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(1) Prior SWSP Request in 07CW42. Case No. 07CW42 has been <br />pending before the Water Court since 2007. On July 22, 2010, BMRI amended <br />its application in 07CW42 to delete a request to use the Salazar Ranch for <br />dispersal of untreated waters from the West Pit area through irrigation on the <br />Ranch. During the same general time period, it had a pending application before <br />DRMS to seek approval of the irrigation use of untreated waters on the Salazar <br />Ranch (AM -03). As part of AM -03, on April 25, 2008 DRMS submitted an <br />adequacy review letter to BMRI requesting compliance with certain water quality <br />and safety considerations, including dealing with water quality considerations in <br />the West Pit pond. (See Exhibit A). By December 2009, BMRI had withdrawn <br />AM -03. Certain contentions in the April 25, 2008 adequacy letter do not appear <br />to have been addressed by BMRI in the context of AM -03. <br />This is BMRI's second request for a SWSP. The initial SWSP, filed on <br />May 9, 2007, and objected to by Costilla County on June 8, 2007, requested <br />BMRI's ability to use untreated waters on the Salazar Ranch by transporting <br />those waters from the West Pit area to the Ranch. A further component of the <br />initial SWSP was the use of the Salazar Ranch and Salazar Reservoir as part of <br />the plan of augmentation. Apparently the May 9, 2007 SWSP application has <br />effectively been withdrawn, although Costilla County is not aware of a formal <br />withdrawal by BMRI. <br />(2) Water Court is the Appropriate Forum to Deal With All Issues. The <br />Water Court is the appropriate forum to hear the issues raised in the June 24, <br />2011 request for a SWSP. The issues in the SWSP are primarily the same as <br />those set forth in BMRI's July 22, 2010 amended application in 07CW42. <br />Accordingly, even if the SWSP is granted, as BMRI requests, Costilla <br />County intends to elect to have the Water Court make the ultimate determination <br />of the facts and law on the issues. Further, the issues in 07CW42, and now <br />before the State Engineer's Office ( "SEO "), are involved enough that it is best to <br />allow the discovery process in the Water Court to be used to determine relevant <br />facts and the precise nature and mechanics of what BMRI seeks to accomplish. <br />For example, it is unclear as to exactly what BMRI seeks to accomplish under its <br />use of the Salazar Reservoir rights based upon its Amended Application in <br />07CW42, this request for a SWSP, and Bruce Lytle's January 2011 engineering <br />report. Further, the overall interrelationship between the West Pit area and the <br />lined tailings facility ( "TMF "), along with change of use issues involved with the <br />separate agricultural operations on the Salazar Ranch are complex and involve <br />both DRMS and CDPHE oversight as to the reclamation issues. Further, <br />because there are interrelated water quantity and water quality considerations <br />that have been dealt with by the Water Court in 89CW32 and 07CW42, those <br />interrelated considerations in the SWSP are best dealt with in 07CW42. <br />Determining an alternative source of augmentation waters through use of the <br />Salazar Ranch waters, as well as the potential agricultural uses of waters in the <br />TMF, is best examined by the Water Court. The Water Court is an appropriate <br />forum to make factual findings and apply legal principles. A possible trial, with <br />3 <br />