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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA, )

Plaintiff, )

 )

v. ) CIVIL ACTION NO. 12-00498-KD-C

 ) 

HAMILTON SMITH, )

Defendant. )

ORDER

This matter is before the Court on Plaintiff’s Motion for Summary Judgment (Docs. 

47-49), Defendant’s Response (Doc. 51), and Plaintiff’s Reply (Doc. 53).

I. Standard of Review

“The court shall grant summary judgment if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED.

R. CIV. P. 56(a) (Dec. 2010). Rule 56(c) provides as follows:

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely 

disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, 

documents, electronically stored information, affidavits or declarations, stipulations 

(including those made for purposes of the motion only), admissions, interrogatory 

answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a 

genuine dispute, or that an adverse party cannot produce admissible evidence to support 

the fact.

(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object 

that the material cited to support or dispute a fact cannot be presented in a form that 

would be admissible in evidence.

(3) Materials Not Cited. The court need consider only the cited materials, but it may 

consider other materials in the record.

(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a 

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motion must be made on personal knowledge, set out facts that would be admissible in 

evidence, and show that the affiant or declarant is competent to testify on the matters 

stated. 

FED.R.CIV.P. Rule 56(c) (Dec. 2010). The party seeking summary judgment bears the “initial 

responsibility of informing the district court of the basis for its motion, and identifying those 

portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, 

together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue 

of material fact.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (quoting 

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the nonmoving party fails to make “a 

sufficient showing on an essential element of her case with respect to which she has the burden 

of proof,” the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. “In 

reviewing whether the nonmoving party has met its burden, the court must stop short of 

weighing the evidence and making credibility determinations of the truth of the matter. Instead, 

the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in 

his favor.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998-999 (11th Cir. 1992) (internal 

citations and quotations omitted).

II. Discussion

Defendant, Mr. Hamilton Smith (“Mr. Smith”), owns approximately 900 acres in 

Baldwin County, Alabama. Included on the property are several creeks. Between 2000-2005, 

he built 5 dams on his property, which provided roads and resulted in several lakes. Mr. Smith 

did not request permission from the Corps of Engineers before engaging in these improvements 

to his property.

The United States has established, and Mr. Smith does not dispute, that the tributaries at 

issue are jurisdictional waters of the United States and that Mr. Smith built the dams using point 

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sources that discharged pollutants. Mr. Smith also does not contest that the dam, labeled Dam 

E, was built in violation of the Clean Water Act’s1 section 404 permitting requirement. 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.2

What is in dispute is whether Mr. Smith was required to seek a permit before he built the 

other four dams, labeled A-D. After six years of negotiation this dispute was not resolved and 

the United States filed its complaint seeking an injunction and civil penalties. The United 

States now contends there are no genuine issues of material fact outstanding and that the Court 

should summarily grant judgment in its favor as to Mr. Smith’s liability under the CWA.

Mr. Smith disagrees, except for Dam E, and contends that Dams A-D did not require a 

permit because they were built in compliance with the CWA permitting exception for forest 

roads (and for silviculture).3 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 

 

1 Congress enacted the Clean Water Act for the “restoration and maintenance of chemical, 

physical, and biological integrity” of the waters of the United States. 33 U.S.C. § 1251(a). The CWA

makes it illegal to introduce pollutants from any point source into the navigable waters of the United 

States without a permit. 33 U.S.C. §§ 1311(a), 1342. 

2 33 U.S.C. § 1344(a). To establish a prima facie case of a violation of Sections 301 and 404, the 

United States must prove that Mr. Smith is a 1) person who 2) discharged a pollutant 3) from a point 

source 4) into waters of the United States 5) without a permit issued under CWA section 404. 33 U.S.C. 

§§ 1311(a), 1344 and 1362 (definitions); U.S. v. RGM Corp., 222 F.Supp.2d 780, 786 (E.D. Va. 2002); 

U.S. v. Board of Trustees of Fla. Keys Cmty. College, 531 F.Supp. 267, 274 (S.D. Fla. 1981). 

3 For the “silviculture exemption” to apply, “the activities ... must be part of an established (i.e., 

on-going) farming, silviculture, or ranching operation....” 33 C.F.R. § 323.4(a)(1)(ii).

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that any adverse effect on the aquatic environment will be otherwise minimized.” 33 U.S.C. § 

1344(f)(1)(E). This permitting exception requires that the roads be constructed in accordance 

with 15 mandatory Best Management Practices (“BMPs”) in order to be excepted from the CWA 

permitting requirement. 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, Mr. Smith bears the burden to establish that his activities 

satisfy the exemption’s requirements. See, e.g., 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 814, 819 (9th Cir. 1986); In re Carsten, 211 B.R. 719, 732 (Bkrtcy. D.

Mont. 1997).

The United States argues that Mr. Smith failed to comply with the mandatory BMPs. 

Alternatively, they contend that even if he did comply he still would not be entitled to a permit 

because his activities are subject to “recapture.” Recapture refers to the concept that, despite 

exceptions to the CWA permitting requirement, if dam construction and resulting discharges 

significantly alter the “use” of navigable waters and the reduction or reach/circulation of such 

waters, then the Section 404 exemptions are inapplicable.4 The United States contends that 

because Mr. Smith’s dams altered the ecosystem and this affected the hydrology of the 

jurisdictional waters, the use and the reduction or reach/circulation was altered.

Mr. Smith, relying primarily on his expert, Dr. Barry Vittor, responds that the dams were 

built in full compliance with the BMPs. Evidence has also been presented that a beaver was the 

 

4 Section 1344(f)(2) reinstates the permit requirement where the discharge of dredged or fill 

material into the navigable waters is “incidental to any activity having as its purpose bringing an area of 

the navigable waters into a use to which it was not previously subject, where the flow or circulation of 

navigable waters may be impaired or the reach of such waters reduced ....” To fall within the exception, 

both conditions (new use and reduction or reach/circulation of waters) must be shown to apply. 

Greenfield Mills, Inc. v. Macklin, 361 F.3d 934, 949 and 953 (7th Cir. 2004). 

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responsible party for the dams that resulted in vegetative disturbance and any aquatic life 

disruption. This occurred despite Mr. Smith’s attempt to eradicate the Castor Canadensis. Mr. 

Smith also has presented evidence, again relying primarily on Dr. Vittor’s expertise, that the 

ecosystem was not significantly altered, thus, recapture is not invoked. Mr. Smith’s evidence is 

sufficient to withstand the United States’ motion for summary judgment. 

Upon consideration of the evidence the Court finds that, with the exception of Dam E,5

there are genuine issues of material fact in dispute as to whether Dams A-D were built in 

violation of the CWA.

III. Conclusion

Accordingly, it is ORDERED that Plaintiff’s Motion for Summary Judgment (Docs. 

47-49) is DENIED.

DONE and ORDERED this the 18th day of December 2013.

/s/ Kristi K. DuBose

KRISTI K. DuBOSE

UNITED STATES DISTRICT JUDGE

 5 As to Dam E, only the issue of damages will be addressed by the jury.

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