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project water requirements, the ability of Battle Mountain to <br />demonstrate that it would maintain the hydrologic balance is <br />entirely uncertain and speculative" (Opening Brief, p. 14.) <br />CES's contention that Rule 2.1.2(8)(d) was violated is <br />based entirely on its contention that the rule requires the <br />applicant to have water rights in place before coming to the <br />Board. Nowhere does CES offer some other theory that the rule <br />was violated, nor could it. If the rule does not require an <br />applicant to have his or her water rights in hand when coming to <br />the Board, it follows that the Act and the Board's rules contem- <br />plate a scheme in which an applicant may obtain its reclamation <br />permit first and water rights later. Therefore, CES would be <br />relegated to a contention that a review of the record as a whole <br />does not contain substantial evidence that Battle Mountain would <br />obtain water rights in the future. CES does not make this argu- <br />ment because the record clearly shows that Battle Mountain pro- <br />posed to secure water rights by obtaining an augmentation plan <br />(r. v. 3, pp. 563-564; v. 6A, p. 1096-1099). Furthermore, it is <br />clear that any use of water by Battle Mountain prior to obtaining <br />the appropriate water rights would expose it to administrative <br />action and civil damages. See §§ 37-92-503 and 504, C.R.S. <br />(1973 S 1988 Supp.). <br />From this it follows that CES's arguments are aLl bottomed <br />entirely on the premise that actual water rights must be in place <br />before an applicant applies for a reclamation permit. If this <br />-6- <br />