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Mr. Terry A. McKee & Ms. Rena J. Brand <br />U.S. Army Corps of Engineers, Omaha District <br />Denver Regulatory Office <br />9307 South Wadsworth Boulevard <br />Littleton, CO 80128 -6901 <br />Mr. Rob Zuber, P.E. <br />Colorado Department of Natural Resources <br />Division of Reclamation, Mining and Safety <br />1313 Sherman Street, Room 215 <br />Denver, CO 80203 <br />Dear Terry, Rena and Rob: <br />7 October 2011 <br />LETTER SENT VIA E -MAIL <br />Re: Inspection of Potential Jurisdictional Wetlands Associated with the Kerr Coal <br />Sediment Pond - Walden, Jackson County, CO <br />I have been directed by Mr. George Patterson of Kerr Coal to respond to your telephone call and <br />e -mail of 5 October 2011 regarding your proposed inspection of the Kerr Coal Sediment Pond <br />located approximately one mile to the south of Walden, Jackson County, CO, currently planned <br />fora 15 minute period at 11:30 a.m. on 18 October 2011. <br />Initially, please allow me to say that we are very surprised to hear that you have determined that <br />you now must conduct a site inspection of this location and that we will have to wait several <br />weeks longer for a response regarding this matter. It was my understanding of the meeting held <br />in your office on the morning of 18 August 2011, that neither of you thought it would be <br />necessary to conduct a site inspection of this site and that you would be able to make a decision <br />of this matter within a few days upon reviewing the historical information that you requested. <br />You indicated that you did not consider this to be a big deal (only 125 cubic yards of fill) and <br />that you really had no interest in revisiting issues that were permitted 32 years ago. It appears <br />that your decision to conduct a site inspection appears to be a change to the informational needs <br />and direction provided to us. We would therefore, request that both the ACOE and CDRMS <br />provide us with the reasons why you have determined that a site inspection is now necessary to <br />make your determination as to whether or not additional permitting or other information needs to <br />submitted regarding this site. <br />As we explained in our submittal to you on 15 September 2011, we outlined numerous <br />regulatory reasons from both the Corps Regulations and the approved DRMS Permit, as to why <br />the apparent wetland vegetation located within the permitted sediment ponds cannot be <br />considered to meet the definition of "jurisdicitonal waters of the United States." Most <br />importantly, this sediment pond is a temporary structure which from the day it was permitted by <br />both the ACOE and DRMS was scheduled to be backfilled and reclaimed. By numerous <br />regulatory definitions, used by both of your agencies, this structure has never been "abandoned" <br />and according to the ACOE regulations, wetland vegetation that forms in areas which are a part <br />of the active mining operation even although wetland vegetation may dominant the vegetation, <br />does not satisfy the definition of "jurisdictional wetlands" since the reclamation has not been <br />&Th04,1sol io/111/1 <br />