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affected land and of the surrounding area, MLRB should defer to the findings of DWR regarding <br /> water law compliance matters. Specifically, MLRB should defer to DWR's recommended <br /> conditions that any diversions from the proposed drain into Hazeltine Reservoir be addressed <br /> through measurement, accounting and operations and conditioned upon a requirement that any <br /> such water not be used for beneficial purposes and must be discharged back to the stream without <br /> consumptive use. <br /> Implicit in DWR's proposed conditions is that the Applicant's proposed plan complies with <br /> applicable Colorado water law and that no plan for augmentation is required. While MLRB has <br /> the authority exclude incompetent evidence (Construction Materials Rules and Regulations, Rule <br /> 2.8.1(2)(c)), to the extent that MLRB considers such evidence and/or testimony, it should not <br /> substitute its own judgment in place of DWR in matters related Colorado water law compliance, <br /> specifically assessing whether a plan for augmentation is necessary. <br /> In addition, any such evidence or testimony proffered by an Objector to call into question <br /> DWR's determination that an augmentation plan is not required as part of Applicant's proposed <br /> AM-01, should be excluded to the extent that it relates to private matters of contract. Here, the <br /> Applicant and Objector City of Thornton currently are under contract for the eventual sale of the <br /> Iazeltine Reservoir, subject to numerous terms and conditions. Thornton appears to be raising <br /> objections based on its assessment of the terms and conditions of its contract with Applicant and <br /> not as a "Party" whose "interest is entitled to legal protection under the Act" (Rule 1.1(34.1)). <br /> It is not MLRB's role to make determinations on matters of contract. MLRB should not <br /> insert itself into private contractual disputes and,therefore, should exclude evidence and testimony <br /> offered in support of such an argument under the guise that it is an assertion from a complainant <br /> who is an "Aggrieved" party (Rule 1.1(4)) that the Colorado Land Reclamation Act for the <br /> Extraction of Construction Materials, C.R.S. §§ 34-32.5-101 et seq., was intended to protect. <br /> IV. Conclusion <br /> By submission of this Motion, Applicant requests that MLRB enter an Order before the <br /> scheduled hearing date that the specific issues identified in this Motion (Issues #2 (augmentation <br /> plan), 4, 8 and 9 of Exhibit A) are non jurisdictional matters outside the authority of DRMS and <br /> MLRB. Applicant further requests that certain evidence regarding these non jurisdictional issues, <br /> and other matters not related to Applicant's proposed amendment and the groundwater issues that <br /> the amendment was intended to address, be excluded at the hearing. <br />