300,000 as civil penalties (Doc. 113 at 2) with the contingency and caveat that the Court also order, in full, all of the injunctive and compensatory mitigation relief requested; otherwise, the Government stated that it would seek an even higher penalty. In so doing, the Government provided no information as to how they calculated the $300,000 total, much less any discussion of the requisite CWA penalty factors used in the Eleventh Circuit to arrive at a penalty amount. (Doc. 113). Instead, two (2) weeks before trial was the first time either the Court or Smith were notified of any civil penalty total which would be sought by the Government. Nevertheless, even then, still, neither the Court nor Smith had been provided any explanation as to how the Government arrived at that amount. This Court was then, and remained through the start of Phase II trial on June 2, 2014, wholly unable to discern whether the $300,000 figure was proper and/or how it related to any of the facts of this case. Further complicating both the Court and Smith's understanding of the civil penalties sought, is that on the first day of the Phase II trial on June 2, 2014, the Government asserted — for the first time and without explanation or evidence as to how that number was calculated — that it seeks $1,500,000 as the civil penalty, a figure five (5) times that demanded just a few weeks earlier. With the aforementioned context in mind, the Court turns to substantively addressing the matter of civil penalties.

To protect the integrity of the Nation's waters, Congress authorizes courts to, upon finding a violation of the CWA, assess appropriate civil penalties under Section 309(d) to restore and maintain the "chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). 33 U.S.C. § 1319(b), (d) (providing for civil penalties); Atlantic States Legal Foundation Inc. v. Universal Tool & Stamping Co, Inc., 786 F.Supp. 743, 746 (N.D. Ind. 1992) (providing that a district court is authorized to assess appropriate civil penalties). However: "[t]he Court can conceive of no mathematical formula which can be applied to the overall effort of assessing a fair penalty. Each case must be decided on its own facts. While the experts offered calculations on the ability to pay as well as the economic benefit, to these findings there must be applied a degree of reason and common sense without the benefit of precise mathematical equations . . . To achieve the goal of deterrence, a penalty must be high enough so that the discharger cannot "write it off' as an acceptable environmental trade-off for doing business . . . [it] must be high enough to insure that [violators] . . . cannot simply absorb the penalty as a cost of doing business." United States v. Gulf Park Water Co., Inc., 14 F.Supp.2d 854, 868-869 (S.D. Miss. 1998).

Section 309(d) mandates a civil penalty for each violation, instructing that any person found in violation of the Act "shall be subject to a civil penalty not to exceed $25,000 per day. 33 U.S.C. § 1319(d). Over the years, this amount has been amended and supplemented by the Code of Federal Regulations as follows: January 30, 1997-March 15, 2004, the penalty is $27,500 per day per violation, March 15, 2004-January 12, 2009, the penalty is $32,500 per day per violation; January 12, 2009-December 6, 2013, and effective after December 6, 2013, the penalty is $37,500 per day per violation. 40 C.F.R. § 19.4 (Eff. Dec. 6, 2013). Congress has also specified that penalties be assessed considering the maximum daily amount "for each violation." Atlantic States Legal Foundation, Inc. v. Tyson Foods, Inc., 897 F.2d 1128, 1139 (11th Cir. 1990). In calculating the appropriate civil penalty, the Eleventh Circuit has adopted a "top down" approach: the court must first determine the maximum fine for each daily violation for which a defendant is liable, but thereafter can can use the CWA's enumerated factors to uphold or mitigate the maximum. 33 U.S.C. § 1319(d); Tyson Foods, 897 F.2d at 1141.

To arrive at the maximum starting figure, there must be a beginning and end date to the "violation time clock."16 In this case, there is no clear indication as to the actual day that the unpermitted work began.17 Given that the statute instructs that civil penalties be assessed per day and the Government has provided no facts in Phase II of the trial as to the start date, the Court has selected January 1st of each relevant year as the "start date" from which to calculate the maximum per day penalty. Similarly, as the Government has not provided any facts as to when the clock for Smith's civil penalties stopped, the Court has found persuasive caselaw concerning ongoing impediment violations.18 From this, the Court finds that the harm from Dams A, B, D, and E were ongoing through Phase II's conclusion and will thus stop the clock on the final day of the Phase II trial — June 3, 2014 — because Phase II concludes or decides all of the issues raised in the Government's Complaint.

As noted supra, in calculating the appropriate CWA civil penalty, this Court is required to start with the maximum. Based on the foregoing, Smith is subject to a maximum CWA penalty in the amount of $561,662,500 for 16,323 days of violations.19 However, in the Eleventh Circuit, the maximum potential CWA penalty is merely a starting point. From this, the Court conducts a top-down approach in light of the six (6) Section 1319(d) factors, assessing the propriety of the maximum CWA penalty available — to either maintain or deviate from the maximum. 33 U.S.C. § 1319(d); Tyson Foods, 897 F.2d at 1440-1441; Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., Inc., 73 F.3d 546, 574-576 (5th Cir. 1996); Public Interest Research Group of New Jersey, Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 80 (3rd Cir. 1990); Universal Tool, 786 F. Supp. at 746-747.

Specifically, because Congress set a particularly high maximum for civil penalties to reinforce the deterrent and punitive nature of the CWA, after calculating the maximum, courts may, and often do, adjust significantly downward based on mitigating factors listed in the statute. Cedar Point, 73 F.3d at 573; Tyson Foods, 897 F.2d at 1142. These factors consist of: 1) the seriousness of the violation or violations; 2) the economic benefit (if any) resulting from the violation; 3) any history of such violations; 4) any good-faith efforts to comply with the applicable requirements; 5) the economic impact of the penalty on the violator; and 6) such other matters as justice may require. 33 U.S.C. § 1319(d); Tyson Foods, 897 F.2d at 1140. Courts may also consider any other factors they determine are important to imposing a fair penalty. Tyson Foods, 897 F.2d at 1141. A court's decision is given a great deal of discretion in assessing the civil penalty under the six (6) factors. Tull v. United States, 481 U.S. 412, 427 (1987). However, each factor should be discussed as to what, if any, effect it has on the final penalty assessed. Tyson Foods, 897 F.2d at 1141. In so doing, the Court finds as follows.

1. Seriousness of Violations

The seriousness of the violation deals with the negative impact a defendant's actions have on the environment. United States v. Smithfield Foods, Inc., 972 F.Supp. 338, 344-346 (E.D. Va. 1997) (considering the negative impact that the defendant's chlorine and cyanide discharge had on native species). This can range from toxic waste to organic material being discharged without a permit into protected wetlands. Id. See also e.g., Weber v. Trinity Meadows Raceway, Inc., 1996 WL 477049, *16 (N.D. Tex. Jun. 20, 1996) (evaluating whether the defendant's unpermitted discharge of pollutants which were "largely, if not, wholly comprised of organic material" mitigated the civil penalty). The seriousness of the violations is determined after both parties offer evidence in the form of facts or expert testimony. Smithfield, 972 F. Supp. at 343-349; Gulf Park Water, 14 F. Supp. 2d at 859-862. The seriousness can be mitigated if the environmental impact of the unpermitted action only affects the immediate area. T.C. Logging, 2010 WL 1009797, *4. Additionally, factors to consider include the number and frequency of violations, how far the violator's discharges exceed the permit parameters, the presence, delay, or absence of state enforcement, the toxicity of the discharged substance, and violations of reporting requirements. Smithfield, 972 F. Supp. at 343; Allegheny Ludlum, 187 F. Supp. 2d at 426; Hawaii's Thousand Friends v. City & County of Honolulu, 821 F.Supp. 1368, 1383 (D. Haw. 1993) (looking to the number of violations, the duration of noncompliance, the significance of the violation, and the actual or potential harm to human health and the environment).

The Government contends that the seriousness of the violation is high and supports a substantial penalty. In support, Dr. Kruczynski testified that water testing indicates a rise in temperature in the streams surrounding the impoundments, which affect water quality. Dr. Kruczynski also emphasized the seriousness of the destruction of wetlands in general. There was no evidence presented at trial that EPA conducted any water quality testing. In contrast, Smith hired Dr. Vittor to evaluate the water quality over a period of four (4) years to determine any detrimental effects of the crossings. This testing was commenced at the request of the EPA and was paid for by Smith at a cost of $35,000. Dr. Vittor responded that while the water temperature has risen, there has been no material effect on the water quality. Dr. Vittor also noted a reduction in suspended solids which improves water quality.

The Court is more inclined to rely on the expert who actually conducted the testing for his opinion regarding the detrimental effects of the violation on the water quality at this time. Thus, the Court finds that the violations have not resulted in significant effects on water quality. However, there have been significant areas of wetlands that have been destroyed through Smith's building of the roads/dams and from the impoundments that resulted. The Court credits Dr. Kruczynski's testimony in this regard and finds that the cumulative effect of this destruction is significant to the environment.

The primary purpose to be served in the imposition of a civil fine is to deter any future destruction of wetlands. Still, there has been no evidence of harm (or even potential harm) to human life, nor any specific evidence of harm to animal or aquatic life. The violations in this case are not toxic dumping, but rather timber roads built by an individual who appears to care about his property and its natural resources. With modifications the timber roads, which form the bases for the majority of the violations, become CWA exempt. Thus, this factor does not support the severity of a maximum fine and instead supports a significant decrease.

2. Economic Benefit

The second factor to be considered is the economic benefit that a defendant receives from his unpermitted actions. 33 U.S.C. § 1319(d). This factor "is of key importance if the penalties are to successfully deter violations." Tyson Foods, 897 F.2d at 1141. "A court need only make a `reasonable approximation' of the economic benefit [reaped from the defendant's noncompliance] when calculating a penalty under the [CWA]." Cedar Point, 73 F.3d at 576. See also e.g., Piney Run, 82 F. Supp. 2d at 470; Alleghey Ludlum, 187 F. Supp. 2d at 437; Gulf Park Water Co., 14 F. Supp. 2d at 863. The goal of the economic benefit analysis is to prevent a violator from profiting from its wrongdoing. Piney Run, 82 F.Supp.2d at 471.

Initially, it was the theory of the Government that Smith built these roads to support his hunting lodge enterprise. However, the Government put forth no evidence of any economic benefit that has been derived from the Dennis Wing Lake Club, a quail hunting operation. In the liability phase of the trial, Smith credibly testified that the Club was basically a break-even proposition. There was some evidence that the crossings had resulted in some timber cutting income, but this was relatively minor and intermittent. Moreover, any economic benefit from timber cutting should likely be exempt from consideration since the CWA itself exempts what would otherwise be violations if the crossings were built within guidelines for forestry purposes. Thus, there is insufficient evidence of economic benefit to Smith for his CWA violations. As such, this factor does not support a severe civil penalty.

3. Violations History

The third factor to consider is the defendant's history of violations. 33 U.S.C. § 1319(d); Smithfield Foods, 191 F.3d at 531; Allegheny Ludlum, 187 F. Supp. 2d at 433. The absence of any past state or federal environmental law or regulation violations can help mitigate the maximum civil penalty assessed under § 1319(d). T.C. Logging, 2010 WL 1009797, *4 (reasoning that the lack of history helped justify a reduction in the civil penalty paid). A defendant's repeated violations or an ongoing history of a particular violation that spans a significant duration can justify upholding a higher penalty. Gulf Park Water, 14 F. Supp. 2d at 864 (reasoning that the defendant was not entitled mitigation under this factor because violations were ongoing for twelve years and there were repeated attempts to bring him into compliance); Smithfield, 972 F. Supp. at 349 (stating that the six years of ongoing violations was a significant duration taken into consideration with prior violations). Whether a defendant has committed similar violations in the past is not the only part of the court's analysis, as the duration of a defendant's current violations are also considered. Smithfield Foods, 972 F. Supp. at 349. For example, where "defendant's violations occurred daily and uninterrupted for over twelve (12) years," one court found that "the discharge is serious solely by virtue of its duration." Gulf Park Water, 14 F. Supp. 2d at 859.

There is no past history of violations by Smith, thus, that part of this factor does not support a severe civil penalty but instead, supports a significant decrease from the maximum. Even so, Smith's current violations are lengthy in duration and continue to the present day — based on the Government's representations, approximately 12 years. However, Smith contends that for five (5) of those years, the Government required he "do nothing." On balance, this factor weighs in favor of a penalty amount that will sufficiently deter individuals (including Smith) from violating the CWA in the future. However, this factor certainly does not justify the absurd amount of over $500,000,000.

4. Good Faith Compliance Efforts

The fourth factor to be considered is the good-faith efforts of the defendant to comply with the requirements of the Act. 33 U.S.C. § 1319(d). This can be summed up as analyzing the defendant's interaction with regulatory agencies before a civil complaint is filed. Cf. T.C. Logging, 2010 WL 1009797, *4, with United States v. Key West Towers, Inc., 720 F.Supp. 963 (S.D. Fla. 1989).20 Additionally, courts look to whether a defendant took any actions to decrease the number of violations or made efforts to mitigate the impact of their violations on the environment. Smithfield, 972 F. Supp. at 347-349. Evidence of good faith efforts may include proof of insufficient or inadequate efforts to comply, conducting environmental compliance audits, hiring consultants, or similar endeavors to obey permitting requirements. Id.; Gulf Park, 14 F. Supp. 2d at 864-866.

The "good faith" factor was the subject of great controversy between the Government and Smith, and also involves the matter of credibility. The Government contends that this factor supports a significant civil penalty — primarily based on the fact that it has taken 12 years to resolve this dispute and it has been 8 years since the EPA issued its citation.

Mike Wylie, the EPA's representative, seemed to find unbelievable that Smith would not agree to the EPA's determination that his roads were not exempt. Wylie also appeared to find equally incredulous the fact that Smith litigated the matter, rather than just accepting the EPA's interpretation. Wylie characterized Smith's difference of opinion on the law (including whether exemptions applied) as a failure to cooperate. Wylie also seemed to suggest that it was an insult to the EPA's authority that Smith attempted to rectify the objection to dam/road D (by installing a culvert) without first obtaining EPA's stamp of approval and that it should weigh against Smith as to culpability.

In contrast, Smith, through the testimony of Dr. Vittor, contends that he was cooperative with the EPA and attempted in good faith to comply with the applicable regulations. As evidence of Smith's good faith, Dr. Vittor points to the fact that at the EPA's request, Smith hired an expert to test the water quality over a four (4) year period at a cost to Smith of $35,000, and hired a geotechnical engineer to evaluate the crossings at a further cost to Smith of $55,000. Dr. Vittor also testified that Smith paid him to attempt to discuss and reach an agreement with the EPA. Moreover, the record is replete with references to amicable site visits by the EPA, Corps of Engineers, and DOJ attorneys and staff.

The Court does not find that Smith's dealings with the EPA support a severe civil penalty. Rather, considering the evidence and the jury's findings, Smith was partially vindicated in his resistance to the EPA's determinations. Accordingly, the Court finds that Smith's belief that he was in compliance was not only reasonable, but partially correct. Piney Run, 82 F. Supp. 2d at 471 (finding good faith efforts at compliance when defendant did not consider the discharges to be permit violations and the court found that the interpretation was not unreasonable). Further, Smith has spent a significant amount of money at the request of the EPA for testing. This does not indicate a person who simply ignored EPA over a 12 year period and made no efforts to comply with CWA requirements.

5. Economic Impact of Penalty on the Violator (Undue Burden)

The fifth factor is the economic impact that a civil penalty would have on the defendant violator (i.e., Smith's financial stability). 33 U.S.C. § 1319(d); Universal Tool, 786 F. Supp. at 753-754. Hearing testimony from a certified public accountant, a representative of the defendant corporation, or a special master's report generally assesses the economic impact a civil penalty will have on defendant. Gulf Park Water, 14 F. Supp. 2d at 866-868 (hearing expert testimony and reviewing a special master's report);21 United States v. Avatar Holdings, Inc., 1996 WL 479533, *11 (M.D. Fla. Aug. 20, 1996) (hearing testimony from a representative of the defendant corporation). But if a defendant seeks to use the economic impact of a civil penalty to mitigate the total amount, he has the burden of showing that the penalty would be ruinous or otherwise disabling. Gulf Park Water, 14 F. Supp. 2d at 868. Additionally, if a court is convinced that the imposition of the maximum penalty would have a more drastic effect on a defendant than is needed to ensure future compliance, the court may take that into account. Weber, 1996 WL 477049, * 17.

The Government has proposed that Smith should be required to pay $1.5 million for restoration, fines, temporal loss and mitigation. This would amount to 79% of his and his wife's liquid assets. (Plf's Phase II Trial Ex. 230). And although Smith is 63 years old, retired, depends on the vulnerability of the market for income, and neither he nor his wife have significant earned income, the Government contends that the "remainder" will be "adequate" for his needs for the rest of his and his wife's lives. It is the undersigned's opinion that the Government's request lacks objective perspective on the seriousness of this particular violation. To suggest that the Court penalize Smith to this extent merits no further discussion.

6. Other matters as justice may require

The final factor allows the court to address such other matters as justice requires, or essentially any other facts deemed relevant. Smithfield Foods, 972 F. Supp. at 353. This factor has been used as a tool to determine whether the civil penalty was equitable in relation to other analogous cases. United States v. Righter, 2010 WL 4977046, *4 (M.D. Pa. Dec. 2, 2010) (performing a side-by-side comparison of two prior cases to fashion an equitable penalty). Additionally, a defendant may be "entitled to some credit for their lack of bad faith." Allegheny Ludlum, 187 F. Supp. 2d at 445.

Smith has been (partially) found by a jury to be a CWA Section 404 violator. Smith flooded wetlands on his property and created significant impoundments. This is not a case of toxic dumping, pollution, or egregious or irreversible harm to the environment (in the sense that restoration is available). Rather, this is a case of a retired banker from a small town in South Alabama who decided to — albeit very unwisely — build roads/dams on family property for the family's forestry business. Smith believed that the roads were forest roads and so were exempt from the CWA's Section 404 permit requirements. While he was ultimately wrong, in part, to some extent the jury also agreed with him.

Moreover, the fact that Smith disputed the EPA's findings is certainly not held against him. While the Government has repeatedly expressed its surprise and shock at having to initiate this litigation (they asserted at trial that the Section 404 permit violations cases settle about 99% of the time such that this was abnormal), that does not detract from a United States citizen's right to dispute the Government's findings and defend the claims against him. In sum, Smith is entitled to some credit for his lack of bad faith (the absence of "evil motive"), and because the environmental harm which resulted from his violations can, and will, be remedied and restoration will occur on his property.

Further, the Court has considered the expense to Smith to implement the requisite restoration plan. The demolition cost will entail the extraction and movement of a significant amount of fill material. Additionally, Smith will bear further restoration costs for the destruction of Impoundment E (the lake), planting trees throughout his property, and taking all of the other detailed restoration steps required by the forthcoming temporary restorative injunction (amended restoration plan). Also, Smith will be required to pay the fees of the Court appointed consultant.

7. EPA Section 404 Settlement Penalty Policy Considerations

It is the EPA's policy to accomplish certain objectives in the assessment of penalties for Section 404 permit violations: 1) penalties should be large enough to deter noncompliance, both by the violator and others similarly situated; 2) penalties should help ensure a level playing field by making certain that violators do not obtain an economic advantage over others who have complied in a timely fashion; 3) penalties should generally be consistent across the country to promote fair and equitable treatment of the regulated community; and 4) settlement penalties should be based on a fair and logical calculation methodology to promote expeditious resolution EPA Revised Clean Water Act Section 404 Settlement Penalty Policy at 4 (Dec. 21, 2001), http://water.epa.govitype/wetlands/outreach/fact15.cfm (last visited July 17, 2014). Courts may balance any penalty against the violator's ability to survive after it imposes a fine, considering a defendant's total assess and liabilities, etc. Smithfield Foods, 972 F. Supp. at 353; Gulf Park, 14 F. Supp. 2d at 866-868.

To assist with the calculation of civil penalties in this case, the Court has referred to the EPA's settlement policy and penalty assessment process, including the testimony of EPA representative Mike Wylie about same. While the Court understands that the EPA policy is used for settlement purposes, given the sparse case law, it proves as a useful guide. The EPA policy provides that the "bottom line penalty" amount (the minimum penalty the government will accept) is comprised of economic benefit plus a preliminary gravity amount (plus or minus gravity adjustment factors) minus litigation considerations, minus ability to pay, minus mitigation credits via the following formula:

As to economic benefit, the Government presented no relevant economic benefit evidence, as such, the Court finds that this factor is zero (0).22

Regarding gravity, at trial the Court questioned EPA representative Mike Wylie as to these factors (which are based on a scale of 1-20, with 1 as the lowest and 20 as the highest), and has considered, in part, his testimony concerning the values he would ascribe but acknowledges areas of disagreement, to find as follows:

Additionally, the Court finds that Smith's violations are of "moderate overall environmental and compliance significance" such that the applicable Multiplier (M) is $1,500. As such, the Preliminary Gravity Amount is 52 &times $1,500 = $78,000. The Penalty is calculated as follows:

8. Conclusions as to Civil Penalty

As stated supra, Smith is subject to a maximum CWA penalty in the amount of $561,662,500 for 16,323 days of violations. Additionally, in this Court's opinion, under the EPA Section 404 Settlement Policy, Smith would be subject to a $78,000 penalty if he settled. This presents a wildly varying range.

The Court's research reveals a dearth of cases dealing with dam and impoundment situations matching that here. As such, the Court has reviewed a handful of persuasive cases that have dealt with an unpermitted27 road or wetland filling, and what they have held to be appropriate civil penalties:

Taking into consideration the case law, evidence, parties' arguments, all of the Section 1319(d) factors, the maximum penalty, the EPA settlement policy penalty, and other factors deemed relevant by this Court, the Court imposes a CWA civil penalty against Smith of $78,000.

III. Conclusion

Upon consideration, it is ORDERED that the Government's request for relief is DENIED in part and GRANTED in part as detailed supra such that:

DONE and ORDERED.

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 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 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 tuhpifera), 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

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 tuhpifera), 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. Summary of Restoration Required at Dam A and Impoundment A

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 tuhpifera), 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 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.

Dan 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 dam within the creek is approximately 36 feet (total area = 110 ft × 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 × 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 tuhpifera), 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

SUMMARY OF TIME LINE FOR IMPLEMENTATION AND COMPLETION OF THIS RESTORATION PLAN

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