March 14, 2019

CERTIFIED MAIL #7013 2630 0002 1133 7287

RETURN RECEIPT REQUESTED
D.R. Horton, Inc.
Attn: Mr. Michael C. Loiacono, Vice President
1121 Military Cutoff Road, Suite C-322
Wilmington, NC 28405
Subject: NOTICE OF VIOLATION, NOV-2019-PC-0192
Hawkswater
Stormwater Permit No. SW8 130412
Brunswick County
Dear Mr. Loiacono:
On March 14, 2019, Wilmington Regional Office staff of the Division of Energy, Mineral and Land
Resources (DEMLR) performed a file review compliance inspection of the subject project, located on
Village Road, Leland, in Brunswick County, North Carolina. A summary of events to date is included
below. By copy of this letter to the Brunswick County Building Inspector, this office is requesting
that the Building Inspector consider withholding building permits and Certificates of Occupancy
for this project until this matter is satisfactorily resolved. If this is not sufficiently resolved by April
15, 2019 DEMLR will begin the recommendation for the enforcement of a civil penalty.
History:
1. 4/30/13: The original permit was written as SW8 060354 to Riverside Land Holding II, LLC,
who later lost the project to the bank. The first SW8 130412 permit was issued to D.R. Horton,
Inc. in April of 2013 after becoming the new property owner. Section II (16) (f) required that,
“The maximum built upon area per lot is 4,500 square feet for Phase I. Phases 2 and 3 shall be
specified with a future stormwater permit modification...” D.R. Horton, Inc. is therefore
responsible for maintaining the impervious area per lot for all lots, including lots covered by the
permit that were constructed by the previous permittee. DR Horton, Inc. is also responsible for
all other permitting responsibilities for this project in its entirety.

2. 8/24/17: A Notice of Non-Compliant Inspection was issued. A permit modification application

had been accepted on June 15, 2017 to modify Phase 3 Ponds 5 and 6. During the review,
DEMLR found that the project's plans did not match the configuration on Google Earth, and so a
site inspection was conducted on August 24, 2017. There were ponds not built per the plan such
as Phase 3 Pond 5 which was permitted to be constructed outside of the loop formed by Keekle
Lane but was instead constructed inside the loop formed by Keekle Lane. Unpermitted
construction such as several townhomes was also identified. Homes had been built that were not
on the plans such as 10222 Hawkeswater Blvd. Restrictions had been recorded in B2745/P0986,
but the restrictions did not appear to cover all of the lots in the permitted configuration because
the impervious area for Phases 2 and 3 was not permitted in 2013. It also appeared that the
impacted ponds may not have been designed to accommodate full build-out from those lots.
O&M Agreements were needed for ponds that had been modified or needed to be modified.
Certifications were needed for ponds that had finished construction. There were also specific
technical changes needed for specific ponds, and maintenance was needed.
 State Stormwater Permit No. SW8 130412
Page 2 of 5
3. 10/12/17: Permit modification with Second Notice of Non-Compliant Inspection.
a. The modification was issued for Phase 3 Pond 4 and Phase 3 Pond 6 to be redesigned,
and to add deed restrictions for Phase 3A Section C.
b. The Plan of Action requested on August 24, 2017 was due on September 25, 2017, but it
was not received.

4. 11/17/17: An incomplete permit modification application package was received. DEMLR sent
three emails requesting specific technical information that were not addressed. For instance, no
application was submitted with the modification package. It was unclear which ponds were
proposed for modification. Some drainage areas were shifting per the package. However, no
revised pond calculations were submitted. The narrative also discussed the deed restrictions for
the lots that the permittee was “responsible for”. In further discussion, DEMLR explained that
D.R. Horton, Inc. is responsible for all of the lots inside the project area, including the lots
involved in the foreclosure.

5. 12/14/17, Notice of Deficiency: The letter referenced all prior correspondence summarizing the
deficiencies previously identified.

6. 2/15/18, Permit Modification Application was accepted: Even though DEMLR knew the
application was not complete, it was accepted in hopes that DEMLR could work with the
permittee to clarify the items that needed to be addressed. A Request for Additional Information
was mailed on April 25, 2018 detailing the specific items needed to complete the review. Many
emails followed, but the requested items were still not submitted. The data submitted was
conflicting and incomplete. Specific examples include the fact that the package did not specify
which of the ten ponds were being modified. For instance, if there were three ponds to be
modified then there should be three sets of calculations. There should also be three supplements,
O&M agreements, plans and other supporting documents for the same three ponds shown in the
calculations. This was not the case. Supplements and calculations were submitted for some
ponds, but pages were missing and different ponds were listed in the supplements and/or
calculations and plans. Deed restrictions were also not submitted for all of the lots in the
subdivision that were changing. Additionally, certifications for the ponds that were built-out
were not all submitted. Various versions of forms were submitted on 11/17/17, 1/23/18, and
2/2/18, but it was unclear which forms/plans/calculations/deed restrictions/other supporting
documents were the latest versions for the intended application and which versions you intended
DEMLR to remove from your application package. Also, we had discussed specific lots that
needed to be added to the plan such as those near 489 Esthwaite Drive SE which were not
addressed in the package. Additionally, plans were labeled as “Phase 2” but it was not clear
where Phase 2 was located or which pond(s) were intended to treat it because no drainage area
map was submitted.

7. 8/9/18, Meeting: A meeting was held between Andy Mills (DR Horton), Tim Clinkscales
(engineer for DR Horton), and Kelly Johnson (DEMLR) to determine what items were needed to
continue the review. We determined that the pending modification (later issued on 10/16/18)
would address a portion of the items needed and that a subsequent modification application would
be submitted to address the remaining items. The pending modification would modify Phase 3
Pond 5 and add the configuration for Phase 2 (which was determined to be the townhomes) to the
permit. We agreed that the future permit application would modify three ponds (Ph3/Pond 4,
Ph3/Pond 6, and Ph1/Pond 3). Revised deed restrictions would also be needed for the
development.

8. 10/16/18, A permit modification issued with Notice of Continuing Deficiency because an

additional modification was needed per the August 2018 meeting. The Plan of Action was due on
November 19, 2018. Permit Section II (16) (f)(ii) required an upcoming modification by
November 19, 2019.
 State Stormwater Permit No. SW8 130412
Page 3 of 5
9. 12/12/18, Application Return: An incomplete application was received on December 12, 2018
and it was returned. The application contained a considerable amount of conflicting data similar
to previous applications, and did not fully address the items discussed at the August 2018
meeting. Examples of the conflicting and incomplete data include discrepancies between deed
restriction BUA/lot values and numbers of lots versus the summary tables submitted. Pond
revision data was included in the package that was not addressed at the prior meeting. But, the
package did not specify that other ponds would be modified in addition to the three identified at
the August 2018 meeting. DEMLR requested that you all determine which ponds needed
modifications, and then submit modification documents for those ponds.

10. 1/29/19, Project Return: A minor modification application was accepted on January 28, 2019
following a completeness review. However, once it was forwarded to the review engineer, it was
determined that, again, the application submitted did not fully address the items previously
discussed. A major modification was needed per 15A NCAC 02H .1002(23) to increase
impervious area for at least one of the ponds, Ph3/Pond 4. The minor modification application
was therefore returned. It was again unclear which ponds you intended to modify because of the
significant amount of conflicting, missing, and incomplete data in the package. The three ponds
previously discussed, Ph3/Pond 4, Ph3/Pond 6, and Ph1/Pond 3, were included but an additional
pond, Ph3/Pond 2 was also discussed in the package.

11. 3/14/19, Notice of Violation: DEMLR has spent countless hours attempting to communicate
what is needed, and has made every effort to work with you to ensure that you understand the
requirements. As documented in this letter, at the August 2018 meeting, and in the numerous
emails and letters on file you have submitted six incomplete modification applications.
Specifically, submissions on 11/17/17, 1/23/18 and 2/2/18 were revised a fourth time on 2/15/18
and accepted before the package was returned. Then, two more applications on 12/12/18 and
1/28/19 were eventually returned. Meanwhile, the project has been out of compliance for over a
year and a half. This is not acceptable.

Notice of Violation:
The project has been found in violation of Stormwater Permit Number SW8 130412, issued pursuant to
the requirements of the stormwater rules, 15A NCAC 2H.1000. The violations found are:

1. Failure to construct according to the approved plan. Per Section II (15) of the Permit the
permittee shall construct, operate and maintain the approved stormwater system in accordance
with the permit requirements and the supporting documents. In addition, per Section II (6), the
permittee shall submit to the Director and shall have received approval for revised plans,
specifications, and calculations prior to construction, for any modification to the approved plans.
There are several ponds that are not constructed per the plan. Additionally, Permit Section II (16)
(f)(ii) required a modification to the October 2018 permit to be submitted by November 19, 2018.
All parties had agreed to this process as documented in the August 2018 meeting minutes, but a
complete application has not been submitted as of this date.

2. Failure to certify the stormwater system. Per Section II (10) of the Permit, upon completion of
construction, prior to issuance of a Certificate of Occupancy, and prior to operation of this
permitted facility, a certification must be received from an appropriate designer for the system
installed certifying that the permitted facility has been installed in accordance with this permit,
the approved plans and specifications, and other supporting documentation. Any deviations from
the approved plans and specifications must be noted on the Certification. An administrative
review of the file revealed that this Office has not received the Designer’s Certification for all
ponds. Two partial certifications are on file; Ph3/Pond 5 (partial), Ph2/Pond 3 (partial).
However, full certifications for all completed ponds is required.
3. Failure to provide recorded deed restrictions. Per Section II (16) of the Permit, a copy of the
recorded deed restrictions was required to be submitted within 30 days. Revised deed restrictions
are needed. Specifically, recorded deed restrictions are needed for all sections where lots have
been sold. The deed restrictions form is needed where lots are permitted or are proposed to be
permitted but are not yet not sold.
 State Stormwater Permit No. SW8 130412
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4. Failure to Operate and Maintain the Stormwater System. Per Section II (15) of the permit, the
Permittee shall provide the operation and maintenance necessary to assure the permitted
stormwater system functions at optimum efficiency. As discussed in the August 24, 2017
inspection, ongoing maintenance is required. Operation and Maintenance agreements are also
required for all ponds. These need to be updated for ponds that need modifications. At least
three ponds are currently operating in an unpermitted configuration and therefore without an
approved O&M for the pond’s design; Ph3/Pond 4, Ph3/Pond 6, and Ph1/Pond 3. A fourth pond,
Ph3/Pond 2, may also be included in this list. A complete list is pending the upcoming
modification.
As also stated in the permit, the approved Operation and Maintenance Plan must be followed in its
entirety and maintenance must occur at the scheduled intervals, including, but not limited to:
 Routine monthly inspections;
 Sediment Removal;
 Mowing and re-vegetation of side slopes;
 Immediate repair of eroded areas;
 Maintenance of side slopes in accordance with the approved plans and
specifications;
 Debris removal and unclogging of the outlet structure, orifice device and
catch basins and piping;
 Access to the outlet / bypass structure must be available at all times.
To correct these violations, you must:

1. Modification:
a. As discussed over the enclosed emails for the January 2019 return, please determine
which ponds need to be modified, and submit an application to modify those ponds. I
believe that Ph3/Pond 4, Ph3/Pond 6, and Ph1/Pond 3 need to be modified. But, as
previously discussed you also submitted data for an additional pond (Ph3/Pond 2) in
relation to the January 2019 return. It is therefore unclear how many or which ponds
need to be modified. Please have your engineer compare the permitted data to the
proposed and/or constructed data and submit an organized and complete modification
package for all ponds that need to be modified. If any pond increases its impervious
area or increases the overall size of the stormwater control, then a major modification is
needed per 15A NCAC 02H .1002(23). As of January 2019, this was the case for at
least one pond, Ph3/Pond 4.
b. If lots were sold without deed restrictions, please ensure that the respective pond(s)
account for that impervious area at full build-out per 15A NCAC 02H .1002(23).
c. Update Attachment B of the permit per Permit Section II (16) (f)(ii).
d. Ensure all homes planned and/or constructed are on the plan such as 10222
Hawkeswater Blvd and the homes near 489 Esthwaite Drive SE which were not
previously accounted for.
e. Please ensure all data is clear and consistent. If you modify three ponds, please clarify
which ponds they are, submit all supporting documents labeled as referring to those
ponds. If you submit revised deed restrictions, please ensure that it is labeled in a way
that can be lined up per phase and per pond.

2. Deed Restrictions:
a. Submit recorded deed restrictions for all sections where lots have been sold.
b. Submit the notarized deed restrictions form for sections where lots are permitted or are
proposed to be permitted but not sold.
3. O&M:
a. Submit an O&M for any pond that is redesigned from its permitted condition.
b. Maintenance was discussed in August of 2017, which is likely out of date. Please
ensure that all systems are maintained appropriately per their O&M Agreement.
 State Stormwater Permit No. SW8 130412
Page 5 of 5
Please provide a "Plan of Action" by April 15, 2019 to DEMLR that states how and when these
violations will be corrected. If we do not receive your plan of action by this date you will be in violation
of 15A NCAC 2H.1000, which will result in the recommendation of the initiation of enforcement action
such as the assessment of civil penalties, pursuant to NCGS 143-215.6A.
If you have any questions concerning this matter, please call Kelly Johnson at (910)-796-7331.
Sincerely,

For Danny Smith, Interim Director

Division of Energy, Mineral, and Land Resources

GDS\kpj: \\\Stormwater\Permits & Projects\2013\130412 HD\2019 03 NOV 130412

enc: August 2018 Meeting Minutes
cc: Tim Clinkscales, PE, Paramounte Engineering
Inspector, Brunswick County Building Inspections
Annette Lucas, PE; DEMLR
Wilmington Regional Office Stormwater File