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Memo to PCPC Re: SUP No. 596 August 20, 1987 Page Seven NOISE The Colorado Revised Statutes are clear about the allowable level of noise radiating from one property to its neighbor. Sound levels in excess of those limits constitute a public nuisance. Under the law, an aggrieved party has legal recourse, through which he or she may seek relief. The issue of noise coming from Valco's operation may become more important as the operation progresses and as residential infill increases. Recognizing the varied conditions present or potentially present on and adjacent to SUP No. 596, staff is disinclined at this time to prescribe arbitrary conditions (e.g., hours of operation, distance between extraction/crushing operations and residences, etc.) to reduce the nuisance factor. Rather, staff prefers to rely on enforcement of the statutes to keep the nuisance factor within reasonable bounds. To that end, staff has herein included (as Exhibit 3) the applicable noise related statutes. Staff directs attention particularly to Sections 25-12-103(1), (2), (3), (8) and (9) (maximum permissible noise levels) and 25-12-104 (action to abate). WATER: BENEFICIAL USE AND AUGMENTATION PLA The extensive mining of gravel below the water table proposed in conjunction with SUP No. 596 will place the operation at or near the center of a Colorado water law debate now in progress. That debate focuses on evaporation losses from ponds created by mining operations. Technically, there is disagreement over the quanitity of water lost due to evaporation. Legally, there is a debate over the issue of beneficial use, with the disagreement apparently focusing on when a use becomes beneficial. The State Engineer and the Court are key participants in the debate, agreeing on the need for augmentation plans when groundwater encountered by mining is used For washing, dust supression, reclamation, etc. The point at which they seem to diverge is when water is not used in the mining process, but reclamation plans involve retaining the impoundment for recreational and wildlife uses. The court, in State Engineer vs. Zigan, calls for an augmentation plan (to at least offset evaporative loss) when the water is put to beneficial use. In contrast, if a pit operator's reclamation plans include leaving ponds for recreational or wildlife use, then the State Engineer is requiring the operator (Sf in an over appropriated basin such as the Arkansas) to obtain a well permit and a court approved plan for augmentation rlor to excavation of the gravel pit. That is the position taken by the State Engineer regarding Valco's application for a 112 permit for their Pueblo East Pit (see Exhibit 4). Whether or not that position will ultimately be supported by the court remain to be seen.