Developer in SE Durham faces possible lawsuit for alleged Clean Water Act violations
The Southern Environmental Law Center filed a "Notice of Intent to Sue" on behalf of Sound Rivers, an environmental advocacy group, against Mungo Homes, the developer of a 216-acre parcel in Durham.
A developer may face a lawsuit for allegedly violating the Clean Water Act while constructing a project still underway in southeast Durham, according to documents obtained by Bull City Public Investigators.
In a “60-Day Notice of Intent to Sue” dated May 10, local environmental nonprofit Sound Rivers claimed that South Carolina-based developer Mungo Homes has committed multiple Clean Water Act violations by failing to control sediment runoff from a 216-acre development site at 1001 Olive Branch Road.
“For over a year,” the developer has allegedly caused “sediment-laden runoff to be deposited in Martin Branch, Lick Creek, and ultimately Falls Lake,” according to the notice. “This sediment clouds the water, changes the stream bed, and partially fills wetlands. It also violates Clayton’s permits and North Carolina water quality standards.”
The notice was addressed from the Southern Environmental Law Center (SELC) to Chris Simmering, vice president of land acquisitions and development at Mungo Homes.
Mr. Simmering refuted the claims during a phone call with BCPI on Monday afternoon.
“This caught us out of the blue,” he said. “We have had no major violations requiring reporting.”
The SELC notice, though, details six inspections by the Durham County Stormwater and Erosion Control Division since April 2022 and as recently as March 2023 where violations of the developer’s own Erosion and Sediment Control Plan for the site were identified. Violations ranged from “failure to install groundcover” to “failure to follow erosion control plan” and “insufficient measures to retain sediment on site,” according to the notice.
Samantha Krop, the Neuse riverkeeper at Sound Rivers who has been collecting regular water samples at established collection points in the Lick Creek watershed since 2022, told BCPI these alleged violations put the developer out of compliance with their own submitted action plans and are leading to Clean Water Act violations.
“In this instance it was evident that the Sweetbrier development was contributing to sediment-filled runoff in the creek, which is a Clean Water Act violation,” Ms. Krop said.
“We have sent numerous notifications to the City of Durham and Durham County Erosion Control as well as to State authorities,” Ms. Krop said.
At her most recent water sample collection on May 2, Ms. Krop measured turbidity “that exceeded the state limit by a factor of over twenty,” per the notice.
Mr. Simmering contended that there are no open or recent violations that would prompt action.
“If there is a problem, [Durham County] would tell us and we would fix it,” Mr. Simmering said. “We have no knowledge of any unaddressed, open, or ongoing issues.”
Mr. Simmering presented the original proposal for the development, which came to be known as “Sweetbrier,” to the Durham City Council on December 16, 2019. The council passed an annexation of the 216-acre parcel in a 4-3 vote, with Councilmembers Javiera Caballero, Jillian Johnson and Mark-Anthony Middleton voting yes alongside former Councilmember Vernetta Alston.
By September 2020, site work at the 216-acre development was well underway, as documented in a Facebook video featuring drone footage posted by a land clearing and grading subcontractor.
With the SELC notice, Sound Rivers has enacted the first step toward litigation by formally initiating a 60-day period to potentially resolve the matter.
“We are willing to discuss effective remedies for the violations noted in this letter,” the notice concludes.
Mr. Simmering told BCPI that Mungo Homes, likewise, is “seeking to find resolution to the matter.”
If the two sides cannot reach an agreement by July 9, Sound Rivers could then proceed with a civil lawsuit against Mr. Simmering and Mungo Homes.
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Are the city council members who voted to approve this project accepting responsibility for laying Durham open to plunder and profiteering by the insatiable developers who see Durham as their bottomless treasure chest? There is never an effort by the council to follow up on the consequences of the council's actions. The planning department claims they cannot stop work on projects regardless of permit or environmental law violations. Why is that? A majority of the council simply ignore the environmental costs of the massive development they routinely approve. The responsible minority, Mayor O'Neil, and members Freeman and Holsey-Hyman, are the conscience of the council but, unless one of the developers' four are absent, they are ignored or worse. (The ongoing effort to destroy the career of Holsey-Hyman is intended to eliminate tie votes which defeat applications).