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Applicant's Response to Second Adequacy Letter <br />Grand River Park Project, DRMS File M-2006-046 <br />January 2, 2007 <br />Page 10 <br />Permit up to date, subject to amendments and technical revisions as may be <br />required. <br />21. In accordance with Rule 6.4.7(2)(b), the Division requests that the applicant <br />identify and characterize the aquifer to be mined in or through. <br />Rule 6.4.7(2)(b) is a Regular 112 Reclamation Permit submittal requirement (as <br />opposed to a performance standard under Rule 3, a warranty condition or <br />release requirement under Rule 4, and so forth). The Rule requires this applicant <br />to "identify all known aquifers." Notably, the Division interprets Rule 6.4.7(2)(b) <br />to require, without any specific language or definition in the Rule, detailed <br />qualitative and quantitative "characterization" of the alluvial aquifer of the <br />Colorado (Grand) River floodplain. <br />The general soundness of detailed study is not disputed. In addition, the <br />applicant acknowledges that Rule 3 may require formal studies and monitoring <br />programs related to groundwater impacts. It is nonetheless a concern that the <br />Division's open-ended interpretation of Rule 6.4.7(2)(b) has not provided a <br />reasonably certain standard of law to guide the applicant or guide the regulatory <br />decision-makers in this case. <br />Please note that the Division's October 4, 2006, second adequacy review, <br />expanded Comment 21 from the previous adequacy review without comment on <br />the applicant's initial adequacy response. The applicant's September 6 initial <br />adequacy response letter contained a response to the Division's original request <br />that "the applicant identify and characterize the aquifer to be mined in or <br />through." The applicant submitted a detailed groundwater study and addendum, <br />analyzing the proposed operation and groundwater impacts, as prepared by <br />Martin & Wood Water Consultants, Inc. It was the applicant's belief, stated in the <br />September 6 letter, that "Rule 6.4.7(2)(b) may or may not anticipate such <br />extensive study." Certainly, the applicant believed that it is possible the <br />submitted study of the alluvial aquifer exceeds the requirements of Rule <br />6.4.7(2)(b), but not that it would be disregarded as addressing the basic <br />requirement to "identify all known aquifers." For the record, the applicant <br />believes that it has previously demonstrated full compliance with the letter and <br />the spirit of the cited Rule. <br />A related general note concerning Comment 21 is that the Construction Materials <br />Rules define an "aquifer" as "a geologic formation, group of geologic formations, <br />or part of a geologic formation containing sufficient saturated permeable material <br />that could yield a sufficient quantity of water that may be extracted and applied to <br />a beneficial use." It is evident from this definition and other provisions of the <br />Construction Materials Rules that groundwater impacts are not only allowed in <br />accordance with state law (e.g., gravel well permitting), the Construction <br />