SW8910401_Ltr re Corrected Notice of Inspection_20191031

I
ROY COOPER
Governor
MICHAEL S. REGAN
Secretary
S. DANIEL SMITH
Director
October 31, 2019
NORTH CAROLINA
Envtrantntntal Qualtty
Porters Neck Company, Inc. NOV O 8 201'q
ATTN: John A. Elmore, II, President
c/o Jerry Mannen, Attorney DENR-LAND QUALITY
Yow, Fox and Mannen STORMWATER PERMITTING
102 North Fifth Avenue
Wilmington, NC 28401
Subject: Corrected Notice of Inspection - Not Compliant
Porters Neck Plantation Master Permit
State Stormwater Management Permit No. SW8 910401
New Hanover County
Dear Messrs. Elmore and Mannen:
On March 21, 2018, staff of the Wilmington Regional Office of the Division of Energy, Mineral and
Land Resources (DEMLR) inspected the subject project, located off Porters Neck Road in New
Hanover County. The compliance report that was generated as a result of that inspection contained
an error. The report stated that an Engineer's Certification for the project was in the file. In fact, the
Master Permit had no requirement to submit an Engineer's Certification, and no such certification is
in the Master Permit file.
The corrected compliance inspection report attached, dated October 30, 2019, states that there is
no Engineer's Certification in the file. This correction to the inspection report does not impact or
change the deficiencies listed in the Notice of Violation which was issued on March 23, 2018.
In addition, the Division's letter to Ms. Amy Wang, dated March 23, 2018, also contained an error.
The letter incorrectly states that most the projects within PNP that required a separate permit have
been certified. That statement should have read that most projects within PNP that required a
separate permit have NOT been certified. In fact, a review of each and every individual permit file
for Porters Neck Plantation (except for the Master Permit file as explained above) indicates that
none of the required PE certifications have been submitted.
If you have any questions, please contact me in the Wilmington Regional Office, telephone number
(910)-796-7215.
Sinqorely,
Georgette Scott
Stormwater Supervisor
Enclosure: October 30, 2019 Corrected Compliance Inspection Report
GDS\arl: G:\\\Stormwater\Permits & Projects\ 199 1 \910401 LD\2019 10 CEI_deficient 910401
cc: Jimmy Fentress, PE, Stroud Engineering
John Payne, Special Deputy Attorney General
Douglas R. Ansel, Assistant General Counsel
' 9ftkbgDEMLR, Director
Amy Wang, Attorney for Porters Neck HOA
WiRO Stormwater Permit File
D E Q North Carolina Department of Environmental Quality I Division of Energy, Mineral and Land Resources
Wilmington Regional Office 1 127 Cardinal Drive Extension I Wilmington, North Carolina 28405
NCRP.i WgLJNA
910.796.7215

r
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Compliance Inspection Report
Permit: SW8910401 Effective:09/05/91 Expiration:
Project: Porters Neck Plantation Master Plan
Owner: Porters Neck Company Inc
County: New Hanover Adress: 1202 Porters Neck Rd
Region: Wilmington
City/State/Zip: Wilmington NC 28411
Contact Person: John Elmore Title: Phone:
Directions to Project:
Type of Project: State Stormwater - Infiltration System State Stormwater - Low Density
Drain Areas: 1 - (Futch Creek) (03-06-24) ( SA,HQW)
On -Site Representative(s):
Related Permits:
Inspection Date: 10/30/2019 Entry Time: 03:38PM Exit Time: 03:45PM
Primary Inspector: Alida R LewisAl
Secondary Inspector(s):
Phone: [phone]
Reason for Inspection: Follow-up Inspection Type: Transfer Renewal
Permit Inspection Type: State Stormwater
Facility Status: ❑ Compliant Not Compliant
Question Areas:
0 State Stormwater
(See attachment summary)
page: 1

Permit: SVV8910401 Owner - Project: Porters Neck Company Inc
Inspection Date: 10/30/2019 Inspection Type Transfer Renewal Reason for Visit: Follow-up
Inspection Summary:
This inspection report is being corrected to fix an error. In the March 21, 2018 report, the inspector checked the YES box
that an Engineers Certification was in the file. This October 30, 2019 corrected inspection report indicates that the NO
box has been checked to reflect the fact that an Engineer's Certification was not required by the Master Permit and that
no Engineers Certification is in the Master Permit file.
The project was originally inspected on July 30, 2014, in order to determine if the project was in compliance for transfer.
Issues with the 5080 BUA per lot were discussed with Rich Donaldson who indicated to Division staff that the 5080 sf
had been implemented as an "average" since the beginning. This is in direct conflict with the current permit, which sets
the 5080 sf as a finite maximum allowed BUA per lot. Mr. Donaldson indicated that there were records documenting all
of the BUA that had been constructed in PNP and which provided evidence that the average BUA per lot in PNP was
indeed at 5080 sf or less.
Mr. Donaldson requested clarification from the Division as to how the Division would interpret the way that the deed
restriction language had been recorded, i.e., as an average vs. a finite number. The Division requested clarification and
assistance from the AG via email dated August 14, 2014, but received no written reply or guidance. Since no information
was provided, the Division continued to press the permittee to amend the deed restrictions to reflect the permitted
language.
On September 4, 2017, the Division received a phone call from the permittee, John Elmore, who indicated that it would
not be possible for him to amend the deed restrictions since he no longer had any standing in the HOA. In the interest of
moving things along, on September 19, 2017, the Division sent the permittee an email offering to modify the permit to
allow the continued use of the BUA averaging method. The permittee declined to modify the permit.
It should be noted that the Division also notified the HOA that the HOA could request to have the permit transferred to
them under SL 2013-121, without the signature of the permit holder, if the HOA owned the common areas of the project.
The HOA did not want to follow this course of action because of the compliance issues.
The question of how(if) the development of Eagle Point Golf Course has affected the original 744.9 acre project area has
been raised in the past. Research has found a low density permit for Section 2 of PNP issued under SW8 921105.
During the review of that application, the reviewer noted that the SW8 910401 permit needed to be modified to reflect the
loss of that project area. Section 2 of PNP was later re -permitted in 1998 as Eagle Point Golf Course under SW8 980634
and covers the same project area as the SW8 921105 permit. The SW8 910401 permit was never modified to reflect the
reduction in project area.
page: 2

Permit: SW8910401 Owner - Project: Porters Neck Company Inc
Inspection Date: 10/30/2019 Inspection Type Transfer Renewal Reason for Visit: Follow-up
File Review Yes No NA NE
Is the permit active? ® ❑ ❑ ❑
Signed copy of the Engineer's certification is in the file? ❑ ❑ E ❑
Signed copy of the Operation 8 Maintenance Agreement is in the file? ❑ ❑ 0 ❑
Copy of the recorded deed restrictions is in the file? ❑ ■ ❑ ❑
Comment: 1. The recorded deed restrictions on file describe the_5080 sf BUA limit as an overall subdivision -wide
per lot average and not as a finite maximum On September 19 2017 in the interest of moving the
transfer of the permit to the Association along the Division offered to modify the permit to reflect the
language as it was recorded on June 13 1991 in DB 1555 at PG 957 The permittee declined the offer.
Records of the running total of BUA were being kept but it is not known what happened to those
records and it is not known what the current average BUA is within Porters Neck Plantation.
Other Permit Conditions
Is the site compliant with other conditions of the permit?
Yes No NA NE
❑ E ❑ ❑
Comment: 2. Permit documents on file for SW8 921105 (Section 2 of PNP) indicate that Section 2 is the same
proiect area as Eagle Point Golf Course under SW8 980634. Property records indicate that Porters
Neck Company sold 229.49 acres of the original 744.9 acre property area to Eagle Point Golf Club LLC
on April 29 1998. The SW8 921105 low density permit was sued on June 30, 1993. This permit file
contains a table prepared by Mark Veenstra PE with McKim & Creed at the time, which lists the
proiect areas and built -upon areas individually for Section 1 and Section 2. The file also contains
hand-written "memos to the file" from the reviewer regarding the need to obtain a modified permit for
Section 1 under SW8 910401 to account for the loss of proiect area. The SW8 910401 permit has not
been modified to date,
page: 3