1997-05-12_REVISION - M1981302 (8)

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- 1 We strongly object to bifurcating the berm from the rest of the amendment process for several reasons. Although the original berm predated the original MLRB permit for the Deepe Farm Pit, the significant modifications which have taken place to the berm during the permit's term should subject the entire berm to MLRB review as part of the current amendment application. We understand that the DMG staff has taken the position, or may adopt the position, that the modifications to the berm constitute only a technical revision, and that the State can review only the changes to the berm -- not the entire feature -- as part of its technical review. This position constitutes an unnecessarily narrow view of pre-permit "grandfathering" principles, and undermines the MLRB's important public function in reviewing the hydrologic impacts of proposed reclamation features (including changes to existing features) . See C.R. S. Section 34-32- 116 (7) ( (g) , requiring proposed reclamation plans to minimize " [d] isturbances to the prevailing hydrologic balance of the affected land and of the surrounding area and to the quality and quantity of water in surface and ground water systems both during and after the mining operation and during reclamation." Plainly put, Western Mobile has chosen to make substantial changes to the original berm feature during the life of its reclamation permit. Those changes are clearly subject to the State's review under the permit. Moreover, the hydrologic impact of those changes -- and related issues such as the stability of the berm and its impact on internal drainage patterns and anticipated flood flows -- cannot be properly analyzed if the State narrowly confines its review to the changes to the berm. A meaningful hydrologic analysis requires the State to consider the relationship of the changes to the entire berm feature, and hence to consider the entire berm itself. It defies logic, as well as sound public policy in light of potential hydrologic impacts, to arbitrarily stop the State's review at the berm's changes, and not consider the effect of the feature as a whole or the relationship of the changes to the entire feature. Subjecting the entire berm to review as part of the present amendment application is fair to the permittee, Western Mobile. Choosing to make the recent (or proposed) changes to the berm was entirely within the control of Western Mobile. 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. This conclusion is entirely consistent with how the Board of County Commissioners has exercised its authority in conducting its own permitting functions, such as in the land use area. 2