1997-06-13_REVISION - M1981302 (60)

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Page 4 Response: The objectors have attempted to tie the "berm"s hydrologic functioning" to the operator's proposed reduction in the number of ponds. However, as explained in the Division's responses to comments under Issue 4 below, there is no significant relationship between the berm, whether or not it is modified, and the number of ponds in the reclamation plan. These concerns related to the flood control implications of the berm are being addressed through the Technical Revision submitted by the operator. Since the"berm" presently exists on site, there is no reason to evaluate the berm as an adequacy issue in the amendment process. As explained below in Issue 4, the reclamation modifications proposed in the amendment do not affect the "berm" or the present functioning of the "berm" as a flood control structure. Since the "berm" is physically in place, its affect on wildlife habitat, water levels, and down stream flood protection have existed for some time. 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 only to 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 for the entire berm structure. However, these requests pertain to the Technical Revision and not the amendment, since modification to the berm is not relevant to the request by the operator to amend his permit to reduce the final number of ponds from 5 to 2. 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: The proposed change to the berm revision submitted by the operator is a Technical Revision and not an amendment in the rules, 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 Technical Revision process is a efficient and timely process for addressing the very important issue of flood plain protection that does not compromise administrative due process procedures. To tie the "berm' into the current amendment process will only delay any necessary on-site structure modifications.