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Karp.Neu.Hanlon: <br /> F-TOPNEN, PW <br /> Page 2 <br /> water emanating from their property into the private ditch crossing the Island Park property. <br /> Hankins v. Borland, 431 P.3d 1007 (Colo. 1967). As such, Scott has failed to demonstrate that it <br /> has the capacity to dewater its proposed pit—a material pre-requisite for the approval it seeks. <br /> The Island Park lateral ditch that Scott assumes it can use to transport its pit water bisects <br /> the Island Park property. Adding more water to the flow of the ditch will increase the burden to <br /> Island Park and the persons who use the property. Specifically, it will make it more difficult to <br /> cross the ditch (as described below the Island Park property is extensively used for hunting and <br /> fishing purposes). Further, adding water and sediment to the ditch will increase maintenance costs <br /> as well as the maintenance burden to the underlying property owners. Neither of these increased <br /> burdens is permitted by property law. <br /> Figure 9 of the Application indicates that the"tailwater channel [of the Last Chance Ditch] <br /> to be re-routed around edge of property." Scott has failed to provide evidence of their right to <br /> relocate this ditch segment. Pursuant to the Colorado Supreme Court decision in Roaring Fork <br /> Club v. St. Jude's Co., 36 P.3d 1229 (Colo. 2001), a ditch constitutes an easement right that can <br /> only be relocated with an agreement of the parties holding an interest in the ditch or a court order. <br /> Here, Scott has not provided information about which property owners own an interest in the ditch <br /> to be relocated. Nor has Scott provided a consent letter from the Last Chance Ditch Company. As <br /> such, to the extent that the mining plan requires relocation of this ditch segment, it cannot be <br /> approved until such consents are obtained. <br /> II. The Scott gravel mining proposal will harm or destroy federally protected wetlands. <br /> Several locations in the Scott application incorrectly state that the wetlands on the site were <br /> created by irrigation activities that are not regulated by the U.S. Corps of Engineers. See, <br /> Application at 7-8, 27. As figure 5 to the application discloses, a substantial portion of the site is <br /> "Herbaceous Emergent Wetlands." As regulated wetlands, mitigation and approval from the U.S. <br /> Corps of Engineers should occur before a mining plan can be approved by DRMS. <br /> The area of the Scott property proposed for mining lies within an area historically <br /> influenced by the channels of the Colorado River and Dry Hollow Creek. Prior to the construction <br /> of 1-70 and the rerouting of drainage from these two water courses,the channels were prominently <br /> visible on and around the Scott property. The natural wetlands associated with these historic <br /> channels are not the product of irrigation and as such are federally protected. Attached as Exhibit <br /> D is a 1957 aerial photo of the PLSS Section where the Scott property is located showing the pre- <br /> construction of I-70 drainage natural drainage channels and associated wetlands on the Scott <br /> property. <br /> III. The Scott gravel mining proposal fails to address off-site impacts to fish and wildlife. <br /> As depicted on Exhibit A, the Island Park property consists of substantial natural areas <br /> that include wetlands, the Colorado River, and unique small game and waterfowl habitat. The <br /> members of Island Park LLC value and use the property primarily for hunting and fishing purposes. <br />