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motivated by several million dollars in private gains and have not included any public process or <br /> review on behalf of affected property owners downstream or by the appropriate local and federal <br /> agencies responsible for floodplain management. <br /> In order to determine whether this request is an amendment or a technical revision, it is <br /> helpful to look at the definitions in the regulations. See Construction Material Rules and <br /> Regulations of the Colorado Mined Land Reclamation Board, January 1966, Sections 1.1 (3) <br /> "Affected Land" and (6) "Amendment". An Amendment is a change which increases the acreage <br /> of the affected land, or which has a significant effect upon the plan. Thus, the Division must look <br /> at the proposal to see if the affected acreage is increased, or if not, then they still must determine if <br /> the change has a significant effect upon the plan. <br /> Initially, the acreage of the affected land is increased. Essentially, "Affected Land" is land <br /> which has its surface disturbed by the permittee. There is no doubt that by increasing the height of <br /> the berm, additional acreage is being affected. That is particularly clear here, where the berm was <br /> never in the reclamation plan- it was simply a pre-existing land form. This is consistent with the <br /> fact that neither the 1989 nor the 1991 approved maps indicate a berm. See Attachment 1, Deepe <br /> Pit Reclamation (cross sections of 1989 and 1991 maps). The action of Western Mobile to now <br /> disturb a pre-existing land form would now require that land form to be officially included in the <br /> plan in its entirety as an increase in the acreage of disturbance, and thus cannot be a technical <br /> revision. <br /> The second prong of the test-concerning the significance of the proposal, is also applicable <br /> in this case. Sections 34-32-116(7)(g), C.R.S., and 3.1.6(1) and (2), of the regulations essentially <br /> require the minimization of disturbances to the prevailing hydrologic balance. Although more <br /> information will be available in the fall, there is sufficient information at this time to indicate that <br /> this berm has a significant effect on the prevailing hydrologic balance, and must be included as an <br /> amendment, not a technical revision. <br /> The Division cannot view this request in a vacuum. Any act that causes the berm to be <br /> included in the reclamation plan is significant. The flood plain area behind the berm will be changed <br /> significantly, and the vulnerability of areas to flooding both behind the berm and downstream, will <br /> be changed. The potential for very real and costly damage to human lives and property can hardly <br /> be considered insignificant, and that potential has not adequately been evaluated at this time. <br /> However, we do know that a failure of the berm has the potential to funnel between 4,000 and 6,000 <br /> cfs of water in a 100-year flood event into the Keywaydin Meadows subdivision, and impact <br /> hundreds of homes and lives. <br /> Finally, this berm raises a critical, but unanswered, question - who will be responsible for <br /> maintaining this bean forever? By definition, it seems improbable that a berm which is intended to <br /> function as a flood protection levee and is subject to perpetual maintenance could somehow be <br /> insignificant. <br /> K:4AUHA\CMUhN.-DMG.UX 2 <br />