Laserfiche WebLink
IBLA 96-90,96-91 <br />an abuse of discretion. Appellants are clearly incorrect in their assertion that it is not their "responsibility to prove the mine <br />DID cause die damage - the mine should prove that they didn't" (SOR 96-91 at 9.) <br />A. IBLA 96-90 <br />We hnh first to the appeal' <br />96-90) relating to Violation 1 of the TDN conceming appellants' water well. <br />[2] Appellants argue that the loss of their water supply constitutes a violation of section 720(aX2) of SMCRA, 30 <br />U.S.C. § 1309a(aX2) (1994), and 30 C.F.R. § 817.41(j), and their State equivalents. 41 Section 720(a) of SMCRA provides, <br />in relevant part, that: <br />Undergnotnd coal mining operations conducted after October 24, 1992, shall comply with * * * the <br />following requirements: <br />(2) Promptly replace any drinking, domestic, or residential water supply from a wel I or spring in <br />existence prior to the application for a surface coal mining and ruclarnation pen-nit which has been affected by <br />contvnination, diminution'or intemrption resulting fi>Jm urxlerground coal mining operations. <br />30 U.S.C. § 1309a(a) (1994). To the same effect is 30 C.F.R. § 817.410). The applicable State regulation, 2 Colo. Code <br />Regs. § 4.05.15 (1991), specifically provides, in pertinent part, that: <br />Any person who conducts * * * underground mining activities shall replace the water supply of any <br />owner of a vested waiter right which is proximately injured as a result of the mining activities in a manner <br />consistent with applicable State law. <br />Our initial inquiry is whether or not the well in question constitutes a "drinking, domestic, or residential water supply" <br />within the <br />4/ Section 720(aX2) of SMCRA was added by section 2504(aX I) of the Energy Policy Act of 1992, Pub. L. No. 102486, <br />106 Stat 2T76,3104, on Oct 24; 1992, as a result of the corms Jan. 29, 1988, decision in National Wildlife Federation v. <br />Hodel, 839 F.2d 694,753-54 (D.C. Cin ), holding that section 717(b) of SMCRA, 30 U.S.C. § 1307(b) (19941 pertaining to <br />the replacement of a water supply adversely affected by a "surface coal mine operation," did not apply in the case of damage <br />caused by an underground operation. <br />151 IBLA 299