2009-04-21_INSPECTION - M1981202SG

Home Browse Search

r 1l ll?, f.? II 1r/ IIJl Lr G? DEPARTMENT OF NATURAL RESOURCES DIVISION OF WATER RESOURCES Bill Ritter, Jr. Governor Harris D. Sherman September 5, 2008 Executive Director Dick Wolfe, P.E. Director Colorado Rock Products Association 6855 South Havana Street, #540 Centennial, CO 80112 Consultants/Attorneys who have submitted supply plan requests for gravel pits Re: Change in Administration of Evaporation from Ground Water Exposed to the Atmosphere Prior to 1981 Dear CRPA, Consultants, and Attorneys, I wanted you to have advance notice of a change in the administration of sand and gravel pits that exposed ground water to the atmosphere prior to 1981 and were actively mined on or after January 1, 1981. In the past, the State Engineer allowed such sand and gravel pits to claim an exemption from replacement requirements for out-of-priority evaporation from ground water exposed to the atmosphere prior to January 1, 1981, even when active mining operations continued or were reactivated on or after this date. Such exemptions were granted based on an incorrect interpretation of Senate Bill 120 of 1989, which added the following "grandfather provision" to section 37-90-137(11)(b), C.R.S.: If any ground water was exposed to the atmosphere in connection with the extraction of sand and gravel by open mining as defined in section 34-32-103(9), C.R.S., prior to January 1, 1981, no such well permit, plan for augmentation, or plan of substitute supply shall be required to replace depletions from evaporation: except that the burden of proving that such ground water was exposed prior to January 1, 1981. shall be upon the party claiming the benefit of this exception. Notwithstanding the provisions of this paragraph (b), judgments and decrees entered prior to July 1, 1989, approving plans for augmentation, which plans include the replacement of depletions from such evaporation, shall be given full effect and shall be enforced according to their terms. This change in administration by the State Engineer under this provision was prompted by a recent enforcement action involving a sand and gravel pit that had exposed ground water prior to and after January 1, 1981. The owner had failed to provide any replacement of out-of- priority evaporative depletions. In response to the enforcement action, the owner of the pit provided the State Engineer with copies of some of the legislative history of Senate Bill 120 of 1989, and the Attorney General's office recently completed a review of all of the available legislative history. This review confirmed that only sand and gravel pits that remained inactive Office of the State Engineer ! 31 3',herman Strect, Suite 8l + • Denver. CO 802113 • Phi one. 111-'%hh ,aril • 1 -: 'ko3-8(,h- 389 wtv w %cater.state.co.us