NCS000517_Sandy Point NOD-201-PC-0211_20191002

ROY COOPER
Governor
MICHAEL S. REGAN
Secretary
S. DANIEL SMITH
Director
NORTH CAROLINA
£nvtronmentalQuakty
October 2, 2019
CERTIFIED MAIL 7019 1120 0000 5077 1117
RETURN RECEIPT REQUESTED
The Fund for Sandy Point North Carolina, LLC
Attn: Sam Young, President
P.O. Box 789
Edenton, NC 27932
Subject: NOTICE OF DEFICIENCY (NOD-2019-PC-0211)
The Fund for Sandy Point
NPDES MS4 Permit No. NCS000517
Chowan County
Dear Mr. Young:
On August 19, 2019, staff from the North Carolina Department of Environmental Quality (DEQ),
Division of Energy, Mineral and Land Resources (DEMLR) conducted a compliance review of the
National Pollutant Discharge Elimination System (NPDES) Municipal Separate Storm Sewer System
(MS4) permit for The Fund for Sandy Point NC, LLC (Sandy Point). Technically, Sandy Point is
deficient in implementing a comprehensive stormwater management program in accordance with its MS4
permit. However, Sandy Point is singularly unique among permitted MS4s in North Carolina. As shown
in Figure 1 below and confirmed by a site visit, the construction of the 930-acre Sandy Point private
development project has not yet occurred. Therefore, there is currently no MS4 in place, no municipal
operations to manage, and the population is zero. Essentially, there is nobody to implement the permitted
MS4 stormwater management program requirements, and nothing to which to apply those same
requirements.
Figure 1. Aerial Photograph of Sandy Point Development
North Carolina Department of Environmental Quality I Division of Energy, Mineral and Land Resources
512 North Salisbury Street 1 1612 Mail Service Center I Raleigh, North Carolina 27699-1612
rvoam cu+ouw.
919.707.9200

Normally, regulated MS4s are subject to NPDES MS4 permitting when they meet specific federal or state
designation criteria [Ref. 40 CFR 122, 15A NCAC 0211.0100, 15A NCAC 02H .100]. The state and
federal MS4 designation criteria are summarized in the bullets below; Sandy Point does not meet any of
the criteria that would trigger the requirement for an NPDES MS4 permit. The current population,
density, and concentration of housing units at Sandy Point is zero (0). Sandy Point does not:
• Own or operate a system of stormwater conveyances;
• Have any point source discharges of stormwater;
• Serve a Phase I large or medium MS4 population of 100,000 or greater;
• Serve a Phase II small MS4 located within a census designated urbanized area;
• Serve a Phase II small MS4 located in a contiguous census block group;
• Serve a population greater than 10,000 or more than 4,000 housing units;
• Serve a population density of 1,000 people per square mile or more, or greater than 400 housing
units per square mile.
The subject MS4 permit was issued by DEQ in 2006 in response to Sandy Point's permit application,
which was submitted to comply with Session Law 2004-117, Section 3.(b)(5). This session law
established requirements for a New Urban Waterfront Development (NUWD) pilot project. The law
specifically required that Sandy Point, as a NUWD, submit an MS4 permit application and obtain the
permit prior to commencement of construction. To date, construction has not commenced and Sections 1
— 3 of the act expired on July 1, 2010. It is the opinion of DEMLR that, since the session law expired
prior to commencement of construction, Sandy Point is no longer subject to mandatory MS4 permitting
under this law.
Furthermore, MS4 permits are typically issued to public entities that have the authority to enact and
enforce ordinances; review, approve, inspect, and enforce development plans; and otherwise implement a
comprehensive stormwater management program throughout the permittee's jurisdictional area. It is the
opinion of DEMLR that a private development project with an MS4 permit is an unanticipated use of the
federal MS4 program and would not have been approvable absent the now -expired session law.
More appropriately, Sandy Point is specifically subject to the state's Coastal Stormwater Program [Ref.
15A NCAC 02H ,1019]. This program regulates development activities in the 20 coastal counties and
Sandy Point meets all of the coastal program triggers for development activity:
• Requires an erosion and sediment control plan,
• Is subject to a CAMA Major Permit, and
• Has non-residential built upon area of more than 10,000 square feet.
However, DEMLR also recognizes that other state and/or federal permitting authorities may have relied
upon the previously required and issued MS4 permit as a condition of their project approval(s).
With this information, Sandy Point has three options to consider:
Allow the current permit to expire on July 24, 2022. Please note the issued permit contains a
typographical error which erroneously lists the expiration date as July 24, 2025. Sandy Point will
be held accountable for permit compliance, including annual reporting and the annual
administering and compliance monitoring fee (fee), until such time as the permit expires. Please
note that failure to pay the fee within thirty (30) days after being billed will cause the Division to
initiate action to revoke the permit [Ref. NPDES MS4 Permit number NCS000517, Part VII; 15A
NCAC 2H .0105(b)(4)].

2. Request permit termination for cause in accordance with Part V, Section A.10 of the current
permit by submitting a written request to DEMLR. In the event of MS4 permit termination,
DEMLR shall contemporaneously issue an approval letter for the previously approved plans and
specifications for Phase I of the Sandy Point development, as currently provided for and
referenced in Part I.D, Part LI, and Attachment A of the MS4 permit. All future phases of the
Sandy Point development shall require approval by DEMLR pursuant to 15A NCAC 2H .1000
[Ref. Part LD of the current permit].
3. Request modification of the current permit conditions and reissuance of a new five year permit
which includes development and implementation of the required Stormwater Management Plan
(SWMP) consistent with, and appropriate for, the phased development activity and in -situ
resident population at Sandy Point.
Required Response
As a condition of this Notice of Deficiency, Sandy Point is hereby required to complete the following
actions:
(1) Within thirty (30) calendar days from the date of receipt of this notice, respond in writing to
acknowledge receipt of this notice.
(2) Within ninety (90) calendar days from the date of receipt of this notice, respond in writing to
request either:
a. Expiration of the current permit on July 24, 2022.
b. Termination of the current permit, or
c. Modification and reissuance of the permit for a new five year permit term.
The required documentation, as specified above, shall be submitted to:
DEQ-DEMLR Stormwater Program
Attn: Jeanette Powell
1612 Mail Service Center
Raleigh, NC 27699-1612
If Sandy Point fails to meet the aforementioned requirements, then DEQ may proceed with enforcement.
Thank you for your prompt attention to this matter. Should you have any questions, please contact me at
[phone] or Jeanette.Powellnancdenr. ov.
Sincerely,
J antte Powell
MS4 Program Coordinator
cc: Brian Rubino, Quible & Associates, P.C.
Jeanette Powell, DEMLR MS4 Program Coordinator
Alaina Morman, DEMLR Stormwater Compliance & Enforcement
Samir Dumper, Washington Regional Office
DEMLR NPDES MS4 Permit Laserfiche File