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flood-control impacts which has already been made part of the <br /> record in this year's proceedings on Permit No. M-81-302. This <br /> information includes the information submitted as part of the <br /> record in the Deepe Pit amendment application, AM-002 (approved <br /> by the MLRB on June 25, 1997) , and in the appeal on the DMG's <br /> decision to treat the berm alterations as a technical revision <br /> (decided by the MLRB on July 23, 1997) . <br /> Finally, we encourage the MLRB and the DMG to consult with <br /> the Attorney General's Office regarding the scope of the <br /> MLRB's/DMG's authority to evaluate flood control impacts. At the <br /> July 23 MLRB hearing, the Board members seemed unclear regarding <br /> the scope of their authority in this area, and requested legal <br /> advice. It was not evident whether the Board believed that the <br /> "hydrologic balance" language of the applicable reclamation <br /> standards did not include flood control, or whether the Board <br /> believed that it might be preempted by other authorities, such as <br /> FEMA's or CWCB's. From the legal standpoint, preemption should <br /> never be assumed, but specifically researched with respect to <br /> each competing statutory authority. It could be, for example, <br /> that FEMA has certain flood mapping and flood insurance <br /> responsibilities which do not preempt MLRB's/DMG's authority in <br /> this area. Because the TR flood issues associated with the berm <br /> are now squarely before the DMG staff, and may again come before <br /> the MLRB following a staff decision on the TR, legal advice from <br /> the Attorney General's office is necessary at this point. <br /> Due to the time commitment involved in traveling to Glenwood <br /> Springs and the procedural nature of the August 27 Deeps Pit <br /> agenda item, the County does not plan to send a staff <br /> representative to this hearing. We therefore request that you <br /> consider these comments as part of your formal deliberation on <br /> this item on August 27. <br /> Thank you for your continuing attention to the county's <br /> concerns with this matter. <br /> Sincerely yours, <br /> BOARD OF COUNTY COMMISSIONERS <br /> OF THE COUNTY OF BOULDER <br /> ja1dK. Stew rt, Chair Men c air <br /> Paul D. Danish, Commissioner <br /> 2 <br />