) In the Matter of: ) ) SOUTHWEST CAPITAL BANK, ) LAND DEVELOPMENT 2, LLC, ) CLUB RIO RANCHO ) ) Respondents. ) No.

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1 STATE OF NEW MEXICO NEW MEXICO ENVIRONMENT DEPARTMENT WATER PROTECTION DIVISION ) In the Matter of: ) ) SOUTHWEST CAPITAL BANK, ) LAND DEVELOPMENT 2, LLC, ) CLUB RIO RANCHO ) ) Respondents. ) No.: GWQB 18-_ (CO) J ADMINISTRATIVE COMPLIANCE ORDER REQUIRING COMPLIANCE AND ASSESSING A CIVIL PENALTY Pursuant to the New Mexico Water Quality Act ("WQA"), NMSA 1978, Sections to -17 and New Mexico Water Quality Control Commission Regulations ("WQCC Regulations"), NMAC, and pursuant to a delegation of authority from the Secretary of the New Mexico Environment Department ("NMED"), the Director of the Water Protection Division ofnmed hereby issues this ("Order"), on behalf of NMED's Ground Water Quality Bureau ("Bureau" or "Complainant"), to Southwest Capital Bank, Land Development 2, LLC, and ("Respondents"). The purpose of this Order is to enforce the WQA and WQCC Regulations, assess a civil penalty for Respondents' violations of the WQA and WQCC Regulations, and require Respondents to comply with the WQA and WQCC Regulations. I. FINDINGS OF FACT 1. Pursuant to the NMSA 1978, Section 9-7A-4 (1991), NMED is an executive agency within the government of the State of New Mexico. Pursuant to anmsa 1978, Section Page 1 of 15

2 74-6-2(K)(1) (2003), NMED is a constituent agency of the New Mexico Water Quality Control Commission. 2. The Complainant is an organizational unit ofnmed within its Water Protection Division. The Complainant was created pursuant to the authority granted to the Secretary of NMED under NMSA 1978, Section 9-7A-6(B)(3) (1991). 3. Pursuant to NMSA 1978, Section (A)(1) (1993), whenever, on the basis of any information, a constituent agency determines that a person violated or is violating a requirement, regulation, or water quality standard adopted pursuant to the WQA or a condition of a permit issued pursuant to that act, the constituent agency may issue a compliance order requiring compliance immediately or within a specified time period or issue a compliance order assessing a civil penalty. 4, Pursuant to NMSA 1978, Section 9-7A-6(B), the Secretary ofnmed has every power expressly enumerated in the laws, whether granted to the secretary, the department, or any division of the department. 5. Pursuant to NMSA 1978, Section 9-7A-6(B)(2), the Secretary ofnmed may delegate authority to subordinates as necessary and appropriate. Pursuant to a delegation of authority from the Secretary ofnmed, the Director of the Water Protection Division ofnmed has the authority to issue s on behalf of the Complainant. 6. Pursuant to NMSA 1978, Section (A), the WQCC may require persons to obtain from a constituent agency designated by the commission a permit for the discharge of any water contaminant. Pursuant to NMSA 1978, Section (C), prior to the issuance of a permit, the constituent agency may require the submission of plans, specifications and other relevant information that it deems necessary. Page 2 of 15

3 7. Pursuant to NMAC, no person shall cause or allow effluent or leachate to discharge so that it may move directly or indirectly into ground water unless he is discharging pursuant to a discharge permit issued by the secretary ofnmed. 8. On January 8, 2016, NMED issued a Discharge Permit Renewal, DP-1629, to Jhett Browne, Managing Member, Sweet Success, LLC pursuant to NMAC. 9. The facility for which the discharge permit has been issued is a former golf course located at 500 Country Club Drive, Rio Rancho, in Sections 24 and 25, Township 12N, Range 2E and Section 19, Township 12N, Range 3E, Sandoval County (the "Property") on which there are approximately nine ponds that are covered by DP On June 13, 2017, NMED received from Ms. Becky A. Torres, Esq., a Permittee Affidavit dated March 30, 2017, signed by Gregory W. Levenson, President of Southwest Capital Bank, attesting to the ownership of by the Southwest Capital Bank (Bank). The affidavit also states that the Bank and Land Development 2, LLC, a New Mexico limited liability company, have entered into an agreement whereby the Bank agrees to sell and Land Development 2, LLC agrees to purchase the Property. The affidavit furthers states that the Bank shall remain the permittee of the Discharge Permit NMAC requires the permittee to comply with the terms and conditions of this Discharge Permit. 12. NMED has determined that the above referenced facility is operating in violation of the conditions of DP-1629, the WQCC Regulations and the WQA. 13. NMED discussed these issues with Joshua Skarsgard, owner of Land Development 2, LLC, and followed up the discussion with a letter, dated July 25, 2017, identifying the specific violations. Admmisirative Compliance Order Page 3 of 15

4 PERMIT CONDITION^: 14. Condition 9 of the Discharge Permit requires the maintenance of the impoundment liner(s) in such a manner as to avoid conditions that could affect the structural integrity of the impoundment(s) or the liner(s). Such conditions include or may be characterized by the following: (1) the presence of vegetation including aquatic plants, weeds, woody shrubs or trees growing within five feet of the top inside edge of a sub-grade impoundment, or within the impoundment itself; or (2) the presence of large debris or large quantities of debris in the impoundment. 15. On September 18, 2017, NMED issued a Notice of Violation ("NOV") for specific violations of DP-1629, the WQCC Regulations and the WQA. The NOV required the permittee to submit a comprehensive plan to remove the shoreline vegetation for approval by NMED within 30 days (by October 18, 2017). 16. Condition 9 has been violated because, as of July 31, 2018, cattails and other vegetation have not been removed from the impoundment(s) shoreline or from within the impoundments. PERMIT CONDITION 11: 17. On September 15, 2017, NMED received, via from the Torres Law Firm (representing Land Development 2, LLC), a complete pond aeration plan for all ponds located on the Property prepared by Plant Nutrient Solutions, with the necessary aeration equipment able to be ordered and received within three weeks. 18. The NOV required the submittal to NMED, by October 18, 2017, of final plans and specifications for a proposed pond aeration system, bearing the seal and signature of a licensed NM Professional Engineer. The purpose of the aeration system is to comply with Club Rio Ranclw Page 4 of 15

5 Condition 11 of DP-1629, requiring implementation of proposals set forth in the document titled: Chamisa Hills Country Club's Pond Management Summary and Report ("CHCC Report" NMED administrative record documents Pp ). a) Critical ambient water quality criteria (i.e,, dissolved oxygen and ph) shall be maintained in the impoundments in a manner that avoids large scale waterfowl mortality due to the effects of Clostridhm botnlimim (avian botulism) and as outlmed in the CHCC Report, NMED administrative record document p Item 2 of the CHCC Report requires the use of aerators on ponds not having sufficient DO levels. 20. On October 2, 20 17, NMED received a response to the NOV referencing the September 15, 2017 aeration plan. Again, it was stated that the necessary equipment could be ordered and received in three to five weeks. The aeration plan did not bear the seal and signature of a licensed New Mexico Professional Engineer. 21. A suggested phasing plan, dated October 12, 2017, was received by NMED from the Torres Law Firm. A phasing plan for compliance was requested, indicating the installation of the aeration system was to begin on March 1, On December 14, 2017, NMED received a Conditional Closure Plan. NMED responded on April 4, 2018, stating that if the East Lakes are to remain open, the pond aeration system required in the NOV dated September 18, 2017 must be installed. 23. In response to residents' complaints, NMED personnel conducted an inspection of the Property on July 14, 2018 and observed the East Lakes were a bright green color and also observed dead goldfish throughout the lakes. The situation is indicative of an algae bloom and subsequent depletion of dissolved oxygen (DO). As of July 31,2018,no aeration system has been installed. Page 5 of 15

6 b) Monitoring of the critical ambient water quality criteria in the impoundments shall be conducted as outlined in the CHCC Report, NMED administrative record document p At a minimum, dissolved oxygen and ph shall be measured at the surface, midpoint and bottom of each impoundment (East, Northeast, Northwest and West Lakes) at least twice per month. 24. Monthly DO and ph monitoring reports were received for October 2017 through May The monitoring report for June 2018 has not been received as of July 31,2018. The May 2018 monitoring report indicated that the West Lakes and the Northwest Lake were dry. 25. Based on numerous complaints received from residents, and inspections by the City of Rio Rancho, and by NMED, the results of these violations of Permit Condition 11 have been dead fish and waterfowl, excessive mosquito infestations, and an offensive smell emanating from the impoundments. 26. The CHCC Report recommends reducing or elimination vegetative cover at the shoreline and shallow water areas to reduce the attraction to waterfowl. Tall vegetation such as cattails should be removed. 27. The NOV required the permittee to submit a comprehensive plan to remove the shoreline vegetation for approval by NMED within 30 days (by October 18, 2017). 28. Condition 11 has been violated because, as of July 31, 2018, cattails and other vegetation have not been removed from the impoundment(s) shoreline or from within the impoundments. (See Paragraphs 15 & 16 as well). PERMIT CONDITION 28: 29. Permit Condition 28 states that in the event a release occurs that is not authorized under this Discharge Permit, the permittee shall take measures to mitigate damage from the unauthorized discharge and initiate the notifications and corrective actions required in NMAC. 30. NMED was notified on May 16, 2018 at 11:38 am, via an forwarded from Page 6 of 15

7 the City of Rio Rancho, of water discharging from the Property's West Lakes into an arroyo/drainage channel. The discharged occurred on May 15, At approximately 12:50 pm on May 16, 2018, NM.ED received a phone call from the Torres Law Firm that a discharge off the Property occurred on May 15, Upon becoming aware of the discharge, all pumping was discontinued. 31. On May 17, 2018 at approximately 11:00 am, NMED received a phone call from the West Homeowners Association Communications Director stating that one of her residents reported water discharging off the Property again. At approximately 2:05 pm on the same day, the Torres Law Firm called NMED to report the unauthorized discharge. 32. On May 29, 2018, NMED infonned Mr. Skarsgard that a written spill report, pursuant to NMAC, was required. A preliminary response was received, via , on May 30, On June 5, 2018, NMED received a Corrective Action Plan ("CAP") from the Respondents. The CAP was not timely pursuant to Condition 28 ofdp-1629 (requiring submittal of a corrective action plan within 15 days of the discovery of the unauthorized discharge). 34. On June 20, 2018, NMED received Total Nitrogen sampling results for the West Lakes' south pond and the Northeast Lake. NMED responded stating that the proper QA/QC documentation was not included. The permittee was required to submit the proper documentation. The permittee indicated the samples would be retested. The resubmittal has not been received as of July 31, On July 3, 2018, NMED responded to the CAP. The CAP was not submitted within 15 days of discovery of the unauthorized discharge, as required by Permit Condition 28, and it did not meet the technical requirements regarding quality of the discharge. Submittal of Page 7 of 15

8 the effluent quality was required within 15 days, by July 18, On July 20, 2018,counsel for NMED sent an to the Torres Law Firm requesting resubmittal of the effluent quality data pursuant to the July 3 letter. As of July 31, 2018, no effluent report has been received. II. VIOLATIONS Violation 1: Respondents have continuously violated Permit Condition 11 of DP-1629 since October 2017, by failing to maintain critical ambient water quality criteria (i.e., dissolved oxygen and ph) in the impoundments in a manner that avoids environmental conditions that may result in large scale waterfowl mortality. Respondent has further violated Permit Condition 11 by failing to provide monthly DO and ph monitoring reports for the month of June Violation 2: Respondents have violated Permit Condition 28 of DP-1629 by failing to provide a timely Corrective Action Plan for the unauthorized release that occurred on May 1 5 and May 17, 2018, and by failing to provide acceptable effluent quality data for the unauthorized discharge. Violation 3: Respondents have violated Permit Conditions 9 and 1 1 that required the removal of shoreline vegetation to discourage duck nesting. As of July 31, 2018, the East Lakes and the Northeast Lake all have excessive cattail growth. III. CQMPLIANCE ORDER 36. Based upon the foregoing findings and conclusions, Respondents are hereby ordered to complete the following corrective actions in order to comply with the conditions of the discharge permit: a) Within 45 days of execution of this Order, bring the water quality within the impoundments that currently contain water, including any impoundment(s) subject to the Temporary Restraining Order or Preliminary Injunction in case number D-1329-CV , up to the standards required by DP-1629 via installation of an aeration system bearing the seal and signature of a licensed New Mexico Professional Engineer. b) Within 45 days of the execution of this Order, complete closure of the Page 8 of 15

9 impoundments that do not currently contain water as originally proposed on December 14, 2017, with the exception of any impoundments) subject to the Temporary Restraining Order or Preliminary Injunction in case number D CV Documentation required to be submitted includes any and all permits issued by the City of Rio Rancho pertaining to grading and filling, and certification by a licensed New Mexico Professional Engineer of all filling activities. c) Within 30 days of the execution of this Order, provide any delinquent monthly DO and ph monitoring reports, beginning with the reports from June d) Within 30 days of the execution of this Order, provide an acceptable Corrective Action Plan, including effluent quality reports, for the unauthorized releases which occurred on May 15 and 17, e) Within 30 days of the execution of this Order, submit a comprehensive plan to remove the shoreline vegetation for approval by NMED. 37. The monitoring reports. Corrective Action Plan, and other associated documents or information to be submitted to the Bureau under the terms of this Order shall be sent to: R. Brian Schall New Mexico Environment Department Ground Water Quality Bureau P.O. Box St. Francis Dr. Santa Fe, New Mexico (505) Failure to comply with the requirements set forth in Paragraph 36 above may subject Respondent to the assessment of an additional civil penalty. Section (F) of the WQA authorizes the assessment of an additional civil penalty of not more than $25,000 for each day of continued noncompliance if Respondents fail to comply with the requirements of this Page 9 of 15

10 Order. If Respondents fail to timely comply with the application requirements, NMED may seek to assess an additional civil penalty of not more than $25,000 for each day ofnoncompliance. IV. CIVIL PENALTY 39. Section (C)(1) (1993) of the WQA authorizes assessment of a civil penalty of up to $15,000 per day for noncompliance with the provisions of Section of the WQA, including a regulation adopted or a permit issued pursuant to that section. 40. Section (C)(2) (1993) of the WQA authorizes assessment of civil penalty of up to $10,000 per day for each violation of a provision of the WQA other than the provisions in Section or of a regulation or water quality standard adopted pursuant to the WQA. 41. NMED hereby assesses a civil penalty in the amount of Eighteen Thousand dollars ($18,000.00) for the violations set forth above. The penalty is based upon the penalty calculation narrative attached to this Order. See Attachment Payment of the civil penalty is due no later than 30 calendar days after this Order becomes final. Payment shall be made by certified or cashier's check payable to the State of New Mexico and mailed (certified) or hand delivered to the Bureau at the following address: Michelle Hunter, Bureau Chief Ground Water Quality Bureau New Mexico Environment Department 1190 St. Francis Dr, Suite N-2250 Santa Fe,NM Written notification of the payment shall also be provided to the following address: John Verheul, Assistant General Counsel Office of General Counsel New Mexico Environment Department 121 Tij eras Avenue NE, Ste Albuquerque, New Mexico Telephone: (505) Facsimile: (505) Page 10 of 15

11 V. NOTICE OF OPPORTUNITY TO ANSWER AND REQUEST A HEARING 43. Pursuant to Section (G) of the WQA, Respondents have the right to answer this Order and to request a public hearing. 44. If Respondents: (a) contests any material or legal matter upon which the Order is based; (b) contends that the amount of the penalties proposed in the Order is inappropriate; (c) contends that Respondents are entitled to prevail as a matter of law; or (d) otherwise contest the appropriateness of the Order, Respondents may mail or deliver a written Request for Hearing and Answer to the Order to the WQCC, at the following address: Pam Castaneda, Commission Administrator Water Quality Control Commission P.O. Box 5469 Santa Fe, NM Telephone: (505) Respondents must file the Request for Hearing and Answer to the Order within 30 days after Respondents' receipt of the Order. 46. Respondents must attach a copy of this Order to its Request for Hearing and Answer to the Order. 47. A copy of the Answer and Request for Hearing must also be served on counsel for NMED at the following address: John Verheul Assistant General Counsel New Mexico Environment Department 121 Tij eras Avenue NE, Suite 1000 Albuquerque, New Mexico Respondents' Answer shall clearly and directly admit, deny, or explain each of the factual allegations contained in the Order with regard to which Respondents have any knowledge. Where Respondents have no knowledge of a particular factual allegation, Club Rio Ran c ho Page 11 of 15

12 Respondents should so state, and Respondents may deny the allegation on that basis. Any allegation of the Order not specifically denied shall be deemed admitted. Respondents' Answer shall also include any affirmative defenses upon which Respondents intend to rely. Any affirmative defense not asserted in the Answer, except a defense asserting lack of subject matter jurisdiction, shall be deemed waived. 49. The WQCC Adjudicatory Procedures, NMAC, shall govern the hearing if Respondents request a hearing. VI. FINALITY OF ORDER 50. This Order shall become final unless Respondents file a Request for Hearing and Answer to the Order with the WQCC within 30 days of receipt of this Order. 51. The failure to file an Answer constitutes an admission of all facts alleged in the Order and a waiver of the right to a hearing under Section (0) of the WQA concerning this Order. 52. Unless Respondents request a hearing and files an Answer, the penalty proposed in this Order shall become due and payable without further proceedings within 30 days after receipt of this Order. VII. SETTLEMENT 53. Whether or not Respondents request a hearing and files an Answer, Respondents may confer with NMED concerning settlement. NMED encourages settlement consistent with the provisions and objectives of the WQA and applicable WQCC Regulations. To explore the possibility of settlement in this matter. Respondents may contact the attorney assigned to this case at the following address: Page 12 of 15

13 John Verheul Assistant General Counsel New Mexico Environment Department 121 Tijeras Avenue NE, Ste Albuquerque, New Mexico Telephone: (505) Settlement discussions do not extend the 30-day deadline for filing of Respondents' Request for Hearing and Answer to the Order, or alter the deadlines for compliance with this Order. Settlement discussions may be pursued as an alternative to and simultaneously with the hearing proceedings. 55. Respondents may appear at the settlement conference alone or represented by legal counsel. 56. Any settlement reached by the parties shall be finalized by written settlement agreement and a stipulated final order. A settlement agreement and stipulated final order must resolve all issues raised in the Order, must be final and binding all parties to the Order, and may not be appealed. VIII. COMPLIANCE WITH OTHER LA 57. Compliance with the requirements of this Order does not relieve Respondents of the obligation to comply with all other applicable laws and regulations. IX. TERMINATION 58. This Order shall terminate when Respondents certify that all requirements of this Order have been met, and NMED has approved such certification, or when the Secretary approves a stipulated final order. Club Rio Ranclio Page 13 of 15

14 Bruc^'yt^-din, Division Director Water Pfotection Division New Mlexico Environment Department Date Club Rio Ranclw Page 14 of 15

15 CERTIFICATE OF SERVICE I hereby certify that on A- ^ ^ ^ ^ ^- 2-, 2018, a true and accurate copy of the Requiring Compliance and Assessing a Civil Penalty was served as indicated on Respondents at the following addresses: VIA CERTIFIED MAIL - RETURN RECEIPT REQUESTED Gregory W. Levenson, President Southwest Capital Bank 1410 Central AveSW Albuquerque, NM Joshua Skarsgard, Owner Land Development 2, LLC 8220 San Pedro NE, Suite 500 Albuquerque, NM Respondent Respondent Becky A. Torres 8220 San Pedro NE, Suite 500 Albuquerque, NM Counsel for Land Development 2, LLC John Verh^ul Assistant General Counsel New Mexico Environment Department Page 15 of 15

16 SOUTHWEST CAPITAL BANK, LAND DEVELOPMENT 2, LLC, CLUB RIO RANCHO PENALTY ASSESSMENT NARRATIVE FOR PENALTY CALCULATION VIOLATION 1: Violating Permit Condition 11 ofdp-1629 since October 2017 by failing to maintain critical ambient water quality criteria (i.e., dissolved oxygen and ph) in the impoundments in a manner that avoids environmental conditions that may result in large scale waterfowl mortality, and by failing to provide monthly DO and ph monitoring reports for the month of June GRAVITY-BASED PENALTY (a) Potential for Harm: MINOR Risk of Ground Water Contamination: None, groundwater is approximately 400 feet below ground surface. Potential Seriousness of Contamination: None (b) Extent of Deviation from Requirement: MODERATE Land Development 2, LLC has submitted plans for an aeration system but has not responded to the Bureau's requirement that the plans be signed and sealed by a licensed New Mexico Professional Engineer. Land Development 2, LLC has repeatedly indicated that the necessary equipment could be ordered and received in three to five weeks. The Bureau has not been informed that the equipment has been ordered. The Bureau informed Land Development 2, LLC in April 2018 that the aeration system is required to be installed in the East Lakes if the lakes are to remain open. Ambient water quality is required to be monitored twice per month and reported to the Bureau monthly. The June 2018 report has not been submitted. As a result. Land Development 2, LLC is not meeting permit conditions. (c) Calculation ofmulti-day Penalty: Land Development 2, LLC provided a complete pond aeration plan for all ponds located on the Property. The Bureau issued a NOV on August 18, 2017 requiring the submittal of the final plans and specifications for a proposed pond aeration system, bearing the seal and signature of a licensed New Mexico Professional Engineer by October 18, Pursuant to the Ground Water Quality Bureau Civil Penalty Assessment Policy, multi-day penalties for violations characterized as Minor/Moderate are discretionary. Because this violation has no immediate or potential impacts to groundwater based on the depth to groundwater, the Bureau declines to assess multi-day penalties at this time.

17 (d) In assessing the degree ofwillfulness and/or negligence, the following factors were considered: Joshua Skarsgard, owner of Land Development 2, LLC, had complete control over the events constituting the violation, and disregarded repeated efforts by the Bureau to achieve compliance. Mr. Skarsgard was aware of the hazards associated with this conduct, and the legal requirements of the permit conditions which were violated. (e) History ofnoncompliance: Land Development 2, LLC has no past history of noncompliance. 2. ADJUSTMENT FACTORS (a) Good Faith: Not applicable. (b) Willfulness/Negligence: +100% (c) History ofnoncompliance: Not applicable (d) Ability to pay: Not applicable. (e) Environmental Project: Not applicable. (f) Other Unique Factors: None. 3. ECONOMIC BENEFIT: Not determined. 4. PENALTY AMOUNT: Gravity Based Penalty $3,000 Multi-Day (# days X penalty) N/A Total Prior to Adjustments $3000 Adjustment Factors +100% Economic Benefit N/A TOTAL AFTER ADJUSTMENTS $6,000

18 VIOLATION 2: Violating Permit Condition 28 ofdp-1629 since June 2018 by failing to provide a timely Corrective Action Plan for the unauthorized releases that occurred on May 15 and May 17, 2018, and by failing to provide acceptable effluent quality data for the unauthorized discharge. 1. GRAVITY-BASED PENALTY (a) Potential for Harm: MINOR Risk of Ground Water Contamination: None, groundwater is approximately 400 feet below ground surface. Potential Seriousness of Contamination: None fb) Extent of Deviation from Requirement: MODERATE Land Development 2, LLC submitted a Corrective Action Plan (CAP) on June 5,2018. The CAP was not timely pursuant to Condition 28 of the Discharge Permit. The Bureau received Total Nitrogen sampling results for the unauthorized release. The sampling results did not include proper QA/QC documentation. The Bureau required Land Development 2, LLC to submit the proper documentation. Land Development 2, LLC has ignored the Bureau's additional request for the documentation. As a result, Land Development 2, LLC is not meeting the requirements of Condition 28 of DP (c) Calculation ofmulti-day Penalty: Land Development 2, LLC was required to submit the QA/QC documentation by July 18, Pursuant to the Ground Water Quality Bureau Civil Penalty Assessment Policy, multi-day penalties for violations characterized as Minor/Moderate are discretionary. Because this violation has no immediate or potential impacts to groundwater based on the depth to groundwater, the Bureau declines to assess multi-day penalties at this time. (d) In assessing the degree ofwillfulness and/or negligence, the following factors were considered: Joshua Skarsgard, owner of Land Development 2, LLC, had complete control over the events constituting the violation, and disregarded repeated efforts by the Bureau to achieve compliance. Mr. Skarsgard was aware of the hazards associated with this conduct, and the legal requirements of the permit conditions which were violated. (e) History ofnoncompliance: Land Development 2, LLC has no past history of noncompliance. 2. ADJUSTMENT FACTORS (a) Good Faith; Not applicable. (b) Willfalness/Negligence: +100% 3

19 (c) History ofnoncompliance: Not applicable (d) Ability to pay: Not applicable. (e) Environmental Project: Not applicable. (f) Other Unique Factors: None. 3. ECONOMIC BENEFIT: Not determined. 4. PENALTY AMOUNT: Gravity Based Penalty $3,000 Multi-Day (# days X penalty) N/A Total Prior to Adjustments $3000 Adjustment Factors +100% Economic Benefit N/A TOTAL AFTER ADJUSTMENTS $6,000

20 VIOLATION 3: Respondents have violated Permit Conditions 9 and 11 which require the removal of shoreline vegetation to discourage duck nesting. As of July 31, 2018, the East Lakes and the Northeast Lake all have excessive cattail growth. 1. GRAVITY-BASED PENALTY fa) Potential for Harm: MINOR Risk of Ground Water Contamination: None, groundwater is approximately 400 feet below ground surface. Potential Seriousness of Contamination: None (b) Extent of Deviation from Requirement: MODERATE The Bureau required a comprehensive plan to remove the vegetation in the lakes be submitted for approval by October 18, The Bureau has not received the plan nor has any vegetation been remove. As a result, Land Development 2, LLC is not meeting the requirements of Conditions 9 and HofDP (c) Calculation ofmulti-day Penalty: Land Development 2, LLC was required to submit the vegetation removal plan by October 18,2017. Pursuant to the Ground Water Quality Bureau Civil Penalty Assessment Policy, multi-day penalties for violations characterized as Minor/Moderate are discretionary. Because this violation has no immediate or potential impacts to groundwater based on the depth to groundwater, the Bureau declines to assess multi-day penalties at this time. (d) In assessing the degree ofwillfulness and/or negligence, the following factors were considered: Joshua Skarsgard, owner of Land Development 2, LLC, had complete control over the events constituting the violation, and disregarded repeated efforts by the Bureau to achieve compliance. Mr. Skarsgard was aware of the hazards associated with this conduct, and the legal requirements of the permit conditions which were violated. (e) History ofnoncompliance: Land Development 2, LLC has no past history of noncompliance. 2. ADJUSTMENT FACTORS (a) Good Faith: Not applicable. (b) Willfulness/Negligence: +100% (c) History ofnoncompliance: Not applicable (d) Ability to pay: Not applicable. 5

21 (e) Environmental Project: Not applicable. (f) Other Unique Factors: None. 3. ECONOMIC BENEFIT: Not determined. 4. PENALTY AMOUNT: Gravity Based Penalty $3,000 Multi-Day (# days X penalty) N/A Total Prior to Adjustments $3000 Adjustment Factors +100% Economic Benefit N/A TOTAL AFTER ADJUSTMENTS $6,000