_REVISION - M1981302 (133) - Laserfiche WebLink

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Page 4 chose initially to not evaluate the berm as an adequacy issue in the amendment process. The reclamation modifications proposed in the amendment do not affect the "berm"nor the present functioning of the"berm" as a flood control structure. (Please see this issue addressed elsewhere in this document.) Since the "berm" is physically in place, its affect on wildlife habitat, water levels, and down stream flood protection have existed for some time. However, the Division agrees that the possible impacts from the amendment on wildlife habitat and groundwater impacts are proper questions to be asked. The Division has addressed these issues elsewhere in this document. Comment: "It is only reasonable that the permittee, by choosing to alter or disturb a preexisting feature, should expect that those changes would or could subject the entire feature to State review." Response: The Division has not confined its analysis of the "berm" and its potential hydrologic impacts to only those sections proposed to be modified in the Technical Revision process. We have asked the operator to provide us a FEMA-type analysis or FEMA approval. However, these requests pertain to the Technical Revision and not the amendment, since modification to the berm is not part of what has been requested by the proposed amendment. Comment: "Western Mobile should not be allowed to circumvent the appropriate amendment review process by filing an after-the-fact technical revision request which may seem minor by itself, but which in reality, from a hydrologic standpoint, is inseparable from the other changes which the amendment application proposes." Response: As a matter of law, the revision submitted by the operator fits the definition of a Technical Revision and not an amendment, as outlined above. The fact that this issue may indeed require a higher level of agency evaluation than the proposed amendment is not a factor in making a decision as to the method of public review process. The law is clear as to what the Division must consider an amendment versus a Technical Revision. In addition, the participation by the public is not circumvented by the Technical Revision process. The Division would like an explanation as to why the City and County of Boulder appear to want to delay an engineering evaluation of the flood plain protection issue in an expeditious manner. Delay can only further jeopardize the health and safety of downstream property owners. The Technical Revision process is a fast and timely process for addressing this very important issue. To tie the "berm" into the current amendment process will only delay any necessary on-site structure modifications.