2007-07-30_PERMIT FILE - C1981008A (24)

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said tohave been geographically contemplated orencompassed by the existing augmentation plan. However, more to the point, the existing augmentation plan did not expressly decree thatPOnds 008-015 would be augmented by the subject 27 shazes: "All diversions, deliveries operative Company. with the exception of Pond 007 which will be built before the Nucla East Mine goes into operation." Decree ¶ 6.C.(6)(e) (emphasis added). The only structures - expressly augmented under the existing plan are Ponds 001, 002, 004, 005, 006 and 007. Decree92.B.(1}(6). Ofthose augmented structures, the only unbuil[ structure contemplated at the timeofthedecreewasPond007. Therefore,no[withstandingthearguableavailability of unused consumptive use credits under the existing augmentation plan, the plain language of the decree, quoted above, may suggest that the.plan cannot be construed to cover additional depletions associated with new structures which were not expressly augmented by the decree. - ~ - (2) Quantitative Concern This concern, as mentioned above, is difficult to gauge given the lack of complete information regarding consumptive use of water at NH-2. However, based on the- augmentation decree, there aze several possible elements to consider with respell to such additional water use; a discussion of these considerations follows. First, since the ilecreeprovides thatwater stored in and diverted from Ponds 001, 002, • 004, 005, 006 and 007 during the irrigation season is out-of-priority and mast be augmented (as discussed in Section I.B.(5), above), water stored in and diverted from Ponds 008-015 fox industrial use will also presumably beout-of-priority during the historical irrigation season of April 19 through October 26. In order to prevent injury to adjacent surface water rights, use of Ponds 006-015 during the irrigalion season must therefore be augmented with consumptive use credits. Given that some of the existing ponds are or will be reclaimed, it is possible, as suggested above, [hat the consumptive use credits previously associated with those ponds could be shifted to Ponds 008-015. However, on its face it would appear that the augmentation plan would need to be amended to expressly augment the new pond structures with freed-up wnsumptive use credits previously devoted to the reclaimed ponds. Second, the decree concludes that no injury will occur to underground water rights as a result ofpit dewatering since all but two well users in the vicinity tap into a deeper aquifer and the moderate aquifer drawdowaq gceurring from the mining pi[ are not likely to affect those two well users (as discussed in Section I.B.(3), above). It is our understanding that the new pit for NH-2~ is lazger and deeper than the original Nucla Mine pit wvered by the augmentation plan. These facts raise two questions: (1) whether dewatering of the deeper minepit will affect adjacent well owners who tap into deeper aquifers; and (2) whetherthere REVISED MARCH 2006 Attachment 2.05.3(3)-16-18