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I , • BENDELOW & DARLING, P.c. Attorneys at Law Mr. Larry Oehler September 6, 1996 Page 2 Applicant has provided in its Response (at page 9) only summarizes annual volumes of consumptive use resulting directly from mining operations, but fails to identify any consumptive use from evaporation of the pond surface or the total flow (diversion) requirements. The information is therefore still incomplete. It is therefore impossible to relate to capacity of the proposed pond to the water requirements in question and determine whether the application complies with Construction Materials Rule 3.1.6, which states in pertinent part that "Disturbances to the prevailing hydrologic balance of the affected ]and and of the surrounding area shall be minimized by measures, including, but not limited to: (a) compliance with applicable Colorado water laws and regulations governing injury to existing water rights." What inquiry has the Division made, and what measures has the Applicant proposed or the Division required, with respect to disturbance mitigation measures? The answer is none, and the result is that the application has not been meaningfully reviewed by the Division and cannot be properly evaluated by the objectors with respect to the Applicant' ability to have a legally available water supply sufficient in quantity to provided appropriate mitigation.. The operator has characterized the future use of the water storage pond as a "stock pond". It is clear from the applicant's description that the stock pond will not qualify as a "livestock tank" for purposes of exemption from State Engineer regulation, that the storage use will require a new or change of existing water right, and may require a dam permit. Upon information and belief, the Applicant has applied for both a well permit and a temporary or interim substitute water supply plan with the Colorado State Engineer. In your letter to me of August 26, 1996, you stated as your sole response to our earlier water supply-related objections, that "Rule 6.4.13 only requires the operator to identify permits, licenses and approvals he hold or will be seeking. The Division believes that the applicant will be required to obtain necessary diversion permits and\or water storage impoundment permits from the State of Colorado." Applicant has not identified specifically described any well permit (by date, applicant's name, etc), and has not even mentioned the supply plan application. This information is necessary for objectors to obtain from the State copies of the permit applications and verify consistency and accuracy between the current application and other applications. Please require the Applicant to promptly identify all necessary permits. Please include in the recommended decision a requirement that such permits be obtained prior to commencement of expansion. T~soil. The applicant has submitted a "balance study' suggesting that there will be a small surplus of topsoil available from areas yet to be mined, but indicating that 8.5 acres of currently disturbed area will need to receive topsoil from elsewhere. The applicant proposes to acquire this topsoil from elsewhere "on the site". Since applicant has acknowledged "that it is more accurate to believe that there is a very close balance of topsoil available for reclamation' (rather than a small surplus) with respect to the additional disturbed area, it is not reasonable to assume that the applicant can obtain the topsoil from elsewhere on the site. Accordingly, the applicant should be required to bond for purchase and acquisition of sufficient topsoil from elsewhere.