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<br />it is reasonable to assume that Western Fuels' mines ate within that historical service area. <br />this is because the New Horizon Mines. l and 2 are respectively situated within the same <br />general mining permit azeas as the Nucla and Nucla East Mince. Thus, the same argument <br />can be made here: since the former and current mines encompass essentially the same . <br />geographic mining areas, the 27 shares that were changed for industrial and augmentation <br />uses at the former mines can be used for the same uses at the current mines without having <br />to further change the place of use or point of diversion of the 27 shares. <br />Furthermore, the decree statce that the existing augmentation plan is to be the "basis <br />for all new uses of water" at what was fornerly the Nuola and Nucla East Mines. Decree q <br />6.A.(2). Since NH-2 is situated in approximately the same area as the former Nucla East <br />Mine, it can be argued that the augmentation play should apply to any "new uses of water" <br />at NH-2, including the new mine pit and Ponds 008-015. Put differently, since the <br />augmentation plan expressly covers any "new uses of water" within what was formerly the <br />NuclaEast Mine, the plan chabe constmed as covering any additional depletions associated <br />with Ponds 008-015 at NH-2 so long as it continues to prevent injury to other water users.' <br />However, the above azguments may be capable of attack by the State given that the <br />area into which Wcetem Fuels' NH-2 mining operation is ctnrently extending encompassce <br />lands not included within the original permit area'for the Nucla East Mine. It is our <br />understanding that the leased land on which Ponds 008-01 S are of will be constructed has <br />been recently acquired by Western Fuels, and that the mining permit for NH-2 has been <br />• amended to include this additional area. If the State questions whether the existing <br />augmentation plan is adequate, the additional depletions associated with Ponds 008-015 and <br />dewatering of the new mine pit will probably be its primary concern. Since the new pit and <br />ponds are or will be located in an area not geographically contemplated by the existing <br />augmentationplan,theStatemaycoatendthattheaugmentationplancannotbeconsttuedto . <br />cover water depletions occurring in that area. ~ ' <br />(2) Qaantitafive Coacem <br />The decree changed x1127 High Line Canal shares for industrial and augmentation <br />use, but applied only 14 ofthose shares to water depletions covered bythe augmentationplaq <br />= Of course, the question of whether the plan can be operated render such circumstances . <br />so as to prevent injury to ottrer water rights cannot be fully answered without acttaate <br />consumptive use estimates for the additional evaporative lasses and industrial uses and the <br />amount of pit dewaieriag expected to occur atNH-2; as well as estimates of the extent to which <br />wale vse at NH-1 (both gross and consumptive use) has decreased since the time the . <br />augmentation plea was decreed. <br />• <br />REVISED MARCH 2006 Attachment 2.05.3(3)-16-16 <br />