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IV. OTHER RECLMATION PLAN DEFICIENCIES <br /> The O'Briens' argument regarding bonding is very similar to their argument <br /> regarding topsoil. The current bonding is simply inconsistent with DRMS Rules. At <br /> the hearing, it was undisputed that Colorado water law effectively leaves only three <br /> long-term options to prevent injury to senior water rights: 1) a Water-Court <br /> approved augmentation plan; 2) lining the ponds; or 3) filling in the ponds. It was <br /> also undisputed that the current bonding is not sufficient to complete any of these <br /> three options if the Operator simply walked away from the project today. <br /> Nonetheless, Division Staff is content to wait and see if the augmentation plan (that <br /> the Operator has been promising for decades) is eventually approved, and hope that <br /> the Operator will add more money to the bond if the augmentation plan is rejected. <br /> But this approach is plainly inconsistent with DRMS Rules, which are designed "to <br /> assure the completion of reclamation of affected lands if the Office has to complete <br /> such reclamation due to forfeiture." DRMS Rule 4.2.1(4). Accordingly, Rule 4.2.1(1) <br /> mandates that "[a]11 Financial Warranties shall be set and maintained at a level <br /> which reflects the actual current cost of fulfilling the requirements of the <br /> Reclamation Plan" (emphasis added). And it is simply undeniable that the current <br /> costs of completing the plan requires funds sufficient to pay for either 1) attorneys <br /> to obtain a Water-Court approved augmentation plan; 2) lining the ponds; or 3) <br /> filling the ponds—yet the current bond contains no funds for any of these options. <br /> Therefore, DRMS rules are simply incompatible with the Division Staffs plan to <br /> simply wait and see. Even if the Board is confident that the Operator will obtain its <br /> augmentation plan, this issue does not turn upon the degree of confidence that the <br /> Board has in predictions about the future. As discussed above, it is the Board's job <br /> to ensure that DRMS Rules are scrupulously followed, and the plain text of DRMS <br /> Rules require that the bond be sufficient right now—currently—to cover one of the <br /> three possibilities discussed above for reclamation of the ponds. Therefore, the <br /> Board has no choice under its own Rules except to require an immediate increase in <br /> the bonding. <br /> In addition, even if the Board does not agree with any of the O'Briens' other <br /> arguments, at a minimum the Board should clarify exactly what is required with <br /> respect to maximum pond slopes. This is an issue of critical importance to the <br /> O'Briens, most importantly with respect to the narrow land bridge between Ponds 2 <br /> and 3 connecting their house to the rest of their property to the North. <br /> 11 <br />