IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

UNITED STATES OF AMERICA; THE
STATE OF NORTH CAROLINA; AND
THE COMMONWEALTH OF
VIRGINIA, SECRETARY OF
NATURAL RESOURCES,

CIVIL ACTION NO. 1:19-cv-00707

Plaintiffs,
v.
DUKE ENERGY CAROLINAS, LLC,
Defendant.

CONSENT DECREE

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 TABLE OF CONTENTS
I. 

BACKGROUND................................................................................................. 1 

II. 

JURISDICTION AND VENUE ........................................................................ 3 

III. 

PARTIES BOUND ............................................................................................. 4 

IV. 

DEFINITIONS ................................................................................................... 4 

V. 

STATEMENT OF PURPOSE........................................................................... 7 

VI. 

PAYMENT BY THE SETTLING DEFENDANT .......................................... 8 

VII. 

NATURAL RESOURCE RESTORATION PROJECTS .............................. 9 

VIII. 

REPORTING REQUIREMENTS .................................................................. 13 

IX. 

STIPULATED PENALTIES........................................................................... 14 

X. 

FORCE MAJEURE ......................................................................................... 17 

XI. 

DISPUTE RESOLUTION ............................................................................... 19 

XII. 

INFORMATION COLLECTION AND RETENTION; ACCESS TO
RESTORATION PROJECT PROPERTIES ................................................ 22 

XIII. 

COVENANTS NOT TO SUE BY PLAINTIFFS .......................................... 24 

XIV. 

RESERVATION OF RIGHTS BY PLAINTIFFS ........................................ 25 

XV. 

COVENANTS BY THE SETTLING DEFENDANT ................................... 27 

XVI. 

EFFECT OF SETTLEMENT/CONTRIBUTION PROTECTION ............ 29 

XVII. 

NOTICES .......................................................................................................... 31 

XVIII.  APPENDICES .................................................................................................. 33 
XIX. 

EFFECTIVE DATE AND RETENTION OF JURISDICTION ................. 33 

XX. 

CONSENT DECREE MODIFICATIONS .................................................... 34 
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 XXI. 

CONSENT DECREE TERMINATION ........................................................ 34 

XXII. 

LODGING AND OPPORTUNITY FOR PUBLIC COMMENT ................ 35 

XXIII.  SIGNATORIES/SERVICE ............................................................................. 35 
XXIV.  FINAL JUDGMENT........................................................................................ 36 

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 I.
A.

BACKGROUND

Plaintiffs—the United States of America (“United States”), on behalf of the

Secretary of the United States Department of the Interior (“DOI”), through the United
States Fish and Wildlife Service; the State of North Carolina, through the North Carolina
Department of Environmental Quality (“North Carolina”); and the Commonwealth of
Virginia, through its Secretary of Natural Resources and the Virginia Department of
Environmental Quality (“Virginia”) (collectively, “Plaintiffs”)—filed a Complaint in this
action pursuant to Section 107 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, (“CERCLA”), 42 U.S.C. § 9607.
B.

Plaintiffs’ Complaint alleges that Defendant Duke Energy Carolinas, LLC

(“Settling Defendant”), which has entered into this Consent Decree, is liable under
CERCLA for damages for injury to, destruction of, or loss of natural resources, including
the reasonable costs of assessing such injury, destruction, or loss, resulting from the
releases of hazardous constituents of coal ash when liquefied coal ash was released into
the Dan River on February 2, 2014, at and from the Dan River Steam Station (the
“Facility”) near Eden, Rockingham County, North Carolina.
C.

Pursuant to Executive Order 12580 and the National Contingency Plan, 40

C.F.R. Part 300, DOI, through the United States Fish and Wildlife Service (“FWS”), has
been delegated authority to act as Federal Trustee for natural resources impacted by the
Release, as that term is defined in Subparagraph 4(l).
D.

The North Carolina Department of Environmental Quality has been

delegated authority to act as a State Trustee for natural resources in North Carolina
impacted by the Release.
E.

The Virginia Department of Environmental Quality, acting on behalf of the

Secretary of Natural Resources of the Commonwealth of Virginia, has been delegated

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 authority to act on behalf of the State Trustee for natural resources in Virginia impacted
by the Release.
F.

The Federal Trustee and the State Trustees (collectively, the “Trustees”)

have formed a Trustee Council to coordinate natural resource damage assessment and
restoration activities relating to the Release.
G.

The Trustees’ natural resource damage assessment activities included

reviewing data from the Release response efforts to assess injuries to natural resources
located at the Facility and downstream of the Facility where the coal ash came to be
located, preparing a natural resource damage assessment plan, soliciting input from the
public and interested stakeholders on the scoping document for restoration planning, and
considering restoration project proposals submitted by the public.
H.

Based upon information developed and analyzed by the Trustees, the

damage assessment activities, regulatory standards, and scientific literature, the Trustees
used an estimate of the amount of injury to natural resources and their services alleged to
have occurred as a result of the Release. The Trustees also used an assessment of lost
services of natural resources (e.g., benthic invertebrates, fish, etc.) that could occur as a
consequence of the Release, including exposure to high concentrations of hazardous
substances arsenic and selenium in surface water and/or sediment.
I.

The Trustees relied on two decision support models (an ecological service

model and a human-use services model) to determine the type and magnitude of
restoration required to restore the injured natural resources and their services identified
by the Trustees’ assessment.
J.

The Trustees have prepared a draft Restoration Plan in accordance with

42 U.S.C. § 9611 and 43 C.F.R. § 11.93 to evaluate and select proposed restoration
alternatives that will restore, rehabilitate, replace, and/or acquire natural resources and
services equivalent to those allegedly injured, lost, or destroyed as a result of the Release.
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 A copy of the draft Restoration Plan is attached as Appendix B to this Consent Decree.
The Trustees’ final Restoration Plan shall accompany any motion filed with the Court to
enter this Consent Decree.
K.

To date, the Settling Defendant has paid at least $557,023.31 to DOI,

$77,884.81 to North Carolina, and $726,145.49 to Virginia as reimbursement for costs
incurred in connection with the Release since the Release and prior to the date of lodging
of this Consent Decree.
L.

By entry into this Consent Decree, the Settling Defendant does not admit

any liability to the Plaintiffs arising out of the transactions or occurrences alleged in the
Complaint.
M.

The Parties to this Consent Decree recognize, and the Court by entering this

Consent Decree finds, that this Consent Decree: (i) has been negotiated by the Parties in
good faith; (ii) will avoid prolonged and complicated litigation among the Parties; (iii)
will expedite the restoration of natural resources allegedly injured at and near the Dan
River, including restoration activities performed, and to be performed, by the Settling
Defendant; and (iv) is fair, reasonable, and in the public interest.
N.

The Settling Defendant agrees that this Consent Decree is outside the scope

of the settlement agreement entered into by the Settling Defendant and the North
Carolina Department of Environmental Quality on September 23, 2016 (“2016 NC
Settlement Agreement”) and the Settling Defendant will not attempt to use the 2016 NC
Settlement Agreement as a basis for challenging any provision of this Consent Decree.
NOW, THEREFORE, it is hereby ORDERED, ADJUDGED, AND DECREED:
II.
1.

JURISDICTION AND VENUE

This Court has jurisdiction over the subject matter of this action pursuant to

Sections 107 and 113(b) of CERCLA, 42 U.S.C. §§ 9607 and 9613(b); and 28 U.S.C. §§
1331 and 1345. The Court also has personal jurisdiction over the Settling Defendant.
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 Venue lies in the Middle District of North Carolina pursuant to Section 113(b) of
CERCLA, 42 U.S.C. § 9613(b), and 28 U.S.C. §§ 1391(b) and (c), because the Release
alleged in the Complaint occurred in, and the Settling Defendant resides in, this judicial
district. Solely for the purposes of this Consent Decree and the underlying Complaint,
the Settling Defendant waives all objections and defenses that it may have to jurisdiction
of the Court or to venue in this District. The Settling Defendant shall not challenge the
terms of this Consent Decree or this Court’s jurisdiction to enter and enforce this Consent
Decree.
III.
2.

PARTIES BOUND

This Consent Decree applies to and is binding upon the Plaintiffs and upon

the Settling Defendant and its successors and assigns. Any change in ownership or
corporate status of the Settling Defendant including, but not limited to, any transfer of
assets or real or personal property, shall in no way alter the Settling Defendant’s
responsibilities under this Consent Decree.
3.

The Settling Defendant shall be responsible for ensuring that its contractors

and subcontractors perform any work required hereunder in accordance with the terms of
this Consent Decree. In any action to enforce this Consent Decree, the Settling
Defendant shall not raise as a defense the failure by any of its officers, directors,
employees, agents, or contractors to take any actions necessary to comply with the
provisions of this Consent Decree.
IV.
4.

DEFINITIONS

Unless otherwise expressly provided herein, terms used in this Consent

Decree that are defined in CERCLA, the Clean Water Act (“CWA”), 33 U.S.C. § 1251 et
seq., or in regulations promulgated under CERCLA or the CWA, shall have the meaning
assigned to them in such law or regulations. Whenever terms listed below are used in

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 this Consent Decree or in the appendices attached hereto and incorporated hereunder, the
following definitions shall apply:
a.

“Consent Decree” or “Decree” means this Consent Decree and all

appendices attached hereto (listed in Section XVIII (Appendices)). In the event of
conflict between this Consent Decree and any appendix, this Consent Decree shall
control.
b.

“Day” means a calendar day unless expressly stated to be a working

day. “Working day” shall mean a day other than a Saturday, Sunday, or Federal holiday.
In computing any period of time under this Consent Decree, where the last day would fall
on a Saturday, Sunday, or Federal holiday, the period shall run until the close of business
of the next working day.
c.

“DOI” means the United States Department of the Interior and any

successor departments or agencies of the United States.
d.

“Effective Date” means the effective date of this Consent Decree as

provided by Section XIX of this Consent Decree (Effective Date and Retention of
Jurisdiction).
e.

“Interest” means interest at the rate specified for interest on

investments of the EPA Hazardous Substance Superfund established by 26 U.S.C. §
9507, compounded annually on October 1 of each year, in accordance with 42 U.S.C.
§ 9607(a). The applicable rate of interest shall be the rate in effect at the time the interest
accrues. The rate of interest is subject to change on October 1 of each year.
f.

“Natural Resource” or “Natural Resources” means land, fish,

wildlife, biota, air, water, ground water, drinking water supplies, and other such
resources, belonging to, managed by, held in trust by, appertaining to, or otherwise
controlled by the United States and/or the States.
g.

“Natural Resource Damages” means any damages recoverable by
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 the United States or the States on behalf of the public for injury to, destruction of, loss of,
loss of use of, or impairment of Natural Resources as a result of the Release, including,
but not limited to: (i) the reasonable costs of assessing injury to, destruction of, loss of, or
impairment of Natural Resources; (ii) the costs of restoration, rehabilitation, or
replacement of injured or lost Natural Resources or of acquisition of equivalent resources
and/or their services; (iii) compensation for injury, destruction, loss, loss of use,
diminution in value, or impairment of Natural Resources; (iv) the costs of planning,
implementing, and monitoring restoration activities; and (v) each of the categories of
recoverable damages described in 43 C.F.R. § 11.15 and applicable state law.
h.

“NRDAR Fund” means DOI’s Natural Resource Damage

Assessment and Restoration Fund.
i.

“Paragraph” means a portion of this Consent Decree identified by an

arabic numeral or an upper case letter.
j.

“Parties” means the United States, the States, and the Settling

k.

“Plaintiffs” means the United States and the States.

l.

“Release” means the release of liquefied coal ash into the Dan River

Defendant.

on February 2, 2014, at and from the Duke Energy Dan River Steam Station (owned and
operated by the Settling Defendant) near Eden, Rockingham County, North Carolina
downstream to the John H. Kerr reservoir in Mecklenburg County, Virginia. See
Appendix A.
m.

“Restoration Projects” means those aquatic, terrestrial, and

human-use restoration projects performed and to be performed by the Settling Defendant
as described in Section VII of this Consent Decree (Natural Resource Restoration
Projects).
n.

“RIM Costs” means the natural resource restoration planning,
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 implementation and monitoring costs to be incurred by the Trustees in connection with
the Release, including costs to oversee compliance with, and to implement, this Consent
Decree and costs to implement, and to amend if necessary, the Restoration Plan for the
Dan River Coal Ash Spill prepared by the Trustee Council.
o.

“Section” means a portion of this Consent Decree identified by a

roman numeral.
p.

“Settling Defendant” means Duke Energy Carolinas, LLC.

q.

“State” or “States” means the State of North Carolina and the

Commonwealth of Virginia, individually or collectively, together with agencies and
instrumentalities thereof.
r.

“Subparagraph” means a portion of this Consent Decree identified

by a lower case letter.
s.

“Trustees” means DOI, acting through the United States Fish and

Wildlife Service; the State of North Carolina, acting through the North Carolina
Department of Environmental Quality; and the Commonwealth of Virginia, acting
through its Secretary of Natural Resources.
t.

“United States” means the United States of America, including all of

its departments, agencies, and instrumentalities.
V.
5.

STATEMENT OF PURPOSE

The mutual objectives of the Parties in entering into this Consent Decree

are: (i) to contribute to the restoration, replacement, or acquisition of the equivalent of the
Natural Resources allegedly injured, destroyed, or lost as a result of hazardous substances
released during the Release; (ii) to fund the Trustees’ future natural resource restoration
planning, implementation, and monitoring costs; (iii) to resolve the Settling Defendant’s
liability for Natural Resource Damages as provided herein; and (iv) to avoid potentially
costly and time-consuming litigation.
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 VI.
6.

PAYMENT BY THE SETTLING DEFENDANT

Payment for DOI’S RIM Costs. Within 30 days after the Effective Date,

the Settling Defendant shall pay a total of $39,215 for DOI’s RIM Costs to be incurred
after the Effective Date of this Consent Decree. The Settling Defendant shall pay the
amount due by FedWire Electronic Funds Transfer (“EFT”) to the U.S. Department of
Justice account, in accordance with written instructions provided to the Settling
Defendant by the Financial Litigation Unit (“FLU”) of the United States Attorney’s
Office for the Middle District of North Carolina after the Effective Date. The payment
instructions provided by the FLU will include a Consolidated Debt Collection System
(“CDCS”) number, which the Settling Defendant shall use to identify all payments
required to be made in accordance with this Consent Decree. The FLU will provide
payment instructions to:
Patti Ross
DEC45A 550 South Tryon Street
Charlotte, North Carolina 28202
(704) 382-8147
patti.ross@duke-energy.com
on behalf of the Settling Defendant. The Settling Defendant may change the individual
to receive payment instructions on its behalf by providing written notice of such change
to the United States in accordance with Section XVII (Notices). At the time of payment,
the Settling Defendant shall send notice to the United States in accordance with Section
XVII that payment has been made. Such notice shall reference the civil action number,
CDCS number, and DOJ case number 90-5-1-1-11057/2. The total amount paid shall be
deposited in a segregated sub-account within the NRDAR Fund, to be managed by DOI
and applied toward RIM Costs incurred by DOI.
7.

Payment for North Carolina’s RIM Costs. Within 30 days after the
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 Effective Date, the Settling Defendant shall pay a total of $18,095 for North Carolina’s
RIM Costs to be incurred after the Effective Date of this Consent Decree. The Settling
Defendant shall pay the amount due by check payable to the North Carolina Department
of Environmental Quality, Financial Services Division, mailed to:
North Carolina Department of Environmental Quality
Financial Services Division
1606 Mail Service Center
Raleigh, North Carolina 27699-1606
At the time of payment, the Settling Defendant shall send notice to North Carolina in
accordance with Section XVII that payment has been made. Such notice shall reference
the civil action number.
VII.
8.

NATURAL RESOURCE RESTORATION PROJECTS

The Settling Defendant has completed the following Restoration Projects:
a.

Pigg River Power Dam Partial Removal: The Settling Defendant

funded removal of the defunct Power Dam on the Pigg River located in Franklin County,
Virginia. Constructed in 1915 for power generation, Power Dam measured 25 feet by
204 feet long and impounded 60 acre-feet of water over 25 acres. Power Dam was the
last impediment to fish passage within a 72-mile reach of the Pigg River from the
headwaters downstream to Leesville Reservoir. Removal of the dam increased aquatic
ecological services for fish and benthic invertebrates. It also restored 2.2 miles of aquatic
instream habitat impounded upstream of the dam for smallmouth bass and the federally
and state-listed endangered Roanoke logperch. The project improved instream habitat,
vegetation, and competency to transport sediment another mile upstream and five miles
downstream of the dam. It also enhanced the channel habitat, stability, and complexity of
the remaining 45-mile Pigg River segment to the Leesville Reservoir.
b.

Abreu-Grogan Park Improvements: The Settling Defendant made
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 improvements to the three-acre Abreu-Grogan Park in Danville, Virginia, which was
closed for several months while coal ash was dredged from the Dan River as a result of
the Release. The improvements include a boat dock for launching and retrieving boats, a
handicap-accessible restroom, fishing platform, sidewalks, and an information kiosk.
c.

Mayo River Land Conservation: The Settling Defendant funded the

acquisition of 340 acres of real property along the Mayo River in North Carolina,
including 3 miles of river corridor, and title was transferred to North Carolina for longterm stewardship and conservation in perpetuity as part of North Carolina’s Mayo River
State Park. The Settling Defendant also funded the acquisition of 214 acres of real
property along the Mayo River in Henry County, Virginia, and title was transferred to
Virginia for long-term stewardship and conservation in perpetuity as part of Virginia’s
Mayo River State Park. Acquisition of these lands and transfer to the respective state
park systems of North Carolina and Virginia allow long-term recreational improvements
to be implemented. Conservation of these portions of river corridor also protects
significant aquatic habitat with at least 10 rare and listed aquatic species and adjacent
terrestrial natural heritage features. These additions to the state park systems allow
greater access and safety for the public to experience river-based recreation and fishing,
as well as camping, hiking, and environmental education.
9.

Additional Restoration Projects. The Settling Defendant shall finance and

complete the Restoration Projects described in Appendix C (Restoration Project Scopes
of Work): (i) Additional Mayo River Land Conservation and (ii) Public Boat Access. All
restoration work performed by the Settling Defendant shall be in accordance with the
Trustees’ final Restoration Plan and any amendments thereto. To the extent required to
implement a Restoration Project, the Settling Defendant’s acquisition of real property and
conveyance of such property to a State is subject to Paragraphs 10 through 12.
10.

Acquisition of Properties. Within 18 months after the Effective Date, or
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 within such other time period if agreed to in writing by the Trustees, the Settling
Defendant shall acquire, or cause to be acquired on its behalf, fee simple title to real
property meeting the Performance Criteria in the applicable Scope of Work (Appendix
C). Prior to acquiring title, the Settling Defendant shall satisfy any requirements of the
State receiving title and shall document how such requirements are satisfied for each
parcel to be acquired. All costs of acquisition (including due diligence and closing costs)
shall be borne by the Settling Defendant.
11.

Conveyance of Properties. In conveying ownership of any real property to

a State, the Settling Defendant shall cooperate with any closing requirements provided in
writing by a State or required under State law. Within 14 days of a State’s written
request to the Settling Defendant, or within such other time period if agreed to in writing
by the Trustees, the Settling Defendant shall execute and deliver to the satisfaction of the
receiving State a deed conveying fee simple title to the property free and clear of all liens
and encumbrances except as otherwise agreed to by the State that, in the State’s sole
discretion, will not interfere with the compensatory purpose and intended use of the
property. All costs of conveyance (including transfer costs and closing costs) shall be
borne by the Settling Defendant. Within seven days of any conveyance to a State, the
Settling Defendant shall notify the Trustees that the conveyance has occurred.
12.

Contingency for Property Acquisition. In the event that the Settling

Defendant, or its agent, fails to obtain the requisite title from a third party, as provided in
Paragraph 10, necessary to implement a Restoration Project due to a force majeure event
or an inability to acquire title at a commercially reasonable price, the Trustees may direct
the Settling Defendant to instead acquire an alternate property (or combination of
properties) that achieves comparable ecological function, recreation opportunity, and/or
location as the original Restoration Project, taking into account any ecological or
recreational benefits that have been or will be achieved from any portion(s) of the
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 original Restoration Project that may have been completed. The Settling Defendant shall
implement the project at the alternate property within a mutually agreed upon timeframe.
If the Settling Defendant seeks to assert either a force majeure event or an inability to
acquire title at a commercially reasonable price with respect to any property addressed by
this Paragraph, then the Settling Defendant shall comply in the first instance with the
notice requirement and all other requirements set forth in the provisions of Section X
(Force Majeure).
13.

Conservation of Properties and Maintenance of Boat Access Locations.

With regard to any Restoration Project, the State shall conserve and manage such
Restoration Project consistently with the Restoration Project’s function and purpose to
compensate the public for alleged injuries and losses of Natural Resources and/or their
services pursuant to this Consent Decree and as set forth in the Scopes of Work
(Appendix C).
14.

Construction of Public Boat Access Facility in North Carolina, If

Applicable. If, under the Public Boat Access Restoration Project described in Appendix
C (Restoration Project Scopes of Work), the identified boat access location(s) is in North
Carolina, the Settling Defendant shall construct a boat access facility at such location(s),
using designs approved by the North Carolina Wildlife Resources Commission, and (if
applicable) convey the property to North Carolina after construction is complete. The
Settling Defendant shall complete construction of the boat access facility within one year
of receiving design plan approvals from the North Carolina Wildlife Resources
Commission, and the Settling Defendant shall notify the Trustees in writing within 7 days
of completing construction of a facility.
15.

Construction of Public Boat Access Facility in Virginia, If Applicable. If,

under the Public Boat Access Restoration Project described in Appendix C (Restoration
Project Scopes of Work), the identified boat access location(s) is in Virginia, the Settling
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 Defendant shall construct a boat access facility at such location(s), using designs
approved by the Virginia Department of Game and Inland Fisheries, and (if applicable)
convey the property to Virginia after construction is complete. The Settling Defendant
shall complete construction of the boat access facility within one year of receiving design
plan approvals from the Virginia Department of Game and Inland Fisheries, and the
Settling Defendant shall notify the Trustees in writing within 7 days of completing
construction of a facility.
VIII. REPORTING REQUIREMENTS
16.

Beginning no sooner than six months after the lodging of this Consent

Decree, and until termination of this Decree pursuant to Section XXI, the Settling
Defendant shall submit by email to the Plaintiffs a semi-annual report on January 31st
and July 31st of each year for the preceding half-calendar-year (i.e., July 1st through
December 31st and January 1st through June 30th, respectively). For the first
semi-annual report only, the reporting period shall commence with the lodging of this
Consent Decree and extend through June 30, 2019. Each semi-annual report shall
summarize the status of the Settling Defendant’s progress in satisfying its obligations
under Paragraph 9 (Additional Restoration Projects), including, at a minimum, (i) a
narrative description of relevant activities undertaken and any problems encountered and
solutions implemented during the reporting period, (ii) a narrative description of any
anticipated problems and proposed solutions to such problems, (iii) appropriate maps and
photographs demonstrating the Settling Defendant’s progress, and (iv) a narrative
description, including a schedule if applicable, of anticipated activities to be undertaken
in the next reporting period in furtherance of its obligations under Paragraph 9.
17.

Each report submitted by the Settling Defendant under this Section shall be

signed by an official of the submitting party and include the following certification:
I certify under penalty of law that this document and all attachments were
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 prepared under my direction or supervision in accordance with a system
designed to assure that qualified personnel properly gather and evaluate the
information submitted. Based on my inquiry of the person or persons who
manage the system, or those persons directly responsible for gathering the
information, the information submitted is, to the best of my knowledge and
belief, true, accurate, and complete. I have no personal knowledge that the
information submitted is other than true, accurate, and complete. I am
aware that there are significant penalties for submitting false information,
including the possibility of fine and imprisonment for knowing violations.
18.

Any information provided pursuant to this Consent Decree may be used by

the Plaintiffs in any proceeding to enforce the provisions of this Consent Decree and as
otherwise permitted by law.
19.

The reporting requirements of this Consent Decree do not relieve the

Settling Defendant of any reporting obligations required by CERCLA, the CWA, the
SWCL, or their respective implementing regulations, or by any other federal, state, or
local law, regulation, permit, or other requirement.
IX.
20.

STIPULATED PENALTIES

The Settling Defendant shall be liable for stipulated penalties to the United

States and the States for violations of this Consent Decree as specified below, unless
excused under Section X (Force Majeure). A violation includes failing to perform any
obligation required by the terms of this Decree, including any Restoration Project or
schedule approved under this Decree, according to all applicable requirements of this
Decree and within the specified time schedules established by or approved under this
Decree.
21.

The Settling Defendant shall not deduct any penalties paid under this

Decree pursuant to this Section in calculating its federal, State, or local income tax.
22.

Payment Obligation.
a.

Interest. In the event any payment required by Paragraph 6 is not

made when due, the Settling Defendant shall pay Interest on the unpaid balance
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 commencing on the payment due date and accruing through the date of full payment.
b.

Stipulated Penalties. In addition to the Interest required to be paid

under the preceding Subparagraph, if any payment required by Section VI (Payment by
Settling Defendant) is not made when due, the Settling Defendant shall also pay the
following stipulated penalties per day for each day that the payment is late through the
date of full payment.
Period of Noncompliance

Penalty Per Violation Per Day

1st through 14th day

$500

15th through 30th day

$1,000

31st day and beyond

$3,000

23.

Restoration Project Requirements. The following stipulated penalties shall

accrue per violation per day for each failure to satisfy any requirement or deadline
(excluding notice requirements) set forth in Section VII (Natural Resource Restoration
Projects).
Period of Noncompliance

Penalty Per Violation Per Day

1st through 30th day

$1,250

31st day and beyond

$3,000

24.

Reporting and Notice Requirements. The following stipulated penalties

shall accrue per violation per day for each violation of the requirements of Section VIII
(Reporting Requirements) and the notice requirements set forth in Paragraphs 11, 12, 14,
and 15 of Section VII (Natural Resource Restoration Projects).
Period of Noncompliance

Penalty Per Violation Per Day

1st through 30th day

$750

31st day and beyond

$2,000

25.

Stipulated penalties under this Section shall begin to accrue on the day after

performance is due or on the day a violation occurs, whichever is applicable, and shall
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 continue to accrue until performance is satisfactorily completed or until the violation
ceases. Stipulated penalties shall accrue simultaneously for separate violations of this
Decree.
26.

The Settling Defendant shall pay any stipulated penalties to the United

States and the States within 30 days of a written demand by any Plaintiff. Of the total
stipulated penalty amount due, the Settling Defendant shall pay 33.4% percent to the
United States, 33.3% to North Carolina, and 33.3% to Virginia. The Plaintiff making a
demand for payment of a stipulated penalty shall simultaneously send a copy of the
demand to the other Plaintiffs.
27.

Any Interest payments under Subparagraph 22(a) shall be paid in the same

manner as the overdue principal amount, and shall be directed to the same account as the
overdue principal amount. Any stipulated penalties payments to the United States under
this Section IX shall be paid in accordance with Paragraph 6 above, and shall be
deposited in the United States Treasury.
28.

Any Plaintiff may, in the unreviewable exercise of its discretion, reduce or

waive stipulated penalties otherwise due it under this Consent Decree.
29.

Stipulated penalties shall continue to accrue as provided in Paragraph 25,

during any Dispute Resolution, but need not be paid until the following:
a.

If the dispute is resolved by agreement of the Parties or by a decision

of the Plaintiffs that is not appealed to the Court, the Settling Defendant shall pay accrued
penalties determined to be owing, together with Interest, to the Plaintiffs within 30 days
of the effective date of the agreement or the receipt of the Plaintiffs’ decision.
b.

If the dispute is appealed to the Court and the Plaintiffs prevail in

whole or in part, the Settling Defendant shall pay all accrued penalties determined by the
Court to be owing, together with Interest, within 60 days of receiving the Court’s
decision or order, except as provided in Subparagraph c, below.
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 c.

If any Party appeals the District Court’s decision, the Settling

Defendant shall pay all accrued penalties determined to be owing, together with Interest,
within 15 Days of receiving the final appellate court decision.
30.

If the Settling Defendant fails to pay stipulated penalties according to the

terms of this Consent Decree, the Settling Defendant shall be liable for Interest on such
penalties, accruing as of the date payment became due. Nothing in this Paragraph shall
be construed to limit the United States or the States from seeking any remedy otherwise
provided by law for the Settling Defendant’s failure to pay any stipulated penalties.
31.

The payment of penalties and interest, if any, shall not alter in any way the

Settling Defendant’s obligation to complete the performance of the requirements of this
Consent Decree.
32.

Non-Exclusivity of Remedy. Stipulated penalties are not the United States’

or the States’ exclusive remedy for violations of this Consent Decree. Subject to the
provisions of Sections XIV and XVI (Reservation of Rights by Plaintiffs and Effect of
Settlement/Contribution Protection), the Plaintiffs expressly reserve the right to seek any
other relief that a Plaintiff deems appropriate for the Settling Defendant’s violation of this
Decree or applicable law, including but not limited to an action against the Settling
Defendant for statutory penalties, additional injunctive relief or restoration work, and/or
contempt. However, the amount of any statutory penalty assessed for a violation of this
Consent Decree shall be reduced by an amount equal to the amount of any stipulated
penalty assessed and paid pursuant to this Consent Decree.
X.
33.

FORCE MAJEURE

“Force majeure,” for purposes of this Consent Decree, is defined as any

event arising from causes beyond the control of the Settling Defendant, of any entity
controlled by the Settling Defendant, or of the Settling Defendant’s contractors, that
delays or prevents the performance of any obligation under this Consent Decree despite
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 the Settling Defendant’s best efforts to fulfill the obligation. The requirement that
Defendant exercise “best efforts to fulfill the obligation” includes using best efforts to
anticipate any potential force majeure event and best efforts to address the effects of any
potential force majeure event (a) as it is occurring and (b) following the potential force
majeure, such that the delay and any adverse effects of the delay are minimized. “Force
majeure” does not include the Settling Defendant’s financial inability to perform any
obligation under this Consent Decree.
34.

If any event occurs or has occurred that may delay the performance of any

obligation under this Consent Decree, whether or not caused by a force majeure event,
the Settling Defendant shall provide notice by email to the Trustees, within seven days of
when the Settling Defendant first knew that the event may cause a delay. Within seven
days thereafter, the Settling Defendant shall provide in writing to the Trustees an
explanation and description of the reasons for the delay; the anticipated duration of the
delay; all actions taken or to be taken to prevent or minimize the delay; a schedule for
implementation of any measures to be taken to prevent or mitigate the delay or the effect
of the delay; the Settling Defendant’s rationale for attributing such delay to a force
majeure event if it intends to assert such a claim; and a statement as to whether, in the
opinion of the Settling Defendant, such event may cause or contribute to an
endangerment to public health, welfare or the environment. The Settling Defendant shall
include with any notice all available documentation supporting the claim that the delay
was attributable to a force majeure. Failure to comply with the above requirements shall
preclude the Settling Defendant from asserting any claim of force majeure for that event
for the period of time of such failure to comply, and for any additional delay caused by
such failure. The Settling Defendant shall be deemed to know of any circumstance of
which the Settling Defendant, any entity controlled by the Settling Defendant, or the
Settling Defendant’s contractors knew or should have known.
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 35.

If the Trustees agree that the delay or anticipated delay is attributable to a

force majeure event, the time for performance of the obligations under this Consent
Decree that are affected by the force majeure event will be extended by the Trustees for
such time as is necessary to complete those obligations. An extension of the time for
performance of the obligations affected by the force majeure event shall not, of itself,
extend the time for performance of any other obligation. The Trustees will notify the
Settling Defendant in writing of the length of the extension, if any, for performance of the
obligations affected by the force majeure event.
36.

If the Trustees do not agree that the delay or anticipated delay has been or

will be caused by a force majeure event, the Trustees will notify the Settling Defendant in
writing of their decision.
37.

If the Settling Defendant elects to invoke the dispute resolution procedures

set forth in Section XI (Dispute Resolution), it shall do so no later than 15 days after
receipt of the Trustees’ notice. In any such proceeding, the Settling Defendant shall have
the burden of demonstrating by a preponderance of the evidence that the delay or
anticipated delay has been or will be caused by a force majeure event, that the duration of
the delay or the extension sought was or will be warranted under the circumstances, that
best efforts were exercised to avoid and mitigate the effects of the delay, and that the
Settling Defendant complied with the requirements of Paragraphs 33 and 34. If the
Settling Defendant carries this burden, the delay at issue shall be deemed not to be a
violation by the Settling Defendant of the affected obligation of this Consent Decree
identified to the Trustees and the Court.
XI.
38.

DISPUTE RESOLUTION

Unless otherwise expressly provided for in this Consent Decree, the dispute

resolution procedures of this Section shall be the exclusive mechanism to resolve disputes
arising under or with respect to this Consent Decree.
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 39.

Informal Dispute Resolution. Any dispute subject to Dispute Resolution

under this Consent Decree shall first be the subject of informal negotiations. The dispute
shall be considered to have arisen when the Settling Defendant sends the Plaintiffs a
written Notice of Dispute. Such Notice of Dispute shall state clearly the matter in
dispute. The period of informal negotiations shall not exceed 30 days from the date the
dispute arises, unless that period is modified by written agreement. If the Parties cannot
resolve a dispute by informal negotiations, then the position advanced by the Plaintiffs
shall be considered binding unless, within 15 days after the conclusion of the informal
negotiation period, the Settling Defendant invokes formal dispute resolution procedures
as set forth below.
40.

Formal Dispute Resolution. The Settling Defendant shall invoke formal

dispute resolution procedures, within the time period provided in the preceding
Paragraph, by sending the Plaintiffs a written Statement of Position regarding the matter
in dispute. The Statement of Position shall include, but need not be limited to, any
factual data, analysis, or opinion supporting the Settling Defendant’s position and any
supporting documentation relied upon by the Settling Defendant.
41.

The Plaintiffs shall send their Statement of Position to the Settling

Defendant within 60 days of receipt of the Settling Defendant’s Statement of Position.
The Statement of Position shall include, but need not be limited to, any factual data,
analysis, or opinion supporting that position and any supporting documentation relied
upon by the Plaintiffs. The Statement of Position shall be binding on the Settling
Defendant, unless the Settling Defendant files a motion for judicial review of the dispute
in accordance with the following Paragraph.
42.

The Settling Defendant may seek judicial review of the dispute by filing

with the Court and serving on the Plaintiffs, in accordance with Section XVII (Notices), a
motion requesting judicial resolution of the dispute. The motion must be filed within 10
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 days of receipt of the Plaintiffs’ Statement of Position pursuant to the preceding
Paragraph. The motion shall contain a written statement of the Settling Defendant’s
position on the matter in dispute, including any supporting factual data, analysis, opinion,
or documentation, and shall set forth the relief requested and any schedule within which
the dispute must be resolved for orderly implementation of the Consent Decree.
43.

The Plaintiffs shall respond to the Settling Defendant’s motion within the

time period allowed by the Local Rules of this Court. The Settling Defendant may file a
reply memorandum, to the extent permitted by the Local Rules.
44.

Standard of Review
a.

Disputes Concerning Matters Accorded Record Review. Except as

otherwise provided in this Consent Decree, in any dispute brought under Paragraph 40
pertaining to the adequacy or appropriateness of proposed changes to the Restoration
Projects described in Paragraph 9, procedures to implement a Restoration Project,
schedules, or any other items requiring approval by the Trustees under this Consent
Decree; the adequacy of the performance of work undertaken pursuant to this Consent
Decree; and all other disputes that are accorded review on the administrative record under
applicable principles of administrative law, the Settling Defendant shall have the burden
of demonstrating, based on the administrative record, that the position of the Plaintiffs is
arbitrary and capricious or otherwise not in accordance with law.
b.

Other Disputes. Except as otherwise provided in this Consent

Decree, in any other dispute brought under Paragraph 40, the Settling Defendant shall
bear the burden of demonstrating that its position complies with this Consent Decree and
better furthers the Consent Decree’s objective to contribute to the restoration,
replacement, or acquisition of the equivalent of the natural resources allegedly injured,
destroyed, or lost as a result of the Release.
45.

The invocation of dispute resolution procedures under this Section shall
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 not, by itself, extend, postpone, or affect in any way any obligation of the Settling
Defendant under this Consent Decree, unless and until final resolution of the dispute so
provides. Stipulated penalties with respect to the disputed matter shall continue to accrue
from the first day of noncompliance, but payment shall be stayed pending resolution of
the dispute as provided in Paragraph 29. If the Settling Defendant does not prevail on the
disputed issue, stipulated penalties shall be assessed and paid as provided in Section IX
(Stipulated Penalties).
XII. INFORMATION COLLECTION AND RETENTION; ACCESS TO
RESTORATION PROJECT PROPERTIES
46.

To the extent that the Settling Defendant has such right of entry, the United

States, the States, and their representatives, including attorneys, contractors, and
consultants, shall have the right of entry onto any real property that is subject to an
uncompleted Restoration Project, or any other real property where access is needed for
purposes of this Consent Decree, at all reasonable times, upon presentation of credentials,
to:
a.

monitor the progress of activities required under this Consent

b.

verify any data or information submitted to the United States or a

Decree;

State in accordance with the terms of this Consent Decree;
c.

obtain documentary evidence, including photographs and similar

d.

assess the Settling Defendant’s compliance with this Consent

data; and

Decree.
47.

Until five years after the termination of this Consent Decree, the Settling

Defendant shall retain, and shall instruct its contractors and agents to preserve, all
non-identical copies of all documents, records, or other information (including
documents, records, or other information in electronic form) (hereinafter referred to as
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 “Records”) in its or its contractors’ or agents’ possession or control, or that come into its
or its contractors’ or agents’ possession or control, and that relate in any manner to the
Settling Defendant’s performance of its obligations under this Consent Decree. This
information-retention requirement shall apply regardless of any contrary corporate or
institutional policies or procedures. At any time during this information-retention period,
upon request by the United States or a State, the Settling Defendant shall provide copies
of any Records required to be maintained under this Paragraph.
48.

At the conclusion of the information-retention period provided in the

preceding Paragraph, the Settling Defendant shall notify the Plaintiffs at least 90 days
prior to the destruction of any Records subject to the requirements of the preceding
Paragraph and, upon request by any Plaintiff, the Settling Defendant shall deliver any
such Records to DOI or the State.
49.

Privilege Claims and Business Confidential Claims.
a.

The Settling Defendant may assert that a certain Record is privileged

under the attorney-client privilege or any other privilege recognized by federal law. If a
claim of privilege applies only to a portion of a Record, the Settling Defendant shall
provide the Record in redacted form to mask the privileged or protected portion only. If
the Settling Defendant asserts such a privilege, it shall provide the following: (a) the title
of the document, record, or information; (b) the date of the document, record, or
information; (c) the name and title of each author of the document, record, or
information; (d) the name and title of each addressee and recipient; (e) a description of
the subject of the document, record, or information; and (f) the privilege asserted by the
Settling Defendant. The Settling Defendant shall retain all Records claimed to be
privileged until the Trustees have had a reasonable opportunity to dispute the privilege
claim and any such dispute has been resolved in the Settling Defendant’s favor.
b.

The Settling Defendant may also assert that a certain Record is
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 protected as business confidential to the extent permitted by and in accordance with
Section 104(e)(7) of CERCLA, 42 U.S.C. § 9604(e)(7), and 40 C.F.R. § 2.203(b). If the
Settling Defendant asserts such protection, the Settling Defendant shall segregate and
clearly identify all Records or parts thereof for which the Settling Defendant asserts
business confidentiality claims. Records determined to be confidential by the Trustees
will be afforded the protection specified in 40 C.F.R. Part 2, Subpart B. If no claim of
confidentiality accompanies Records when they are submitted to the Trustees, or if the
Trustees have notified the Settling Defendant that the Records are not confidential under
the standards of Section 104(e)(7) of CERCLA or 40 C.F.R. Part 2, Subpart B, the public
may be given access to such Records without further notice to Settling Defendant.
50.

However, no Records created or generated pursuant to the requirements of

this Consent Decree, and no data (including but not limited to sampling, analytical,
monitoring, hydrogeologic, scientific, chemical, and engineering data) or any other
documents or information evidencing conditions caused by the Release, shall be withheld
from the Plaintiffs on grounds of privilege or confidentiality.
51.

This Consent Decree in no way limits or affects any right of entry and

inspection, or any right to obtain information, held by the United States or a State
pursuant to applicable federal or state laws, regulations, or permits, nor does it limit or
affect any duty or obligation of the Settling Defendant to maintain documents, records, or
other information imposed by applicable federal or state laws, regulations, or permits.
XIII. COVENANTS NOT TO SUE BY PLAINTIFFS
52.

Covenant by the United States. Except as specifically provided by

Paragraph 54 (General Reservations) and Paragraph 55 (Special Reservations Regarding
Natural Resource Damages), the United States covenants not to sue or take administrative
action against the Settling Defendant for Natural Resource Damages known as of the date
of lodging this Consent Decree with the Court pursuant to CERCLA Section 107,
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 42 U.S.C. § 9607, and the Clean Water Act Section 311, 33 U.S.C. § 1321. This
covenant not to sue shall take effect upon receipt of the Settling Defendant’s payment
pursuant to Section VI (Payment by the Settling Defendant). This covenant not to sue is
conditioned upon the satisfactory performance by the Settling Defendant of its
obligations under this Consent Decree. This covenant not to sue extends only to the
Settling Defendant and does not extend to any other person.
53.

Covenant by the States. Except as specifically provided by Paragraph 54

(General Reservations) and Paragraph 55 (Special Reservations Regarding Natural
Resource Damages), the States covenant not to sue the Settling Defendant for Natural
Resource Damages known as of the date of lodging this Consent Decree with the Court
pursuant to CERCLA Section 107, 42 U.S.C. § 9607, the Clean Water Act Section 311,
33 U.S.C. § 1321, and, as to Virginia, the SWCL. This covenant not to sue shall take
effect upon receipt of the Settling Defendant’s payment pursuant to Section VI (Payment
by the Settling Defendant). This covenant not to sue is conditioned upon the satisfactory
performance by the Settling Defendant of its obligations under this Consent Decree. This
covenant not to sue extends only to the Settling Defendant and does not extend to any
other person.
XIV. RESERVATION OF RIGHTS BY PLAINTIFFS
54.

General Reservations. The United States and the States reserve, and this

Consent Decree is without prejudice to, all rights against the Settling Defendant and with
respect to all matters not expressly included within Paragraph 52 (Covenant by the
United States) and Paragraph 53 (Covenant by the States). Notwithstanding any other
provisions of this Consent Decree, the United States and the States reserve all rights
against the Settling Defendant with respect to:
a.

claims based on a failure by the Settling Defendant to meet a

requirement of this Consent Decree;
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 b.

liability for injunctive relief or administrative order enforcement

under CERCLA Section 106, 42 U.S.C. § 9606;
c.

liability under CERCLA Section 107(a)(4)(A), 42 U.S.C.

§ 9607(a)(4)(A), for costs of removal or remedial action incurred by the United States
Government or a State or an Indian tribe;
d.

liability under CERCLA Section 107(a)(4)(D), 42 U.S.C.

§ 9607(a)(4)(D), for costs of any health assessment or health effects study carried out
under 42 U.S.C. § 9604(i);
e.

liability for any other costs incurred or to be incurred by the United

States or by a State that are not within the definition of Natural Resource Damages;
f.

liability for damages for injury to, destruction of, or loss of natural

resources resulting from releases or threatened releases of hazardous substances other
than during the Release;
g.

liability arising from any disposal of hazardous substances at the

Facility by the Settling Defendant after the lodging of this Consent Decree; and
h.
55.

criminal liability.

Special Reservations Regarding Natural Resource Damages.

Notwithstanding any other provision of this Consent Decree, the United States and the
States reserve the right to institute proceedings against the Settling Defendant in this
action or in a new action seeking recovery of Natural Resource Damages, including costs
of natural resource damages assessment, based on: (i) conditions caused by the Release,
unknown to the Trustees as of the date of lodging of this Consent Decree, that result in
releases of hazardous substances that contribute to injury to, destruction of, or loss of
Natural Resources; or (ii) information received by the Trustees after the date of lodging
of this Consent Decree which indicates that the Release has resulted in injury to,
destruction of, or loss of Natural Resources of a type or future persistence that was
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 unknown, or of a magnitude greater than was known, to the Trustees as of the date of
lodging of this Consent Decree.
XV.
56.

COVENANTS BY THE SETTLING DEFENDANT

Covenants by the Settling Defendant. The Settling Defendant covenants

not to sue and agrees not to assert any claims or causes of action against the United States
or the States, or their contractors or employees, with respect to Natural Resource
Damages or this Consent Decree, including but not limited to:
a.

any direct or indirect claim for reimbursement of any payment for

Natural Resource Damages from the Hazardous Substance Superfund based on Sections
106(b)(2), 107, 111, 112, or 113 of CERCLA, 42 U.S.C. §§ 9606(b)(2), 9607, 9611,
9612, or 9613, or any other provision of law;
b.

any claim against the United States or the States pursuant to Sections

107 and 113 of CERCLA, 42 U.S.C. §§ 9607 and 9613, relating to Natural Resource
Damages; and
c.

any claim against the United States or the States pursuant to Section

311 of the CWA, 33 U.S.C. § 1321.
57.

Except as provided in Paragraph 64, the covenants in this Section shall not

apply if the United States or a State brings a cause of action or issues an order pursuant to
any of the reservations in Section XIV (Reservation of Rights by Plaintiffs), other than in
Subparagraphs 54(a) (claims for failure to meet a requirement of the Consent Decree) or
54(h) (criminal liability), but only to the extent that the Settling Defendant’s claims arise
from the same response action, response costs, or damages that the United States or the
State is seeking pursuant to the applicable reservation.
58.

Only with respect to claims for money damages for injury or loss of

property or personal injury or death arising from an exercise of rights of access under
Paragraph 46, the Settling Defendant reserves, and this Consent Decree is without
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 prejudice to, claims against the United States, subject to the provisions of Chapter 171 of
Title 28 of the United States Code, and brought pursuant to any statute other than
CERCLA or RCRA and for which the waiver of sovereign immunity is found in a statute
other than CERCLA or RCRA, for money damages for injury or loss of property or
personal injury or death caused by the negligent or wrongful act or omission of any
employee of the United States, as that term is defined in 28 U.S.C. § 2671, while acting
within the scope of his or her office or employment under circumstances where the
United States, if a private person, would be liable to the claimant in accordance with the
law of the place where the act or omission occurred. However, the foregoing shall not
include any claim based on EPA’s selection of response actions, the Trustees’ selection
of Restoration Projects, or the oversight or approval of the Settling Defendant’s
deliverables or activities.
59.

Nothing in this Consent Decree shall be deemed to constitute approval or

preauthorization of a claim within the meaning of Section 111 of CERCLA, 42 U.S.C.
§ 9611, or 40 C.F.R. § 300.700(d).
60.

Waiver of Certain Claims Against Other Persons. The Settling Defendant

agrees not to assert any claims and to waive all claims or causes of action that it may
have against all other persons for all matters relating to Natural Resource Damages,
including for contribution; provided, however, that the Settling Defendant reserves the
right to assert and pursue all claims, causes of action, and defenses relating to Natural
Resource Damages against any person in the event such person first asserts, and for so
long as such person pursues, any claim or cause of action against the Settling Defendant
relating to Natural Resource Damages. Nothing in this Paragraph shall operate to waive
or release any claim or action by the Settling Defendant under any contract of insurance.

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 XVI. EFFECT OF SETTLEMENT/CONTRIBUTION PROTECTION
61.

Except as provided in Paragraph 60 (Waiver of Certain Claims Against

Other Persons), nothing in this Consent Decree shall be construed to create any rights in,
or grant any cause of action to, any person not a Party to this Consent Decree. Except as
provided in Paragraph 60 (Waiver of Certain Claims Against Other Persons), each of the
Parties expressly reserves any and all rights (including, but not limited to, any right to
contribution), defenses, claims, demands, and causes of action which each Party may
have with respect to any matter, transaction, or occurrence relating in any way to the
Release against any person not a Party hereto.
62.

The Parties agree, and by entering this Consent Decree this Court finds, that

this Consent Decree constitutes a judicially approved settlement pursuant to which the
Settling Defendant has resolved liability alleged in the Plaintiffs’ Complaint in this action
within the meaning of Section 113(f)(2) of CERCLA, 42 U.S.C. § 9613(f)(2), and is
entitled to protection from contribution actions or claims as provided by Section 113(f)(2)
of CERCLA, 42 U.S.C. § 9613(f)(2), for “matters addressed” in this Consent Decree.
The “matters addressed” in this Consent Decree are Natural Resource Damages;
provided, however, that if a Plaintiff exercises rights under the reservations set forth in
Section XIV (Reservation of Rights by Plaintiffs) other than in Paragraph 54(a) (claims
for failure to meet a requirement of the Consent Decree) or Paragraph 54(h) (criminal
liability), the “matters addressed” in this Consent Decree will no longer include those
Natural Resource Damages that are within the scope of the exercised reservation. The
contribution protection afforded by this Consent Decree shall take effect upon receipt of
the Settling Defendant’s payment pursuant to Section VI (Payment by the Settling
Defendant).
63.

The Settling Defendant also agrees that, with respect to any suit or claim

for contribution brought against it for matters related to this Consent Decree, the Settling
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 Defendant will notify the persons identified in Section XVII (Notices) in writing within
10 days of service of the complaint or claim upon it. In addition, the Settling Defendant
shall notify the persons identified in Section XVII (Notices) within 10 days of service or
receipt of any Motion for Summary Judgment, and within 10 days of receipt of any order
from a court setting a case for trial, for matters related to this Consent Decree.
64.

In any subsequent administrative or judicial proceeding initiated by the

United States or a State for injunctive relief, recovery of response costs or Natural
Resource Damages, or other relief relating to the Release, the Settling Defendant shall
not assert, and may not maintain, any defense or claim based upon the principles of
waiver, res judicata, collateral estoppel, issue preclusion, claim-splitting, or other
defenses based upon any contention that the claims raised by the United States or a State
in the subsequent proceeding were or should have been brought in the instant case;
provided, however, that nothing in this Paragraph affects the enforceability of the
Covenants Not To Sue by the Plaintiffs set forth in Section XIII.
65.

This Consent Decree is not a permit, or a modification of any permit, under

any federal, State, or local laws or regulations. The Settling Defendant is responsible for
achieving and maintaining complete compliance with all applicable federal, State, and
local laws, regulations, and permits; and the Settling Defendant’s compliance with this
Consent Decree shall be no defense to any action commenced pursuant to any such laws,
regulations, or permits, except as set forth herein. The United States and the States do
not, by their consent to the entry of this Consent Decree, warrant or aver in any manner
that the Settling Defendant’s compliance with any aspect of this Consent Decree will
result in compliance with provisions of CERCLA, the CWA, the SWCL, or with any
other provisions of federal, State, or local laws, regulations, or permits.

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 XVII. NOTICES
66.

Whenever, under the terms of this Consent Decree, notice is required to be

given or a document is required to be sent by one Party to another, it shall be directed to
the individuals at the addresses or emails specified below, unless those individuals or
their successors give notice of a change to the other Parties in writing. Written notice as
specified herein shall constitute complete satisfaction of any written notice requirement
of the Consent Decree with respect to the United States and the States, and the Settling
Defendant, respectively.
67.

Notices and documents submitted pursuant to this Section shall be deemed

submitted upon mailing, unless otherwise provided in this Consent Decree or by mutual
agreement of the Parties in writing.
68.

Notice or submission to the “Plaintiffs” shall mean notice or submission to

the United States (both the U.S. Department of Justice and DOI), North Carolina, and
Virginia.
69.

Notice or submission to the “Trustees” shall mean notice or submission to

DOI, North Carolina, and Virginia.
As to the United States:
As to the U.S. Department of Justice:
EES Case Management Unit
Environment and Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Washington, D.C. 20044-7611
Re: DJ # 90-5-1-1-11057/2
or

eescdcopy.enrd@usdoj.gov

As to DOI:
Amy Horner Hanley
Senior Attorney-Advisor
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 Environmental Restoration Branch
Office of the Solicitor
Department of the Interior
1849 C Street, N.W.
Washington, D.C. 20240

or

amy.hanley@sol.doi.gov

Guadalupe Carolina Fonseca Jimenez
Public Engagement Liaison
N.C. Department of Environmental Quality
1601 Mail Service Center
Raleigh, North Carolina 27699-1601 or

guadalupe.jimenez@ncdenr.gov

Drew Hargrove
Assistant General Counsel
N.C. Department of Environmental Quality
1601 Mail Service Center
Raleigh, North Carolina 27699-1601
or

drew.hargrove@ncdenr.gov

As to North Carolina:

Francisco Benzoni
Special Deputy Attorney General
N.C. Department of Justice
P.O. Box 629
Raleigh, North Carolina 27602 or

fbenzoni@ncdoj.gov

As to Virginia:
Hon. Matthew J. Strickler
Secretary of Natural Resources
Commonwealth of Virginia
1111 East Broad Street
Richmond, Virginia 23219

or

natural.resources@governor.virginia.gov

Donald D. Anderson
Deputy Attorney General
Virginia Office of the Attorney General
202 North 9th Street
Richmond, Virginia 23219
32

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 35 of 158

 Justin L. Williams
Land Protection and Revitalization Division Director/Interim Enforcement
Division Director
Virginia Department of Environmental Quality
1111 E. Main Street, Suite 1400
Richmond, Virginia 23219
or
justin.williams@deq.virginia.gov
As to the Settling Defendant:
Garry S. Rice
Deputy General Counsel
Duke Energy
DEC45A 550 South Tryon Street
Charlotte, North Carolina 28202 or

garry.rice@duke-energy.com

Linda D. Hickok
Manager, Environmental Services
Duke Energy
421 S. Wilmington Street, 15th Floor
Raleigh, North Carolina 27601 or

linda.hickok@duke-energy.com

XVIII.
70.

APPENDICES

The following appendices are attached to and incorporated into this

Consent Decree:
“Appendix A” is a map of the assessment area for the Release.
“Appendix B” is the draft Restoration Plan.
“Appendix C” contains the scopes of work for the Restoration Projects to be
financed and completed by the Settling Defendant pursuant to Paragraph 9.
XIX. EFFECTIVE DATE AND RETENTION OF JURISDICTION
71.

The Effective Date of this Consent Decree shall be the date upon which this

Consent Decree is entered by the Court or a motion to enter the Consent Decree is
granted, whichever occurs first, as recorded on the Court’s docket.

33

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 72.

The Court shall retain jurisdiction to modify and enforce the terms and

conditions of this Consent Decree and to resolve disputes arising hereunder as may be
necessary or appropriate for the construction or execution of this Consent Decree.
XX.
73.

CONSENT DECREE MODIFICATIONS

Any material modification of this Consent Decree shall be made by

agreement of the Parties to this Consent Decree and in writing, and shall not take effect
unless approved by the Court. Any non-material modification of this Consent Decree
shall be made by agreement of the Parties to this Consent Decree and in writing, and shall
not take effect until filed with the Court. Nothing in this Consent Decree shall be deemed
to alter the Court’s power to enforce, supervise, or approve modifications to this Consent
Decree.
74.

The provisions of this Consent Decree are not severable. The Parties’

consent hereto is conditioned upon the entry of the Consent Decree in its entirety without
modification, addition, or deletion except as agreed to by the Parties.
75.

Unanticipated or increased costs or expenses associated with the

implementation of actions required by this Consent Decree and economic hardship or
changed financial circumstances of the Settling Defendant shall not serve as a basis for
modifications of this Consent Decree.
XXI. CONSENT DECREE TERMINATION
76.

This Consent Decree may be terminated when the Plaintiffs determine that

the Settling Defendant has satisfactorily completed performance of its Restoration Project
obligations required by this Decree, provided that the Settling Defendant has fulfilled all
other obligations of this Decree, including payment of any outstanding stipulated
penalties under Section IX. The Parties shall file with the Court an appropriate joint
stipulation reciting that the requirements of the Consent Decree have been met and
requesting termination of the Decree.
34

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 XXII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT
77.

This Consent Decree shall be lodged with the Court for a period of not less

than 30 days for public notice and comment. The Plaintiffs reserve the right to withdraw
or withhold their consent if comments regarding the Consent Decree disclose facts or
considerations which indicate that this Consent Decree is inappropriate, improper, or
inadequate. The Settling Defendant consents to the entry of this Consent Decree without
further notice and agrees not to withdraw from or oppose entry of this Consent Decree by
the Court or to challenge any provision of the Decree, unless the Plaintiffs have notified
the Settling Defendant in writing that they no longer support entry of the Decree. If for
any reason the Court should decline to approve this Consent Decree in the form
presented, or if approval and entry is subsequently vacated on appeal of such approval
and entry, the agreement represented by this Consent Decree is voidable at the sole
discretion of any Party and the terms of the agreement may not be used as evidence in
any litigation between the Parties.
XXIII.
78.

SIGNATORIES/SERVICE

The undersigned representatives of the Settling Defendant, the United

States, and the States each certify that he or she is fully authorized to enter into the terms
and conditions of this Consent Decree and to execute and legally bind such Party to this
document. This Consent Decree may be executed in multiple counterparts, each of which
shall be deemed an original, but all of which, taken together, shall constitute one and the
same instrument.
79.

The Settling Defendant shall identify, on the attached signature page, the

name, address and telephone number of an agent who is authorized to accept service of
process by mail or email on behalf of the Settling Defendant with respect to all matters
arising under or relating to this Consent Decree. The Settling Defendant hereby agrees to
accept service by either mail or email from any party to this Consent Decree and with
35

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 38 of 158

 respect to all matters arising under or relating to this Consent Decree and to waive the
formal service requirements set forth in Rules 4 and 5 of the Federal Rules of Civil
Procedure and any applicable local rules of this Court including, but not limited to,
service of a summons. The Settling Defendant need not file an answer to the Complaint
in this action unless or until the Court expressly declines to enter this Consent Decree.
XXIV.
80.

FINAL JUDGMENT

This Consent Decree and its appendices constitute the final, complete, and

exclusive understanding among the Parties with respect to the settlement embodied in the
Consent Decree. The Parties acknowledge that there are no representations, agreements,
or understandings relating to the settlement other than those expressly contained in this
Consent Decree.
81.

Upon approval and entry of this Consent Decree by the Court, this Consent

Decree shall constitute a final judgment of the Court between and among the United
States, the States, and the Settling Defendant. The Court finds that there is no just reason
for delay and therefore enters this judgment as a final judgment under Fed. R. Civ. P. 54
and 58.

SO ORDERED THIS ______ DAY OF ________________, _________.

_____________________________
United States District Judge

36

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 39 of 158

 THE UN~IER~IGNED PARTY enters into this Consent Decree in United States of America, the
State ofI~~orth Carolina and the Commonwealth of Virginia, Secrecary of Natural Resources v.
17uke ]Ener~,v Carolinas, L~,C:

F(31~ THE ~JNITED STABE5 OF AMERICA

Mateo

~P ~Z~ l ~~
Ellen M. Mahan
,:
Deputy Chief
Environmental Enforcement Section
Environment and I~tatura~ Resources Division
U.~. Department of Justice

Date:

~p( Z~o~
Angela Mo
Trial Attorney
En~~iranrnental ~'nforcement Sec~ian
Environment and Natural resources Division
U.S. Departme:~t of Justice
1P.0. Box 7511
Washington, DC 20044-7611
(20~)514-1707
angela.mo@usd.aj.gov
California Bar 1`~Io. 26211 ~

37

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 40 of 158

 THE UNDERSIGNED PARTY enters into this Consent Decree in United States of America. the
State of North Carolina and the Commonwealth of Vir inia Secretarv of Natural Resources v.
Duke Energv Carolinas. LLC:

 

FOR THE STATE OF NORTH CAROLINA

Date: Eva}

Sheila Holman

Assistant Secretary for the Environment
NC. Department of Environmental Quality
1601 Mail Service Center

Raleigh, North Carolina 27699-1601

(919) 707-8619

sheila.holman@ncdenr. gov

38

Case Document 2-1 Filed 07/18/19 Paoe 41 of 158

THE UNDERSIGNED PARTY enters into this Consent Decree in United States of America, the

State of North Carolina, and the Commonwealth ofVirginig Secretary of Natural Resources v.
Duke Ener Carolinas LLC:



FOR THE COMMONWEALTH OF
VIRGINIA

 

Date: 7- 4
Mark R. Herring, Attorney General
Donald D. Anderson, Deputy Attorney General
Paul Kugelman, J12, Senior Assistant Attorney
General/Chief
Daniel W. Ingersoll, Assistant Attorney General
202 North 9th Street
Richmond, Virginia 23219
(804) 786-3806
dingersoll@oag.state.va.us

WW

Date: /4

Matthew J. Strickler
Secretary of Natural Resources
Commonwealth of Virginia

 

39

Case Document 2-1 Filed 07/18/19 Paoe 42 of 158

THE UNDERSIGNED PARTY enters into this Consent Decree in United States of America, the
State of North Carolina, and the Commonwealth of Virginia, Secretary of Natural Resources v.
Duke Energy Carolinas, LLC:

FOR DUKE ENERGY CAROLINAS,LLC
~~
~~
9
J~
Q
C
~~

Date:

~~ g'! j
Paul Draovitch
Senior Vice President
Environmental Health &Safety
Duke Energy Carolinas, LLC
526 Church Street
Mail Code EC3XP
Charlotte, North Carolina 28202
(980)373-0408
Paul.Draovitch@duke-energy.com

Agent Authorized to Accept Service on Behalf of Above-Signed Party:

CT Corporation System
160 Mine Lake Court, Suite 200
Raleigh, North Carolina 27615

.~

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 43 of 158

 Consent Decree

Appendix A

Case Document 2-1 Filed 07/18/19 Pace 44 of 158

M

Dan River
-- Upstream

1n

-Assessment Area

Kerr Reservoir

Upper Dan Subbasin
F \

Lower Dan Subbasin

Mou

M

n

North Carolina

•Greensboro

25

50
Kilometers

Map of assessment area for Dan River Coal Ash Release February 2, 2014.

Appendix A
Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 45 of 158

 Consent Decree

Appendix 

Case Document 2-1 Filed 07/18/19 Pace 46 of 158

DRAFT RESTORATION PLAN and ENVIRONMENTAL
ASSESSMENT
FOR THE
DAN RIVER COAL ASH SPILL
NATURAL RESOURCE DAMAGE ASSESSMENT AND
RESTORATION

April 2019 DRAFT

Prepared by
Dan River Natural Resource Trustee Council:
United States Fish and Wildlife Service
North Carolina Department of Environmental Quality
Virginia Department of Environmental Quality

1

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 47 of 158

 Table of Contents
1.0

INTRODUCTION ................................................................................................................................. 4

1.1

Purpose and Need for Restoration ............................................................................................... 4

1.2

Natural Resource Trustees and Authority .................................................................................... 5

1.3

Public Participation ....................................................................................................................... 6

1.4

Overview of the Dan River Coal Ash Spill ...................................................................................... 7

1.5

Summary of the Proposed Settlement Agreement ...................................................................... 9

1.6

Organization of the Dan River Restoration Plan and Environmental Assessment ....................... 9

2.0
SUMMARY OF INJURY TO NATURAL RESOURCES, RESTORATION SCALING AND DAMAGES
DETERMINATION......................................................................................................................................... 10
3.0

RESTORATION ALTERNATIVES......................................................................................................... 13

3.1

Restoration Scoping .................................................................................................................... 13

3.2

Restoration Alternatives Evaluation Criteria .............................................................................. 14

3.3

Potential restoration alternatives identified during Restoration Scoping .................................. 14

3.4

Proposed Restoration Alternatives (and other alternatives considered but eliminated) .......... 15

Alternative 1: No Action.......................................................................................................................... 17
Alternative 2: Mayo River Conservation (preferred) .............................................................................. 17
Alternative 3 - Abreu Grogan Park Improvements (preferred) .............................................................. 19
Alternative 4 - Pigg River Power Dam Removal (preferred) ................................................................... 19
Alternative 5: Establishment of Public Boat Launch Facilities on the Dan River (preferred) ................. 20
Alternative 6A: Rare and Nongame Species Restoration (Mussels) ....................................................... 20
Alternative 6B: Rare and Nongame Species Restoration (Roanoke logperch) ....................................... 21
Alternative 7: Water Quality Improvements via Supplemental Support for Virginia Agricultural Cost
Share Program ........................................................................................................................................ 22
4.0

ENVIRONMENTAL ASSESSMENT ..................................................................................................... 22

4.2

Environmental Consequences of the No Action Alternative and Preferred Alternatives .......... 27

4.2.1

Environmental Consequences of the No Action Alternative .................................................. 28

4.2.2

Environmental Consequences of the Preferred Alternatives ................................................. 29

4.3

Summary of Cumulative Impacts ............................................................................................... 29

5.0 PROJECT FULFILMENT AND MONITORING ......................................................................................... 34
6.0

REFERENCES .................................................................................................................................... 36

2

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 48 of 158

 List of Tables
Table 1:
Table 2.

Summary of Natural Resource and Service Benefits of Proposed Restoration
Alternatives
Summary of Environmental Consequences of the No Action and Preferred
Alternatives

List of Figures

Figure 1:
Figure 2:

Watershed Map for the Dan River Coal Ash Spill
Locations of Preferred Restoration Alternatives

List of Appendices
Appendix A:
Appendix B:
Appendix C:

Abreu Grogan Park Amenity Summary
Pigg River Dam Restoration at Power Dam; Year 1 Monitoring Report
List of Species classified as rare, threatened, endangered or of special concern in
the Dan and Mayo River Basins

List of Acronyms and Abbreviations
CEQ
CERCLA
COPC
CWA
DOI
DRNRTC
FORVA
HEA
NCP
NCDEQ
NCDWQ
NCWRC
NEPA
NRD
NRDAR
PAS
RP/EA
SESD
TMDL
USEPA
USFWS
VADCR
VADEQ

Council on Environmental Quality
Comprehensive Environmental Response, Compensation, and Liability Act
Contaminants of Potential Concern
Clean Water Act (or Federal Water Pollution Control Act)
United States Department of the Interior
Dan River Natural Resource Trustees Council
Friends of the Rivers of Virginia
Habitat Equivalency Analysis
National Oil and Hazardous Substances Pollution Contingency Plan
North Carolina Department of Environmental Quality
North Carolina Division of Water Quality
North Carolina Wildlife Resources Commission
National Environmental Policy Act
Natural Resource Damages
Natural Resource Damage Assessment and Restoration
Preliminary Assessment Screen and Determination
Restoration Plan and Environmental Assessment
Science and Ecosystem Support Division
Total Maximum Daily Load
United States Environmental Protection Agency
United States Fish and Wildlife Service
Virginia Department of Conservation and Recreation
Virginia Department of Environmental Quality

3

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 1.0

INTRODUCTION

The United States Department of the Interior (DOI) acting through the U.S. Fish and Wildlife
Service (USFWS), the Commonwealth of Virginia acting through the Virginia Department of
Environmental Quality (VADEQ), and the State of North Carolina acting through the North
Carolina Department of Environmental Quality (NCDEQ), collectively the Dan River Natural
Resource Trustee Council (Trustees, or DRNRTC) initiated a natural resource damage
assessment and restoration (NRDAR) process to determine and quantify injuries to natural
resources and resource services resulting from the release of hazardous substances at and from
the Duke Energy Dan River Steam Station in Rockingham County, NC to the waters of, and to
the habitats associated with, the Dan River (Figure 1). As part of the NRDAR process, the
Trustees must also identify and select restoration actions that will compensate for the injured
resources and services and seek to recover compensation from the entity responsible for the
injuries to natural resources and lost services.

Figure 1. Watershed Map for the Dan River Coal Ash Spill

1.1

Purpose and Need for Restoration

This Draft Restoration Plan/Environmental Assessment (RP/EA) has been prepared by the
Trustees to address natural resources injured and ecological services lost due to releases of
hazardous substances associated with coal ash from the Dan River Steam Station in February
2014 (Spill). The purpose of this Draft RP/EA is to present the “preferred alternative”
restoration project or projects that will accomplish the goal of restoring, rehabilitating,
replacing and/or acquiring the equivalent of those natural resources, and the services those
resources provide, that have been injured from the release. The Trustees developed this Draft
RP/EA in accordance with 43 C.F.R. § 11.93 to inform the public as to the types and scale of
4

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 restoration to be undertaken towards compensating for injuries to natural resources.
Consistent with the CERCLA NRDAR regulations, this Draft RP/EA includes a reasonable number
of restoration alternatives and identifies a preferred alternative. Public comments are being
sought on this Draft RP/EA and will be considered and incorporated in the final RP/EA as
appropriate.

1.2

Natural Resource Trustees and Authority

Pursuant to the authority of Section 107(f) of the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), as amended, 42 U.S.C. § 9607(f); Federal Water
Pollution Control Act (commonly known as the Clean Water Act), as amended, 33 U.S.C. §
1321(f)(4) and (5), (CWA); Subpart G of the National Oil and Hazardous Substances Pollution
Contingency Plan (NCP), 40 C.F.R. §§ 300.600, 300.605; and other applicable Federal and State
laws, designated Federal and State authorities may act on behalf of the public as natural
resource trustees to pursue natural resource damages for injury to, destruction of, or loss of
natural resources and their services resulting from the release of hazardous substances to the
environment.
The President has designated Federal resource trustees in the NCP, 40 C.F.R. § 300.600, and
through Executive Order 12580, dated January 23, 1987, as amended by Executive Order
13016, dated August 28, 1996. Pursuant to the NCP, the Secretary of the DOI acts as a Trustee
for natural resources and their supporting ecosystems, managed or controlled by the DOI. In
this matter, the USFWS is acting on behalf of the Secretary of the DOI as Trustee for natural
resources under its jurisdiction, including but not limited to migratory birds and endangered
and threatened species.
In accordance with 42 U.S.C. § 9607(f)(2)(B) and the NCP, the Virginia Secretary of Natural
Resources has been designated the natural resource Trustee by the Governor of Virginia. The
State of North Carolina has designated the Secretary of the NCDEQ as its Natural Resource
Trustee representative. The State Trustees act on behalf of the public as Trustee for natural
resources, including their supporting ecosystems, within the boundaries of their state, or
belonging to, managed by, controlled by, or appertaining to Virginia and North Carolina,
respectively.
The State and Federal Trustees may have overlapping jurisdiction over the natural resources
potentially affected in this matter. This shared trusteeship is reflected in the coordinated
wildlife management practices of the USFWS, North Carolina, and Virginia, and is consistent
with the management policies of North Carolina, Virginia, and the USFWS.
This Draft RP/EA was prepared jointly by the Trustees in accordance with Section 111(i) of
CERCLA and its implementing regulations (43 C.F.R. § 11.93). In addition, federal trustees must
comply with the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and its
regulations, 40 C.F.R. § 1500 et seq., when planning restoration projects. NEPA requires a
federal agency to consider the potential environmental impacts of a planned federal action(s)
5

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 to determine if the proposed action(s) may significantly affect the environment and to inform
and involve the public in the decision-making process. In compliance with NEPA, this Draft
RP/EA summarizes the current environmental setting where the proposed restoration actions
may take place, describes the purpose and need for restoration actions, and identifies
alternatives and their potential environmental consequences and provides and environmental
analysis of the restoration actions. As described in Sections 3.0 and 4.0, Duke Energy
completed several of the preferred restoration alternatives voluntarily, without federal funds.
These completed projects include the Abreu Grogan Park Improvements, Pigg River Power Dam
Removal, and conservation of Mayo River through acquisition of property and conveyance to
the Commonwealth of Virginia and the State of North Carolina. Prior to completing this subset
of preferred restoration alternatives, Duke Energy complied with applicable environmental
laws, and obtained permits and other approvals, where necessary. Consistent with federal
laws, the DOI is continuing to evaluate the preferred restoration alternatives identified in this
Draft RP/EA that are not yet complete for compliance with other applicable laws. Once
finalized, these additional environmental compliance evaluations will be included as appendices
to the Final Restoration Plan and Environmental Assessment for the Dan River Coal Ash Spill.
For the Draft RP/EA, other potentially applicable laws and regulations include:
•
•
•

1.3

The Endangered Species Act (ESA), (16 U.S.C. § 1531, et seq.)
Clean Water Act, (33 U.S.C. § 1251, et seq.)
National Historic Preservation Act of 1966, (16 U.S.C. § 470 et seq.)

Public Participation

Public participation is an important step in the NRDAR and NEPA processes. The Trustees have
worked to engage local communities and other stakeholders in the NRDAR process since the
Spill, beginning with meetings in the early stages of the Spill to introduce the NRDAR process to
interested members of the public. The public was also invited to propose projects for review
and incorporation into this Draft RP/EA. Public review of the Draft RP/EA Plan is an integral
component of both NEPA and the CERCLA NRDAR process pursuant to 43 C.F.R. § 11.81(d)(2)
and § 11.93. Through the public review process, the Trustees seek public comment on the
restoration alternatives and the Trustees’ preferred restoration alternatives to restore injured
natural resources or replace resource services lost as a result of the Spill.
The Draft RP/EA will be open for public comment for 45 days from the date of publication of
the Notice of Availability in the Federal Register. Interested individuals, organizations, and
agencies may submit comments by writing or emailing either:
Sara Ward, U.S. Fish and Wildlife Service
Raleigh Ecological Services Field Office
Phone: 252-473-1132 Ext. 243
Email: Sara_Ward@fws.gov,
or
6

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 Susan Lingenfelser, U.S. Fish and Wildlife Service
Virginia Ecological Services Field Office
Phone: 804-824-2415
Email: Susan_Lingenfelser@fws.gov
The Trustees will review and consider all public comments and input on the Draft RP/EA
received during the public comment period prior to finalizing the RP/EA. The Trustees will
prepare a responsiveness summary to the comments that will be included as an appendix in the
Final Dan River Restoration Plan and Environmental Assessment. The development of the Draft
RP/EA, the public comment process, and finalization of the Restoration Plan and Environmental
Assessment is performed solely by the Trustees. Based on the public’s comments, or other
information, the Trustees may amend the RP/EA if significant changes are made to the type,
scope, or impact of the projects. In the event of a significant modification to the RP/EA the
Trustees will provide the public with an opportunity to comment on that particular
amendment.
The notice of availability of the Draft RP/EA and opportunity for the public to provide
comments will be referenced in a Federal Register Notice of Availability and notice of
availability will be published in Eden Daily News, Greensboro News and Record, and Danville
Register & Bee.
Trustees have maintained records documenting the information considered and actions taken
during this NRDAR process. These records are available on the Dan River Coal Ash NRDAR
website. Physical copies of the records are also available for review by interested members of
the public at the USFWS Virginia Field Office, 6669 Short Lane, Gloucester, VA 23061. However
arrangements must be made in advance to review or obtain copies of these records by
contacting:
Susan Lingenfelser, U.S. Fish and Wildlife Service
Virginia Ecological Services Field Office
Phone: 804-824-2415
Email: Susan_Lingenfelser@fws.gov
Access to and copying of these records is subject to all applicable laws and policies, including,
laws and policies relating to copying fees and the reproduction or use of any material that is
copyrighted.

1.4

Overview of the Dan River Coal Ash Spill

The Dan River Coal Ash Spill began on or around February 2, 2014, from the collapse of a
stormwater pipe beneath a coal ash slurry impoundment at the Duke Energy Dan River Steam
Station (Site).

7

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 Ash material and ash pond water within the reservoir were released into the Dan River as a
result of failure of a 48-inch diameter stormwater pipe comprised of concrete and corrugated
metal. Up to an estimated 39,000 tons of ash and 27 million gallons of ash pond water were
released into the Dan River. Coal ash is a gray, powdery byproduct of burning coal to produce
energy. Coal ash is composed of materials remaining after coal is burned, including fine sand
(called silica), unburned carbon, and various trace metals such as arsenic, boron, cadmium,
chromium, copper, lead, mercury, nickel, selenium, and zinc; compounds that have potential to
be chemicals of concern associated with the Dan River Coal Ash Spill. The Facility is less than 10
river miles from Virginia, and USFWS reconnaissance documented ash or ash-like material comingled with native sediment as far as 70 river miles downstream in the days immediately
following the Spill.
Three removal actions were conducted related to the Spill. On February 8, 2014, a coal ash bar
about 75 feet long and 15 feet wide which had as much as five feet of ash or ash/sand mix over
the natural stream bottom was identified and subsequently removed (February 11-13, 2014),
resulting in the recovery of 15 tons of coal ash and native sediment. Completion of the removal
of a coal ash deposit (258 tons of a coal ash and river sediment mixture) occurred on July 7,
2014 at a location approximately two miles downstream from the Site on a native sandbar delta
at the mouth of Town Creek with the Dan River. Removal of 2,500 tons of coal ash comingled
with native sediment in a larger deposit upstream of the Schoolfield Dam in Danville, VA began
on May 6, 2014, and was also completed in early July 2014 (although Abreu Grogan Park, where
cleanup equipment was mobilized, was closed to public use to support cleanup activities
between April 1 - August 1, 2014). In addition to these removal actions, a total of about 466
cubic yards of solids (ash/sediment mix) were removed from the water treatment plants at
Danville and South Boston, VA and properly disposed of along with dredged material from the
Dan River.
Pursuant to the CERCLA NRDAR regulations (43 C.F.R. §§ 11.23-11.25), the Trustees completed
a Preliminary Assessment Screen and Determination (PAS) for the Dan River Coal Ash Spill in
March, 2014. Based on the information in the PAS, the Trustees determined to proceed with
the NRDAR process, provided a Notice of Intent to Conduct a Natural Resource Damage
Assessment to the potentially responsible party, Duke Energy, and invited Duke Energy to
participate in a cooperative NRDAR process. Duke Energy and the Trustees agreed to enter into
a cooperative assessment agreement in order to facilitate the resolution of any claims for
natural resource damages (NRD) 1. See Funding and Participation Agreement Between [sic] the
State of North Carolina, the Commonwealth of Virginia, the U.S. Department of the Interior, and
Duke Energy Carolinas, LLC, Concerning Cooperative Natural Resource Damage Assessment,
Restoration Planning, and Restoration Implementation Activities for the Duke Energy Dan River
Steam Station Coal Ash Pond Site in Rockingham, NC. June 2014.

Although the NRDAR was cooperative with Duke Energy, this Draft RP/EA is solely the work of the Trustees and is
not in any way attributable to Duke Energy.

1

8

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 Also in accordance with CERCLA NRDAR regulations (43 C.F.R. § 11.32), in June, 2015 the
Trustees released a draft Assessment Plan for the Dan River Coal Ash Spill for public review and
comment. A final Assessment Plan was completed in December 2015. As described in the
Assessment Plan, the Trustees defined the Area of Assessment to include the point of discharge
from the Facility’s storm sewer management pipe in Rockingham County, North Carolina
downstream (approximately 77 river miles) to and including Buggs Island Lake (John H. Kerr
Reservoir), located in Virginia and North Carolina. In conducting the NRDAR, whenever
possible, the Trustees coordinated damage assessment activities with other investigations to
satisfy the Trustees’ NRDAR objectives in a cost and resource efficient manner. The natural
resources and services that were identified in the Assessment Plan to be of interest to the
Trustees during the assessment are described further below (see “Summary of Injury to Natural
Resources, Restoration Scaling, and Damages Determination”).

1.5

Summary of the Proposed Settlement Agreement

A proposed settlement agreement among the Trustees and Duke Energy was documented
in a consent decree which was lodged with the federal court and open for a forty-five (45)
day public comment period concurrent with this Draft RP/EA. A Notice of Availability for
the Consent Decree and draft RP/EA was published in the Federal Register. Under the
terms of the proposed settlement, the Trustees will provide covenants not to sue to Duke
Energy for NRD under CERCLA, the CWA, and applicable state laws. Duke Energy has
performed several projects, and agrees to perform several additional restoration projects
to compensate for the injured, lost, or destroyed resources and services resulting from the
Dan River Coal Ash Spill. In addition, as part of the cooperative assessment process for the
Dan River Coal Ash Spill NRDAR, Duke Energy has previously reimbursed the Trustees for
assessment costs incurred. During the public comment period, the proposed consent
decree will be available for public review and comment at
https://www.justice.gov/enrd/consent-decrees.

1.6

Organization of the Dan River Restoration Plan and Environmental Assessment

Chapter 2 provides a brief summary of the Trustees’ assessment of injury to natural
resources and their services as a result of exposure to hazardous substances from the Dan
River Coal Ash Spill. The Trustees assessed exposure of natural resources to coal-ash
related hazardous substances and determined injuries to a variety of natural resources,
including surface water, sediment, and various biota, as a result of that exposure. As part
of the NRDAR, the Trustees evaluated the amount of restoration necessary to compensate
the public for injuries to these resources for the period between the onset of injury and the
resource’s return to baseline (DRNRT 2015).
Chapter 3 describes the proposed restoration alternatives the Trustees identified and
evaluated to return the resources injured by the Dan River Coal Ash Spill to their prerelease condition and to compensate for the interim loss pending restoration. This includes
a summary of the restoration scoping activities the Trustees conducted in 2014 and 2015
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 and the criteria with which the Trustees evaluate possible restoration alternatives. 43
C.F.R. § 11.82(d) and § 11.93.
Chapter 4 describes the affected environment where the preferred restoration alternatives
would be implemented and presents the Trustees’ analysis of the environmental
consequences of the preferred restoration alternatives.
Chapter 5 provides the monitoring and project fulfilment, Chapter 6 provides the Trustees’
conclusions, and Chapter 7 contains the references identified in this Draft RP/EA.

2.0

SUMMARY OF INJURY TO NATURAL RESOURCES, RESTORATION SCALING
AND DAMAGES DETERMINATION

Coal ash is produced through the burning of coal in coal-fired power plants, among other
activities. Coal ash includes a number of by-products, such as fly ash, a fine, powdery material,
or bottom ash, a coarse and angular ash particle. (See https://www.epa.gov/coalash/coal-ashbasics for more information). Coal ash is composed of materials remaining after coal is burned,
including fine sand (called silica), unburned carbon, and various metals such as arsenic, boron,
cadmium, chromium, copper, lead, mercury, nickel, selenium, and zinc. Various samples were
collected from the ash pond, ash/native sediment deposit adjacent to the Site, and surface
waters in the Dan River and analyzed for ash-related contaminants of potential concern (COPC).
The data from these samples indicate that COPC levels (including, but not limited to, arsenic,
copper, selenium, iron, turbidity, zinc, and lead) exceeded action and guidance levels for
ecological receptors following the Spill (DRNRTC 2014a). Coal ash releases into the
environment can create a suite of impacts to natural resources and the services they provide.
In aquatic environments, coal ash can impact aquatic organisms through chemical (direct
contact with suspended or dissolved hazardous substances in the water column, direct contact
with sediments contaminated by hazardous substances associated with coal ash, direct contact
with contaminated sediment interstitial pore water, exposure by re-suspended, precontaminated sediments, ingestion of contaminated sediment during foraging or feeding,
and/or indirect contact through ingestion of contaminated prey species, including
bioaccumulation) exposure. Natural resources and associated services under the jurisdiction of
the Trustees that may have been injured by the Spill include:
•
•
•
•
•

stream and wetland habitat
surface water and sediment
aquatic biota
migratory birds
human recreational uses

The Trustees conducted NRDAR activities, including: reviewing data from the Spill response
efforts to assess injuries to natural resources at and downstream of the Site, to where the coal
ash came to be located; preparing a natural resource damage assessment plan; soliciting input
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 from the public and interested stakeholders on the scoping document for restoration planning;
and considering restoration project proposals submitted by the public (See Chapter 3.0,
Proposed Restoration Alternatives, for additional information). Based on information
developed and analyzed by the Trustees, the Trustees determined that the concentrations of
hazardous substances in surface water and sediment of Dan River were at levels sufficient to
cause injury 2 to fish and other aquatic biota, as evidenced by exceedances of freshwater
aquatic life criteria and consensus-based probable effects concentrations for freshwater
ecosystems (DRNRT 2014a).
In the damages determination phase of the NRDAR process, the Trustees identified and used
procedures to determine the type and magnitude of restoration needed to bring injured natural
resources to the appropriate baseline condition and to address the public’s loss of natural
resource services for the period from the time of release to restoration to baseline (the
“interim loss”) (DRNRT 2015). The scale (or size) of the restoration action(s) should be that
which provides the value to adequately offset the natural resource and service losses. The
process of determining the size of restoration is called restoration scaling. Restoration scaling
requires a framework for quantifying the losses and for quantifying the benefits of restoration
so the losses and benefits can be compared. For restoration scaling, the Trustees evaluated
two decision support models: an ecological service model and a human-use services model.
The ecological service model evaluates the ecological service losses associated with the Spill
and the ecological service benefits of proposed restoration projects to offset the ecological
service losses. The human-use services model evaluates the fishing and outdoor recreation
losses associated with the Spill and the benefits of restoration projects that offset the humanuse losses.
The ecological service model incorporated a Habitat Equivalency Analysis (HEA) that evaluated
the interim losses and the expected service benefits of proposed restoration projects. HEA is a
service-to-service or resource-to-resource approach to natural resource valuation that can
account for changes in baseline 3 services while estimating interim losses of services. Baseline
service losses include the loss of resources as compared to their baseline condition (i.e., the
condition they would be in now had no contamination occurred). Interim losses include the
losses over the time when resources are in an impaired condition and less available to the
public. Primary restoration projects (including property acquisition) are used to bring resources
to baseline condition, while compensatory restoration projects are used to offset the interim

“Injury” as defined in CERCLA NRDAR regulations means “a measurable adverse change, either long- or shortterm, in the chemical or physical quality or the viability of a natural resource resulting either directly or indirectly
from exposure to a discharge of oil or release of a hazardous substance, or exposure to a product of reactions
resulting from the discharge of oil or release of a hazardous substance. As used in this part, injury encompasses
the phrases ‘injury,’ ‘destruction,’ and ‘loss.’” 43 C.F.R. § 11.14 (v).
3
“Baseline” is defined in CERCLA NRDAR regulations as “the condition or conditions that would have existed at the
assessment area had the discharge of oil or release of the hazardous substance under investigation not occurred.”
43 C.F.R. § 11.14 (e).
2

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 loss. The fundamental concept in HEA is that compensation for lost ecological services can be
provided by restoration projects that provide comparable services.
The Trustees estimated lost services of natural resources (e.g., benthic invertebrates, fish,
mussels) resulting from the Dan River Coal Ash Spill including:
•
•
•
•

exposure to suspended or dissolved hazardous substances through ash covering 4
ash removal 5
exceedance of selected U.S. Environmental Protection Agency (USEPA) screening
criteria for arsenic and selenium in surface water 6
exceedance of selected USEPA screening criteria for arsenic and selenium in sediment 7

The HEA accounted for the geographic scope of the affected area, estimates of ash deposits
throughout the affected area, baseline conditions in the Dan River, service losses related to the
three impacts identified above, and the timing of these impacts. The percent of coal ash that is
deposited temporally and spatially throughout the affected area provides a pathway to
suspended or dissolved hazardous substances exposure and was determined using data from
the Sediment Transport Model (Altinakar et al. 2015) developed for the Spill. Other sources of
data (DRNRTC 2015, HDR 2015) used to evaluate potential impacts include:
•
•
•
•

surface water quality samples collected by Duke Energy, USEPA, NCDEQ, and VADEQ
sediment quality samples
pre-and post-spill benthic and fish community structure data including a post spill
mussel survey (Alderman and Alderman 2014)
fish-tissue metals concentrations

In addition to injuries to the natural resources, the release of hazardous substances at and from
the Site negatively affected recreational uses and opportunities in the Dan River watershed
such as sport fishing, water-contact recreation, boating, canoeing, hiking, nature observation,
hunting, and other activities. Public use and access was restricted at the Abreu Grogan Park in
A Sediment Transport Model was used to develop an estimate of the relative ash covering, the exposure pathway
to suspended or dissolved hazardous substances, in defined river reaches (Altinakar et al. 2015). Field based
confirmation of ash deposition was also performed.

4

According to the May 2014 Administrative Settlement Agreement and Order on Consent for Removal Action,
Duke Energy dredged a total of 3,062 cubic yards (or a total of 1.90 acre-feet of ash removal) in three different
locations upstream of Schoolfield Dam (USEPA 2014).

5

Surface water grab samples were collected by Duke Energy, USEPA (Superfund Technical Assessment and
Response Team and Science and Ecosystem Support Division [SESD]), NCDENR, and VADEQ. At a subset of
sediment sampling locations (with sufficient water depth), USEPA Region 4’s SESD team collected water column
samples (including a minimum of a surface and sediment/water interface grab sample). Results were compared to
federal ambient water quality standards to determine areas affected by exceedances.

6

Sediment samples were also collected from the river by USEPA at intervals along the Dan River in areas
immediately downstream (including through Danville, VA) and then at greater spatial intervals throughout the
remaining riverine portion of the Dan River system. Results were compared to USEPA screening levels for
selenium and arsenic to determine areas affected by exceedances.
7

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 Danville, NC, which provides the only public boat access point on the Dan River between the
Dan River Steam Station dam in Eden, NC and the Schoolfield Dam in Danville, VA. The Abreu
Grogan Park was closed to public use while cleanup equipment was mobilized and during the
removal of a coal ash deposit in the river in the vicinity of the Schoolfield Dam between May 6
and August 1, 2014). Closures, regulatory advisories, and other warnings occurring as a result
of the release from the Site included: a recreational water advisory in North Carolina (between
February 12 and July 22, 2014) and a fish consumption advisory in the counties of Rockingham
and Caswell, NC (between February 12, 2014 and November 29, 2017, NCDHHS 2017).
An assessment of lost recreational uses as a result of the Spill and the benefits from proposed
restoration projects for recreational uses was evaluated via benefit transfer. Benefit-transfer
uses existing recreational use preference information from the economics literature to identify
how changes in environmental quality or site characteristics could affect a recreational user’s
well-being (e.g., anglers). The benefit-transfer model combines this preference information
with data on the potentially affected population, information on potential substitute sites, and
information on the number of trips taken to the affected area and set of potential substitute
sites. In general, the benefit-transfer model attempts to evaluate recreational use behavior
(fishing and general outdoor use) under With- and Without-Release conditions to estimate the
losses from the coal ash Spill, and With- and Without-Restoration to estimate the benefits of
restoration.

3.0

RESTORATION ALTERNATIVES

Restoration of resources injured and services lost by the Spill is the goal of the Dan River Coal
Ash NRDAR process. The purpose of the actions identified in this RP/EA is to restore,
rehabilitate, replace, or acquire the equivalent of natural resources that were injured or
destroyed and recreational use that was lost because of the Spill pursuant to the requirements
of applicable federal and state laws and regulations.
3.1

Restoration Scoping

In October 2014, the Trustees released a Scoping Document for Restoration Planning (Scoping
Document) (DRNRTC 2014b). The Scoping Document provided information on the Spill, the
potential natural resource injuries resulting from the Spill, restoration project concepts for the
resources affected by the Spill, and an explanation of the restoration planning process,
including restoration project eligibility and evaluation criteria. Review of the projects described
in the Scoping Document promoted public engagement early in restoration planning and
provided the public an opportunity to show support for the types of projects under
consideration to restore natural resources and their services or provide other restoration
project ideas to the Trustees. Feedback from the public showed great support for public river
access, land protection and conservation projects such as the Mayo Tract as well as dam
removal and other projects that protect water quality in the river. A Restoration Scoping
Response Summary of the feedback received by the Trustees on the Scoping Document for
Restoration Planning was finalized in December 2014 (DRNRTC 2014c). The restoration scoping
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 process led to a final document that provided a comprehensive list of potential restoration
projects and existing restoration opportunities in the Dan River watershed area, partnerships
with stakeholders (e.g., conservation organizations and river users), more public engagement,
and identification of potential concerns with possible restoration actions (DRNRTC 2014b). For
purposes of this draft Restoration Plan, the Trustees are using the same criteria for evaluation
of restoration alternatives as were used in the Scoping Document, as described in the next
section. The Scoping Document also identified potential restoration alternatives to guide the
restoration planning process, which are summarized in Section 3.4.

3.2

Restoration Alternatives Evaluation Criteria

Eligibility criteria for evaluation of restoration alternatives are outlined in the CERCLA NRDAR
regulations (43 C.F.R. § 11.82(d)). The Trustees used additional case-specific alternative
selection criteria to assess the potential restoration alternatives as follows:
•
•
•

•
•
•
•

•

3.3

Nexus – the alternative has a connection to the restoration, rehabilitation, replacement,
and/or acquisition of the equivalent of the injured natural resources or lost services.
Relevance – the alternative effectively meets restoration goals and objectives.
Cost Reasonableness – the cost of the proposed restoration alternative is reasonable in
relationship to the injury, and benefits to the injured resources can be quantified;
opportunities to share costs with other organizations and/or agencies may be available
and are considered.
Measurable – an alternative delivers tangible and specific resource restoration results
that are identifiable and measurable.
Efficacy – it is likely that a restoration alternative will be successful based on
consideration of future operation and maintenance requirements and vulnerability of
the alternative to natural or human-induced stresses following implementation.
Legality – the restoration alternative complies with applicable/relevant Federal, State,
and local laws and regulations.
Ecological leverage – the restoration alternative promotes other environmental
benefits, avoids collateral injury to natural resources as a result of implementation, and
is not subject to an independent, prior obligation.
Compatibility – the alternative is compatible with the surrounding land use.

Potential restoration alternatives identified during Restoration Scoping

Through consideration of the criteria described above and the natural resources and associated
services affected by the Spill (habitat, surface water and sediment, aquatic biota, migratory
birds, and human uses), the Trustees identified the following categories of restoration
alternatives appropriate for consideration to offset injuries related to the Spill:
•
•

Avoided Habitat Loss via Land Acquisition/Protection
Restoration of In-stream Habitat/Fish Passage
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 •
•
•
•

Restoration of Riparian and Wetland Habitat
Rare and Nongame Species Restoration
Improve quality of fishing experience
Expand river-centered opportunities for public recreation and wildlife viewing

The Trustees identified proposed alternatives for restoration of natural resources and
recreational opportunities based on an evaluation of the criteria and types of restoration
alternatives described above. A description of the proposed restoration alternatives and their
environmental benefits are described in Section 3.4.

3.4

Proposed Restoration Alternatives (and other alternatives considered but
eliminated)

Each restoration alternative identified by the Trustees is described in more detail in this section.
As a result of the public feedback generated by the Trustees’ restoration scoping activities,
Duke Energy has pursued implementation of several of the restoration alternatives.
Consequently, in this document, the Trustees are evaluating the suitability of alternatives
(some of which have already been implemented by Duke Energy and others which have yet to
be implemented) to offset injuries to natural resources and services resulting from the Spill.
Table 1 indicates the category or categories of restoration satisfied by each proposed
alternative to compensate for natural resource injury and lost recreational use in the Dan River
and highlights the completion status of the various alternatives. Table 1 also identifies the
Trustees’ preferred alternative restoration projects that will accomplish the goal of restoring,
rehabilitating, replacing and/or acquiring the equivalent of those natural resources, and the
services those resources provide. Figure 2 illustrates the locations of each of the preferred
alternatives completed and area of focus for those in progress.
Table 1. Summary of Natural Resource and Service Benefits of Restoration Alternatives
Restoration
Restoration Categories
Natural Resources
Status
Alternative
and Services
Benefited
None
Considered, but
• None
1 - No Action
2 - Mayo River
Conservation
(preferred)

• Avoided habitat loss via land
protection
• Expand river centered opportunities
for public recreation/wildlife
viewing
• Improve quality of the fishing
experience

• habitat
• surface water and
sediment
• aquatic biota
• migratory birds
• human uses

3 - Abreu Grogan
Park
Improvements
(preferred)

• Improve quality of fishing
experience

• human uses

eliminated from
further analysis
618.72 acres
conserved and
transferred to North
Carolina and Virginia
State Parks; up to
64.403 additional
acres remaining to be
acquired (in progress)
Completed

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 4 - Pigg River
Power Dam
Removal
(preferred)

5 - New Public
Boat Launch
Facilities on the
Dan River
(preferred)
6A – Rare and
Nongame Species
Restoration
(Mussels)
6B – Rare and
Nongame Species
Restoration
(Roanoke
logperch)
7 – Water Quality
Improvements (SL6 Projects)

• Expand river-centered
opportunities for public recreation
and wildlife viewing
• Restoration of In-stream
Habitat/Fish Passage
• Restoration of Riparian and
Wetland Habitat
• Rare and Nongame Species
Restoration
• Expand river centered opportunities
for public recreation/wildlife
viewing/fishing experience
• Improve quality of fishing
experience
• Expand river-centered
opportunities for public recreation
and wildlife viewing

• habitat
• surface water and
sediment
• aquatic biota
• migratory birds
• human uses

Dam demolition
completed;
environmental
monitoring ongoing

• human uses

Planning in progress

• Rare and Nongame Species
Restoration

• aquatic biota

• Rare and Nongame Species
Restoration

• aquatic biota

Community mussel
restoration strategy
considered but
eliminated from
further analysis
Considered, but
eliminated from
further analysis

• Restoration of In-stream
Habitat/Fish Passage
• Restoration of Riparian and
Wetland Habitat

• aquatic biota

Considered, but
eliminated from
further analysis

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 Figure 2. Locations of Preferred Restoration Alternatives

Alternative 1: No Action
Under this alternative, no restoration activities beyond what have been presented in the EPAapproved response and cleanup activities will be conducted at the Site (USEPA 2014). The
underlying assumption of this alternative is that natural resources and the services they provide
will recover over time through natural attenuation. This alternative is appropriate if/when no
additional restoration projects are necessary to restore, rehabilitate, replace, and/or acquire
the equivalent of the injured natural resources. This alternative has no cost.
The no action alternative is not appropriate for the Dan River Spill given that interim losses to
natural resources and the services they provide (as evidenced by recreational and fish
consumption resources and park closures) cannot be addressed through natural attenuation.
Alternative 2: Mayo River Conservation (preferred)
This restoration alternative involves the acquisition and conservation of up to 618.72 acres of
floodplain and riverbank properties along the Mayo River and ultimate transfer to the Mayo
River State Parks in North Carolina and Virginia for long term stewardship and conservation in
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 perpetuity as part of the North Carolina and Virginia Mayo River State Parks, respectively.
Mayo River corridor parcels in North Carolina were frequently mentioned in responses to the
Trustees’ restoration scoping request in 2014. The acquisition and conservation of this corridor
as part of the Mayo River State Park protects a significant aquatic habitat with high quality
water and with at least 10 rare and listed aquatic species and adjacent terrestrial natural
heritage features. This addition to the state parks would allow greater access and safety for the
public to over 10 miles of the Mayo river for increased river-based recreation and fishing, as
well as typical state park camping, hiking, and environmental education. In Virginia, the Virginia
General Assembly in 2007 authorized a study of the feasibility of creating a state park on the
North and South Forks of the Mayo River in Henry County (VADCR 2007). Investments in land
and facilities are an identified need and interstate connectivity of park lands and waters would
increase both the recreational and ecological impact of these investments.
Conservation contributing to this alternative includes the following recent acquisitions. Duke
Energy funded the acquisition of the 340.317 acre Lower Trust Parcel, including the
corresponding 3 miles of river corridor, and transferred title to North Carolina State Parks for
long term stewardship and conservation in perpetuity as part of the Mayo River State Park.
Duke Energy funded the acquisition of 214 acres of real property along the Mayo River in Henry
County, VA, and transferred title to VADCR for long-term stewardship and conservation in
perpetuity as part of Virginia’s Mayo River State Park.
This alternative includes additional Mayo River land conservation up to 64.403 acres of
floodplain and riverbank land along the Mayo River and conveyance of ownership of the land to
the State of North Carolina for conservation as part of North Carolina’s Mayo River State Park.
The State will manage the property for long term stewardship and conservation in perpetuity.
Conservation of such property within the state park system of North Carolina provides
ecological and recreational benefits: preserving high-quality habitat for threatened or rare
terrestrial and aquatic species, and providing public access and recreational opportunities for
anglers, hikers, paddlers, and other outdoor recreationists.
The Environmental Assessment only applies to the not yet completed portion of Alternative 2
(i.e., acquisition and conveyance to the State of North Carolina of approximately 64.403 acres
total of Mayo River riverplain and floodplain to be managed for long term stewardship and
conservation in perpetuity). This action is a preferred alternative for this Draft RP/EA because it
meets the all criteria identified by the Trustees for a good restoration project to address the
injuries caused by the Spill. This alternative is expected to increase habitat quality and
quantity, promote habitat connectivity, create new public use opportunities, and benefit public
natural resources within the Dan River watershed. Acquisition and conservation of floodplain
and riverbank properties along the Mayo River will protect miles of significant river habitat with
at risk, rare and/or endangered aquatic species, adding greater access for the public to riverbased recreation.

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 Alternative 3 - Abreu Grogan Park Improvements (preferred)
The three acre Abreu Grogan Park in Danville, VA (Pittsylvania County) is the only access to the
14-mile section of the Dan River designated as a Virginia Scenic River. As described above in
Section 1.3, Abreu Grogan Park was closed April 1 - August 1, 2014 during the response to the
Spill as it was used as a staging ground for removal of coal ash and contaminated sediment
from Dan River. Improvements intended to add amenities to Abreu Grogan Park and increase
recreation access to the river and use of the park by a broader population have been completed
by Duke Energy and are detailed in Appendix A. New amenities include a courtesy dock, a
fishing platform, a restroom building and an information kiosk. Handicapped accessible parking
and sidewalks have been added to enable access to all of these park amenities. Other
improvements to the park included a new headwall to stabilize the culvert, addition of rip-rap
for river bank stabilization and relocation of the picnic table and grill. The park was re-opened
with these completed improvements on May 26, 2016. The improvements to the park address
recreational losses as a result of the closure of the park during the response effort.
Alternative 3 is a preferred alternative for this Restoration Plan because it meets the direct
nexus criteria identified by the Trustees for a good restoration project. Abreu Grogan Park
Improvements addresses the lost recreational opportunities when the park was closed to public
use to support cleanup activities.

Alternative 4 - Pigg River Power Dam Removal (preferred)
Constructed in 1915 for power generation, the defunct Power Dam measured 25 feet high by
204 feet long and impounded 60 acre-feet of water over 25 acres. The Pigg River Power Dam
Removal project is located just upstream of the Route 713 bridge over the Pigg River in
Franklin, VA. The USFWS worked with the owner, Friends of the Rivers of Virginia (FORVA);
Franklin County; Town of Rocky Mount; VADEQ; Virginia Department of Game and Inland
Fisheries and others to remove the center section of the Power Dam. The purpose of this
restoration alternative is to support recovery of the Roanoke logperch (Rex percina) through
aquatic habitat restoration, fish passage, and restoration of aquatic connectivity within the Pigg
River ecosystem. Duke Energy provided the funding to FORVA on August 23, 2016 and Power
Dam breaching and removal was completed on September 27, 2016. Work related to the
breaching included the cutting and removal of trees downed by down cutting of legacy
reservoir sediment to prevent additional bank instability during the natural channel formation
process.
This project removed the last impediment to fish passage within a 72 mile reach of the Pigg
River from the headwaters downstream to Leesville Reservoir. The project restored 2.2 miles
of aquatic instream habitat impounded upstream of Power Dam for the federally and state
listed Roanoke logperch and other nongame and game fish such as smallmouth bass
(Micropterus dolomieu). Another mile upstream of the impoundment for a total of 3.2 miles
above Power Dam and 5 miles downstream of the Dam are in the process of being improved by
the river’s competency to transport sediment, increasing the complexity of instream habitat
and facilitating the reestablishment of riparian vegetation. The remaining 45 mile river
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 segment downstream to Leesville Reservoir is also beginning to improve with regards to
channel habitat, stability, and complexity through restored sediment transport capacity. In
addition to on-going physical and biological monitoring, signage was constructed to provide the
public assistance in interpreting the historic significance of the powerhouse and remnants of
the Pigg River Power Dam. Other benefits of the project include the restoration of flood
attenuation, public infrastructure protection for the Rocky Mount Wastewater Treatment Plant
and the Route 713 Bridge, removal of a public safety and boating hazard, and the future
establishment of a public access area and county park for recreational fishing and boating.
Implications for the endangered Roanoke logperch had been extensively evaluated (USFWS
2016) and endangered species consultations and all applicable Federal, state and local
regulatory reviews were completed prior to implementation. Additional details regarding the
Power Dam removal and benefits are available at
https://www.fws.gov/northeast/virginiafield/partners/powerdam.html and are included in
Appendix B.
Alternative 4 is a preferred alternative for this Restoration Plan because it meets the Trustees’
restoration goals and objectives criteria identified by the Trustees for a good restoration to
address the injuries caused by the Spill. Breaching the Pigg River dam restores river habitat,
improves water quality, re-establishes fish movement, and enhances fishing and recreational
boating opportunities.

Alternative 5: Establishment of Public Boat Launch Facilities on the Dan River
(preferred)
As described in Section 1.3, the Spill caused a loss of recreation as a result of fishing closures
along the Dan River during the Spill and Spill response. Additionally, public responses to the
Trustee’s restoration scoping indicated that limited access in the Dan River impedes
recreational use and enjoyment of the resource. This alternative includes the establishment of
new public access location(s) within the upper Dan River Basin to address recreational losses
from the Spill by increasing the access. The boat launch(es) may accommodate either
motorized or non-motorized boats. The Trustees shall identify a maximum of one motorized
boat access location or a maximum of two non-motorized boat access locations.
Alternative 5 is a preferred alternative for this Restoration Plan because it meets the all criteria
identified by the Trustees for good restoration to address the injuries caused by the Spill.

Alternative 6A: Rare and Nongame Species Restoration (Mussels)
The Trustees considered a proposed approach for captive propagation and release of
freshwater mussels into the wild, with the goal of developing connected, self-sustaining
populations in North Carolina and Virginia. The approach is intended to advance conservation
of the federally endangered James spinymussel. Furthermore, while not currently listed as
threatened and endangered, many non-listed “at-risk” species also are imperiled and would
benefit from strategies considered. In particular, four levels of species restoration,
augmentation, expansion, reintroduction, and establishment were identified. In North
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 Carolina, only augmentation and expansion options within the state were evaluated, whereas
all levels were considered in Virginia based on existing policies and opportunities. Species
experts were consulted to identify species-specific and location-specific opportunities to
advance restoration options. The primary determination of a suite of species to be restored at
a specific reach was based on species accounts, ability to propagate the species under captive
conditions, the number of specimens available, and the current information on a species’ life
history.
Ultimately, while the Trustees deem a community mussel restoration approach to be both
important to consider and likely to deliver substantive benefits capable of offsetting natural
resource injuries, specific timing and policy considerations limited the feasibility of
implementing these efforts. In particular, because of the state and federal listing status of
several of the species would necessitate policy approvals and designations for which the timing
and outcome were not well aligned with the restoration planning and delivery effort for the
Dan River NRDAR process. Accordingly, Alternative 6A, the community mussel restoration
project is not a preferred restoration alternative.

Alternative 6B: Rare and Nongame Species Restoration (Roanoke logperch)
The Roanoke logperch, a federally-endangered fish, is known from the mainstem of the Dan
River upstream of the Site, as well as in two tributaries to the Dan River downstream of the
Site. Historically, populations of Roanoke logperch were likely widespread throughout
tributaries and the mainstem of the Dan River. Declines are attributed to sedimentation and
pollution which lead to decreased water quality as well as population fragmentation from dams
and other barriers to passage. Captive propagation (for which successful rearing techniques are
known) and release and/or translocation of Roanoke logperch individuals into suitable habitat
are tools for restoring diversity and abundance. The Trustees considered potential
opportunities for Roanoke logperch restoration in North Carolina and Virginia as identified by
species experts.
In Virginia, Roanoke logperch populations are generally more stable than other locations
throughout the species’ range; however, the addition of new individuals, and thus more genetic
variation, to enhance population viability (or augmentation) is desirable. The Trustees
evaluated a proposed restoration project intended to facilitate: 1) an increase in genetic
diversity and the genetically effective population size within the Goose Creek population; and
2) a decrease in genetic divergence between the Goose Creek and Roanoke River populations.
In North Carolina, Roanoke logperch populations are vulnerable and unstable due to low
densities and both limited and fragmented range. Accordingly, based on the low density of
Roanoke logperch in candidate streams in North Carolina, the Trustees evaluated a restoration
approach that entailed demographic augmentation (to boost the number of individuals to
achieve effective population targets) through release of captive reared individuals. Candidate
sites were identified based on field-based reconnaissance and screening of candidate areas by
species experts since 2009.

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 Like the community mussel restoration approach (Alternative 6A), the Trustees consider the
restoration opportunities for Roanoke logperch that were considered to be important and
meaningful in terms of the ability to offset potential natural resource injuries; however, again
the timing of policy tools and other designations precluded further consideration by the
DRNRTC. Furthermore, one proposed restoration alternative (Alternative 4) has been
determined to provide significant uplift for the Roanoke logperch and a higher immediate
priority for Roanoke logperch conservation given potential for this action to support recovery
efforts for the species.

Alternative 7: Water Quality Improvements via Supplemental Support for Virginia
Agricultural Cost Share Program
Watershed improvement projects to address non-point source pollution and excessive
sedimentation to Virginia waterbodies have been identified via the VADCR’s Division of Soil and
Water Conservation. Specifically, the number of proposed cost share projects addressing
Stream Exclusion with Grazing Land Management (SL-6) practices typically exceed available
funding. The Trustees considered whether implementation of projects that would otherwise be
unfunded could result in sediment and non-point pollution reduction sufficient to offset natural
resource injuries associated with the Dan River Spill.
This alternative was not identified for further consideration at this time given that
supplemental funding support for SL-6 projects has been realized via alternative funding
sources (above and beyond the original cost share program).
The overall objective of the restoration process is to make the environment and public whole
for injuries to natural resources and/or service losses resulting from the Spill. To meet that
objective, the benefits of restoration actions must be related, or have an appropriate nexus, to
the natural resource injuries and losses. To achieve this fundamental objective, the Trustees are
proposing restoration alternatives 2, 3, 4 and 5 to compensate the public for the natural
resource injuries and lost recreation as a result of the Spill. Each alternative was evaluated
against the same restoration priorities and factors described above. The Trustees believe that
these alternatives represent a cost-effective and beneficial means by which to restore or
replace the injured natural resources and the services they provided. These projects have the
capacity to improve water quality, to provide improved habitat for a diversity of wildlife, and to
enhance the recovery of endangered and rare species. Additionally, they will provide public
river access for recreational activities including bird watching, nature photography, hiking,
fishing, kayaking, picnicking and other uses; and create a link between local walking/biking tails
and the nearby local or state parks.

4.0

ENVIRONMENTAL ASSESSMENT

This Chapter presents pertinent information about the affected area of the preferred
restoration project alternatives that have not been completed and the Trustees’ analysis of the
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 environmental consequences of implementing those projects. The Environmental Assessment
only applies to Alternative 5, Boat Ramps, and the not yet completed portion of Alternative 2,
acquisition and conveyance to the State of North Carolina of approximately 64.403 acres total
of Mayo River riverplain and floodplain to be managed for long term stewardship and
conservation in perpetuity. Alternatives 3 and 4, and a portion of Alternative 2, have previously
been implemented by Duke Energy and thus are outside the scope of this Environmental
Assessment.
4.1
Affected Environment
This section presents a brief description of the physical, biological, and cultural environment for
the waterways and ecosystems adjacent to and in the vicinity of the preferred alternatives. The
Dan River basin encompasses 3,739 square miles and 11,123 linear stream miles within North
Carolina and Virginia. The affected area includes those lands immediately adjacent to the river
that would be affected by proposed boat ramp(s) and floodplain and riverbank properties along
the Mayo River in North Carolina and Virginia that qualify for long term stewardship and
conservation in perpetuity as part of the North Carolina and Virginia Mayo River State Parks.
4.1.1 Physical Environment
4.1.1.1 Surface Water
The Dan River flows for 50.5 miles through Stokes County, NC and 39.5 miles through
Rockingham County, NC. Major tributaries entering the Dan River along this reach include the
Mayo and Smith rivers. Alternative 2 includes portions of the Mayo River in Henry, VA and
Rockingham County, NC. The potentially affected surface water environment, at a minimum
includes, the surface water pathway in the Dan River from the point of discharge from the
Facility’s storm sewer management pipe in Rockingham, NC downstream (approximately 77
river miles) to and including Buggs Island Lake (John H. Kerr Reservoir), located in Virginia and
North Carolina. Likewise, it also includes the surface water environment in proximity to planned
future restoration projects including the mainstem Dan and Mayo Rivers upstream of the Spill
site, including surface waters in the counties of Stokes and Rockingham, NC. In total, the
potentially affected surface water environment encompasses waters in the counties of
Rockingham, Stokes, Caswell, Person, Granville, Vance, and Warren NC and Pittsylvania, Halifax,
Charlotte, and Mecklenberg VA.
The presence of impaired waters in the Dan River Basin without high levels of development
indicates a historic degradation of water quality conditions in the river and its tributaries and/or
persistent agricultural or forestry non-point source pollution problems (PTRC 2012a). Over 20%
of the Dan River Basin’s assessed waters are listed as impaired with high levels of turbidity,
poor ecological habitat conditions, and low dissolved oxygen levels as leading causes. However,
over half (55%) of these impaired waters in the Dan River Basin are listed as failing to meet
federal water quality standards for E. coli or fecal coliform bacteria, an indication of the
presence of fecal material from human, livestock, and/or wildlife sources (PTRC 2012a). There is
a Total Maximum Daily Load (TMDL) for E. coli on the Dan River in Virginia that recommends
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 reductions in sources of up to 40% from wildlife and agricultural sources (VADEQ 2007). North
Carolina has adopted a similar TMDL for fecal coliform bacteria on the Dan River Basin to
address their sources of E. coli contributing to water quality degradation as identified and
assessed by VADEQ (PTRC 2012a). North Carolina Division of Water Quality (NCDWQ) has
developed a TMDL for turbidity impairments in the Dan River that has determined that
reductions in non-point sources of sediment pollution will be necessary to restore supportive
water quality conditions to those waters.
4.1.1.2 Regional Geology and Soils
The affected area is located in the Piedmont region of North Carolina and Virginia. The
geography is rolling, gentle hills and flat valleys with elevation ranging from about 300–400 feet
(90–120 meters) in the east to over 1,000 feet (300 meters) in the west. Geology and soils are
characterized by the Piedmont Belt, Triassic Basin, and Milton Belt that are defined as
occupying an area of rocks that have similar features and come from the same point in geologic
history (PTRC 2012b). According to the 2012 Eden Area Watershed Assessment:
Soils formed from the poorly-draining sedimentary rock of the Triassic Basin overlap with the
soils formed from the more porous but more erodible metamorphic rock of the Piedmont
Plateau (including the Inner Piedmont, Western Piedmont and Milton Belts) creating a complex
landscape. The soils derived from the Triassic Basin ecoregion tend to be high in clay with low
permeability and moderate to high shrink-swell potential, such as the Clover or Mayodan soils
group. Soils derived from the Triassic Basin include Ayersville (not hydric, slightly erodible),
Leaksville (all hydric, moderately to highly erodible), Clover/Mayodan (not hydric, moderately
erodible), Spray (not hydric, slightly erodible) and Stoneville (not hydric moderately erodible)
(US Department of Agriculture [USDA], 2012). Due to weathering processes the soils derived
from the Triassic Basin geology are often located on top of the ridges while the older, more
erodible metamorphic derived soils exposed on the sides of the slopes. The alluvial soils along
the Smith and Dan Rivers are thus formed from a weathered material from sedimentary,
igneous and metamorphic rock from surrounding uplands. The soil composition of the
watershed ensures that the receiving waters will be extremely prone to sediment pollution.
4.1.1.3 Climate
Climate is humid subtropical characterized by mild winters, long pleasant periods of spring and
fall, and warm summers. Average annual temperature is 59 degrees, average annual rainfall is
41 inches, and average annual snowfall is 8 inches.
4.1.2 Biological Environment
4.1.2.1 Terrestrial and Aquatic Habitat
The upper portion of the Dan River basin in North Carolina (including the Dan River mainstem)
is primarily forested, but a significant portion is also in use as cultivated cropland and pasture
(PTRC 2012). The affected area is typically characterized by a low slope freshwater perennial
river channel containing a heterogenous substrate of sand, gravel, and cobble bordered low
banks of riparian forests that grade up into upland or floodplain hardwood forests, depending
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 on valley type and slope. Less than 50% of the floodplains have been converted to agriculture
or pasture. Natural Heritage inventories conducted in Stokes and Rockingham, NC were able to
identify nineteen unique natural areas that are significant on the regional, state and national
level. These characteristics and relatively low human disturbance levels maintain high biological
diversity and ecological function rom natural resources in the Dan River Basin.
4.1.2.2 Fish and Wildlife
A variety of endemic game and non-game mammals, birds, reptiles, amphibians, invertebrates,
freshwater fish, crustaceans and fresh water mussels occur in the Dan and Mayo River basins.
Wildlife species known to occur within the Roanoke River basin, of which the Dan and Mayo
rivers are a part of, includes 18 mammal species, 41 species of amphibians/reptiles, and 143
species of birds. Wildlife in the vicinity of the proposed Mayo River conservation project include
managed small and large game species, such as white tailed deer and wild turkey, and nongame species common to the region, including a variety of non-game animals, such as mussels,
amphibians, aquatic invertebrates and upland, riparian, and wetland birds. Fishing pressure is
relatively light, but fishing opportunities exist for sunfish, largemouth bass, smallmouth bass
and catfish.
Common game animals include black bear (Ursus Americanus), white-tailed deer (Odocoileus
virginianus), wild turkey (Meleagris gallopavo), American crow (Corvus brachyrhynchos),
groundhog (Marmota monax), ruffled grouse (Bonasa umbelius), northern bobwhite (Colinus
virginianus) , common pheasant (Phasianus colchicus), rabbit (Oryctolagus cuniculus), the grey
(Sciurus carolinensis), red (Tamiasciurus hudsonicus), and fox squirrel (Sciurus niger), migratory
waterfowl, bobcat (Lynx rufus), coyote (Canis latrans), fox (Vulpes vulpes), opossum (Didelphis
virginiana), skunk (Mephitis mephitis), beaver (Castor canadensis), and raccoon (Procyon lotor).
Game fish in inland waters comprise more than 29 species that include black bass (largemouth
[Micropterus salmoides], smallmouth [Micropterus dolomieu] and spotted [Micropterus
punctulatus]), crappie (white [Pomoxis annularis] and black [Pomoxis nigromaculatus]), Sunfish
(bluegill, [Lepomis macrochirus] redbreast sunfish [Lepomis auritus], redear sunfish [Lepomis
microlophus], pumpkinseed (Lepomis gibbosus], warmouth [Lepomis gulosus], green sunfish
[Lepomis cyanellus], Roanoke bass [Ambloplites rupestris], rock bass [Ambloplites rupestris],
flier [Centrarchus macropterus], and all other species of the family Centrarchidae), Mountain
trout (including but not limited to brook [Salvelinus fontinalis], brown [Salmo trutta] and
rainbow trout [Oncorhynchus mykiss]), Kokanee salmon (), walleye (Sander vitreus), sauger
(Sander canadensis), pickerel (chain [Esox niger] and redfin [Esox americanus]), muskellunge
(Esox masquinongy), white bass (Morone chrysops), Bodie bass (Morone saxatillis x Morone
chrysops - striped bass hybrid), striped bass (Morone saxatillis), shad (American [Alosa
sapidissima] and hickory [Alosa mediocris]), white perch (Morone americana), yellow perch
(Perca flavescens), spotted sea trout (Cynoscion nebulosus), flounder (Paralichthys dentatus),
red drum (Sciaenops ocellatus - channel bass, red fish and puppy drum) and the endemic Cape
Fear shiner (Notropis mekistocholas).
A portion of the 76 species of reptiles and 96 species of amphibians known in North Carolina
occur in the Dan and Mayo River basins. Bird species that frequent the area include American
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 goldfinch (Carduelis tristis), Canada goose (Branta canadensis), great blue heron (Ardea
herodias), osprey (Pandion haliaetus), northern cardinal (Cardinalis cardinalis) and many other
songbirds common to the eastern US. A few examples of amphibians and reptiles common to
the area are green frog (Rana clamatans), American toad (Bufo americanus), copperhead
(Agkistrodon contortrix), black racer (Coluber constrictor), Eastern box turtle (Terrapene
carolina) and yellow-bellied slider (Trachemys scripta scripta) (Van Alstineet al. 1999).
4.1.2.3 Rare, Threatened, Endangered, and Special Concern Species
The Dan and Mayo River basins provide habitat for rare and endangered plants, animals and
aquatic organisms. Six federally listed species occur within the Affected area and 79 species of
plants and 55 species of insects, birds, amphibians and reptiles, fish, mussels, and mammals
that are considered rare, threatened, endangered or of special concern were identified by the
USFWS’ Information, Planning and Conservation System (IPaC 2018) and the North Carolina
Natural Heritage Data Explorer (2018) (Appendix C). Federally listed species include the
Northern long eared bat (Myotis septentrionalis), James spinymussel (Pleurobema collina),
Roanoke logperch (Rex percina), Schwenitz’s sunflower (Helianthus schweinitzii), smallanthered bittercrest (Cardamine micranthera) and smooth coneflower (Echinacea laevigata).
USFWS Birds of Conservation Concern in the vicinity of the Mayo River Conservation project
include bald eagle (Haliaeetus leucocephalus), eastern whip-poor-will (Antrostomus vociferous),
Kentucky warbler (Geothlypis formosa), prairie warbler (Dendroica discolor), prothonotary
warbler (Protonotaria citrea), red-headed woodpecker (Melanerpes erythrocephalus), rusty
blackbird (Euphagus carolinus), and wood thrush (Hylocichla mustelina).

4.1.3 Socioeconomic and Cultural Environment
4.1.3.1 Demographics
The Dan and Mayo River basins are primarily rural, with less than five percent of land mass
having seen city or town development (DRBA 2018). The counties in the proposed action area
have experienced little growth in recent years. Rockingham (population 90,949 in the 2017
census) and Stokes (population 45,717) are characterized by relatively comparative poverty
rates (18.1 and 12.4%) to the State average (15.4%) (USCB, 2018). The population growth has
been more rapid to the south of Rockingham County (i.e., northwest Guilford County) while
negative growth rates are common in the Virginia counties in the northern portion of the
affected area (Rockingham County 2010). Incorporated human settlements include Danbury,
Walnut Cove, Pine Hall, Madison, Mayodan and Eden.
4.1.3.2 Recreation
Local, state, and national parks and recreation areas existing in or near the Affected area
include Hanging Rock State and Mayo River State Parks in North Carolina and Philpott Lake,
Fairystone State Park, the Blue Ridge Parkway and Rocky Knob National Recreation Area in
Virginia. Counties and municipalities have embraced efforts to create recreational amenities
that highlight the unique heritage of the area and networks of Greenways and Blueways have
been planned and established throughout the basin. Examples are the Richmond & Danville Rail
Trail in Pittsylvania County and the Dick & Willie Passage in Martinsville/Henry County on the
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 route of the old Danville & Western Railroad. The number of river access points on the Dan and
its tributaries has greatly increased, providing more opportunities for fishing and boating
enthusiasts and several commercial outfitters offer guided and self-guided trips. Prior to 2002,
only one river access on the Smith River in Henry County existed, today there are eight. The
basin offers paddlers fast-moving white-water runs of the Dan River in Kibler Valley or slow,
relaxing floats as the Dan crosses the Virginia/North Carolina border- where historic batteau
navigation structures make it easy to paddle the rivers even in low water (DRBA 2018). The
many lakes and reservoirs of the basin serve as attractions for outdoor enthusiasts who enjoy
fishing, paddling or wildlife viewing. The North Carolina Mountains-to-Sea Trail and the Virginia
Beaches to Bluegrass Trail provide hikers and cyclists a contiguous off-road path from the Blue
Ridge Mountains to the Atlantic Ocean (PTRC 2012).
4.1.3.3 Cultural and Historic Resources
Aside from plant and animal habitat, the Dan River Basin also supports a culture that has been
historically rich in farming and forestry. Tobacco was an important cash crop in the area; the
Brightleaf tobacco curing process originated in Caswell County, bringing great wealth to the
area. Prior to the Civil War, Caswell was one of the wealthiest counties in North Carolina as
evident by its significant collection of antebellum homes. In the late 18th century and early
19th century, transportation was largely by water. Improvement of the river for batteau
navigation spurred economic development and the founding of South Boston and Danville, VA
and Milton, Leaksville (Eden) and Madison, NC. Railroads arrived in the mid-19th century,
connecting the basin to wider commerce and bringing tobacco marketing and manufacturing to
the towns. The railroads also made timber production more viable and companies moved in to
harvest timber from the Basin, which was used to meet demand in the Northeastern and
Midwestern U.S, where forest resources had been greatly depleted. While forestry still plays an
important role in economy of the Basin, the advent of companies like R.J. Reynolds and
American Tobacco Company meant the consolidation of small farms and factories. With the
decrease in tobacco farming came the proliferation of furniture and textile industries. Cities like
Bassett, Martinsville, Danville, Eden and Roxboro saw an industrial boom; however, many of
these jobs would be outsourced globally beginning in the 1970s. This decline in manufacturing
led to a major economic slump and the move toward more diverse industries.

4.2 Environmental Consequences of the No Action Alternative and Preferred
Alternatives
NEPA requires that a federal agency evaluate the potential impacts of its proposed actions. This
includes evaluation of what would happen if the Trustees did nothing further, referred to as the
“No Action Alternative”. This section of the Draft RP/EA sets out the potential impacts of both
the No Action Alternative and the two restoration type alternatives evaluated and identified as
preferred in Chapter 3 as meeting the Trustees’ Restoration Evaluation Criteria. The analysis
presented here considers the range of potential environmental consequences that may be
anticipated to occur as a result of implementation of activities within the scope of the Preferred
Alternatives.
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 The following definitions are used in this section to characterize the nature of the various
impacts evaluated in this Draft RP/EA:
•
Short-term or long-term impacts. These characteristics are determined on a
case-by-case basis and do not refer to any rigid time period. In general, short-term
impacts are those that would occur only with respect to a particular activity or for a
finite period. Long-term impacts are those that are more likely to be persistent and
chronic.
•
Direct or indirect impacts. A direct impact is caused by a proposed action and
occurs contemporaneously at or near the location of the action. An indirect impact is
caused by a proposed action and might occur later in time or be farther removed in
distance but still be a reasonably foreseeable outcome of the action. For example, a
direct impact of erosion on a stream might include sediment-laden waters in the vicinity
of the action, whereas an indirect impact of the same erosion might lead to lack of
spawning and result in lowered reproduction rates of indigenous fish downstream.
•
Minor, moderate, or major impacts. These relative terms are used to
characterize the magnitude of an impact. Minor impacts are generally those that might
be perceptible but, in their context, are not amenable to measurement because of their
relatively minor character. Moderate impacts are those that are more perceptible and,
typically, more amenable to quantification or measurement. Major impacts are those
that, in their context and due to their intensity (severity), have the potential to meet the
thresholds for significance set forth in CEQ regulations (40 CFR § 1508.27) and, thus,
warrant heightened attention and examination for potential means for mitigation to
fulfill the requirements of NEPA.
•
Adverse or beneficial impacts. An adverse impact is one having adverse,
unfavorable, or undesirable outcomes on the man-made or natural environment. A
beneficial impact is one having positive outcomes on the man-made or natural
environment. A single act might result in adverse impacts on one environmental
resource and beneficial impacts on another resource.

4.2.1 Environmental Consequences of the No Action Alternative
NEPA requires a federal agency to consider a “no action” alternative. Under this alternative, the
Trustees would take no direct action to restore injured natural resources or compensate for lost
services pending natural recovery. Instead, the Trustees would rely on natural processes for
recovery of the injured natural resources and their associated services. While natural recovery
would occur over varying time scales for the injured resources services, the interim losses
suffered would not be compensated under the “no action” alternative.
The principal advantages of this approach are the ease of implementation and low cost. This
approach relies on the capacity of ecosystems to “self-heal.” CERCLA, however, establishes
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 Trustee authority to seek compensation for interim losses pending recovery of the natural
resources. Further, lost ecosystem services during the “self-heal” period would not be
addressed under this approach. The “no action” alternative is rejected for compensatory
restoration, as it does not meet the purpose and need for action. Losses were suffered and
impacts continue during the period of recovery from the Spill. Technically feasible, costeffective alternatives exist to compensate for these losses.

4.2.2 Environmental Consequences of the Preferred Alternatives

A summary of environmental consequences of the preferred Alternatives is provided in Table 2.
In general, adverse impacts associated with implementation of Alternative 2 are anticipated to
be minor and temporary. Outside of minor and mostly temporary adverse impacts during
construction, implementation of Alternative 5 is anticipated to provide benefits, primarily in the
form of improved recreational access to the upper Dan River.

4.3

Summary of Cumulative Impacts

The Council on Environmental Quality’s (CEQ) regulations to implement NEPA require the
assessment of cumulative impacts in the decision-making process for federal projects, plans,
and programs. Cumulative impacts are defined as “the impact on the environment which
results from the incremental impact of the action when added to other past, present, and
reasonably foreseeable future actions regardless of what agency (federal or non-federal) or
person undertakes such other actions” (40 C.F.R. §1508.7). As stated in the CEQ handbook,
“Considering Cumulative Effects” (CEQ, 1997), cumulative impacts need to be analyzed in terms
of the specific resource, ecosystem, and human community being affected and should focus on
effects that are truly meaningful. The cumulative effects analysis of the preferred alternatives in
this Draft RP/EA is commensurate with nature and the degree of direct and indirect effects
anticipated from implementation of the projects. For the purpose of this analysis, the
cumulative impact spatial boundary includes the upper Dan River Basin, shown in Figure 1,
since that is where projects described would occur. The preferred alternatives being evaluated
in this Environmental Assessment are anticipated to result in predominantly beneficial impacts
to recreational uses, with potential minor benefits to riverine and riparian habitat as a result of
conservation activities at the Mayo River conservation site.
Implementing the alternatives as proposed and analyzed in this Draft RP/EA would have no
major adverse impacts on upper Dan River Basin habitats, on adjacent lands and waterways, or
on the natural resources within each. As described above, the proposed projects may result in
minor, short term adverse impacts and both short- and long-term beneficial impacts. When
considered with other past, present, and reasonably foreseeable future actions within the
upper Dan River Bain, the preferred alternatives are not anticipated to have adverse cumulative
impacts. Direct and indirect adverse impacts, as discussed previously, are likely to be short term
and will occur primarily during periods of active construction activities. Periods of active
construction for one or more boat ramps are anticipated to be less than one month, and
individually and cumulatively, would result in only short-term impacts. The Preferred
Alternatives are not expected to result in significant cumulative impacts on the human
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 environment since they alone, or in combination with other current and future activities
(described below) in the vicinity, would not significantly change the larger current hydrological
patterns of discharge, recreational use, economic activity or land-use in the upper Dan River
Basin.
Other activities in the upper Dan River Basin that may be undertaken by other entities, private
and public, vary widely. However, the Dan River Basin is largely rural and has experienced little
growth and development in recent years. Activities on private parcels may include maintenance
of utilities, development of housing on nearby or adjacent uplands, and/or agriculture practices
on adjacent uplands. These types of activities are expected to result in short- and long-term
adverse impacts within the upper Dan River Basin. Maintenance of public utilities, such as
power lines, and pipelines in easements within state or federally-owned lands will not be
impeded as a result of the Preferred Alternatives. State agencies may undertake land or wildlife
management activities on parcels under their control throughout the project area. These
activities may include restoration activities similar to those proposed under this Draft RP/EA
and others such as road maintenance. These activities would result in both short- and longterm adverse and beneficial impacts.

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 Table 2. Summary of Environmental Consequences of the No Action and Preferred Alternatives.
Preferred Alternatives
Environmental
Consequences

Alternative 1:
No Action

Alternative 2 – Remaining Mayo
River Conservation

Alternative 5 Establishment of Public
Boat Launch Facilities on
the Dan River

Physical Resources

Hydrology and
Water Quality

Air Resources

Sediment/
Geology

Project area
water, air, and
geological/sedi
ment conditions
would not be
affected since
no restoration
would occur.
Any ecological
benefits that
may result from
Alternative 2
would not
occur, and the
trajectory of any
ecologically
degraded areas
would remain
unchanged.

Long-term, indirect, minor and
beneficial impacts since
conservation activities could
enhance habitat quality and
return to natural conditions.
Increase human use could result
in increased trash in waterways.

No impact to local or regional air
quality is expected.
Conservation activities have
potential to maintain or enhance
natural conditions over time.
Improved sediment transport and
surface runoff following
conservation activities could
improve aquatic habitat. Impacts
are expected to be long-term,
indirect, minor and beneficial.

Short‐term, minor, direct
and localized impacts to
water quality could occur
during construction.
Construction activities
could increase turbidity in
the immediate project
vicinity, although best
management practices
(BMPs) would minimize
impacts.
Short-term, direct, minor,
and adverse impacts during
construction as a result of
heavy equipment emissions
and dust.
Minor permanent
impacts to habitat within
the boat ramp footprint
area and immediately
adjacent to the
ramp would occur.
Localized disturbance of
sediments during boat
ramp construction is
anticipated.

Biological Resources

Fish and
Wildlife

Project area
fish, wildlife,
vegetation, and
special species
would not be
affected since
no restoration
would occur.

Long-term minor benefits to fish
and wildlife are anticipated since
the acquired land will be removed
from development or conversion
pressure and management can be
implemented to control invasive
species or complete other
activities beneficial to fish and
wildlife.

Short-term, direct, and
minor adverse impacts to
fish and other aquatic biota
during construction due to
increased turbidity and
sedimentation from
excavation. BMPs would be
employed to reduce
impacts.

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 Table 2 Continued
Preferred Alternatives
Environmental
Consequences

Alternative 1: No
Action

Alternative 2 – Mayo River
Conservation

Alternative 5 –
Establishment of Public Boat
Launch Facilities on the Dan
River

Biological Resources (cont.)

Vegetation

Special Status
Species

Project area fish,
wildlife, vegetation,
and special species
would not be
affected since no
restoration would
occur. Any
biological
improvements that
may occur from
Alternative 2 would
not be realized

Long-term, indirect, and
minor benefits to vegetation
are expected because
habitats would be conserved
and potentially enhanced,
including control of invasive
species.

Same consequences as listed
for Fish and Wildlife

Construction activities such
as clearing and earth moving
would directly impact plants
within the boat ramp
footprint. Affected
vegetation adjacent to the
construction area may be
disturbed, but effects are
likely to be short-term.
No impacts are anticipated.
A survey will be completed
to ensure no special status
species are present.
Appropriate permits or
permissions would be
sought, if necessary.

Socio-economics

Economic

Aesthetics and
Noise

Project area socioeconomic variables
would not be
affected since no
restoration would
occur. Potential
economic benefits
as a result of the
enhanced
recreational
opportunities would
not be realized.

Permanent public open
space areas may have the
effect of increasing nearby
residential land values, and
increases in recreational
activity on the acquired land
may result in increased
economic activity. Thus, the
economic impacts are
expected to be long-term,
direct and indirect, minor
and beneficial.
Minor long-term benefit to
aesthetic and scenic qualities
and values associated with
acquired lands since they
will be conserved. There may
be a minor increase in traffic
and/or recreational noise
due to increased human use.

Except for the resources
necessary to plan, construct,
and maintain the boat ramp,
there are no economic
impacts associated with this
project.

Minor, temporary, and
adverse impact to aesthetics
are expected during
construction. Minor to
moderate and temporary
increase in noise is
anticipated during
construction.
32

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 Table 2 Continued
Preferred Alternatives
Environmental
Consequences

Alternative 1: No
Action

Alternative 2 – Mayo River
Conservation

Alternative 5 –
Establishment of Public
Boat Launch Facilities on
the Dan River

New or improved access to
river and riparian habitat are
expected. Resource-based
recreational activities, such as
for bird watching, canoeing,
kayaking, fishing, and other
similar activities, may result
from this alternative.

Users of small power
boats, kayaks and other
small water craft are
expected to benefit from
one or more boat ramps
along the Dan River.

Socio-economics (cont.)

Recreation

Transportation

Cultural and
Historical

Project area socioeconomic variables
would not be
affected since no
restoration would
occur. Recreational
benefits would not
be realized since
access
opportunities would
not be created.

Increased traffic in the vicinity
of acquired area could be
minor to moderate if
recreational access is
enhanced. Although
uncertainty remains until state
park management identify
specific actions, impacts are
anticipated to be long-term,
indirect, minor and adverse.
The potential for impacts to
historic and cultural resources
is very location-dependent.
Activities will be subject to
review under Section 106 of
the National Historic
Preservation Act of 1966.

A minor and permanent
increase in traffic in the
vicinity of one or more
boat ramps is possible
since recreational access
would be enhanced. A
minor and short-term
increase in contractor
vehicles would occur at
construction site(s).

Same evaluation as for
Alternative 2.

33

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 Table 2 Continued
Preferred Alternatives
Environmental
Consequences

Alternative 1: No
Action

Alternative 2 – Mayo River
Conservation

Alternative 5 –
Establishment of Public Boat
Launch Facilities on the Dan
River

Socio-economics (cont.)

Public Health
and Safety

Public health and
safety would not be
impacted since no
restoration
activities would be
undertaken.

Environmental
Justice

Project area socioeconomic variables
would not be
affected since no
restoration would
occur.

5.0

Land acquisition and
conservation poses no
health and safety risk.
Improvements to the
acquired land may result in
improved safety conditions
at the park.
The project, in general, does
not create a
disproportionately high or
adverse effect on any
minority or low-income
populations. An increase in
public use of the newly
acquired land could result in
downstream economic
activity in the project area
and thus be generally
beneficial to local
economies.

There are no anticipated
impacts to public health and
safety as a result of
constructing one or more
boat ramps.

Environmental justice
communities will not be
negatively impacted through
this project. This project will
create recreational benefits
along the Dan River to area
residents.

PROJECT FULFILMENT AND MONITORING

As described earlier, Duke Energy has completed several of the preferred restoration
alternatives. Summaries of some of the completed restoration are included as Appendices to
this Restoration Plan. Appendix A includes photo documentation of completed restoration of
proposed Alternative 3, Abreu Grogan Park Improvements. Appendix B includes photo
documentation of proposed Alternative 4, the Pigg River Dam Removal Project.
Monitoring activities for the Pigg River Dam Removal project are detailed below:
Photographic documentation of project activities occurred throughout construction.
Qualitative and quantitative monitoring, which began November 2016, will be conducted
annually for a period not to exceed 5 years post-construction. The purpose of monitoring is to
evaluate project stabilization and inform future natural resources management decisions.
34

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 Stabilization metrics include the formation of stable channel morphology up to 3.2 miles
upstream and 5 miles downstream of the dam that consists of riffles, pools, bars, benches,
banks vegetated above high water level, deposition, instream habitat, mobilization of sediment,
and fish passage. Initial monitoring and subsequent site visits have indicated that these metrics
already indicate channel morphology downstream is transitioning to more stable riverine
configuration. Once downcutting and transport of legacy sediments is completed, the
upstream reach is also anticipated to reach equilibrium.
Pursuant to the Consent Decree, Duke Energy will submit semi-annual reports to the Trustees
on its progress to complete the remaining preferred restoration alternatives, a portion of
Alternative 2, and Alternative 5, if selected.

35

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 6.0

REFERENCES

Alderman, John M. and Joseph D. Alderman. 2014. Dan River Mapping, Habitat Assessments,
and Mussel Surveys. Prepared for the Duke Energy Corporation. November 26. Pittsboro, NC:
Alderman Environmental Services, Inc.
Altinakar, Mustafa. 2015—“Sediment Transport Model of Coal Ash Deposition in the Dan River
from February 9, 2014 Coal Ash Spill at Duke Energy’s Dan River Station.” University of
Mississippi National Center for Computational Hydroscience & Engineering.
Dan River Basin Association (DRBA). 2018. Dan River Basin Overview. Available
http://www.danriver.org/content/danriver/uploads/PDF/basin_overview_final.pdf. (Accessed:
8/31/2018).
Dan River Natural Resource Trustee Council (DRNRTC). 2014a. Pre-Assessment Screen
Determination for Dan River Coal Ash Spill in North Carolina and Virginia. March. 19 pp.
Available https://www.cerc.usgs.gov/orda_docs/CaseDetails?ID=984. (Accessed: 10/30/2018).
Dan River Natural Resource Trustee Council. 2014b. Dan River Coal Ash Release Natural
Resource Damage Assessment and Restoration: Scoping Document for Restoration Planning for
Public Review and Comment. October. 26 pp. Available
https://www.cerc.usgs.gov/orda_docs/CaseDetails?ID=984. (Accessed: 10/30/18).
Dan River Natural Resource Trustee Council. 2014c. List of Restoration Project Proposals
Submitted by Public in Response to the Dan River Coal Ash Release Scoping Document for
Restoration Planning. December. 3 pp. Available
https://www.cerc.usgs.gov/orda_docs/CaseDetails?ID=984. (Accessed: 10/30/2018).
Dan River Natural Resource Trustee Council. 2015. Dan River Natural Resource Damage
Assessment Plan. Available:
https://www.cerc.usgs.gov/orda_docs/DocHandler.ashx?task=get&ID=1555. (Accessed:
9/22/2017).
HDR. 2015. Dan River Steam Station Coal Ash Release Summary of Environmental Data
Representing Conditions Pre- and Post- Coal Ash Release. 146 pp. September.
North Carolina Department of Health and Human Services (NCDHHS). 2014. Current Fish
Consumption Advisories for North Carolina. Available
http://epi.publichealth.nc.gov/oee/fish/advisories.html#D. (Accessed: August 22, 2014).
North Carolina Department of Health and Human Services. 2017. Current Fish Consumption
Advisories for North Carolina. Available
http://epi.publichealth.nc.gov/oee/fish/advisories.html. (Accessed: October 11, 2017).
North Carolina Natural Heritage Data Explorer. 2018. (https://ncnhde.natureserve.org/).
(Accessed: 9/24/2018).
36

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 82 of 158

 Piedmont Triad Regional Council (PTRC). 2012a. Dan River Basin Watershed Prioritization
Report. With support from North Carolina Division of Water Quality 205(j)/604(b) program. 86 pp.
PTRC. 2012b. Eden Area Watershed Assessment. 159 pp.
Rockingham County. 2010. A Land Use Plan for Managing Growth: Rockingham County, North
Carolina. Available http://www.co.rockingham.nc.us/pview.aspx?id=14918. (Accessed:
8/31/2018).
U.S. Census Bureau (USCB). 2018. Quick Facts Rockingham County, North Carolina; North
Carolina. Available
https://www.census.gov/quickfacts/fact/table/rockinghamcountynorthcarolina,nc/PST045217.
(Accessed: 8/31/2018).
U.S. Census Bureau. 2018. Quick Facts Stokes County, North Carolina; North Carolina. Available
https://www.census.gov/quickfacts/fact/table/stokescountynorthcarolina/PST045217.
(Accessed: 8/31/2018).
U.S. Fish and Wildlife Service (USFWS). 2018. Information, Planning and Conservation System
(http://ecos.fws.gov/ipac/). (Accessed: 9/25/2018).
USFWS. 2016. Pigg River Restoration at Power Dam, Franklin County, VA, Project #2015-F-2742.
Virginia Field Office, Gloucester, VA. Available
http://www.fws.gov/northeast/virginiafield/pdf/PARTNERS/power_dam/Website%20Posts/201
6_Power_Dam_biological_opinion.pdf. (Accessed: 1/18/ 2016).
Van Alstine, N.E., G.P. Fleming, and H.E. LeGrand Jr. 1999. A Natural Heritage Inventory of John
H. Kerr Reservoir, Virginia and North Carolina. Natural Heritage Technical Report 99-07. Raleigh,
NC: Virginia Department of Conservation and Recreation, Division of Natural Heritage,
Richmond, VA, and North Carolina Department of Environment, Health and Natural Resources,
North Carolina Natural Heritage Program.
Virginia Department of Conservation and Recreation (VADCR). 2007. Feasibility Study for a State
Park on the Mayo Rivers in Henry County and Mayo Scenic Rivers Study Henry County, Virginia.
Prepared by the Virginia Department of Conservation and Recreation for the Governor and the
General Assembly of Virginia. Richmond, VA. 49 pp.
Virginia Department of Health. 2014. Coal Ash Release Fact Sheet. Available
http://www.vdh.virginia.gov/CoalAsh.pdf. (Accessed: August 27, 2014).

37

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 APPENDICES

Case Document 2-1 Filed 07/18/19 Paoe 84 of 158

38

APPENDIX A: Abreu Grogan Park Amenity Summary

39

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 DUKE ENERGY CAROLINAS, LLC.

A B R E U - G R O G A N PA R K
AMENITY SUMMARY
EXISTING AND PROPOSED AMENITY
ENHANCEMENTS
Abreu-Grogan Park
2020 Memorial Drive
Danville, VA 24541

ENHANCEMENTS COMPLETED MAY 26, 2016

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 86 of 158

 DUKE ENERGY CAROLINAS, LLC.

PUBLIC SAFETY & RECREATION STRATEGY PLANNING SERVICES

EXISTING AMENITIES AND NEW AMENITY ENHANCEMENTS WITH DESCRIPTIONS WHERE APPLICABLE

Existing Condition

Picture 1: Existing floating dock and canoe launch. No enhancements planned.

Enhanced Condition

Picture 2: Added accessible parking and accessible sidewalk leading to the floating
dock and canoe launch. Accessible sidewalk also leads to kiosk and courtesy dock.

2

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 87 of 158

 DUKE ENERGY CAROLINAS, LLC.

PUBLIC SAFETY & RECREATION STRATEGY PLANNING SERVICES

Enhanced Condition

Picture 3: Added new accessible kiosk.

Enhanced Condition

Picture 4: Added new accessible sidewalk leading to the kiosk and courtesy dock.

3

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 DUKE ENERGY CAROLINAS, LLC.

PUBLIC SAFETY & RECREATION STRATEGY PLANNING SERVICES

Existing Condition

Picture 5: Existing parking spaces for the floating dock and canoe launch. Accessible
sidewalk to be added. Future kiosk to be added in the vicinity of the existing trash can.

Enhanced Condition

Picture 6: Additional view of accessible parking and accessible sidewalk leading to
the existing floating dock and canoe launch along with accessible sidewalk leading
to the kiosk and courtesy dock.

4

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 89 of 158

 DUKE ENERGY CAROLINAS, LLC.

PUBLIC SAFETY & RECREATION STRATEGY PLANNING SERVICES

Existing Condition

Picture 7: Existing culvert to receive new headwall.

Enhanced Condition

Picture 8: New headwall added to existing culvert.

5

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 DUKE ENERGY CAROLINAS, LLC.

PUBLIC SAFETY & RECREATION STRATEGY PLANNING SERVICES

Existing Condition

Picture 9: Existing boat ramp. Courtesy dock and connecting sidewalk to be added.

Enhanced Condition

Picture 10: New accessible courtesy dock and connecting sidewalk.

6

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 DUKE ENERGY CAROLINAS, LLC.

PUBLIC SAFETY & RECREATION STRATEGY PLANNING SERVICES

Existing Condition

Picture 11: Additional view of existing boat ramp also showing area for proposed
courtesy dock and fishing platform.

Enhanced Condition

Picture 12: New courtesy dock.

7

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 DUKE ENERGY CAROLINAS, LLC.

PUBLIC SAFETY & RECREATION STRATEGY PLANNING SERVICES

Existing Condition

Picture 13: Area for proposed fishing platform and view of the existing floating dock
and canoe launch.

Enhanced Condition

Picture 14: New courtesy dock.

8

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 DUKE ENERGY CAROLINAS, LLC.

PUBLIC SAFETY & RECREATION STRATEGY PLANNING SERVICES

Enhanced Condition

Picture 15: New accessible fishing platform.

Enhanced Condition

Picture 16: Additional view of the new accessible fishing platform.

9

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 DUKE ENERGY CAROLINAS, LLC.

PUBLIC SAFETY & RECREATION STRATEGY PLANNING SERVICES

Existing Condition

Picture 17: Existing storage building and proposed area for restroom.

Enhanced Condition

Picture 18: New restroom next to the existing storage building.

10

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 DUKE ENERGY CAROLINAS, LLC.

PUBLIC SAFETY & RECREATION STRATEGY PLANNING SERVICES

Enhanced Condition

Picture 19: New accessible parking spaces with accessible sidewalk connecting to
the restroom and fishing platform.

Enhanced Condition

Picture 20: New accessible sidewalk to the fishing platform.

11

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 DUKE ENERGY CAROLINAS, LLC.

PUBLIC SAFETY & RECREATION STRATEGY PLANNING SERVICES

Existing Condition

Picture 21: Existing parking spaces. Portion of curb to be removed to create accessible
parking for future sidewalk to connect to the restroom and fishing platform.

Enhanced Condition

Picture 22: New accessible parking spaces with accessible sidewalk connecting to
the restroom and fishing platform.

12

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 DUKE ENERGY CAROLINAS, LLC.

PUBLIC SAFETY & RECREATION STRATEGY PLANNING SERVICES

Existing Condition

Picture 23: Existing picnic table and grill near the City of Danville Water Pumping
Building.

Enhanced Condition

Picture 24: Relocated picnic table and grill.

13

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 98 of 158

 APPENDIX B: Pigg River Dam Restoration at Power Dam; Year 1 Monitoring Report8

8

Appendices available upon request

40

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 99 of 158

 AFTER ACTION REPORT
FOR
DAM BREACHING
Pigg River Power Dam
Franklin County, Virginia
January 2018

Prepared by:
David Byrd
Coordinator, Virginia Partners for Fish and Wildlife Program
U.S. Fish and Wildlife Service
6669 Short Lane
Gloucester, Virginia
23061

Power Dam After Action Report
U.S. Fish and Wildlife Service

January 2018
1

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 Table of Contents
1.0 INTRODUCTION........................................................................................................3
1.1 BACKGROUND ...........................................................................................................3
1.2 COMPETED WORK .....................................................................................................5
1.3 SITE DESCRIPTION ....................................................................................................5
2.0 SITE ACTIVITIES ......................................................................................................5
2.1 SITE PREPARATION...................................................................................................5
2.2 DAM BREACHING/CONCRETE REMOVAL ...........................................................6
2.3 WOODY DEBRIS/SEDIMENT REMOVAL ...............................................................6
2.4 RESTORATION ............................................................................................................7
3.0 MONITORING ............................................................................................................8
3.1 GENERAL .....................................................................................................................8
3.2 PHYSICAL ....................................................................................................................8
3.3 BIOLOGICAL ...............................................................................................................9
3.4 HABITAT ......................................................................................................................9
3.4 WETLAND ....................................................................................................................9
4.0 OUTSTANDING REQUIREMENTS AND RELATED FUTURE WORK ........10
5.0 CONCLUSIONS ........................................................................................................10
6.0 REFERENCES ...........................................................................................................11
Figure 1 – Power Dam Location Map (topographic)
Figure 2 – Power Dam Location Map (aerial)
Figure 3 – Proposed Sequential Notching and Final Notch Configuration Plan
Figure 4 –Post Construction Monitoring Locations
APPENDIX A: Photo Documentation
APPENDIX B: Year 0 and +1 Cross Sections

Power Dam After Action Report
U.S. Fish and Wildlife Service

January 2018
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 1.0 INTRODUCTION
1.1 BACKGROUND
Constructed in 1915 by the Rocky Mount Power and Light Company for power
generation, Rocky Mount Power Dam (dam), also known as the Pigg River Power Dam,
measured 25 feet (ft) high by 204 ft long (Figure 3, Photos 1, 2) and impounded 60 acreft of water over 25 surface acres (Figures 1, 2, Photos 1, 2). The dam was subsequently
sold to Appalachian Electric Power in 1935 and decommissioned sometime in the middle
1950s.
The U.S. Fish and Wildlife Service (Service) developed an interest in removal or
breaching of the dam due to the presence of the federally listed endangered Roanoke
logperch (Percina rex). The recovery plan for the Roanoke logperch (Service 1992) lists
construction of impoundments as one of the major causes for the species decline.
Breaching the dam removed the last impediment to fish passage within a 75-mile reach of
the Pigg River from the headwaters downstream to Leesville Reservoir, and also restored
2.2 miles of aquatic instream habitat impounded upstream of the dam for the Roanoke
logperch and smallmouth bass (Micropterus dolomieu). Improvements to an additional
mile upstream of the impoundment (for a total of 3.2 miles above the dam) and 5 miles
downstream of the dam are resulting from the development of increased complexity of
instream habitat, riparian vegetation establishment, and increased competency of the river
to transport sediment. The remaining 45-mile river segment downstream to Leesville
Reservoir are also improving with regards to channel habitat, stability, and complexity
through restored continuity to the headwaters. Other benefits of the project include the
restoration of flood attenuation, public infrastructure protection for the Rocky Mount
Wastewater Treatment Plant and the Route 713 Bridge, removal of a public safety and
boating hazard, and creating the conditions necessary for the future establishment of a
public access area and county park for recreational fishing and boating.
The Service began working with the Natural Resources Conservation Service, Virginia
Department of Game and Inland Fisheries, Franklin County, FishAmerica Foundation
and other partners in 2005 to develop a plan for the removal of the dam. Significant
progress was made in fundraising to support dam removal through Service and other
partner funding. An architectural historic resource survey was conducted (Pezzoni and
Associates 2007) and the dam and associated powerhouse were determined to be eligible
for the National Register of Historic Places. Sediment quality and quantity sampling and
analysis were completed for the legacy sediment impounded behind the dam (Froehling
and Robertson 2007). While slightly elevated levels of cadmium and chromium were
detected in several samples, above Threshold Effects Limits but below Potential Effects
Limits, levels were insufficient to warrant concern from the Virginia Department of
Environmental Quality (VDEQ) or the Service (Froehling and Robertson 2007). Preremoval water quality sampling, a physical habitat assessment, and biomonitoring above
and below the dam were completed (Hitt et al. 2009). Further efforts to study and

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January 2018
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 ultimately remove or breach the dam ceased in 2009 due to differences in partner
priorities and insufficient funding.
Interest in dam removal or breaching was renewed in 2012 after a change in ownership to
the Friends of the Rivers of Virginia (FORVA), a river restoration and access advocacy
organization, and in 2013 following removal of Veteran’s Memorial Park Dam upstream.
On February 2, 2014, shortly after removal of Veterans Memorial Park Dam, an
estimated 39,000 tons of coal ash spilled from a containment facility at Duke Energy’s
Dan River Steam Station into the Dan River in Eden, North Carolina, resulting in ash
being transported over 80 miles to the Kerr Reservoir within a few days. Duke Energy
began discussions with Federal and North Carolina and Virginia regulatory and natural
resource agencies regarding possible voluntary restoration projects to compensate for the
loss or injury to natural resources within the upper Roanoke River watershed. Duke
Energy expressed interest in projects that were “shovel ready,” including the Pigg River
Power Dam breaching project. Duke representatives met with FORVA and other
conservation partners on October 8, 2015 to discuss the project and remaining
requirements for breaching or removal.
Concurrent with those activities, additional funding was provided by the Service to
complete several studies needed to support removal or breaching without sediment
removal. A Federal Emergency Management Agency required floodplain study was
performed (Mattern and Craig 2015). The hydraulic analysis was used to determine
impacts of breaching the dam on the adopted Flood Insurance Rate Maps and as a
component of the input required for a sediment transport analysis to estimate the
sediment transport modes and sediment loads downstream of the dam. The study
indicated that removal of the dam would not result in an increase in the base flood
elevation at the dam, the existing bridge located just downstream of the dam, at cross
sections located downstream of the dam and bridge, and at cross sections located
upstream of the dam. A geomorphic and sediment transport analysis (Kris Bass
Engineering 2015) concluded in part: the Pigg River is in a disturbed state due to
watershed development, human alteration, and sediment imbalances, with greater than
90% of the river downstream of the dam impacted due to sediment transport issues; a
(sequential) notching strategy will not be an effective way of controlling the release of
sediment and recommended a full dam breach with no notching strategy resulting in the
more rapid restoration of the upstream channel and accelerating downstream recovery;
the upstream channel could equilibrate in a matter of months, while downstream
redistribution of sediments will continue for at least a year, with increases in sediment
concentrations after storms expected for several years; and the most significant changes,
including several feet of deposition, would be expected just downstream of the dam,
resulting in a new baseflow channel with point bars, terraces, and new floodplains. A
Memorandum of Agreement was signed among the State Historic Preservation Office
(SHPO), FORVA, and the Service on May 2, 2016 authorizing impacts to the historic
structure. Final regulatory permitting was completed on August 5, 2016, and SHPO
approval of the intensive Phase I architectural survey was received on August 19, 2016.
Fish sampling utilizing backpack electroshockers, seines, and dip nets to locate and
Power Dam After Action Report
U.S. Fish and Wildlife Service

January 2018
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 remove Roanoke logperch in the downstream scour hole prior to construction in
compliance with the Service’s October 28, 2015 non-jeopardy biological opinion for the
project, was completed on August 25, 2016 (Photo 8). No logperch were collected in the
scour hole, though 2 were collected in the riffle beneath the Route 712 bridge crossing.
FORVA received funding from Duke Energy for the project, including monitoring, on
August 29, 2016.
1.2 COMPLETED WORK
One hundred and forty ft of the upper 8.5 ft of concrete across the dam was removed to
match adjacent floodplain elevations to restore flood capacity and protect and maintain
riparian habitat upstream. Below this floodplain notch, 95 ft (48%) of the center of the
dam was removed to restore river flow (Photo 26). The breach size and configuration was
designed to match the stable channel dimension for this reach surveyed 100 yards (yd)
downstream.
A section of dam 50 ft long on the north side of the Pigg River remains undisturbed to
preserve and protect the power house and dam section for historic preservation and
interpretation (Photo 26). A 35 ft section of the south side of the dam was also
undisturbed and approximately 70% of the base of the dam remains intact (Photos 35 and
35). This approach provided for enhanced maintenance of channel stability, sediment
carrying capacity and competency, and preservation of cultural resources, while
achieving project goals.
1.3 SITE DESCRIPTION
The Pigg River Power Dam (Photos 1 and 2) is located on the Pigg River in Franklin
County approximately 0.5 mile east of the Town of Rocky Mount, in the Piedmont region
in southwestern Virginia (Figures 1-3). The dam is constructed on a bedrock outcrop 120
ft upstream of the State Route 712 (Power Dam Road) crossing of the Pigg River. Prior to
breaching, the concrete gravity dam measured 25 ft high and 204 ft long, with a top width
of 7 ft and a bottom width of 20 ft, not including the buttresses. Additional details of the
dam and powerhouse can be found in the architectural description of the dam (Pezzoni
and Associates 2007, Hill Studios 2016).
2.0 SITE ACTIVITIES
2.1 SITE PREPARATION
The contractor (Shenandoah StreamWorks LLC) began mobilizing to the site the week of
August 8, 2016. Excavators equipped with both hydraulic hammers and buckets, as well
as dump trucks were transported to the site. StreamWorks added No. 4 stone to the
existing farm field access road leading to the site to support heavy equipment, replacing
an 18 inch aluminum culvert pipe at the downslope end of the access road to provide
improved drainage from the adjacent slope toward the river and installing silt fencing
Power Dam After Action Report
U.S. Fish and Wildlife Service

January 2018
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 (Photos 9, 16). A construction causeway/access consisting of riprap, beginning in upland
under the Route 712 Bridge and terminating along the downstream face of the dam was
started on August 18 and completed on August 23, 2016 (Photo 10).
2.2 DAM BREACHING/CONCRETE REMOVAL
Demolition of the dam began on August 29, 2016 (Photo 11). Initially 1 excavator with a
hydraulic hammer was used to begin breaching operations. During the demolition
process, concrete demolition debris was used initially to extend the work causeway along
the dam face (Photo 12). After a sufficiently large platform was constructed, an
additional excavator was utilized to transfer the remaining concrete rubble to the scour
hole on river below the dam to form the base of the proposed wetland restoration area
(Photos 13, 17, and 19). The concrete rubble utilized in the causeway widening was also
placed in the scour hole prior to placement of soil and organic material within the
proposed wetland restoration site. Dam breaching was completed on September 9, 2017
(Photo 19), with the exception of some remaining fine-scale concrete removal along the
base of the channel breach (Photo 23), and continued through September 21, 2017, as
exposed high points were removed. Approximately 715 yd3 of concrete rubble was
removed during the breaching process.
2.3 WOODY DEBRIS/SEDIMENT REMOVAL
An estimated 3,000 yd3 of woody debris was located upstream of the dam (Photo 3).
Quantities were based upon field observation and previous coring during sediment
quantity and quality analysis. During breaching operations, the contractor began removal
of the woody material to allow the river channel to return to pre-removal dimensions and
completed woody debris removal after breaching was complete (Photos 13 and 15).
Woody debris consisted of living trees, trunks and branches at the surface, and degraded
into decomposed material at depth. Larger logs and branches were removed and
stockpiled at a nearby location (Photo 16), prior to being transported offsite for disposal.
Due to the degraded condition of the lower layers of woody debris, substantially less
woody debris was removed than the anticipated.
Sediment and decomposed woody debris suitable for vegetation establishment were
excavated behind the breach and placed in the scour hole proposed for wetland
restoration area immediately downstream of the dam on river right (Photos 17 and 19).
Sediment removed behind the dam to re-establish the channel dimensions, and not
utilized in the floodplain wetland restoration below the dam, remained in place to be
transported by the river downstream to reestablish natural stream channel pattern; profile
and dimension features including channel narrowing, riffles, pools, glides, runs and,
bankfull benches (Photos 21, 26, 28, 29, 30, 35, and 36).

Power Dam After Action Report
U.S. Fish and Wildlife Service

January 2018
6

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 105 of 158

 An unknown quantity of small and large woody debris was transported downstream
during precipitation events during the breaching process and continues to be transported
after project completion, as is typical with natural river channels, comprising an
important component of aquatic habitat establishment (Photos 19, 21, 23, 24, 29, 30, and
35).
2.4 RESTORATION
Site restoration initially consisted of grading the proposed wetland restoration site and
removal of the structural erosion and sedimentation controls. Subsequent flood flow
deposition added approximately 3-4 ft of elevation to the proposed wetland restoration
area, effectively precluding any potential for wetland restoration, though reestablishing a
more stable floodplain elevation (Photos 25 and 26). The improved access road was left
in place at the request of the Town of Rocky Mount to provide better access to the farm
field adjacent to the road terminus.
During breaching operations, an area immediately upstream of the dam on river left
(adjacent to the powerhouse) was identified as having a significant scour hole due to
turbulent flow adjacent to the dam prior to breaching (Photo 14). Additional scouring and
bank failure after breaching threatened to form a headcut into the 9-acre wetland,
effectively draining it. Restoration of the slope was completed though placement of
stacked stone toe protection on September 20, 2016. Backfilling the scour hole to restore
a stable slope configuration, placement of coir matting, and seeding with a native seed
mix was completed on September 27, 2017.
River flow mitigated restoration through channel bed and bank feature adjustment began
immediately after demolition work commenced and continues to progress, particularly
during high flow events (Photos 18, 20-22, 26-32, and 35-41). Natural revegetation of
banks is ongoing as bank slopes stabilize.
Subsequent restoration work entailed cutting downed trees that were blocking the
upstream channel in several areas and causing significant bank stress and erosion. On
March 2 and July 24, 2017, work crews used chainsaws to cut tree trunks into small
sections to facilitate transport downstream. This work will be ongoing as bank adjustment
continues to occur through headcuts and initial channel widening, prior to channel
narrowing and stabilization at the restored floodplain and stream channel elevations.
3.0 MONITORING
3.1 GENERAL
In addition to the pre-breach monitoring, qualitative and quantitative monitoring will be
conducted annually for 5 years. The purpose of monitoring is to monitor the formation of
stable channel morphology up to 3.2 miles upstream and 5 miles downstream of the
project and inform future management decisions. Stabilization metrics include the

Power Dam After Action Report
U.S. Fish and Wildlife Service

January 2018
7

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 106 of 158

 formation of riffles, pools, bars, benches, vegetated stream banks above ordinary high
water; deposition; instream habitat; mobilization of sediment; and fish passage. A
monitoring plan with methodology was submitted to interested regulatory agencies as
part of VDEQ and U.S. Army Corps of Engineers permit requirements and included
permanent surveyed channel cross sections, pebble counts, photography stations,
sediment monitoring, and instream habitat quality assessments. Baseline studies
conducted to evaluate the physical habitat, water chemistry, and biotic communities in
the vicinity of the dam will be utilized for post-project monitoring. Fish sampling to
determine upstream and downstream use of the restored sections of the Pigg River by
Roanoke logperch and other fish species will be completed on an occasional basis. The
first post-removal fish sampling occurred on August 22, 2017 (Photo 34). No Roanoke
logperch were collected, though this was not unexpected given the high sediment load
that continued to be transported through the restoration area. Roanoke logperch are
expected to recolonize these areas once channel stability is achieved throughout the
restoration reach.
3.2 PHYSICAL
Post-dam breaching monitoring by Wetland Studies and Solutions, Inc. (WSSI) began in
November 2016. A total of 12 cross sections were established. Six cross sections were
taken upstream, including areas far enough upstream to be beyond former backwater
effects created by the dam and 6 below the breached dam downstream to where effects of
the sediment transported as a result of the dam breaching were anticipated to be minimal.
Spacing of the cross sections was adjusted to focus on areas around the dam where the
most significant river channel and bank adjustments were expected to occur (WSSI
2016). Cross section locations were also selected to correspond with previous sediment
transport and biomonitoring (Hitt et al. 2009, Kris Bass Engineering 2015).
A comparison of cross section surveys between Year 0 and 1(Appendix B) shows slight
streambed incision of approximately 1 ft at Cross Section 1, upstream of the former pool
extent with increased degradation (downcutting) in Cross Sections 2-4 ranging from 2 to
7 ft at Section 4, approximately 0.8 mile upstream of the dam. Changes in channel cross
sections at Sections 5 and 6 (0.37 and 0.05 mile, respectively) were less significant as a
result of channel evolution that occurred between completion of dam breaching activities
and post-construction monitoring when significant high flow events occurred.
Colonization by herbaceous vegetation has provided stabilization in those areas where
banks have ceased significant mass wasting. However, tension cracks are visible at cross
sections where steep banks still exist and are exhibiting signs of mass failure (WSSI
2017).
3.3 BIOLOGICAL
Monitoring was conducted along 3 biological monitoring reaches for the project. The
baseline conditions for this biomonitoring program were established by the Conservation
Management Institute and the U.S. Geological Survey (Hitt et al. 2009). WSSI reestablished the previously monitored biomonitoring reaches, which were monitored
Power Dam After Action Report
U.S. Fish and Wildlife Service

January 2018
8

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 107 of 158

 October 2017 as post-construction Year 1 and will be monitored again in Year 5. Each
monitoring reach was collocated with a cross section: Reach A is at Cross Section 1,
Reach B is at Cross Section 7, and Reach C is at Cross Section 8. Results of benthic
sampling showed a slight decrease in Stream Condition Index scores at 2 of the 3
monitoring locations (WSSI 2017) in comparison to previous monitoring results (Hitt et
al. 2009). The level of variation observed from pre-removal sampling events is within the
range that may be reasonably expected and attributable to independent factors such as
normal climatic variation. Future monitoring events will be necessary to determine the
influence of dam removal on benthic communities (WSSI 2017).
3.4 HABITAT
The stream habitat assessment by WSSI was conducted in October 2017 using guidance
established in the VDEQ Standard Operating Procedures for stream habitat assessment
(VDEQ 2008) and the U.S. Environmental Protection Agency’s Rapid Bioassessment
Protocol for habitat (Barbour et al. 1999). Habitat conditions were assessed by
qualitatively rating 10 habitat parameters, including epifaunal substrate/available cover,
embeddedness, velocity/depth regime, sediment deposition, channel flow status, channel
alteration, frequency of riffles, bank stability, vegetative protection, and riparian
vegetative zone width. The overall habitat quality of each reach was determined by
adding together the individual metric scores to provide a Total Habitat Score at each
reach, with a maximum of 200 points possible. Each reach was then assigned a narrative
rating according to the total habitat score, where “Optimal” is 200-160, “Sub-Optimal” is
159-107, “Marginal” is 106-54, and “Poor” is 53-0. Reach A was determined to be in
“Poor” condition primarily due to bank erosion with heavy deposits of material in the
reach, increasing embeddedness, and resulting in an unstable substrate. Reach B was in
“Marginal” condition, exhibiting moderately unstable banks with a lack of vegetation.
Sediment deposition was also present in Reach B with various velocity/depth regimes and
a fairly wide riparian zone. Reach C was in “Marginal” condition with moderately
unstable banks, bare soil present and heavy deposition of fine material in the riverbed
(WSSI 2017).
3.5 WETLAND
Hydrology, vegetation, and soil monitoring was initiated at 3 wetland sites adjacent to the
former pool as a requirement of the VDEQ Water Protection Permit for the project.
Moderate drought conditions were present during sampling. Soils at both Sites 3 and 4
(adjacent to Cross Section 2 and Cross Section 4, respectively) were a uniform sandy
loam texture with no water or saturation observed in test pits. Two sampling locations
were established at Wetland Site 2 (river left, just upstream of the dam) and hydric soil
indicators were seen in both locations. No water or saturation was seen at Site 2, Point 1.
Water was present at approximately 6 inches below surface elevation at Site 2 Point 2.
Qualitative observations made during monthly monitoring well data collection has shown
the Site 2 wetland area to be largely dry at the surface since June 2017. Wetland
(hydrophytic) vegetation dominated all wetland sites (WSSI 2017).

Power Dam After Action Report
U.S. Fish and Wildlife Service

January 2018
9

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 108 of 158

 All monitoring reports and other project related documents are available at:
https://www.fws.gov/northeast/virginiafield/partners/powerdam.html
4.0 OUTSTANDING REQUIREMENTS AND RELATED FUTURE WORK
In addition to the required monitoring, signage will be completed to provide the public
assistance in interpreting the historic significance of the powerhouse and remnants of
Pigg River Power Dam. That work is expected to be completed in 2018.
Future work at the site may include enhanced public boating and fishing access and the
possible creation of a Franklin County public park.
5.0 CONCLUSIONS
The dam breaching and associated work is considered a success. The subsequent
sediment transport downstream is resulting in reestablishment of more stable channel
features, including channel narrowing, floodplain and inner berm benches, point bars,
riffles, and pools (Photos 35 and 36). The former reservoir upstream of the dam is rapidly
adjusting to a more stable channel (Photos 37-41), though complete stabilization is taking
longer than anticipated in the sediment transport study and may take another year or more
to fully stabilize.

Power Dam After Action Report
U.S. Fish and Wildlife Service

January 2018
10

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 109 of 158

 6.0

REFERENCES

Barbour, M.T., J. Gerritsen, B.D. Snyder, and J.B. Stribling. 1999. Rapid Bioassessment
Protocols for use in streams and wadeable rivers: Periphyton, Benthic Macroinvertebrates
and Fish, Second Edition. EPA 841-B-99-002. U.S. Environmental Protection Agency;
Office of Water, Washington, D.C. 339 pp.
Froehling & Robertson, Inc. 2007. Sediment sampling and analysis study, Pigg River
Power Dam, Franklin County, VA. Report to FishAmerica Foundation,
Alexandria, VA.
Hill Studios. 2016. Phase II Survey Report, Rocky Mount Dam and Powerhouse, Franklin
County, Virginia. Report to Friends of the Rivers of Virginia, Roanoke, VA.
Hitt, N.P., J. Jones and K. Convery. 2009. Biomonitoring for the Rocky Mount Power
Dam removal project: Establishing baseline conditions. Conservation
Management Institute, Blacksburg, VA.
Kris Bass Engineering. 2015. Power Dam sediment capacity and fate modeling. Report to the
Service, Friends of the Rivers of VA, and Town of Rocky Mount, VA.
Mattern and Craig. 2015. Hydraulic Analysis Summary Report Pigg River Power Dam
Removal, Franklin County, VA. Report to Friends of the Rivers of Virginia,
Roanoke, VA.
Pezzoni and Associates. 2007. Rocky Mount Dam and Powerhouse (033-0016), Franklin
County, Virginia, Survey Report and National Register Evaluation. Report to
FishAmerica Foundation, Alexandria, VA.
U.S. Fish and Wildlife Service. 1992. Roanoke Logperch (Percina rex) Recovery Plan. Newton
Corner, MA. 34 pp.
Virginia Department of Environmental Quality. 2008. Biological monitoring program quality
assurance project plan for wadeable streams and rivers. Richmond, VA. 43 pp.
Wetland Studies and Solutions, Inc. 2016. Pigg River Restoration at Power Dam, Post
Construction Monitoring Report. Report to Friends of the Rivers of Virginia,
Roanoke, VA.
Wetland Studies and Solutions, Inc. 2017. Pigg River Restoration at Power Dam, Year-1
Monitoring Report. Report to Friends of the Rivers of Virginia, Roanoke, VA.

Power Dam After Action Report
U.S. Fish and Wildlife Service

January 2018
11

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 110 of 158

 Figure 1
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Case Document 2-1 Filed 07/18/19 Paoe 111 of 158

Figure 2
Power Dam Location Map

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Case Document 2-1 Filed 07/18/19 Paoe 112 of 158

Figure 3. Proposed Sequential Notching and Final Notch Configuration Plan

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 113 of 158

 Figure 4. Post Construction Monitoring Locations
Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 114 of 158

 APPENDIX A
Photo documentation

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 115 of 158

 1. Power Dam pre-removal view southwest from Route 7124 Bridge (10/8/15)

2. Power Dam during 3 inch rainfall event, view southwest (3/16/07)

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 116 of 158

 3. Woody debris upstream of Power Dam blocking river channel pre-breach, causing adjacent flooding (1/26/06)

4. Typical levee formations on both right and left banks upstream of Power Dam pre-breach (11/17/15)

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 117 of 158

 5. Typical upstream river channel within pool with high levees and shallow, sediment filled channels (11/17/15)

6. Over-widened channel and scour hole on right bank below Power Dam, view east (4/16/15)

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 118 of 158

 7. View north, downstream of Power Dam depicting over-widened, sediment starved channel (4/16/15)

8. Pre-breach fish sampling in the scour pool below Power Dam, view east (8/25/16)

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 119 of 158

 9. Access road down to floodplain causeway with silt fencing in place, view north (9/7/16)

10. Construction access causeway in place prior to removal, view north (8/25/16)

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 120 of 158

 11. Initial dam breach, view southeast (8/29/216) (credit Franklin News Post)

12. Progress of breaching activities after one day of work, view southeast (8/30/16) (credit FORVA)

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 121 of 158

 13. Woody debris removal behind Power Dam breach begins, view east (9/7/16)

14. Exposure of existing scour hole (red arrow) above Power Dam, potentially leading to wetland headcut (9/7/16)

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 122 of 158

 15. Removal of woody debris above Power Dam (9/9/16)

16. Woody debris stockpile area, view northwest (9/9/2016)

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 123 of 158

 17. Breach nearly complete, woody debris removal continues, view southeast (9/8/16)

18. River cutting channel through relict sediment immediately upstream of breach, view east (9/12/16) (credit FORVA)

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 124 of 158

 19. Fine-tuning breach opening and stockpiling of material in former scour hole to restore floodplain bench (9/12/16)

20. View southeast (upstream) of dewatering of former pool upstream of breach (9/20/16)

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 125 of 158

 21. View downstream (north) from Route 712 Bridge showing channel filling and formation (9/21/16)

22. View southeast (upstream) of channel formation in former pool sediment (9/21/16) (credit FORVA)

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 126 of 158

 23. Sixty-five foot width base flow channel completed through Power Dam (9/22/16) (credit FORVA)

24. View of left bank upstream of dam after stacked stone toe, backfilling, and matting stabilization (10/5/16)

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 127 of 158

 25. Floodplain deposition in downstream scour area during high flow event, view southeast (11/9/16) (credit FORVA)

26. Floodplain deposition on left and right banks below breach (2/2/17)

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 128 of 158

 27. Bank sloughing and new floodplain bench upstream of the breach (2/2/17)

28. Narrowing of channel and restoration of meanders downstream below Route 712 Bridge (2/2/17)

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 129 of 158

 29. Cobble and gravel sediment transport through breach in dam (5/25/17)

30. Additional coarse material deposition downstream between breach and Route 712 Bridge (5/25/17)

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 130 of 158

 31. Floodplain bench and channel post fallen tree removal (breach in background) (8/2/17) (credit FORVA)

32. Establishment of a meander bend and bank revegetation upstream of breach (8/2/17) (credit FORVA)

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 131 of 158

 33. Narrowed channel upstream and revegetation of newly formed floodplain (8/2/17) (credit FORVA)

34. Post-removal fish sampling with VDGIF and VDOT below breach (8/22/17)

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 132 of 158

 35. Riffle re-established in former scour hole below Power Dam breach (9/26/17)

36. Stable cobble/gravel point bar on the inside of a meander bend downstream of breach below Route 712 Bridge
(9/26/17)

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 133 of 158

 37. Re-established river channel and vegetated floodplain upstream of breach. Arrow depicts pool elevation (9/26/17)

38. River channel and floodplain approximately 580 feet upstream of breach. Arrow depicts pool elevation (10/25/17)

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 134 of 158

 39. Same area from opposite side of the Pigg River illustrating high banks in area. Arrow depicts pool elevation (10/25/17)

40. Re-established river channel and vegetated floodplain 2,800 feet upstream of breach. Arrow depicts pool elevation
(10/25/17)

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 135 of 158

 41. Re-established meander bend and exposed rock outcrop approximately 3,100 feet upstream of breach (10/25/17)

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 136 of 158

 APPENDIX B
Pre- and Post-Construction Cross Sections

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 137 of 158

  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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VERT: Baffl??tiu
(ELEV. RELATWE TD ASSUMED XS END PIN AT 100-) air-1113f:
113:. I

 

 

 

 

 

Case Document 2-1 Filed 07/18/19 Paoe 148 of 158

 

APPENDIX C: List of Species classified as rare, threatened, endangered or of special concern
in the Dan and Mayo River Basins. Source: U.S. Fish and Wildlife Service Information, Planning
and Conservation System (IPaC) and the North Carolina Natural Heritage Program.
TAXONOMIC
GROUP
Amphibian
Amphibian

SCIENTIFIC NAME

COMMON NAME

STATUS

COUNTY

Ambystoma talpoideum
Hemidactylium scutatum

Mole Salamander
Fouroed
Salamander
Wehrle's
Salamander
Grasshopper
Sparrow
Common Raven
Willow Flycatcher
American
Peregrine Falcon
Loggerhead Shrike
Diana Fritillary
a diplectronan
caddisfly
Carolina Ladle
Crayfish
North Carolina
Spiny Crayfish
Unicorn Clubtail

Special Concern
Special Concern

Rockingham
Stokes

Amphibian

Plethodon wehrlei

Threatened

Stokes

Bird

Ammodramus savannarum

Watch List, Rare

Rockingham

Bird
Bird
Bird

Corvus corax
Empidonax traillii
Falco peregrinus anatum

Watch List, Rare
Watch List, Rare
Endangered

Stokes
Stokes
Stokes

Bird
Butterfly
Caddisfly

Lanius ludovicianus
Speyeria diana
Diplectrona metaqui

Special Concern
Watch List, Rare
Rare

Rockingham
Stokes
Stokes

Crustacean

Cambarus davidi

Rare

Stokes

Crustacean

Orconectes carolinensis

Special Concern

Stokes

Dragonfly or
Damselfly
Dragonfly or
Damselfly
Dragonfly or
Damselfly
Dragonfly or
Damselfly
Dragonfly or
Damselfly
Dragonfly or
Damselfly
Dragonfly or
Damselfly
Freshwater
Bivalve
Freshwater
Bivalve
Freshwater
Bivalve

Arigomphus villosipes

Watch List, Rare

Rockingham

Amber-winged
Spreadwing
Mountain River
Cruiser
Edmund's Snaketail

Watch List, Rare

Rockingham

Rare

Rockingham

Rare

Stokes

Watch List, Rare

Stokes

Somatochlora georgiana

Appalachian
Snaketail
Coppery Emerald

Rare

Rockingham

Stylurus amnicola

Riverine Clubtail

Watch List, Rare

Rockingham

Elliptio fisheriana

Northern Lance

Rare

Stokes

Lampsilis cariosa

Yellow Lampmussel

Endangered

Rockingham

Lasmigona subviridis

Green Floater

Endangered

Stokes

Lestes eurinus
Macromia margarita
Ophiogomphus edmundo
Ophiogomphus incurvatus

41

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 149 of 158

 Freshwater
Bivalve
Freshwater
Bivalve
Freshwater
Bivalve
Freshwater
Bivalve
Freshwater
Fish
Freshwater
Fish
Freshwater
Fish
Freshwater
Fish
Freshwater
Fish
Freshwater
Fish
Freshwater
Fish
Freshwater
Fish
Freshwater
Fish
Freshwater
Fish
Freshwater
Fish
Freshwater
Fish
Grasshopper
or Katydid
Lichen
Lichen
Liverwort
Liverwort
Mammal
Mammal
Mammal

Pleurobema collina

James Spinymussel

Endangered

Stokes

Strophitus undulatus

Creeper

Threatened

Rockingham

Villosa constricta

Notched Rainbow

Threatened

Stokes

Villosa delumbis

Eastern Creekshell

Rare

Rockingham

Ambloplites cavifrons

Roanoke Bass

Rare

Rockingham

Carpiodes cyprinus

Quillback

Rare

Stokes

Cottus caeruleomentum

Blue Ridge Sculpin

Special Concern

Stokes

Cyprinella labrosa

Thicklip Chub

Watch List, Rare

Stokes

Etheostoma flabellare

Fantail Darter

Watch List, Rare

Rockingham

Etheostoma podostemone

Riverweed Darter

Rare

Stokes

Etheostoma vitreum

Glassy Darter

Watch List, Rare

Stokes

Exoglossum maxillingua

Cutlip Minnow

Special Concern

Stokes

Moxostoma ariommum

Bigeye Jumprock

Threatened

Stokes

Noturus gilberti

Orangefin Madtom

Endangered

Stokes

Percina rex

Roanoke Logperch

Endangered

Rockingham

Thoburnia hamiltoni

Rustyside Sucker

Endangered

Stokes

Dendrotettix australis

Watch List, Rare

Stokes

Rare
Watch List, Rare
Watch List, Rare
Rare
Rare
Rare
Watch List, Rare

Stokes
Stokes
Stokes
Stokes
Stokes
Stokes
Stokes

Mayfly
Moss
Moss

Tsalia berneri
Anacamptodon splachnoides
Andreaea rothii var. rothii

Scrub Pine
Grasshopper
Rockshag Lichen
Waterfan Lichen
A Liverwort
A Liverwort
Little Brown Bat
Tricolored Bat
Eastern Fox
Squirrel
a mayfly
Knothole Moss
Black Falcate Split
Moss

Rare
Watch List, Rare
Watch List, Rare

Rockingham
Stokes
Stokes

Ephebe lanata
Peltigera hydrothyria
Frullania plana
Plagiochila ludoviciana
Myotis lucifugus
Perimyotis subflavus
Sciurus niger

42

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 150 of 158

 Moss
Moss
Moss
Moss
Moss
Moss
Moss
Moss

Brothera leana
Dicranum fuscescens
Dicranum spurium
Entodon compressus
Fissidens asplenioides
Fissidens elegans
Helodium paludosum
Orthodontium pellucens

Moss
Moss

Philonotis longiseta
Polytrichum appalachianum

Moth

Apantesis carlotta

Moth

Argillophora furcilla

Moth

Caripeta aretaria

Moth

Catocala herodias

Moth
Moth
Moth
Moth
Moth

Chytonix sensilis
Heliomata infulata
Psamatodes abydata
Scopula aemulata
Ulolonche modesta

Moth
Reptile
Reptile
Vascular Plant

Zale sp. nr. squamularis
Cemophora coccinea
Crotalus horridus
Agastache nepetoides

Vascular Plant

Asplenium bradleyi

Vascular Plant

Baptisia albescens

Vascular Plant
Vascular Plant

Berberis canadensis
Bromus nottowayanus

Vascular Plant

Cardamine micranthera

Vascular Plant

Cardamine rotundifolia

Vascular Plant

Carex granularis

Vascular Plant

Carex mitchelliana

Boar Moss
Fuscous Moss
Rusty Fork Moss
Flattened Entodon
A Plume Moss
A Plume Moss
Pond Fern Moss
Translucent
Orthodontium
An Apple Moss
Appalachian
Haircap Moss
Carlotta's Tiger
Moth
Silver Fork Cane
Moth
Southern Pine
Looper
Herodias
Underwing
Barrens Marvel
Rare Spring Moth
Dot-lined Angle
Diminutive Wave
Modest Quaker
Moth
a new Zale
Scarlet Snake
Timber Rattlesnake
Yellow Gianthyssop
Bradley's
Spleenwort
Thinod White Wild
Indigo
American Barberry
Nottoway Valley
Brome
Small-anthered
Bittercress
Mountain
Watercress
Limestone
Meadow Sedge
Mitchell's Sedge

Watch List, Rare
Watch List, Rare
Watch List, Rare
Rare
Rare
Watch List, Rare
Watch List, Rare
Rare

Stokes
Stokes
Stokes
Rockingham
Stokes
Stokes
Stokes
Stokes

Watch List, Rare
Watch List, Rare

Stokes
Stokes

Watch List, Rare

Stokes

Watch List, Rare

Stokes

Watch List, Rare

Stokes

Rare

Stokes

Watch List, Rare
Watch List, Rare
Watch List, Rare
Watch List, Rare
Watch List, Rare

Stokes
Stokes
Stokes
Stokes
Stokes

Watch List, Rare
Watch List, Rare
Special Concern
Rare

Stokes
Rockingham
Stokes
Stokes

Rare

Stokes

Watch List, Rare

Stokes

Special Concern
Watch List, Rare

Rockingham
Rockingham

Endangered

Stokes

Threatened

Stokes

Watch List, Rare

Stokes

Watch List, Rare

Stokes
43

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 151 of 158

 Vascular Plant

Cerastium nutans

Vascular Plant

Chelone cuthbertii

Vascular Plant
Vascular Plant
Vascular Plant
Vascular Plant
Vascular Plant
Vascular Plant

Corallorhiza odontorhiza
Crataegus succulenta
Crocanthemum propinquum
Dichanthelium annulum
Dirca palustris
Echinacea laevigata

Vascular Plant
Vascular Plant

Euonymus atropurpureus var.
atropurpureus
Fallopia cristata

Vascular Plant
Vascular Plant

Fothergilla major
Gentiana austromontana

Vascular Plant
Vascular Plant
Vascular Plant

Gillenia stipulata
Hackelia virginiana
Helianthus schweinitzii

Vascular Plant
Vascular Plant

Heuchera caroliniana
Heuchera parviflora var.
parviflora
Heuchera parviflora var.
saurensis
Heuchera pubescens
Humulus lupulus var.
lupuloides
Humulus lupulus var.
pubescens
Hydrastis canadensis
Hydrophyllum virginianum
Isotria verticillata

Vascular Plant
Vascular Plant
Vascular Plant
Vascular Plant
Vascular Plant
Vascular Plant
Vascular Plant
Vascular Plant
Vascular Plant
Vascular Plant
Vascular Plant
Vascular Plant
Vascular Plant
Vascular Plant

Juglans cinerea
Juncus secundus
Liatris aspera
Liatris squarrulosa
Lindernia monticola
Luzula multiflora var.
multiflora
Lysimachia tonsa

Nodding
Chickweed
Cuthbert's
Turtlehead
Autumn Coral-root
Fleshy Hawthorn
Creeping Sunrose
Ringed Witch Grass
Leatherwood
Smooth
Coneflower
Eastern Wahoo

Watch List, Rare

Rockingham

Special Concern

Stokes

Watch List, Rare
Rare
Threatened
Rare
Watch List, Rare
Endangered

Stokes
Stokes
Stokes
Stokes
Rockingham
Rockingham

Watch List, Rare

Stokes

Crested Climbing
Buckwheat
Large Witch-alder
Appalachian
Gentian
Indian Physic
Virginia Stickseed
Schweinitz's
Sunflower
Carolina Alumroot
Grotto Alumroot

Watch List, Rare

Stokes

Rare
Watch List, Rare

Stokes
Stokes

Threatened
Rare
Endangered

Stokes
Rockingham
Stokes

Watch List, Rare
Watch List, Rare

Stokes
Stokes

Sauratown Grotto
Alumroot
Downy Alumroot
Hops

Watch List, Rare

Stokes

Rare
Watch List, Rare

Stokes
Stokes

Hops

Watch List, Rare

Rockingham

Goldenseal
John's Cabbage
Large Whorled
Pogonia
Butternut
Nodding Rush
Rough Blazing-star
Earle's Blazing-star
Flatrock Pimpernel
Heath Woodrush

Rare
Watch List, Rare
Watch List, Rare

Stokes
Rockingham
Stokes

Watch List, Rare
Watch List, Rare
Threatened
Rare
Watch List, Rare
Watch List, Rare

Stokes
Rockingham
Stokes
Stokes
Stokes
Stokes

Southern
Loosestrife

Rare

Stokes
44

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 152 of 158

 Vascular Plant
Vascular Plant

Mertensia virginica
Micranthes micranthidifolia

Vascular Plant

Mononeuria groenlandica

Vascular Plant
Vascular Plant
Vascular Plant
Vascular Plant
Vascular Plant
Vascular Plant

Vascular Plant
Vascular Plant
Vascular Plant
Vascular Plant
Vascular Plant
Vascular Plant

Monotropsis odorata
Panax quinquefolius
Panax trifolius
Paronychia argyrocoma
Parthenium auriculatum
Paspalum pubiflorum var.
glabrum
Pieris floribunda
Pinus strobus
Polemonium reptans var.
reptans
Polygonum tenue
Pseudognaphalium
micradenium
Ptelea trifoliata
Pyrola americana
Quercus bicolor
Quercus ilicifolia
Quercus muehlenbergii
Rhododendron catawbiense

Vascular Plant

Sceptridium jenmanii

Vascular Plant
Vascular Plant
Vascular Plant
Vascular Plant
Vascular Plant
Vascular Plant

Scutellaria serrata
Sedum glaucophyllum
Silphium connatum
Silphium connatum
Silphium perfoliatum
Solidago rigida var. glabrata

Vascular Plant
Vascular Plant
Vascular Plant

Solidago ulmifolia
Sphenopholis intermedia
Spiraea corymbosa

Vascular Plant
Vascular Plant

Stewartia ovata
Thermopsis fraxinifolia

Vascular Plant

Thermopsis mollis

Vascular Plant
Vascular Plant
Vascular Plant
Vascular Plant
Vascular Plant

Virginia Bluebells
Lettuce-leaf
Saxifrage
Greenland
Sandwort
Sweet Pinesap
Ginseng
Dwarf Ginseng
Silverling
Glade Wild Quinine
Hairy-seed Crown
Grass
Fetterbush
Eastern White Pine
Jacob's Ladder

Watch List, Rare
Watch List, Rare

Rockingham
Stokes

Threatened

Stokes

Special Concern
Watch List, Rare
Watch List, Rare
Watch List, Rare
Rare
Watch List, Rare

Stokes
Stokes
Rockingham
Stokes
Rockingham
Stokes

Watch List, Rare
Watch List, Rare
Threatened

Stokes
Rockingham
Stokes

Glade Knotweed
Small Rabbitobacco

Watch List, Rare
Rare

Rockingham
Stokes

Wafer-ash
American Shinleaf
Swamp White Oak
Bear Oak
Chinquapin Oak
Catawba
Rhododendron
Alabama Grapefern
Showy Skullcap
Cliff Stonecrop
Virginia Cuplant
Virginia Cuplant
Northern Cuplant
Southeastern Bold
Goldenrod
Elm-leaf Goldenrod
Prairie Wedgescale
Shinyleaf
Meadowsweet
Mountain Camellia
Ash-leaved Goldenbanner
Appalachian
Golden-banner

Watch List, Rare
Watch List, Rare
Watch List, Rare
Endangered
Watch List, Rare
Watch List, Rare

Rockingham
Rockingham
Rockingham
Stokes
Rockingham
Stokes

Special Concern

Stokes

Watch List, Rare
Rare
Special Concern
Special Concern
Threatened
Rare

Rockingham
Stokes
Stokes
Rockingham
Stokes
Rockingham

Rare
Watch List, Rare
Endangered

Rockingham
Stokes
Stokes

Rare
Special Concern

Stokes
Stokes

Special Concern

Stokes
45

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 153 of 158

 Vascular Plant
Vascular Plant
Vascular Plant
Vascular Plant
Vascular Plant

Tradescantia virginiana
Trichostema brachiatum
Tsuga canadensis
Tsuga caroliniana
Valerianella umbilicata

Vascular Plant

Verbesina virginica var.
virginica
Viola tripartita

Vascular Plant

Virginia Spiderwort
Glade Bluecurls
Eastern Hemlock
Carolina Hemlock
Woodland
Cornsalad
Frostweed

Threatened
Endangered
Watch List, Rare
Watch List, Rare
Watch List, Rare

Rockingham
Rockingham
Stokes
Stokes
Stokes

Watch List, Rare

Rockingham

Threearted Violet

Watch List, Rare

Stokes

46

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 154 of 158

 Consent Decree
Appendix C

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 155 of 158

 APPENDIX C
RESTORATION PROJECT SCOPES OF WORK
Restoration Project: Additional Mayo River Land Conservation
Project Description
To replace natural resource services allegedly lost as a result of the Release, the
Settling Defendant shall acquire, or cause to be acquired on its behalf, floodplain and
riverbank land along the Mayo River and convey, or cause to be conveyed on its behalf,
ownership of the land to the State of North Carolina for conservation as part of North
Carolina’s Mayo River State Park.
Conservation of such property within the state park system of North Carolina
provides ecological and recreational benefits: preserving high-quality habitat for
threatened or rare terrestrial and aquatic species, and providing public access and
recreational opportunities for anglers, hikers, paddlers, and other outdoor recreators.
After receiving ownership of a property, the State shall be responsible for
stewardship of the property.
Performance Criteria
 The property (up to 64.403 acres) shall be identified at the sole discretion
of, and approved by, the Trustees on the basis of benefits and values for riparian buffer
and water quality protection, protection of habitat for rare or listed species, improved
recreational access to the Mayo River, protection of property boundaries of the Mayo
River State Park from encroachment, and expansion of the land base for future facility
development and recreational opportunities at the parks.
 The property acquired shall be near or along the Mayo River from the
Virginia-North Carolina state line extending downstream, including locations identified
in the North Carolina Mayo River State Park Concept Plan.
 The property shall be conveyed to the State of North Carolina or agency
-1-

Appendix C

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 156 of 158

 thereof.
 The Settling Defendant’s acquisition of real property and conveyance of
ownership to a State is subject to Paragraphs 10 through 12 of the Consent Decree.

Restoration Project: Public Boat Access
Project Description
Public responses to the Trustees’ restoration scoping indicate that limited access in
the Dan River basin impedes recreational use and enjoyment of the Dan River. To
expand public boating opportunities within the Dan River watershed, the Settling
Defendant shall construct a boat access facility within the Dan River watershed at one or
more suitable locations identified at the sole discretion of, and approved by, the Trustees.
If determined by the Trustees as necessary for this Restoration Project, the Settling
Defendant shall acquire, or cause to be acquired on its behalf, land for such facility or
facilities. After completing construction of a facility, the Settling Defendant shall
convey, or cause to be conveyed on its behalf, ownership of the property to the State of
North Carolina or the Commonwealth of Virginia, depending on the location.
Performance Criteria
 The location(s) shall be identified at the sole discretion of, and approved
by, the Trustees on the basis of benefits and values for improved recreational access to
the Dan River watershed.
 The location(s) shall be located within the Dan River watershed along a
river used for recreational boating purposes.
 If determined by the Trustees as necessary for this Restoration Project, the
Settling Defendant shall acquire, or cause to be acquired on its behalf, land for the boat
access facility. The Settling Defendant’s acquisition of real property and conveyance of
ownership to a State shall be subject to Paragraphs 10 through 12 of the Consent Decree.
-2-

Appendix C

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 157 of 158

  The boat launch may accommodate either motorized or non-motorized
boats.
 The Trustees shall identify either (a) a maximum of one location suitable
for motorized boat access or (b) a maximum of two locations, each suitable for nonmotorized boat access.
 At each location, the Settling Defendant shall construct a boat access
facility that provides, as determined by the Trustees, either motorized boat access or nonmotorized boat access.
 If the location is in North Carolina on land acquired by the Settling
Defendant or on its behalf: The Settling Defendant shall be responsible for constructing
the boat access facility before ownership of the property is conveyed to North Carolina
and as required under Paragraph 14 of the Consent Decree. After receiving ownership of
the property with necessary improvements providing public boating access, North
Carolina shall be responsible for maintaining the facility and public boating access
thereafter.
 If the location is in Virginia on land acquired by the Settling Defendant or
on its behalf: The Settling Defendant shall be responsible for constructing the boat access
facility before ownership of the property is conveyed to Virginia and as required under
Paragraph 15 of the Consent Decree. After receiving ownership of the property with
necessary improvements providing public boating access, Virginia shall be responsible
for maintaining the facility and public boating access thereafter.

-3-

Appendix C

Case 1:19-cv-00707-TDS-JEP Document 2-1 Filed 07/18/19 Page 158 of 158