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YOAST TR-37 REVIEW OF 2ND ADEQUACY RESPONSE <br />20. The Division had requested amendment of Exhibit 20-2 to remove Pond 012 (no longer <br />proposed as permanent), and had requested narrative commitment regarding future <br />documentation of necessary water rights and State Engineer approval of Ponds 010, <br />013, and 014 as permanent, prior to submittal of Phase 1 bond release application for <br />the structures. <br />In their responses, SCC explained that Pond 012 is likely to be included in a future <br />permanent impoundment retention request, depending on the outcome of the Pond 12 <br />slide area geotechnical study that is currently in progress. For this reason, SCC prefers <br />to retain Exhibit 20-2 as proposed. The Division agrees that final topography and <br />drainage configuration in the lower portion of the Pond 012 watershed will depend on <br />the outcome of the geotechnical study, and agrees to defer further modification of <br />Exhibit 20-2 pending final study results. We of course are aware that Pond 12 is an <br />NPDES discharge point that must remain in service (unless replacement sediment <br />controls are approved and installed) and it was not our intent to imply that Pond 012 <br />should be removed before the watershed has stabilized and the appropriate <br />sedimentation demonstrations have been made. <br />SCC further argued that inclusion of a commitment regarding future provision of State <br />Engineer approval and water rights documentation for proposed permanent Ponds 010, <br />013, and 014 "...is overkill and is not specifically required by law to be included in the <br />PAP". We disagree that our request was "overkill and not specifically required by <br />law...". Our basis is Rule 4.05.9(13) requirement that permanent impoundments shall <br />only be authorized in accordance with applicable State law, and 4.05.9(13)(d) <br />requirement regarding demonstration of compliance with applicable state law pertaining <br />to water rights. In the TR-37 application, SCC has proposed that the three ponds be <br />retained as permanent impoundments for the postmining land use, however the <br />necessary State engineer documentation has not been provided. Our request for the <br />commitment language was to ensure that our decision to approve TR-37 would not be <br />construed (now or in the future) as a final approval/authorization of Ponds 010, 013, and <br />014 as permanent impoundments. In lieu of the amended PAP text requested, our <br />proposed decision to approve TR-37 will include the following explanatory language <br />and stipulation: <br />The operator has proposed to retain Ponds 010, 013, and 014 as permanent <br />impoundments, and demonstration of compliance with Rule 4.05.9(13) has been <br />provided, with the exception that documentation has not been provided to demonstrate <br />that sufficient water rights have been obtained and that the ponds have been approved as <br />permanent by the State Engineer. The water rights issues for Ponds 010, 013, and 014 <br />will need to be resolved before the Division can approve them as permanent. This will <br />require SCC to contact the State Engineers Office and comply with their requirements. <br />Our understanding is that SCC has been in contact with the local Division of Water <br />Resources office in Steamboat Springs and is working toward obtaining the proper <br />approval of these structures in accordance with applicable State Engineer requirements. <br />The following stipulation is warranted. <br />2