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Memorandum to Corey Hoffmann November 14, 2005 • Page 7 The Applicant also states that up to 30,000 gallons of water per day will be used for dust suppression and revegetation/reclamation purposes. The Applicant further states the following: "Nearby wells indicated the most viable source for water in the vicinity of the site is the alluvial flow of the North Fork Clear Creek. This application does not anticipate drilling a groundwater supply well or appropriating surface water for beneficial use, and hereby commits that the source of 100 percent of the consumptive water supply to the MMRR Quarry operation will be waters made available in the market as a fungible commodity and without impact to the site and its environs. A future project-related water transfer or exchange may involve a quantity of Clear Creek or tributary water, if need [sic] to implement a Temporary Substitute Supply Plan or Plan for Augmentation." This representation is vague at best, and the application does not clearly identify the specific source of the dust suppression/revegetation/reclamation water, as required. Division staff, in its September 7, 2005, 3`d Adequacy Review comments, suggested two alternate ways to protect senior water rights when ground water is encountered in the quarry: option 1, obtain prior approval from the State Engineer's Office to deplete the aquifer; and option 2, cover the exposed ground water with at least two feet of backfill within 24 hours. In its September 14, 2005, Response to 3~d Adequacy Review comments, the Applicant states that it "will comply with state law regarding impacts to groundwater. The applicant therefore commits to either supply evidence of an approval form the Office of the State Engineer or backfill exposed groundwater within 24 hours, to a depth of at least two feet, where quarry activities have intercepted the groundwater surface." In its October 24, 2005, Response to 4w Adequacy Review comments, the Applicant noted that "the operator will avoid exposing groundwater by backfilling to a depth of at least two feet when groundwater is encountered, unless an appropriate substitute supply plan or plan of augmentation is approved in advance of the exposure." In the attached October 24, 2005, letter from Bjork Lindley Little PC, it is stated that Clear Creek Water District Water Providers, LLC "has committed to backfilling over springs or seeps." Thus, it appears that the applicant has incorporated option 2 as a key component of its attempt to comply with state water law. However, as discussed in more detail in Exhibit 15, option 2 is unacceptable, and could lead to injury of senior water rights, including Black Hawk's. Option 2 is not practical because ground water is expected to be encountered in fractures along the cut faces of the quarry at pressures greater than atmospheric. In this case, once ground water is encountered, the entire quarry would need to be backflled up to the potentiometric surface to prevent ground water loss. If this ground water is encountered as close as 30 feet below the surface (per LRE's analysis), or even as close as 60 feet below the surface (per Lyman Henn's estimate), it would be impossible under option 2 to mine the quarry to a depth of 100 to 300 feet, as proposed. Also, excavation of a fractured aquifer will likely alter the flow path from the recharge area to the discharge point, which could significantly impact senior water rights, including Black Hawk's. Other problems with implementing option 2 first are that 1) it would allow impacts to senior water rights to occur prior to the applicant obtaining a well permit; 2) the magnitude and length of • impact that can occur before the applicant decides to pursue a well permit is not defined; LEONARD RICE ENGINEERS, INC. 2000 CLAV STREET, SurrE 300, DENVER. COLORADO 8021 1-51 1 9 • PrvorvE (303) 455-9589 • Fax (303) 45501 1 5