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Home My WebLink About20012130 DEUTSCH, SPILLANE, REUTZEL & FOSTER, P.C. • ATTORNEYS AND COUNSELLORS AT LAW 9145 EAST KENYON AVENUE,SUITE 200 DENVER,COLORADO 80237-1810 TELEPHONE:(303)694-1982 TELEFAX:(303)694-3831 Weld'Ca lwIgirning Dept. HARVEY E.DEUTSCH JOHN M.SPILLANE KAREN V.REUTZEL of Counsel JACK E.REUTZEL 11Y/ 3 0 2001 DAVID WM.FOSTER E-MAIL:jspi))aue@dsdaw.com RECEIVED May 29, 2001 VIA TELEFAX AND MAIL Weld County Planning Commission c/o Mr. Kim Ogle, Weld County Planning Dept. 1555 N. 17 Avenue Greeley, CO 80631 RE: Case No. USR-1306, Platte Sand and Gravel LLC Application for Sand and Gravel Operation and Batch Plant Opposition of Gibraltar Equity Investments, LLC and the Marie Louise Gollner Charitable Trust '1 Dear Chairman Nicklas and Members of the Planning Commission: We represent Gibraltar Equity Investments, LLC, which is proposing to construct approximately 436 single family homes, a city park and recreational facility, and an equestrian center on 618 acres located in Section 27, Township 4 North, Range 67 West, to be known as Somerset Ridge Estates. This property currently is owned by the Marie Louise Gollner Charitable Trust and is frequently referred to as the Gollner Farm. The property has been annexed to the Town of Milliken and a PUD Plan and Preliminary Plan for Somerset Ridge Estates have been approved. The proposed development is directly adjacent to the sand and gravel operation and concrete and asphalt batch plant being proposed by Platte Sand and Gravel. Both Gibralter Equity Investments and the Trust strenuously object to the approval of Platte Sand and Gravel's application and respectfully request that it be denied. Compatibility: The application is for a special use permit, which naturally requires a greater showing of compatibility than if the proposed uses were permitted. We do not believe the proposed uses can be considered compatible with the proposed residential uses. Section 23-2-220.A.4 of the Weld County Code provides that the uses which will be permitted will be compatible with the future development of the surrounding area as permitted by the existing zoning. The existing residential zoning of Somerset Ridge Estates will not be compatible with the proposed uses by the applicant. The noise, dust, impaired views, odors, and traffic will create significant adverse impacts on Somerset Ridge Estates, which would not occur if the uses were limited to the uses currently permitted in the agricultural zone district. 1 EXHIBIT 2001-2130 t 2.4. DEUTSCH, SPILLANE, REUTZEL & FOSTER , P.C. Weld County Planning Commission May 29, 2001 Page Two Scope of Operation and Term: The proposed application encompasses approximately 1250 acres for a period of 115 years, for sand and gravel operations as well as a concrete and asphalt batch plant. This would make the proposed operation one of the largest, if not the largest, operation in the state. If this application is approved at all, we believe it would be far more prudent to limit the permit to a much smaller area located further away from the proposed residential uses. The term of the permit should be limited to something more akin to five years to allow the County to verify that the applicant is conducting its operations in an approved manner. Because of the noise associated with batching operations generally, and the odors associated with asphalt batch plant in particular, the batching operation should not be approved. Performance Standards: The staff report notes a number of environmental, traffic and visual concerns that it recommends be addressed prior to recording the plat or prior to operation of the facility. Among these are demonstrating that negative air quality, water quality, traffic, and visual impacts will be mitigated. The applicant should be required to demonstrate that these negative impacts will be mitigated before the County approves the special use permit. The mitigation plan, which is absolutely critical to the existing and future residents who will be impacted, should be part of the public approval process for the permit. In addition, both the Planning Commission and the Board of County of Commissioners should have the opportunity to review the sufficiency of the mitigation plans -- this should not be part of an administrative approval process. For example, the noise requirement simply states that the facility shall adhere to the maximum permissible noise levels allowed in the Industrial Zone District as delineated in the state statute. The state statute allows 80 decibels measured 25 feet from the property line during the day and 75 decibels at night. First, this is simply too much noise for adjacent residential uses. More importantly, however, it shifts the responsibility to adjoining residents to complain about the noise as an enforcement issue rather than requiring the applicant to demonstrate up front that the permitted noise levels will not be exceeded. A noise mitigation plan should be submitted and approved by the County as a condition of approval of the permit Moreover, there is nothing about the odors emitted from the asphalt batch plant portion of the operation, and as far as we know, there are no standards for odors. The asphalt batch plant portion of the proposed operation should not be approved. The applicant should be required to demonstrate how it will achieve the state air, water and noise standards, and should demonstrate a limitation on odors, wetland destruction and visual impacts, prior to the special use permit being approved. These performance standards should be clearly articulated and made a part of the permit approval. That way, the County will be better able to enforce the conditions of the permit, rather than making adjoining residents file complaints based on general or subjective standards. DEUTSCH, SPILLANE, REUTZEL& FOSTER, P.C. Weld County Planning Commission May 29, 2001 Page Three Other Local Government Opposition: Both Milliken and Platteville have objected to the approval of this application. We believe that Milliken has objected in no small part because of the adverse impact that this operation will have on Somerset Ridge Estates and the public park that will be constructed on the property. We would ask that the County deny the application in deference to the Intergovernmental Agreements that the County has with Milliken and Platteville. On balance, we do not believe the proposed operation is compatible with the surrounding proposed uses. The scale of the proposed operation is not in keeping with the adjacent uses or the agricultural uses that are permitted for this property. At the very least, the applicant has fallen short of demonstrating that the proposed operation will mitigate the many adverse impacts. We appreciate the Planning Commission's consideration of our comments and we respectfully request that the application be denied. Sincerely, DEUTSCH, SPILLANE, REUTZEL & FOSTER, P.C. By: M. S illane JMS/slf cc: Mr. Michael A Messina John Woodward, Esq. Weld County Planning Dept. 0 Z(ioi RECEIVED May 30, 2001 Kim Ogle Weld County Department of Planning Services 1555 N. 17th Ave . Greeley, CO 80631 RE ; Platte Sand and Gravel, USR-1306 Dear Mr. Ogle : This letter regards the applicant Platte Sand and Gravel , LLC, and specifically land involved in this application and the classification as prime farmland. In reviewing the comprehensive plan of Weld County, "-section 22-2-40, regarding the prime farmland definition, the availability .f a consistent supply of clean water must exist. This further states that if irrigation water is available and located within a usable distance of water delivery structures, this land would fall into the prime farmland definition. Indeed, this land has the soil quality, growing season and moisture supply needed to economically produce sustained, high yields of crops when treated and managed, including water management, according to acceptable farming methods . Further, in the Weld County comprehensive plan, section 22-2-60, under section AA1 goals and policies, the very first statement is to, "preserve prime farmland for agricultural purposes" . In a decree of the Water Court Case #W5473, use of the water on the applicant' s involved land is for 650 acres of irrigated land. In addition, there are eight wells on this land supplying approximately 14 . 6 cfs (cubic feet/second) . There are addition- al, substantial amounts of ditch water on the applicant' s land. There are 24 shares of Western Mutual ditch and 7 shares of Hughes-Cook ditch water supplying a total of 9 . 5 cfs . Thus, the total water available is 34 . 1 cfs, or 48 .2 acre/ft for 24 hours . Assuming a 100-day irrigation season, and 3 acre/ft of water necessary per acre, there is thus enough water to amply irrigate 1600 acres of land. Historically 368 acres have been irrigated on a regular basis to produce an average annual yield of 3 . 5 tons to the acre of alfalfa and mixed grasses . Corn has also been planted yearly as well with good yield. EXHIBIT ' _1 /'Page 2 dim Ogle May 30, 2001 Thus, my request to the Planning Department is to define these 368 acres as prime farmland, and I am requesting that Weld County follow their primary agriculture goal and policy of preserving prime farmland for agricultural purposes . I am requesting that no mining be allowed on this 368 acres to preserve this prime farmland. At the planning commission hearing, I will be prepared to discuss these specific acres and will be prepared with additional detail and expert witnesses . Sincerely fM ` Q L, Michael J� Ptasnik MJP:PS/scp/ccva0530 . 2/4557 cc : Andrew Jones Bruce Rippe Forrest Leaf r^ Kim Ogle- KimOgleLet5.30.01 .doc Page 1 Weld County Planning Dept. i.:A7 3 1 2001 RECEIVED May 30,2001 Mr. Kim Ogle,Planner Weld County Dept. of Planning Services 1555 N. 171h Street Greeley,CO 80631 Dear Kim, Greetings. Recently,in our effort to respond clearly and thoroughly to the USR#1306 permit application by Platte Sand&Gravel,LLC,our neighborhood group requested environmental and legal consultation from two professionals. Ms.Lori Potter is an attorney with the law firm,Kelly/Haglund/Gamsey/Kahn in Denver. Dr. David Cooper is an environmental consultant who is a faculty member at Colorado State University. Following his careful review of the USR#1306 permit application file and a site visit to the area of the proposed permit,Dr. Cooper wrote a letter detailing his expert assessment and recommendations. His letter reflects very specific environmental concerns regarding the impact of proposed pit dewatering on the adjacent,critical riparian habitat and cottonwood stands along the South Platte River. This letter from Dr. Cooper is attached. To date,the issues raised by Dr. Cooper have not been addressed by either the environmental consultants working for Platte Sand&Gravel,LLC nor by the government agencies from whom you have requested letters of referral on USR#1306. Please review his letter and incorporate it as an exhibit in the file for USR#1306. Our neighborhood group also requests that Dr. Cooper have an opportunity to speak with you via phone on June 151 or 2n°in order to answer any questions you may have about his recommendations. Thank you for your consideration of these important matters. On behalf of Platteville United Neighbors, Bruce W. Rippe enclosure EXHIBIT Kim Ogle-CooperLetterll.doc Page 11 • Page 1 May 15, 2001 Weld County Planning Dept. David J. Cooper, Ph.D. Ecologist David J. Phone 303 499 6441 ld, V 1 200( 2680 Lafayette Drive Fax 303 499 6441 Boulder, CO 80305 e-mail: acooper@rmi.net May15, 2001 RECEIVED Lori Potter KellyIHaglundlGarnsey+Kahn LLC 1441 18th St., #300 Denver, CO 80202 303.296.9412 303.293.8705 fax www.khgk.com 1potter(a�khgk.com Dear Ms. Potter, Subject: Cottonwoods near the proposed Platteville gravel pit At your request, I am providing an analysis of the potential affects of the proposed Platteville gravel pit on plains cottonwood (Populus deltoides Marshall subsp. monilifera (Alton) Eckenwalder). I will address two critical issues (1) potential affects of pit dewatering on cottonwoods, and (2) channel stability and diking. Plains cottonwood is the only tree species present along most reaches of the South Platte River in Colorado, and it provides a number of critical ecological functions. The tall, complex canopy structure provides important habitat for migratory birds, including songbirds, bald eagles, cavity nesting birds, and owls, among others. The continuous cottonwood canopy provides an important corridor for wildlife movement along the Front Range. The cottonwood canopy also shades the river, maintaining cooler water temperatures, and providing leaf litter input that drives the aquatic food chain, and supports the fish community. Tree roots stabilize stream banks, preventing erosion. The anaerobic soils likely provide important water quality functions, removing pollutants and nutrients. Plains cottonwood is the North American tree species most susceptible to drought induced xylem cavitation (Tyree et al. 1994). Cavitation, and the dieback of leaves, branches, stems, and entire trees occurs when water tables drop below tree roots, or during extreme droughts when entire river systems and their aquifers dry up. My own research (Cooper and D'Amico 1996, Cooper et al. ms.) and from researchers with the U.S. Geological Survey, Biological Resources Division (Scott et al. 2000) indicates that water table declines of as little as 2-3 feet below cottonwoods can lead to severe water stress. This stress can cause leaf, twig and whole tree dieback, and stress begins within 2-3 weeks of drawdown, and if prolonged for many months can lead to tree death. Of course, the drawdown is critical during the summer months when trees are actively growing and acquiring water from the aquifer. EXHIBIT 1 1 l2`i Kim Ogle- CooperLetterll.doc -Page-2i • Page 2 May 15, 2001 This issue is critical because the "maximum theoretical water level declines" figure provided by Leonard Rice Consulting Water Engineers, Inc. in a letter report to Greg Rousch, dated 23 March 2001, provides modeled water table drawdown amounts at varying distances from a pit. At all three of the modeled transmissivities (gpd/ft), the water table drawdown at all modeled distances (to 2000 feet from the pit center) were equal to or greater than three feet, aftern 365 days of pumping. Thus, any dewatered pit within 2000 feet, and possibly a greater distance, of cottonwoods along the river corridor could lead to critical drawdowns and tree damage or death. This subject is important for several reasons. Most trees are mature, and little cottonwood reproduction occurs. Thus, maintaining the health and condition of these trees is critical for maintaining the riparian ecosystem, and few replacement trees are maturing. Mature trees are extremely susceptible to drawdown-induced cavitation. The trees, and stream channel, in the stream reach in question are of historical significance, having been described in detail by John C. Fremont on July 10, 1842. Likely many of the trees that Fremont saw and discussed in his journals, are still alive today, and are threatened by this project. The work initiated by Leonard Rice must be carefully applied in the analysis of pit location, and the potential effects of drawdown caused by pit dewatering. In addition, their analysis should be extended to include distances of 3,000 and 4,000 feet from the pit center. r The second issue that must be address is whether dikes will be erected to maintain the South Platte River in its current alignment. This is typical practice to keep streams from migrating into gravel pits. However, cottonwood tree seedlings establish only on the bare wet mineral soils produced as rivers meander. Meandering streams erode banks on the outside of stream bends, and point bars form on the inside of meanders. Trees establish on point bars. The South Platte River riparian ecosystem can be sustained only by a stream with room to meander. If the stream is confined by one or more dikes, then cottonwood reproduction is likely to be curtailed. These issues must be carefully considered before determining the potential impacts of the proposed gravel mine on riparian ecosystems of the adjacent South Platte River. Sincerely, David J. Cooper 2 May 22, 2001 Weld County Planning Dept. Kim Ogle, Planner Weld County Planning Services , 't../0 1555 North 17th Avenue G RECEIVED Greeley, CO 80631 RE: Use by Special Review Permit,USR 1306 S & H Gravel Mine, Weld County Colorado Platte Sand and Gravel, LLC, Owner/Operator Dear Mr. Ogle: We oppose the issuance of a Use by Special Review Permit to Platte Sand and Gravel. LLC (Tom Sharkey and Krystal Hoffschneider) that would allow them or any prospective leaseholders, buyers, et cetera to create S & H Gravel Mine or any other mine, and thereafter allow any parties or entities to mine 850f acres of ground and operate a gravel plant, an asphalt batch plant, a concrete batch plant, an asphalt and concrete recycling plant, and a pre-cast concrete manufacturing plant on those parts of Sections 26-T4N-R67W, 34-T4N-R67W, 35- T4N-R67W and 2-T3N-R67W southeast or east of and adjacent to the South Platte River; and a railroad load-out yard in that part of Section 26-T4N-R67N northwest of and adjacent to the South Platte River; and any other non-agricultural activities in that part of Section 23-T4N- �-. R67W northwest of and adjacent to the South Platte:River;which are northwest of Platteville and west of Gilcrest in Weld County, Colorado. We request that the Weld County Planning Commission and the Weld County Board of Commissioners deny this permit. The proposed mining and the non-agricultural and heavy industrial production operations and other uses of this property violate the Comprehensive Plans of Platteville. Gilcrest. Milliken and Weld County which are designed to protect agricultural land and water and preserve them for agricultural use. This property is not zoned for non-agricultural and heavy industrial production operations and other uses. In addition to the United States Department of Agriculture (USDA) Soil Conservation Service Soil Survey Sheets (Numbers 13 and 14) depicting the Johnstown and Milliken Quadrangles of Weld County South, the Official Prime Farmland Map of Weld County (prepared by the USDA Soil Conservation Service and the Colorado State University Experiment Station and other cooperating agencies) shows that a good portion of Section 26-T4N-R67W south and east of the South Platte River and parts of Section 35-T4N-R67W and Section 2-T3N- R67W are prime farmland. In their application Platte Sand and Gravel. LLC erroneously states that said property is not prime farmland. Using_prime farmland for non-agricultural activities that is the heavy industrial production operations stated in this application, flagrantly violates Weld County's Comprehensive Plan. Furthermore, the proposed non-agricultural and heavy industrial productions operations and other uses violate the Intergovernmental Agreements between these same government entities and it violates Federal laws. State statutes and County codes and ordinances. et cetera. For specific violations please refer to the United Neighborhood Response and attachments, dated 02/05/01, along with the responses from other individuals, agencies, towns, et cetera who are opposed to this permit. EXHIBIT 1 130 In their application Platte Sand and Gravel, LLC proposes a designated haul route, which would put approximately 150 gravel trucks on Highway 66 (SH 66) and the connecting county roads at least twice a day, six days a week based on the production figures stated in the application. While some people were projecting as many as 24 trips a day, Tom Sharkey. a partner in Platte Sand and Gravel, LLC. admitted at one of our neighborhood meetings that a gravel truck will leave and/or enter the mine site every four minutes. Using the designated haul route, these gravel trucks will enter and exit SH 66 at the intersection of WCR 21 (in an attempt to avoid the port of entry on SH 85). We live on SH 66 between WCR 19 and WCR 21,which is also between Interstate 25 (I-25) and Highway 85 (SH 85). At the present time it is very difficult for us to cross SH 66 on foot to retrieve our mail out of our mailbox because of the already excessive amount of traffic on SH 66. Furthermore,we are currently experiencing extreme difficulty pulling into our driveway from SH 66 and out of our driveway onto SH 66 in either direction. On several occasions we have almost been rear-ended or hit broadside when pulling into our driveway by traffic behind us and we have almost been hit head-on after pulling onto SH 66 by passing vehicles. There are very narrow and very steep shoulders adjacent to and close to our property along SH 66 between I-25 and SH 85. and the barrow ditches are used for irrigation runoff. There is nowhere to go to avoid collisions except into these steep. water-filled ditches that pose a high risk of severe or fatal injury. We have to caution everyone, who visits us or brings services to us, about this dangerous situation because other people have also had close calls trying to use our driveway. All of the residents along SH 66 between I-25 and SH 85 experience the same or similar problems. Furthermore, the State of Colorado does not own the right-of-way to widen these shoulders,they do not have the financial where-with-all to purchase right-of-way and such a project is not on their current.project age-Ida. According to the Colorado Department of Transportation (CDOT) nothing is going to be done to improve the safety problems already existing on SH 66. Additionally, the Varra Gravel Pit is about' of a mile west of our residence—the impact of this additional traffic is phenomenal. Besides Platte Sand and Gravel, LLC's gravel pit, a second gravel pit is proposed to the north of the Varra Gravel Pit across SH 66, and a third gravel pit is proposed to the east and/or south of Varra Gravel Pit. Adding more gravel trucks to the alreadv excessive traffic on SH 66 will only worsen the safety problems and increase the death toll. SH 66 is one of the worst highways in Weld County for traffic accidents—several traffic fatalities have occurred at the intersections of SH 66 and WCRs 13 and 19. There are no acceleration, deceleration or left-hand turn lanes at the intersection of SH 66 and WCR 21 and the shoulders are very steep. The intersection of SH 66 and WCR 21 will become another death trap if Platte Sand and Gravel. LLC's designated haul route and permit are approved. Alternate haul routes to and from Platte Sand and Gravel, LLC's properties will have the same adverse effects and consequences on SH 60, SH 85 and other county roads. The county residents living along other portions of the designated and alternative haul routes and the school buses and school children along the designated and alternative haul routes will be endangered by the increased heavy industrial truck traffic. The current State and County road systems and conditions cannot handle and will not hold up to this additional heavy industrial truck traffic. Both CDOT and Weld County Public Works (WCPW) are concerned about the additional traffic on the designated haul route and alternative haul routes and the safety hazards that they pose to other travelers. There are no acceleration, deceleration or left-hand turn lanes along the designated haul route, there are insufficient turning radii at the intersections along the designated haul route, and there are other problems including the proximity of a county bridge to 2 the intersection of WCRs 23 and 32 ''/2. along with the proximity the proposed bridge over the Western Mutual Ditch at the corner of WCRs 23 and 36 and the insufficient turning radius. Both CDOT and WCPW are aware of and concerned about the problems related to the designated haul route and their referral letters have been returned to Weld County Planning Services. WCPW and their Traffic Engineer, in conjunction with CDOT, have requested that a traffic study be completed for the designated haul route and alternate routes from Platte Sand and Gravel, LLC's properties. We request that this traffic study be completed before this application goes before the Weld County Board of Commissioners. We also request that this traffic study become a part of the public record so that all of the concerned county residents will have sufficient time to respond to the results before the Board of Commissioner's hearing. This permit should not be approved because of these traffic and safety issues. There are right-of-way and access issues at the south end of the properties owned Platte Sand and Gravel. LLC.where they propose to build a bridge over the Western Mutual Ditch. The current owner(s)of the southernmost end of Platte Sand and Gravel, LLC's properties and/or their leaseholder(s) employees. et cetera are currently infringing on the adjacent property owners' right-of-way and they are violating the access rights of their neighbors by trespassing on their property—they are using Western Mutual Ditch Company's ditch road as a driveway to the residence owned by'Crystal Hoffschneider, instead of using the oil and gas roads as platted and deeded. After using Weld County plat maps and property deeds to research the right-of-way and access rights for these properties, we believe that a bridge cannot be legally built across the ditch at the"L" intersection of WCRs 23 and 36 in line with WCR 23. Weld County does not have right-of-way west of the corner of WCRs 23 and 36 (between Sections 2 and 11 of T3N-R67W) —this right-of-way was deeded back to the landowners. 'r also appears that Weld County does not have right-of-way north of the corner of WCRs 23 and 36 (between Sections 1 and 2 of T3N- R67W)proceeding north to the "L" intersection of WCRs 23 and 38. There has never been a north-south county road between Sections 1 and 2 from WCR 36 to WCR 38 or visa versa. We have notified the Western Mutual Ditch Company and WCPW about our concerns regarding this litigious situation. Additionally, on the Weld County Road Access Information Sheet included with the mining application only the Residential/Agricultural. Permanent and Other boxes were checked. We feel that the Commercial and Industrial boxes should also have been checked by the applicant because of the non-agricultural and heavy industrial production operations and other uses that are included in this mining application. This permit should not be approved because of these right-of-way and access issues. We are opposed to this application for several other reasons including, but not limited to. the depletion of the water levels of the South Platte River: water table and aquifer depletion and its effects on the domestic and agricultural wells on adjacent properties: ground water, aquifer.river and soil contamination: waste containment: noise, dust and exhaust pollution: the unwarranted length of the permit: et cetera. Many of the individual letters of opposition and the neighborhood letter of opposition go into further detail about these and various other issues. However, we are especially concerned about the results of studies performed by Forrest Leaf, a water engineer, which prove that dry mining on Platte Sand and Gravel. LLC's properties will dry up approximately 30 domestic and agricultural wells on the adjacent properties. At one of the neighborhood meetings regarding his multi-use application Tom Sharkey made it very clear to the adjacent property owners that he had no intentions of making reparations for damage to the 3 their wells as a result of his mining operations. We are also very concerned about the effect this mining operation will have on Xcel Energy's Fort St. Vrain power plant across the South Platte River from Platte Sand and Gravel. LLC's properties. The power plant management has been concerned for some time about the water levels of the South Platte River in low water years as a result of insufficient precipitation from rain and snowfall, along with increased industrial impacts on the river upstream. The power plant's management realized some time ago that they need additional water storage pits in order to have enough water to operate in low water years. This concern has been magnified by Platte Sand and Gravel, LLC's application and reclamation plans for their adjacent properties,which will place further burdens on the river's water supply. The continuous series (or chain) of nine gravel pit ponds created by Platte Sand and Gravel, LLC's mining operations will lower or deplete the South Platte River's water levels in the immediate vicinity, which will cause severe operational problems for the power plant. The St. Vrain power plant must have sufficient river water to continue operating. and Colorado needs the power provided by the Fort St. Vrain powerplant. None of us want to see the power shortages that are taking place in California and elsewhere. We need the Fort St. Vrain power plant and the power it produces worse than we need another gravel pit that will jeopardize the power plant's future operation and existence. Xcel Energy's right to the South Platte River's water should take precedent in this situation. This permit should not be approved because of all these environmental issues. Furthermore, the properties in question, a three-mile-plus stretch of fertile river bottom, is the home of bald eagles. golden eagles. other raptors and many other species of wildlife. The current habitat on these properties includes vital wetlands and riparian areas for various species of plants and animals. The proposed mining and the non-agricultural and heavy industrial production operations will destroy the wildlife habitat, wetlands and riparian areas, and as a result several species of animals and plant life will be endangered and/or destroyed. The proposed mining and the non-agricultural and heavy industrial production operations will chase off the wildlife, especially the bald eagles, which will further threaten and endanger their existence as a species and our national symbol. The referral letter to the U.S. Fish and Wildlife Service from the Colorado Natural Heritage Program at Colorado State University is not site- specific. A site-specific study needs to be conducted before any permits are approved. This permit should not be approved because of the threat to protected wildlife,wetlands and riparian areas. Additionally,we conducted our own historical document research regarding these properties. The referral letter to the State of Colorado Division of Minerals and Geology from the Colorado Historical Society is not comprehensive in its detail of the historical sites on Platte Sand and Gravel. LLC's properties, and it only identifies 5WL870, a historical road(probably the Overland Stage route), and 5WL814, the 1837-1846 Fort St. Vrain Fur Trading Post (aka Fort Lookout and Fort George)built by William and George Bent and Ceran St. Vrain of Bent, St. Vrain and Company, and operated by Marcellaine St. Vrain. These properties are also the site of an Overland Stage Stop; a vital connection on Uncle Dick Wooten's private courier route between Bent's Fort on the Arkansas River in southern Colorado and Fort Laramie on LaRamee's Fork in Wyoming and the resulting Pony Express operations; the town of St. Vrain; one of the first Weld County Post Offices; and the self-proclaimed 24 square-mile St. Vrain County, Jefferson Territory(as opposed to St. Vrain County, Nebraska Territory),which was the 4 forerunner of Weld County, Colorado where the first Weld County Court House was built. Besides the Overland Stage Route (aka Old Stage Road) the property was traversed by the Trapper's Trail (aka Cherokee Trail or Taos Trail); the St. Vrain, Golden City and Colorado Wagon Road Company's toll road (aka the Territorial Highway)to Fort Junction (near present- day Del Camino), Golden and the gold mines of Colorado and California; a ferry and bridge crossing on the South Platte River from Fort St. Vrain in the 1860s; and the 1867 Wells Fargo Route(aka Platte River Road). In 1843 on his second expedition through the area Colonel John C. Freemont was accompanied by the famous scouts and guides, Kit Carson and Thomas "Broken Hand"Fitzpatrick who was later named the Indian Agent and sole commissioner for the Bureau of Indian Affairs; and William Gilpin, the future governor of Colorado. This area was the ancestral home and hunting grounds of the Arapaho and Cheyenne Indians. A council of the Arapaho and Cheyenne Indians was called at Fort St. Vrain to ratify the changes made by Congress to the Fort Laramie Treaty. This site is rich with frontier historical events. In 1967 Otero Junior College. under the direction of Archaeologist Galen Baker. conducted an archaeological dig at the site of Fort St. Vrain, and artifacts from various levels of human occupation were found and cataloged. An electro-magnetic photo field study was also completed at the Fort St. Vrain monument site on 06/17/87. which revealed that the fort and town site is much larger than the one-acre plot recently deeded by Weld County to the Platteville Historical Society, and that there are unmarked human gravesites located on this property. According to local historical documents one of Marcellaine St. Vrain's Indian wives (or his squaw) and her baby were murdered by the Arapaho Indians and buried on this property,which precipitated.St_ Vrain's revengeful massacre of approximately 50 Arapaho Indians. whose graves are unmarked. The entire family of Arapaho Chief Friday was killed in the massacre and Chief Friday returned • to Fort St. Vrain yearly to mourn his dead at this sacred site. According to the 1870 census, the Town of St. Vrain grew to a population of 240. and its residents also buried their dead on this property. As addressed latter in this letter all the graves are unmarked and protected by law. We request that the Colorado Historical Society conduct a Cultural Resources Survey of these properties and the surrounding properties before any permits are approved. The sections of ground that need to be included in the Cultural Resources Survey are: Sections 13, 14, 15, 22, 23, 24, 25, 26, 27, 34, 35, 36 of T4N-R67W and Sections 1, 2, 3, 4, 9, 10, 11, 12, 13, 14, 15 and 16 of T3N-R67W. Furthermore, we request that DU Anthropologist Larry Conyers (or someone of like expertise) conduct a ground penetration radar study to determine where the unmarked graves, archaeological resources. et cetera are located on Platte Sand and Gravel. LLC's properties before any permits are approved and before any mining or any other excavation, et cetera occurs. Additionally, all mining and heavy industrial production use permits for this property should be stayed so that these properties can be properly investigated for potential designation as a National Historic Indian Site. The farming.ranching and other agricultural activities of the last 165 years have had no adverse effect on theseproperties—these properties still resembles what they looked like during the fur trapping era and before. The proposed mining and the non-agricultural and heavy industrial production operations will endanger and destroy this historic site, and they will denude the lush river bottom that existed before its purchase by Platte Sand and Gravel, LLC. The unsightly, man-made gravel pit ponds that will be left behind will forever change the beautiful river valley where Columbian mammoths and bison actually roamed; where prehistoric Indians hunted and 5 buried their dead; where mountain men and Plains and Mountain Indian tribes came to camp and trade their beaver pelts and buffalo hides at the scenic adobe trading post on the river's east bank in the 1830s and 40s; where Arapaho Indians were massacred; where Colonel John C. Fremont and other explorers used the river bottom as campsites and the "jumping-off'point for their expeditions; where gold seekers and immigrants in their Conestoga wagons sought refuge, fresh stock and a river crossing at the reopened trading post in the 1850s; where the residents of the platted town of St. Vrain lived and buried their dead; where ranchers and farmers raised their crops and cattle; and where Weld County built its first seat of government. Many historic events have occurred on this property and it is a valuable part of our heritage and Colorado's history. Initially, it was thought that the entire town site of Fort St. Vrain should be deeded over to the Platteville Historical Society by Platte Sand and Gravel, LLC as a mitigation concession. However, after further investigation of Weld County ordinances, it is now felt that 80 acres or more should be deeded over to the Platteville Historical Society because they cannot legally reconstruct Fort St. Vrain and/or build a visitor's center on less than 80 acres. Furthermore, a wildlife refuge would be a more appropriate use for the remainder of this 3-mile-plus stretch of ground. This property should not be raped and pillaged by Platte Sand and Gravel, LLC or any other companies or individuals having the same unacceptable intentions and designs. Additionally, a prehistoric Early Ceramic or High Plains Woodland Indian burial site (5WL1813 the Ehrlich Burial site), lithic tools and an Early Plains Woodland projectile point base were found in the northwestpart of Section 26-T4N-R67W, which is one of the northernmost sections of the five.sections included in said property, and where the remains of a 1900-year-old male and female Indian were extracted and repatriated to Colorado's Indians for burial in a pri vate Indian graveyard. Additional prehistoric Indian gravesites remain in the bluffs and under the railroad tracks at this site. As mentioned, other unmarked graves (both Plains Indians and European immigrants) are located on the same section. Section 26-T4N-R67W, near the site of the historic fur trading post. Furthermore, this property is surrounded by prehistoric and archaeological sites on adjoining properties in Sections 13-T4N-R67W (5WL1808, the Dent, Colorado Columbian Mammoth and Clovis Point site), 23-T4N-R67W, 24-T4N-R67W, 27-T4N-R67W, 34-T4N-R67- W, 3-T3N-R67W,4-T3N-R67W, 9-T3N-R67W and 10-T3N-R67W (5WL1809, 5WL1810, 5WL1811, 5WL812, 5WL813). In 1932 the first remains of Columbian mammoths within the United States were found at Dent, Colorado,which is downstream from Platte Sand and Gravel, LLC's properties. Eleven 11,000-year-old mammoths and at least three Clovis points have been excavated from the Dent site. Other mammoth skeletons still remain in the terraces of the bluffs and under the railroad tracks at the Dent site, and additional prehistoric Indian gravesites remain in the bluffs and under the railroad tracks at the other sites mentioned. According to I INC Professor Robert Brunswig. Jr.. an Anthropologist and local expert on the Dent and the five other archaeological sites, the likelihood of the existence of other unmarked Indian gravesites and artifacts and other prehistoric and archaeological resources on Section 26-T4N-R67W and the other four sections, Sections 23-T4N-R67W, 34-T4N-R67W, 35-T4N-R67W and 2-T3N-R67W of Platte Sand and Gravel. LLC's properties are extremely high. Additionally, Diane France. the Director of CSU's Laboratory For Human Identification, excavated an Indian ossuary (burial) site south of the confluence of the St. Vrain and South Platte Rivers adjacent to Platte Sand and Gravel. LLC's property in recent years. The referral letter from the Colorado State Historical Society does not identify the prehistoric or archaeological sites of 5WL1808, 5WL1809, 5WL1810, 5WL1811, 5WL812, 5WL813 and other sites mentioned to the south of these 6 registered sites. Other known prehistoric and archaeological sites have already been destroyed by oil and gas operations according to Professor Brunswig. This entire area is a prehistoric historical and archaeological treasure that should not be endangered or destroy mining operations and excavation. The proposed railroad haul-out yard on this property will endanger and/or destroy the existing prehistoric Indian gravesites and artifacts at the Ehrlich site. Furthermore,the railroad and its right-of-way are privately owned by Xcel Energy (Fort St. Vrain power plant), and Platte Sand and Gravel. LLC does not have permission or the right to use that railroad to haul out their sand,-gravel, et cetera. Additionally, the mining excavation of the remainder of this property(using bulldozers. draglines, scrapers. dredges, et cetera)will destroy any Columbian mammoth remains and other unmarked Indian gravesites and artifacts and other prehistoric, historical and archaeological resources on this property. This application completely overlooks the existing and registered unmarked prehistoric Indian graves and artifacts and other unmarked human gravesites along with the existence of the known prehistoric historical and archaeological sites, and the unmarked graves and sacred sites. This application completely overlooks the Federal laws. State statutes and County ordinances. et cetera passed to protect and preserve such resources from excavation, destruction, desecration. et cetera. Again, a Cultural Resources Survey of the area and a ground penetration radar study should be performed on this property before any permits are approved, and all permits should be stayed so that this property can be investigated for designation as a National Historic Indian Site. We are very concerned that this application does not address Platte Sand and Gravel, LLC's compliance with the following Federal laws,regulations and standards: •. American Antiquities Act of 1906 (16 USC 431-433) • • American Indian Religious Freedom Act of 1978 (42 USC 1996 and 1996a) • Archaeological and Historic Preservation Act of 1974(16 USC 469-469c) • Archaeological Resources Protection Act of 1979, as amended (16 USC 470aa-mm) • Bald Eagle Protection Act of 1940 (16 USC 668-668d) • Endangered Species Act of 1973, as amended (16 USC 1531-1543) • Historic Sites, Buildings, Objects, and Antiquities Act of 1935 (16 USC 461-467) • Migratory Bird Treaty Act of 1918 (16 USC 703-711) • Museum Properties Management Act of 1955 (16 USC 18) • National Environmental Policy Act of 1969 (42 USC 4321) • National Historic Preservation Act of 1966, as amended (16 USC 470-470t, 110) • Native American Graves Protection and Repatriation Act of 1990 (25USC3001-3013) • 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property(19 USC 2601) • Historic Preservation Requirements of the Urban Development Action Grant Program (36 CFR 801) • National Historic Landmarks Program (36 CFR 65) • National Register of Historic Places (36 CFR 60) and Determinations of Eligibility for Inclusion in the National Register(36 CFR 63) • Native American Graves Protection and Repatriation Act: Final Rule (43 CFR 10) • Preservation of American Antiquities (43 CFR 3) 7 • Procedures for State, Tribal, and Local Government Historic Preservation Programs (36 CFR 61) • Protection of Archaeological Resources (43 CFR 7) • Protection of Historic Properties (36 CFR 800) • Guidelines for Federal Agency Responsibilities,Under Section 110 of the National Historic Preservation Act, Preparation of Environmental Impact Statements: Guidelines (40 CFR 1500) • The Secretary of the Interior's Standards and Guidelines for Archaeology and Historic Preservation [as amended and annotated] • The Secretary of the Interior's Proposed Historic Preservation Professional Qualification Standards • The Secretary of the Interior's Standards for Rehabilitation(36 CFR 67) • The Secretary of the Interior's Standards for the Treatment of Historic Properties (36 CFR 68) • Executive Order No. 11593 Protection and Enhancement of the Cultural Environment (1971) • Executive Order No. 13007 Indian Sacred Sites (1996), et cetera. Before any permits are approved Platte Sand and Gravel. LLC should be required to address their compliance with these and any other applicable Federal laws. et cetera. We are also very concerned that this application does not address Platte Sand awl Gravel, LLC's compliance with rolorado's Revised Statutes: • Concerning The Preservation of Historical, Prehistorical, and Archaeological Resources of Colorado (CRS 24-80-401....) • Unmarked Human Graves (CRS 24-80-1301....) • Desecration of Venerated Objects (CRS 18-9-113....) Before any permits are approved Platte Sand and Gravel. LLC should be required to address their compliance with these and any other applicable State statutes, et cetera. Additionally, The Weld County Chapter of the Daughters of the American Revolution(DAR) is in the process of getting the Fort St. Vrain DAR monument placed on the National Register of Historical Places. Weld County very recently deeded the one-acre site where the DAR marker is located to the Platteville Historical Society. Therefore, as residents of Weld County we request under CRS 24-80-407 that the State Historical Society and the Office of the State Archaeologist prevent the construction of any roads and all other construction activities on the properties owned by Platte Sand and Gravel. LLC and their agents, leaseholders. et cetera along with any other individuals, corporations, et cetera that might in any way involve historical, prehistorical and archaeological resources of the State of Colorado. Under Chapter 192 Part 13 UNMARKED HUMAN GRAVES of the Colorado Revised Statutes 24-80-1305 Violation and Penalty. (1) states,"Any person who knowingly disturbs an unmarked human burial in violation of this part 13 commits a class 1 misdemeanor and shall be punished as provided in section 18-1-106, CRS." In the preceding paragraphs we have put Platte Sand and 8 • Gravel. LLC,the Weld County Planning Commission and the Weld County Board of Commissioners on notice of the existence of unmarked graves and sacred sites on the properties in question. The moment that Platte Sand and Gravel, LLC begins any excavation on this property we, the surrounding neighbors who have knowledge that unmarked human burials are being unlawfully disturbed on said property, are bound by CRS 24-80-1305 (2)to notify the local law enforcement agency with jurisdiction in the area where the unmarked human burial is located. Our failure to notify the local law enforcement agency makes us guilty of committing a class 2 misdemeanor that is punishable under section 18-1-106, CRS (also see CRS 18-9-113 Desecration of Venerated Objects. (1) (b) EXCEPT AS OTHERWISE PROVIDED IN SECTION 24-80-1305. CRS. WITH RESPECT TO THE DISTURBANCE OF AN UNMARKED HUMAN BURIAL. a person commits a class 1 misdemeanor if he knowingly desecrates any place of worship or burial of human remains). Platte Sand and Gravel, LLC's intent is clear in their application—they intend to disturb unmarked human graves. If this application is approved, the Weld County Planning Commission and the Weld County Board of Commissioners will be allowing Platte Sand and Gravel.LLC to violate State statutes. We, the surrounding neighbors, will notify the local law enforcement agency with jurisdiction of such a violation of the State statutes. This permit should not be approved. The proposed mining (and the non-agricultural and heavy industrial production operations) will create a continuous series (or chain) of nine gravel pit ponds in this three-mile-plus stretch along and adjacent to the South Platte River. These extensive gravel pit ponds will create a serious hazard to the river channel, wetlands and riparian areas. The protection of the river.channel, - - wetlands mid riparian areas are not defined in the application. Additionally, the reclamation plan does not identify the tremendous potential for the erosion and destruction of the adjacent bluffs and terraces and pre-historical and archaeological sites on the west side of the river channel upstream, downstream, and adjacent to this property. and the former east bank of river where the historical fort site, town site and other unmarked human graves are situated, when these made- made ponds deteriorate or self-destruct. Historically, this property has been flooded several times, and the Federal Flood Insurance Rate Map (FIRM) of Weld County. Colorado Panel 750 of 1075 proves that the majority of this property is in Flood Zone A. the 100-year flood plain of the South Platte River. The applicant's reclamation plan also does not address this well-known fact and the inevitable and consequential flood damage and/or destruction of these gravel pit ponds,which will further endanger and/or destroy these extremely valuable and irreplaceable prehistoric, historical and archaeological sites. The reclamation plan does not include a proposal to safeguard and preserve any and all unmarked human graves and the prehistoric,historical and archaeological sites on said property or those on the upstream. downstream and adjacent properties in close proximity to this property. In fact, the reclamation plan makes it very clear that Platte Sand and Gravel,LLC will not armor the river banks to prevent the flooding and destruction of their gravel pit ponds and the flooding and destruction of the prehistoric,historical and archaeological sites (and the wetlands and riparian areas). Therefore, a permit for mining and non-agricultural and heavy industrial production operations and other uses should not be approved on this property. Please enter this letter of opposition and all other letters of opposition regarding this permit into the public record. Thank you. 9 Sincerely, Grant and Nancy Fisher 9224 Hwy 66 Platteville, CO 8065 1-91 1 970-785-0645 Courtesy copies to: Bill Owens, Governor Bruce Barker, County Attorney Wayne Allard, US Senator Lee Morrison, Assistant County Attorney Ben Nighthorse Campbell, US Senator John Folsom, Planning Corn. Member Robert Schaffer,US Representative Christie Nicklas, Planning Com. Member Marilyn Musgrave, State Senator Fred Walker, Planning Com. Member David Owen, State Senator Mike Miller, Planning Commission Member William Webster, State Representative Stephen Mokray, Planning Com. Member State Historical Soc./State Archaeologist Jack Epple, Planning Commission Member Glenn Vaad, County Commissioner Bryant Gimlin, Planning Com. Member Rob Masden, County Commissioner Arlan MOATS, Planning Commission Member David Long, County Commissioner Cathy Clamp, Plannirig Corn. Member William Jerke, County Commissioner Xcel Energy (Fort St. Vrain Power Plant) Mike Geile, County Commissioner 10 LIND, LAWRENCE & OTTENHOFF LLP ATTORNEYS AT LAW THE LAW BUILDING 1011 ELEVENTH AVENUE P.O.Box 326 GREELEY,COLORADO 60631 GEORGE H.OTTENHOFF TELEPI.ONE KENNETH F.LIND (970)35E-9160 KIM R.LAWRENCE (970)3 x-2323 TELE:r:PIER P,ANDREW JONES (970)35E-1111 RICHARD T.LIPUMA Nophla".can May 25, 2001 Mr. Kim Ogle VIA FAX NO. 304-6498 Planner II Weld County Department of Planning Services 1100 10th Greeley, CO 80631 Re: Platte Sand and Gravel, LLC es- Dear Mr. Ogle: This firm represents Michael Ptasnik and the Western Mutual Ditch Company with r3 lard to Platte Sand and Gravel's application for a Use by Special Review Permit. The purl:ose of this letter is to request a continuance of the Planning Commission public hEElring scheduled for June 5, 2001, on the grounds that the Application is not complete!, and cannot be meaningfully discussed until the Applicant provides additional information. The Applicant has not provided, among other things, a traffic study, a complete storm viater drainage plan, proof of a long term water supply for augmentation, or an agreement with the Western Mutual Ditch Company. See Weld County Code §23-2-260(D)(5: (10) ("complete traffic circulation and parking plan" required); §23-2-240(A)(5) (mini-num development standards, storm water detention and drainage); §23-20-260(E)(2)(long term water supply); Staff Conditions of Approval 2(D) (Agreement with Western Mutual). In addition, the 112 Permit, which typically addresses ground water issues, has yet 113 be issued, See Letter from Erica Crosby of DMG to Rock Hoffschneider dated May 29, 2 J01, attached hereto(grants continuance in consideration of 112 permit application)(encl D sed); Letter from Erica Crosby of DMG to the undersigned, dated May 29, 2001 (MLRB la ows Western Mutual to intervene in 112 process) (enclosed). Proceeding with the Planning Commission public hearing under these circumstarclm is unfair to interested parties. The purpose of the public hearing is to allow interested pulriles to an opportunity to be heard with regard to their concerns with Applicant's plan. In ':Irder �\ F:\KIM\W ESTERN.MU1Vetters O1OEO1 Ogle.wpd EXHIBIT 1131 600/TOO2j DNINNV'Id clam 4-4-4- DNIQ'IIRH 61V'I RH.T. TTTT92C0L0$ 91:91 TO/T0/90 for the process to be effective, the Applicant must have disclosed enough of the"plan" to allow meaningful review and comment. Here, major issues have yet to be addressi,d by the Applicant. In addition, proceeding before the issuance of the 112 permit is an inefficient use of resources because the 112 permit conditions may address some i)f the concerns interested parties have with the plan, and eliminate the need for presentations to the Planning Commission on those points. The Applicant will not be signidi':antly prejudiced by a short term delay, and, in all fairness, should be required to obtain this 112 permit and present details about these important parts of its plan before interested parties are asked to make comments to the Planning Commission. For all of these reasons,Western Mutual Ditch Company and Michael Ptasnik reqw;t that the Planning Commission hearing scheduled for June 5, 2001 be vacated and that nco such hearing be rescheduled until the Applicant has corrected the noted deficiencies. Sincerely, WRENCE & OTTENHOFF, LLF' P. Andr w Jones PAJ:mt cc: Michael Ptasnik Frank Eckhardt es1 F:\KIM\WESTERN.MUfettere10106010gle.wpd f00/Z001j 9NINNVld C3A1 4-4-4- 9NIerIIRH AMV9 3B.L ITTT99COL6$ 91:9T TO/T0/90 STATE OF COLORADO DIVISION OF MINERALS AND GEOLOGY of Department of Natural Resources 1313 Sherman St.,Room 215 D I v I s I o N OF Di•over,Colorado 80203 illEallbPhone:(303)866.3567 MINERAL 5 IAX:(303)832.8106 & GEOLOGY May 29, 2001 RECLAMATION MINING-SAFETY Rocky Hoffschneider;Platte Sand& Gravel LLC 810 Owens Formal Objectors and other Parties Governor All Other Interested Persons Greg E.Wolcher Executive Director RE: Platte Sand&Gravel LLC,File No.M-2000-158 Michael B,Long S & H Mine New 112 Mining and Reclamation Permit Div1s o Director MLRB Ordered Pre-Hearing Meeting Notification To Whom It May Concern: This letter is to inform you that the Mined Land Reclamation Board ("MLRB")granted Platte Sand do 3ravel's request to continue the Division's recommendation of approval for the S & H Mine New 112 Applical on to the June 27-28, 2001 MLRB Hearing. In addition,the MLRB ordered a new Pre-hearing conference to bt:held in Denver prior to the June 27-28, 2001 Board Hearing. The new Pre-hearing Conference has been scheduled for June 4,2001 at 10:00 a.m. The Pre-hearirl€ meeting will be held at 1313 Sherman St.,Room#620 in Denver,Colorado. At the meeting,a new Pre-hear ig draft order will be finalized with the remaining issues and will be sent to all parties and interested persons. All existing issues will be incorporated into the new Pre-hearing Order unless the Objector withdraw s from party status. Objectors may withdraw their comments prior to the start of the Board Meeting if they choose not :3 be a party to this matter(must be in writing). Attached is a Party Status Form that may be used to withdraw from party status. If objections are not withdrawn, all pertinent issues will be presented to the Mined Land Reclamation Board nt the June 4, 2001 meeting. If you have any questions please do not hesitate to call me at 303-866-4943. Sincerely, Erica Crosby Environmental Protection pecialist Enclosure-Party Status Form cc: Carl Mount; DMG Cheryl Linden; Attorney General's Office Sandy Brown; DMG Mark Held; Attorney General's Office Weld County Commissioners Platte Valley Soil Conservation District HIBR Nanette Formont; Milliken Town Hall Certificate of Service RECEIVED MAY 3 1 2001 600/Cool 9MIPIHV'Id Q'IUM «4-i- °WITHIN MITI MI TTTT9SCOL8. LT:9T TO/T0/90 STATE OF COLOI &ADO DIVISION OF MINERALS AND GEOLOGY Department of Natural Resources � 1313 Sherman Si,. Room 215 Denver,Colorado 80203 Phone:(303)866-3567 DIV S O N FAX:(303)832-8106 M I N E R 4A I_ GEOLOG REC LAM ATIO May 29, 2001 MINING•SAFET Mr. Andrew Jones Bill Owens Governor Lind, Lawrence & Ottenfoff LLP Greg E.Welcher 1011 Eleventh Avenue Michael oi. pro. Greeley, CO 80631 Mchael 8.Long Division Director RE: Platte Sand & Gravel LLC, File No. M-2000-158 S & H Mine 112 New Permit Application Western Mutual Ditch Company Dear Mr. Jones, On May 24, 2001, the Mined Land Reclamation Board ("MLRB") granted your petition to include your client, Western Mutual Ditch Company, as a "Party" to the Platte Sand & Gravel LLC, S & H Mine proceedings. The MLRB limited Western Mutual Ditch Company's Party status t: addressing hydrology concerns regarding the Western Mutual Ditch. This letter is to confirm our co:(versation of May 25, 2001, that all hydrology issues Western Mutual Ditch Company wishes to raise are noted in your May 18, 2001 letter addressed to the MLRB. If you have any questions, please do not hesitate to call me at 303-866-4943. Sinc ely, - (1Nb Erica Crosby Environmental Protection Specialist cc: Carl Mount; DMG Cheryl Linden; AGO Mark Held; AGO Rocky Hoffschneider; Platte Sand & Gravel LLC Stevan O'Brian; Environment, Inc. Western Mutual Ditch Co. do Lind, Lawrence & OttenfoffLLP Certificate of Service EXHIBIT 1135 RECEI YI:J:l MAY 3 1 1001 400/600Z DNINNV'Td (113A1 4-4-4- 0NICIRH MV'I HILL ITTT92C0L6$ LT:9T T0/T0/90 SPOs Concerns and Issues Number with this Concern Increased Traffic 12 Viability of Farm Productiveness 2 Quality of Life/ Serenity & Tranquility 7 Negative Effect on Property Values 7 Negative Effect on Wildlife & Habitat 12 Negative Effect of Water Table, Wells, 6 Aquifer Odors, bust, Pollution, Noise, 10 Safety to Residents 6 Condition of Roads 9 bocumented and Undocumented Historic 6 Sites Proximity to Mining & Negative Impacts 3 Application not in Compliance with Code 1 Platte Sand d Gravel,USR 1306-Letters from Surrounding Property Owners through June 1,2001 06/04/2001 13: 12 9707856034 SAGE HILL FARM PAGE 01 Sao-ell/ill -Pat 7 tl• 8234 County Road 2_t Platteville, CO tt0h�5I Phone/Fax: (970) 785_n034 4 June 2001 Weld County Planning Department 1555 N. 17 Avenue Greeley, CO 80631 RE: USR-1306 S&H Sand and Gravel Pit Dear Sirs: I am writing to express my opposition to the S&H Sand and Gravel Pit. The proposed location of this gravel mine poses an extremely serious threat to the ecosystem along the South Platte River. It is my opinion that this application should be denied on the grounds that it would cause irreversible damage to a precious environmental resource. Sincerely, qICS Cynthia Parker r EXHIBIT T•-, ( CJ� c.in, t /tse cure c 006, 1965-th-A;cas La WO- c5igadis Q,_ ,r -nAreAr . 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S: f S: .viol I k i 4.4 Vii , *. i ' � s r 4� fin. s �m t• �" i ; t_ • �:. 1 'ETA 1a .6 .I s v ..W Te A • Tip s. t ' f,�',�.It r t .,..G l • v4 • _ t • r •. . 4e AI" Yt . mar '. "w . a 'a • p .. •M y ri„ 11 'y . *Jail —I ✓ - '�.. I: t r S, r *., .. f' r.. . ! . St 41 .,._ + t {�rci�f� 1....„ IP I '- ;il � - ' �. Irv.- tom. - ' _ _ _ .r_ - - __ 1 I ,. . rMtAl� - wt sire s V u i Ai!1 t�.. • 't''�� '4a '\ I III • f . E7 SUP MIS mai 4, • • • ®: ,.r'. j �� t-.. • r �k --r Itt ��. .t ♦� R. ...911,.: .1/4 a', ,• 'f. • - NAB E h' w ''',1i'. 1 e- t !{I oi , ' 0 ' V � mi �€ i • • _ wit 6[ ' I f q11)., . il hYA., !� j �a III fl i71J1. Ih !, i,r .. _. � Ana. a !91 f' ...Ih Q T . _ _ •••••..!. s M . is oil" _ 9 - �`M et r • ..V = 4.--.. l1 --. t _ - ate. - - fcy_ _ -. Low -_ _ .< - 4. • • i t‘ • , 3.f a k4I!tt*t ,l it>--.4:' c 4 . . , ..,.„ '" A 1 .. , . t • .� • _-sir __ ..- alsilAZIN +rte - _ a..�c� - r - P> ne ia sit ..A • Ats it • • , • �; . ' t M V • ec PL, I I_- J; _ •V ait ��y� .... •.�f_ rye C . Is: s'alIV We. 4i• ; J k .,� ti, • ..�` .fi " fes _ ""`‘.42, .. �a, 4 . .�. OS N10, .� ..am" .11111 tiO Nit, �r ¢r Fx .yam , a, • • i4 • pa i1 p, 1 ..1111 May 30 , 2001 Kim Ogle Weld County Department of Planning Services 1555 N. 17th Ave . Greeley, CO 80631 RE; Platte Sand and Gravel , USR-1306 Dear Mr . Ogle : This letter regards the applicant Platte Sand and Gravel , LLC, and specifically land involved in this application and the classification as --grime farmland. In reviewing the comprehensive plan of Weld County, ection 22-2-40 , regarding the prime farmland definition, the availability of a consistent supply of clean water must exist . This further states that if irrigation water is available and located within a usable distance of water delivery structures, this land would fall into the prime farmland definition. Indeed, this land has the soil quality, growing season and moisture supply needed to economically produce sustained, high yields of crops when treated and managed, including water management, according to acceptable farming methods . lan,FnrtA1r, in the Weld oals and oliccies, the very firsunty comprehensivet section 22-2-60, statement is to, "preserve section rm1 g p P prime farmland for agricultural purposes" . In a decree of the Water Court Case #W5473 , use of the water on the applicant' s involved land is for 650 acres of irrigated land. In addition, there are eight wells on this land supplying approximately 14 . 6 cfs (cubic feet/second) . There are addition- al , substantial amounts of ditch water on the applicant' s land. There are 24 shares of Western Mutual ditch and 7 shares of Hughes-Cook ditch water supplying a total of 9 . 5 cfs . Thus, the total water available is 34 . 1 cfs, or 48 . 2 acre/ft for 24 hours . Assuming a 100-day irrigation season, and 3 acre/ft of water necessary per acre, there is thus enough water to amply irrigate 1600 acres of land. Historically 368 acres have been irrigated on a regular basis to produce an average annual yield of 3 . 5 tons to the acre of alfalfa and mixed grasses . Corn has also been planted yearly as well with good yield. EXHIBIT EXHIBIT /117 I I -A- sge 2 Kim Ogle May 30 , 2001 Thus, my request to the Planning Department is to define these 368 acres as prime farmland, and I am requesting rtthat at Weld pr County y farmland follow their fir primary agriculture goal and policy of agricultural purposes . I am requesting that no mining be allowed on this 368 acres to preserve this prime farmland. At the planning commission hearing, I will be prepared to discuss these specific acres and will be prepared with additional detail and expert witnesses . Sincerely 0A A L Michael J'. Ptasnik MJP :PS/scp/ccva0530 . 2/4557 cc : Andrew Jones Bruce Rippe Forrest Leaf Forrest Leaf,P.E. 13946 CR 56 • •' Hillrose,CO 80733 (970)396-8906 / (970)352-1982 FAX �1+ ccwedleaf@yahoo.com LEAF ENGINEERING May 30, 2001 P. Andrew Jones Lind, Lawrence & Ottenhoff 1011 Eleventh Avenue Greeley, CO 80631 Re: S&H Mine - Prime Farmland Dear Andy: The property where the proposed S&H mine is to be located has historically been irrigated with 8 irrigation wells, 24 shares of Western Mutual Ditch and 7 shares of Hewes and Cook water rights. Historically, 368 acres of alfalfa and pasture was irrigated. Based on average year crop consumptive use requirements and an assumed field application efficiency of 50 percent, total annual diversions would average 1619 acre-feet. The total decreed flow rate of the 8 wells, the 24 shares of Western Mutual and 7 shares of Hewes and Cook water rights is 14.57 cfs. These decreed water rights would more then sufficient to provide the 1619 acre-feet of water for the irrigation of 368 acres of alfafal and pasture. Sincerely, 7ERING Forrest e , P.E. cc: Mike Ptasnik LEAF ENGINEERING I EXHIBIT Hydrology ' Hydraulics ' Water Resources ` Water Quality E:`LeaftPtasnikVones Prime Farmland Letter.wpd Section 2 (44.1.7) coot SPECIAL USE FOR MINING when there is a processing plant in operation and a lesser number when we are only removing stockpiled materials. The minimum number will be 10 and the maximum may be as many as 40. 144.1.7.3) Mining will begin on a small section of Highland Lake area where there is a terrace deposit of material that can be removed simply by mining into the hillside. Shortly after this mining begins on this deposit we will start excavating an area in Sharkey's Lake. M - - -, We estimate the wa er a• e averages six feet below the existing surface, so there will be a short time until enough water is exposed so the dredge can be floated. During this time a dragline, front end loaders and scra•ers will be used to remove the material. -4 This pit is located adjacent to the South Platte River, for this reason the pit will have water in it, year around when mining ends on any given area. (44.1.7.4) Access for the operation will be via a private access road running north from the intersection of Weld County Road (WCR) 23 and WCR 36. This private road follows our east property line and will be constructed on the County Road ROW that would be an extension of WCR 23 . Internals road will connect to this new road that will cross our site to an existing road that traverses the property from north to south. Historically this road has been used as an internal ranch road. Our proposed haul route will run south on the private road to the intersection of WCR 23 and .36; south on WCR 23 - 1.50 miles to Weld county road 322 that has a paved surface. We will then follow the pavement west along 322 and 21 to State HWY 66, then west on 66 to market or east to Highway 85. We anticipate a need for a northern access to deliver limited material along the northeast and east side of the mine. So periodically we will use an existing road that connects at the intersection of WCR 23 and 40. This route will be used sparing and only if material is needed in the immediate vicinity of the mine. There are numerous bridges in the vicinity of the pit, they are primarily irrigation ditch crossing and we know of no weight restrictions on them. The closest such bridge is over the Western Mutual ditch on WCR 23 approximately one-half mile east of the access point. Two bridges, one on WCR 322 (south) and one on Highway 60 (north) cross the South Platte River and are on paved roads. All of the bridges may have to be used at various 2 EXHIBIT I C Forrest Leaf,P.E. 13946 CR 56 • , Hillrose, CO 80733 (970)396-8906 • (970)352-1982 FAX ccwedleaf@yahoo.com LEAF ENGINEERING February 28, 2001 Kim R. Lawrence, Esq. Lind, Lawrence & Ottenhoff 1011 - 11th Avenue Greeley, CO 80631 Re: Ptasnik well injury analysis, S&H Mine Dear Kim: I have reviewed the proposed S&H gravel pit and the potential for injury to Mike Ptasnik's irrigation and stock wells. Mr. Ptasnik owns 10 irrigation wells and two domestic wells located within 1.5 miles of S&H's proposed gravel mining operation. This letter report presents the potential injury to the 10 irrigation wells and two domestic wells that would result from the dry- mining of gravel cells associated with S&H's gravel mine. Figure 1 shows the location of the 10 irrigation and two domestic wells owned and operated by Mike Ptasnik. The irrigation wells are used to provide irrigation water to cultivated crop land owned by Mike Ptasnik and have a long history of being used for irrigation of said crop lands. The two domestic wells are used to provide domestic water to the farm house and also drinking water for livestock. I calculated the historic aquifer response resulting from the pumping of the 10 irrigation wells and the two domestic wells simultaneously using the Theis method for unsteady radial flow in an unconfined aquifer. In addition, I calculated the additional impact from the proposed S&H mine using the same Theis method. Aquifer properties were taken from the 1972 Hun and Schneider open-file report "Hydrogeologic Characteristics of the Valley-Fill Aquifer in the Greeley Reach of the South Platte River Valley, Colorado". These properties included the aquifer saturated thickness and transmissivity. Decreed pumping rates for the 10 irrigation wells were obtained from the State Engineer's tabulation. It was assumed that the two domestic wells had a flow rate of 15 gallons per minute. The injury analysis for the historic analysis was predicated on the assumption that each well was LEAF ENGINEERING EXHIBIT Hydrology Hydraulics Water Resources ` Water Quality ^ E:U,eaf PtasnikU,awrence Ptasnik well injury letter report.wpd I 1 Lawrence Ptasnik Well Injury Letter Page 2 pumping at it's decreed discharge rate simultaneously. The drawdown at each well was calculated after 90 days of simultaneous pumping, which would be the case during a dry year. The historic drawdown for each well is the result of the effect of that particular well's pumping on itself and the commutative injury from all of the other pumping wells on that particular well. This exercise was conducted for each well. Table 1 contains a summary of the historic drawdown for each of the 10 irrigation wells and two domestic wells, column [2]. Table Summary of Ptasnik Well Drawdown Drawdown Saturated Historic with Well Thickness Drawdown S&H Pit [I] [2] [3] 5-14542 60 14.5 26.77 4-14541 40 18.25 30.52 13626 40 27.62 46.11 -- 11498 40 25.29 43.78 14043 30 25.01 43.5 4-4209F 30 20.37 38.86 10747 30 18.75 24.7 3-14540 30 16.53 19.06 2-14041 20 19.93 22.46 3-14042 30 16.89 19.42 Domestic 1 20 7.72 26.21 Domestic 2 20 7.72 2621 The drawdown associated with the proposed mining of the S&H pit is also presented in Table 1, column [3]. Drawdown calculations for the dry pit mining were calculated after 365 days of continuous dry-mining in an average cell consisting of approximately 45 surface acres. It was assumed that the pumping rate for the pit de-watering was continuous at a discharge of 8.9 cfs. The impact from the dry pit mining was added to the historic well drawdown, column [2], in Table 1 to show the potential injury of the gravel mining on all of Mr. Ptasnik's wells at the end of the 90 day pumping period for the wells and 365 days of continuous pit de-watering. It is evident from Table 1 that the proposed dry pit mining will cause increased water level drawdown in each of the Ptasnik wells. Furthermore, when comparing this increased drawdown LEAF ENGINEERING Hydrology a Hydraulics • Water Resources • Water Quality E:\LeatlPtasnik\Lawrence Ptasnik well inutiry letter report.wpd Lawrence Ptasnik Well Injury Letter Page 3 to the saturated thickness, column [1], in Table 1, it is my opinion that the production from each well owned by Mr. Ptasnik will be decreased, and in some instances, surging will result. Sincerely, LE EERING Forrest Leaf, P.E. Enclosure cc: Mike Ptasnik LEAF ENGINEERING Hydrology " Hydraulics ` Water Resources • Water Quality E1LeaRPtasnik\Lawrence Ptasnik well ininw letter report.wpd - .N(7 "MML/ / . � ,�� 14041 1.78cfs) a/./ 27 -9;t-11:31 n , ti1� 26 _� / W�� -- 3-14042(2A4 ofs) �;� 9;�' ��y/ / - III \ /„ '�-- �G �f,✓ or'- 3-14540(1.7 cfs) 7 • ) O rJ a� ti=. %i �; Domestic 1 (15 9Pm) 7--))�, i 10747(2.11 cfs)I \ !w• - - 1�27Domestic 2(15..m) _ „ -�- "- el " 4-4209F 1.38 cfs �l •. o,,e`a I 2-14043(2.44 cfs) X 0 13626(2.44 cfs) „( / C g w.0 11498 2.1 ofs . / \\�4-14541 (2.1 cfs)• / / i \� ' 7 —-/ ?-- 3O , ii .5-14542(1.7 cfs) i VI ,; • (Jy� I I• F 415 �- �� 1. - ei � M �'� . '°. aD6 1;fie\--,-,S-- 3 \41-l'e° -\''N \ ) E �1 _ w„ s /de N --1 ((V '' I r ) /. r LEAF ENGINEERING 13946 CR 56,Ilillrose,CO 80733 0.8 0 0.8 1.6 Miles Ptasnik Wells - Figure 1 February 2001 Forrest Leaf,P.E. 13946 CR 56 Hillrose,CO 80733 (970)396-8906 ► (970)352-1982 FAX Q0., ccwcdleaf@yahoo.com LEAF ENGINEERING March 26, 2001 Kim R. Lawrence, Esq. Lind, Lawrence& Ottenhoff 1011 - 11th Avenue Greeley, CO 80631 Re: Well injury analysis, S&H Mine Dear Kim: I have reviewed the proposed S&H gravel pit and the potential for injury to 16 irrigation wells and 9 domestic and stock wells. The 16 irrigation wells and 9 domestic wells are located within 1.5 miles of S&H's proposed gravel mining operation. This letter report presents the potential injury to the 16 irrigation wells and 9 domestic wells that would result from the dry-mining of gravel cells associated with S&H's gravel mine. Figure 1 shows the location of the 16 irrigation and 9 domestic wells. The irrigation wells are used to provide irrigation water to cultivated crop land and have a long history of being used for irrigation of said crop lands. The 9 domestic wells are used to provide domestic water to numerous farm houses and also drinking water for livestock. I calculated the historic aquifer response resulting from the pumping of the 16 irrigation wells and the 9 domestic wells simultaneously using the Theis method for unsteady radial flow in an unconfined aquifer. In addition, I calculated the additional impact from the proposed S&H mine using the same Theis method. Aquifer properties were taken from the 1972 Hun and Schneider open-file report "Hydrogeologic Characteristics of the Valley-Fill Aquifer in the Greeley Reach of the South Platte River Valley, Colorado". These properties included the aquifer saturated thickness and transmissivity. Decreed pumping rates for the 16 irrigation wells were obtained from the State Engineer's tabulation. It was assumed that the 9 domestic wells had a flow rate of 15 gallons per minute. The injury analysis for the historic analysis was predicated on the assumption that each well was pumping at it's decreed discharge rate simultaneously. The drawdown at each well was gr EXHIBIT LEAF ENGINEERING p r Hydrology " Hydraulics ` Water Resources ` Water Quality F:\Leafptasnik\Lawrence S&H well injury letter report.wpd BEE p,3,r. 7nni Lawrence S&H Well Injury Letter Page 2 calculated after 90 days of simultaneous pumping, which would be the case during a dry year. The historic drawdown for each well is the result of the effect of that particular well's pumping on itself and the commutative injury from all of the other pumping wells on that particular well. This exercise was conducted for each well. Table 1 contains a summary of the historic drawdown for each of the 16 irrigation wells and 9 domestic wells, column [2]. Table 1 Summary of Well Drawdown Drawdown Saturated Historic with Well Thickness Drawdown S&H Pit (ft) off) (ft) [1] [2] [3] 14041 20 14.88 17.41 3-14042 30 16.90 19.43 3-14540 30 1531 18.24 10747 30 16.75 19.97 4-4209F 30 18.54 30.81 2-14043 30 2334 35.61 11498 40 24.89 37.16 11494 40 23.88 36.15 13626 40 24.57 32.90 5-14542 60 20.87 33.14 4-14541 40 22.27 34.54 No Permit 50 16.82 22.77 1-12022 30 20.80 33.07 12948 40 20.88 33.15 1-12934 20 18.68 27.01 1-14131 30 15.62 21.57 Domestic 1 -9 20 14.60 26.80 The drawdown associated with the proposed mining of the S&H pit is also presented in Table 1, column [3]. Drawdown calculations for the dry pit mining were calculated after 365 days of continuous dry-mining in an average cell consisting of approximately 45 surface acres. It was assumed that the pumping rate for the pit de-watering was continuous at a discharge of 8.9 cfs. The impact from the dry pit mining was added to the historic well drawdown, column [2], in Table 1 to show the potential injury of the gravel mining on all of the wells at the end of the 90 day pumping period for the wells and 365 days of continuous pit de-watering. LEAF ENGINEERING Hydrology " Hydraulics Water Resources ` Water Quality E:\Leaf Ptasnik\Lawrence S&H well injury letter report.wpd Lawrence S&H Well Injury Letter Page 3 It is evident from Table 1 that the proposed dry pit mining will cause increased water level drawdown in each of irrigation and domestic wells. Furthermore, when comparing this increased drawdown to the saturated thickness, column [1], in Table 1, it is my opinion that the production from each of the 16 irrigation wells will be decreased, and in some instances, surging will result. Sincerely, LEAF ENGINEERING Forrest Leg, P.E. Enclosure cc: Mike Ptasnik • LEAF ENGINEERING Hydrology ` Hydraulics ` Water Resources " Water Quality E:\LeafPtasnik\Lawrence S&H well injury letter report.wpd I — 41'^'� _ ._ (-41r •a 2__ . .gym ^` v `/ IITII�I •' niTCN I 14041 (1.78 cfs) ,' 55 a 1 ,1., `''� _ �� N .""'• ' - "555 3-14042 2.44 cfs0 1 • ti, - w•. : 3-14540(1.7 cfs / / < �u J i,, -. / r� .L r, . t Domestic 1 15 gpm / A v 7 terfir. //a \� t, . 10747 2.11 cfs ` i,e; '\/ /Li 77 ° iK L Domestic 2 15 a•m r - _ - .:,.— , - ' .. \ ° i _ 7 4-4209F 1.38 th ! o43(2:cts) � ioe / ) Domestic315 .•m /, + t a,. 11494(1.67 cfs� •1 • I , -- 11498 2.1 cfs A ° 13626 2.44 cfs ".t\ . 1!/3Z '' ) Domestic4 15 .•m tl' 5-14542 1.7cfs \ �— % rr4ry •F'! 4>.:� � 4-14541 (2.1 cfs rs- • _ _ I-.7•' -- 74 - - � I. - No Permit(1 67 cfs)V r 4 cfs)��",,, J�•�<I, --' 2(2. 2948 2.6 cfs I•mss_ / X01 I 1Qt, ml Domestic 5 15 m •o-- /j 4M6 •• mestic6(15g•m). \ — - :71° �4,� � � ...,,n 5 lelio t W E / Domestic 7 15 ••m "'DNS 1-12934 2.44 cfs °•��" -.=z� _ ' ��i • _ r . mil __ 3 p ,r 1 14131 2.2 cfs)` `47,8 a :.ir1j )L Domestic 15 ••m i / \ I' 4aro Domestic 10(15 g m) '•-`\;I / y/ \-----,„N' \ LEAF ENGINEERING 13946 CR 56,iiillrose,CO 80733 0.8 0 0.8 1.6 2.4 Miles Figure 1 March 2001 GREGG TEN EYCK LESLIE BOTHAM JON JON FORD LEONARD RICE CONSULTING WATER ENGINEERS, INC. GREG ROUSHJR 2000 CLAY STREET, SUITE 300, DENVER, COLORADO S0211-5119 KEVIN O'CONNELL (303) 455.9589 ♦ FAX (303) 455-0115 ERIN WILSON March 23, 2001 Mr. Tom Sharkey 15430 Copperfield Drive Colorado Springs, CO 80921 Dear Tom: Enclosed is a memorandum discussing our evaluation of potential impacts to nearby wells in terms of lowered water levels resulting from the of dewatering of 1-acre pit sites for dredge construction. Please call me or Dennis McGrane and we can discuss any questions you may have. Very truly yours, LEONARD RICE CONSULTING WATER ENGINEERS,rNC. diariAt_ Greg ft. h,P. E. Principal GR/g1e 1057SDR01 cc: Steve O'Brian EXHIBIT 1 a_ D:\Documents\1057sdr01\Mar23GR.wpd WATER RIGHTS • GROUND WATER 4. CIVIL DESIGN • PROJECT MANAGEMENT I�� WATER RESOURCES PLANNING + WATER QUALITY + REGULATORY COMPLIANCE CELEBRATING 30 YEARS OF SERVICE 1970-2000 ACEC MEMORANDUM TO: Greg Roush-Leonard Rice Consulting Water Engineers,Inc. (LRCWE) File: 1057SDR01 Tilt FROM: Dennis McGrane (LRCWE) DATE: March 23,2001 RE: Potential Ground Water Resource Impacts Associated with Starter Pit Dewatering BACKGROUND Tom Sharkey requested that we evaluate the potential impacts to nearby well owners associated with digging a starter pit for a wet mine dredge at the S&H mine site near Gilcrest, Colorado. . It could take around 1 year to excavate the pit depending on the gravel sales of the volume excavated. During this time, water entering the pit will be removed by pumping from the low points where water accumulates. Once the pit has been mined to an adequate size, a dredge would be constructed in the pit. Dewatering would then cease,and the water levels would be allowed to recover. Dredge mining operations would begin from that point in time. We were asked to estimate potential effects of this scenario on ground water levels and wells located outside the mine property. METHOD There are several engineering equations that can be used to help solve this problem. In this case, we believe that the Theis Nonequilibrium Equation is the most applicable because: • Time/drawdown relationships can be determined; and • Radial flow conditions(converging flow to a dewatering well or small pit) exist. The Modified Theis Nonequilibrium Equation is a simplified evaluation of the Theis integral that takes the form: s=264Q/T * log [(.3Tt')/(r^2*S)] LEONARD RICE CONSULTING WATER ENGINEERS, INC. 2000 CLAY STREET.SUITE 900.DENVER.COLORADO 80211-5119•PHONE(303) 455-9509 •FAX (303) 455-0115 Memorandum to Greg Rot March 23,2001 Page 2 We defined these variables as follows: s=pit drawdown (ft) Q = pit dewatering rate (gpm) T=aquifer transmissivity (gpd/ft) t =time (days) r=distance from the pit center(ft) S=aquifer specific yield The equation can be used to conservatively estimate aquifer drawdowns at distances(r) away from the pit for specific times (t) using representative aquifer properties(T and S). AQUIFER PROPERTIES The S&H mine pit site is situated immediately east of the confluence of the South Platte River and St Vrain Creek. The aquifer consists of high permeability sand and gravel deposits. The aquifer is approximately 5 miles wide in the area and the proposed mine is approximately'h of a mile wide (East-West) and located in the western half of the aquifer. Several canals divert water from the South Platte and provide irrigation water to farms within the floodplain. Mostly agricultural wells penetrate the aquifer but some domestic, stock, and commercial wells are present. The USGS (Hurr, 1972) characterized the aquifer beneath the site (Open File Report 73-124). The report contains maps of well locations, bedrock elevations,water table elevation,and aquifer transmissivity and saturated thickness. Aquifer transmissivity in the areas of the proposed mine range from 50,000 to 200,000 gpd/ft and the saturated thickness ranges from 20 to 65 feet. Based on our pumping test and computer modeling experience in the area,we believe the aquifer specific yield is around 20 percent. CONCEPTUALIZATION We used the Modified Theis Equation to predict drawdowns caused by a theoretical well located at pit center for 365 days of continuous pumping. Figure 1 shows a conceptualized cross-section of the pit with a hypothetical dewatering well at its center. The well is assumed to begin pumping at the commencement of mining and continues for one year. The target drawdown at the edge of the pit (r= 118 feet) is 13 feet. This allows a 2-foot thick seepage face for water to enter the pit. The dewatering rate (Q) was solved for when drawdown at the edge of the pit (r= 118 feet) was 13 feet. LEONARD RICE CONSULTING WATER ENGINEERS, INC. 2000 CLAY STREET.SUITE 300.DENVER.COLORADO 80211-51 19 •PHONE(303) 455-9589 •FAX (303)455-0115 Memorandum to Greg Rou March 23,2001 Page 3 MAX. THEOR. WATER LEVEL DECLINES from Starter Pit Dewatering 0 Top of 10 PreposedTit- - - Thwithetioai-.Writ.7.-7_ 10 Piedeveroprite :W of T-. • - - —0 - ---- -------— ____ 2020 \ -10 E t > 0 CL — Sane aflcF -o a) 30 -Gravel -20 E Avi�er----— 40 -30 p_umptng Time=365-days T 50 -,-rrl-rrll-i rl'rrl -,-ri 1", rl-i rll-rrll-rT-.-rrl-i r7' -40 -2000.1800.1600-1400.1200.1000.800-600 -400-200 200 400 600 500 1000 12[0 1400 1600 1500 2000 Distance from Pit Center (ft) Transmissivity (gpd/ft) _. - 50,000 _A— 100,000 _._ 200,000 Figure 1 RESULTS Figure 1 shows three theoretical drawdown curves for the range of aquifer transmissivities across the site. The shape of the water table is parabolic with greater drawdown away from the pit for higher aquifer transmissivities. Tables 1 - 3 shows the theoretical drawdowns for an aquifer transmissivity of 50,000 gpd/ft, 100,000 gpd/ft, and 200,000 gpolft respectively. The greatest potential impact shown in Table 3 is 5 feet of drawdown approximately 2000 feet away. We propose that the operator use the appropriate table for the aquifer transmissivity (using Hurr's Transmissivity Map) beneath the proposed pit location to estimate the theoretical impacts of starter pits. Each table shows the maximum theoretical drawdown and the expected drawdown. The expected drawdown is 50% less than the theoretical and is based on our estimate of the effects of mitigating factors discussed below. Starter pits are best located at least 2000 feet away from existing wells in areas of lower aquifer transmissivity. LEONARD RICE CONSULTING WATER ENGINEERS, INC. 2000 CLAY STREET.Suite 300.D[NVCR.COLORADO 80211-5119 •PHONE(303) 455.9589•FAX (303)455-0115 Memorandum to Ureg Roush March 23, 2001 Page 4 Table 1 - Maximum 365 Day Drawdor. Transmissvity(gpolft)= 50000 god/ft Theoretical Pumping Rate(gpm)= 750 Specific Yield= 0.2 Estmated Pit Dewatering(ft)= 15 Maximum Drawdown at Distance's'from Pit Center Distance Maximum Maximum from Pit Theoretical Expected Center(ft) Drawdown(ft) Drawdown(ft) Theoretical Pit Center= 1 31 15 Edge of Pit= 118 13 7 300 10 5 500 8 4 • 700 7 3 900 6 3 1100 5 3 1300 5 2 1500 4 2 1700 4 2 1900 3 2 2000 3 2 Table 2 -Maximum 365 Day Drawdown Transmissvity(god/ft)= 100000 Theoretical Pumping Rate(gpm)= 1375 Specific Yield= 0.2 Eslmated Pit Dewatering (ft)= 15 Maximum Drawdown at Distance se horn Pit Center - aistance Maximum Expected from Pit Theoretical Drawdcwn Center(ft) Drawdown(ft) (ft) Theoretical Pit Center= 1 29 15 Edge of Pit= 118 13 7 300 10 5 500 8 4 700 7 4 900 7 3 1100 6 3 1300 5 3 1500 5 3 1700 5 2 • 1900 4 2 2000 4 2 Table 3 - Maximum 365 Day Drawdown Transmissvity(gpolft)= 200000 gpd/ft Theoretical Pumping Rate(gpm)= 2500 Specific Yield= 0.2 Eslmated Pit Dewatering(ft)= 15 Maximum Drawdown at Distance'r"from Pit Center Distance Maximum Maximum from Pit Theoretical Expected Center(ft) Drawdown(ft) Drawdown(ft) • Theoretical Pit Center= 1 27 14 Edge of Pit= 118 13 5 300 10 4 500 9 700 8 4 900 7 4 1100 6 3 • 1300 6 3 M.' . . 1500 6 3 1700 5 3 1900 5 2 2000 5 2 LEONARD RICE CONSULTING WATER ENGINEERS, INC. Memorandum to Greg Rot March 23,2001 Page 5 MITIGATING FACTORS As shown on Tables 1-3, we expect the actual drawdown to be around half that calculated using the Modified Theis Equation. This subjective determination is based on the way we applied the equation, and the mitigating effects of aquifer recharge and subflow. Conservative Assumptions We believe the Modified Theis Equation applied in the manner discussed overestimates drawdown for the following reasons: • The actual dewatering time would be considerably less (approximately 3 months) due to the fact that dewatering would not actually begin until after the upper 10 feet of unsaturated material was mined away; We therefore expect the actual dewatering time to be less than one year. • The actual maximum drawdown in the pit would equal the pit depth (which would progressively deepen) instead of a water level far beneath the pit bottom in the theoretical well pumping at a constant rate. We therefore expect actual dewatering rates to be below that shown in Tables 1 —3. Aquifer Recharge and Subflow The Modified Theis Equation assumes a flat aquifer with no recharge sources. In reality, a drawdown cone will extend only as far as it takes to intercept recharge that equals the pumping rate. At that point in time,the drawdown cone will stabilize. Recharge sources that are expected to maintain water levels include precipitation, agricultural recharge, and surface water recharge including rivers and canals. The S&H Mine site is surrounded by river and canal recharge sources. We made preliminary maximum recharge estimates for these sources to compare against the estimated pit dewatering rates. Stream Recharge St. Vrain Creek and the South Platte River are within 1000 feet from the proposed pit site. The amount of stream recharge from these sources is a function of the gradient between the river and the aquifer, the permeability of the river bottom, and the aquifer transmissivity. We estimated the maximum amount of stream recharge from only the South Platte River based on the following assumptions: river length within 1000 feet of the entire proposed pit area is approximately 4 miles; average river width approximately 20 feet, average aquifer transmissivity (117,000 gpd/ft); average aquifer thickness (37 feet); a vertical gradient between the stream and aquifer; and a vertical permeability 100 times less than the horizontal (Kh'Kv = 100). Under these assumptions, the maximum amount of potential stream recharge is around 8,700 gpm. This LEONARD RICE CONSULTING WATER ENGINEERS, INC. 2000 CLAY STREET.SUITE 300.DENVER.COLORADO 8021 1-5119 •PHONE(303) 455.9589 •FAX(303)455-0115 Memorandum to Greg Rot. March 23,2001 Page 6 recharge amount is more than triple the maximum theoretical dewatering rate (2500 gpm, Table 3) and would significantly limit aquifer dewatering. Canal Recharge Leakance from the Western Mutual Ditch and Farmers Independent Ditch will also maintain water levels. The Western Mutual Ditch flows along the eastern border within 600 feet of the proposed pit. Using similar aquifer properties described above, a canal length of around 2.5 miles, an average canal width of 5 feet and a 6-month wetting period, we can expect an average of around 700 gpm of leakage to the aquifer. This recharge amount is approximately 28% of the maximum theoretical dewatering rate (2500 gpm, Table 3) and would reduce aquifer dewatering. Aquifer Subflow Aquifer subflow is water flowing through the aquifer in response to the natural aquifer gradient. Hun's water table map shows subflow moving from south to north at an average gradient of around 0.003. Using Darcy's Law (Q = KIA) where: Q = Aquifer Subflow (gpm); I = Average ground water gradient (.003); and A = aquifer cross-sectional area (1.2 million square feet), we calculate approximately 5,300 gpm moving through the aquifer from up gradient. This is more than double the maximum theoretical dewatering rate (2500 gpm, Table 3) and would significantly limit aquifer dewatering. We conclude that the maximum dewatering rate (2,500 gpm, Table 3) is only 17 percent of the amount of potential recharge to the area. Therefore the drawdown cone will likely be significantly contained and minimal impacts to other users will likely occur. IMPACT The Colorado Division of Water Resources requires that all new wells be located 600 feet from existing wells. One purpose of the 600-foot rule is to prevent the drawdown caused by one well to adversely affect the performance of the other. Tables 2 and3 show that pit dewatering could cause water levels to decline up to 8 feet at a distance of around 600 feet from the starter pit. Based on mitigating factors discussed above, we believe the actual drawdown would likely be less than half that amount(4 feet). We realize that a decline in the aquifer saturated thickness could cause a proportional drop in the maximum well yield for an existing pump system well. Assuming an average saturated thickness of 50 feet in areas where agricultural wells are present, and an expected water level decline of 4 feet (Table 3), we can expect a drop in the maximum well yield of less than 10 % for wells located within 600 feet of the proposed starter pit. In our opinion, this reduction in the maximum well yield would not be noticeable for most well users and could easily be mitigated by extending the pumping time. LEONARD RICE CONSULTING WATER ENGINEERS, INC. 2000 CLAY STRUT.Suite 300.DCNVCR,COLORADO 80211-511 9 •PNONe(303) 455-9589 •FAx(303)455-0115 Memorandum to Greg Ro. March 23, 2001 Page 7 ADDITIONAL WAYS TO MINIMIZE IMPACTS We have identified the following additional ways to minimize the effects of the proposed mining activities on existing wells: • Begin pit mining in early summer. Aquifer dewatering would likely not occur until after the irrigation season and would be complete before the following summer. In this way, the greatest impacts would occur in the late winter and spring when ground water demands are lowest. • Begin mining as far away from existing irrigation wells as possible; as close to the Platte River as Possible and in areas of reduced aquifer transmissivity (See Huff's Map). CONCLUSIONS AND RECOMMENDATIONS Starter pit dewatering will cause water level declines off-site for a short period of time. We calculated the maximum amount of that drop to be around 5 feet 2000 feet from a starter pit site located above the most permeable portion of the aquifer (Table 3). We believe that the mitigating effects of aquifer subflow and recharge will reduce these effects by around 50 percent. If this occurs,the impacts to nearby well users will likely be insignificant. To further minimize impact to other ground water users,we recommend that S&H Mine: • Begin pit mining in early summer so that aquifer dewatering is complete prior to the next irrigation season; and • Begin mining as far away from existing irrigation wells as possible; as close to the Platte River as possible and in areas of reduced aquifer transmissivity (See Hurr's Map). SOURCES Driscoll,Fletcher, 1986. Ground Water and Wells; Johnson Division, St. Paul, Mn. 55112 Hun, Theodore, 1972. Hydrogeologic Characteristics of the Valley-Fill Aquifer in the Greeley Reach of the South Platte River Valley, Colorado; USGS Open File Report 73-124. McWhorter, David B. and Sunada, Danial K., 1977. Ground Water Hydrology and Hydraulics; Water Resources Publications,Ft. Collins, Colorado. LEONARD RICE CONSULTING WATER ENGINEERS, INC. 2000 CLAY STREET.SUITE 300.DENVER.COLORADO 80211-5119 •PHONE(303) 455-9589•FAX (303)455-0115 d Euvirouw e I Ipc. LARRY E.O'BRIAN FOUNDER 7985 VANCE DRIVE,SUITE 205A • ARVADA,COLORADO 80003 303.423.7297 FAX 303.423-7599 Ms. Erica Crosby Division of Minerals and Geology 1313 Sherman St. , #215 Denver, RECEIVED CO 80215 MAR 2 7 2001 Dear Erica; Division of Minerals and Geology RE: Platte Sand & Gravel LLC S&H Mine, Permit # M-2000-158 On behalf of our client Platte Sand & Gravel LLC (PS&G) , I will respond to your February 22, 2001 adequacy letter in the order and number format presented in that document. I have also addressed the three items in the March 8th letter in this response. You may not be aware that Tom Sharkey (majority land owner) is the President of Platte Sand & Gravel LLC and Krystal Hoffschneider (second land owner) is the Vice President, so some of our answers are based on this information. 1 . Attached is a copy of the Proof of Publication for this operation. Also, attached are copies of the return receipt cards for adjoining owners and easement holders of record. In three cases the adjoining owner did not pickup their letter so a copy of the returned unopened envelope is enclosed. Rule 6.4.5 Exhibit C-1 Mining Plan Map 2 . This map was revised as you suggested. The scale makes it hard to distinguish various lines showing mined areas and size of operation stages . The hatched areas show the limits of mining in each area. These represent the setbacks proposed, assuming the necessary clearances are obtained from the owners, for structures not owned by the company or principals in the company. These may change as PS&G works with the oil & gas companies and ditch company. Rule 6.4.4 Exhibit D-Mining Plan 3 . So noted. As the mine develops, minor changes due to irregu- larities in the land, and how an area has developed would be noted in the annual report. PS&G realizes, that ' f the EXHIBIT CODY ENVIRONMENT, INC. PAGE 3 MARCH 26, 2001 designated was to give the operator the flexibility to place various processing plants in it, in unspecified locations. We will keep that flexibility and state again that the Plant Site may contain but is not limited to gravel processing equipment, gravel stockpiles, an asphalt batch plant, a concrete batch plant and/or a concrete casting facility. Processing plants do not need to be placed in the bond calculation since they will be allowed under our county permit and would be removed as an asset if mining ended prematurely. All necessary permits needed from other government agencies that apply to these plants will be obtained before operating them. 9 . All roads used by this operation will be contained on site or are county roads. The on site roads will not be improved unless used as a haul routes and in that case they will be maintained regularly and graveled to keep dust down. Most of these roads will remain when mining ends to allow access to oil well facilities on the site. Existing roads vary from 12 to 25 feet wide depending on their use. The new access road will be constructed from the southeast corner of the site to the Plant Site in the approximate location shown on the mining plan map. This road will be up to county standards, probably 50 feet wide with a gravel surface. Drainage ditches will be along each side to collect any runoff and channel it to drainages that cross the site now. As stated in the appli- cation, no water that comes in contact with disturbed areas will leave the site unless it is allowed under our discharge permit. 10. So noted. This was an advisory statement to make all inter- ested parties understand that changes to the end use may happen. This keeps someone in the future from saying they were never told the possibility existed. I might point out that if PS&G chooses to seal one of the lakes, fill it with water they purchase/own and use it for recreation is does not change the final reclamation plan. 11 . u a ENVIRONMENT, INC. PAGE 7 MARCH 26, 2001 11) and the specific yield of 0.2 when calculating the stream depletion numbers for the well permit for this site. Under the gravel is a layer of shale that seals it from underlying aquifers . 24. This was stated because e a • • t T > >n L a , g er a 25. As the Division knows, gravel mines have been located in the floodplain of the South Platte River for many years and they have had little impact on the floodplain's ability to carry flood waters. The amount of gravel stored at any one time has a very small footprint in comparison to the amount of hole created by mining. The hole between the natural ground level and the groundwater table on a 50 acres portion of this site could absorb approximately 13, 068, 000 cu-ft of flood waters that would enter the mine. If on the other hand, one assumes the material stockpiles covered 10 acres of the plant site area and the flood depth was 3.0 feet (flood elevation 4753 feet, Plant Site elevation 4750 feet) then the stockpiles have a 1, 306, 8000 cu-ft foot print in the floodplain leaving a difference in our favor of 11, 761,200 cu-ft. The property would actually retain more water than it does now, and actually reducing the impact a regional flood would have on surrounding land. The reclamation map shows that the internal lake separations will not be elevated above their existing grade and there are no plans to build a berm along the river. No new berms or dikes will be built on the site to impede flood waters entering or leaving it. Weld County requires PS&G to have a Floodplain Permit prior to mining the area that will address these issues . Pickett Engineering is evaluating the effects the floodplain would have on the mining operation and a copy will be submitted when available. This analysis will be the basis for the designing the protection needed on any east-west lateral divider. Initially there will be no lateral dividers in the mined area, it isn't until mining ends in the Sharkey's Lake area that armoring would be necessary. 26. Using the qualifier came about because of problems I have had with the Division in the past. I was very careful to state at the setbacks along the river are Mining Setbacks so that PS&G would not be responsible for acts of nature (bank erosion) that would be very expensive to mitigate at the time of reclamation. This has happened to me before when it is time F, viro , Ipc. LARRY E.O•BRIAN FOUNDER 7985 VANCE DRIVE,SUITE 205A . . -. ARVADA,COLORADO 80003 303-423-7297 FAX 303-423-7599 Ms. Erica Crosby Division of Minerals and Geology 1313 Sherman St. , #215 Denver, co 80215 Dear Erica; CO RE: Platte Sand & Gravel LLC S&H Mine, Permit # M-2OOO-158 The following responses have been changed to correct or redefine the answers presented in the Match 26, 2001 adequacy response. Thanks for pointing out the problems and suggested changes so we can keepthis going. As before I an responding for my client Platte Sand & Gravel LLC. 1. PS&G cannot predict the exact areas where dewatering may take place in each area. At this time the plans are to dewater a very small area in each lake area. . This will create an area where the dredge can be set and/or built on the floor of the • excavation. Once the setup is complete the pumps would be shutoff and the excavation would refill, floating the dredge so mining could resume. ISINIIISseatimmatin 1 • be Rule 6.4.8 Exhibit H- Mldlife Information 28 .. First I want to thank the Division of Wildlife (DOW) for the comprehensive reports they have prepared'. Their information has been very helpful in determining the wildlife issues on the site. The undisturbed areas along the river are desig- nated wildlife habitat and the reclaimed areas around the lakes are the proposed recreation areas. However, the operator will not change the sloping plan or the seedmix at this time since the wildlife areas will not be disturbed. 29. Very few trees or shrubs 'will be removed by mining and none will be removed by the operator in the wildlife habitat areas. .. • STATE OF COLORADO DIVISION OF MINERALS AND CEOLOC-v— Department of Natural Resources —"-- 1313 Sherman Si,Room 215 Post-It•Fax Note 7671 Daee1 ri of Denrer,Colorado 80203 �I �I f2�D� I°°e°`� D I v I s I ONO "�j�) ��/';Q Phone:(303)866.3567 T°Ar ( �°'^ OM Gab MINERAL FAX:(303)832-8106 Co./Dapt 'Co. ^ &- Poona N Ptane Fah G E O L O G j [��.�,[�Y�� j ItECLAMATio' April 6,2001 Fax# p y�— /_ f]rti-Fe:N 6,5—q � . g) ( MINING•SAFE T Rocky Hoffschneider LL lI VV /� Ill (�Q( J a 1T U� C/V am Owens Platte Sand&Gravel LLC Governor, P.O.BOX 180 Ores E.w.jleher Executive Director Littleton,CO 80106 Michael B.Long Division Director RE: File No.M-2000-158;Platte Sand&Gravel LLC S&I-I Mine;DMG Recommendation of Approval Dear Mr. Hoffschneider, The Division completed the required technical review of the adequacy concerns for the S&H Mine 112c application submitted by Platte Sand&Gravel LLC. The Division believes that Platte Sand&Gravel LLC has complied with the minimum requirements of the Construction Materials Act and Regulations. The Division is prepared to recommend approval of the application to the Mined Land Reclamation Board at the April 25-26,2001 Board meeting. Enclosed is the Division's rationale for recommendation for approval over objections. A Pre-hearing conference is scheduled for April 17,2001 in Milliken,Colorado at the Milliken Community Complex; 1101 Broad Street at 10:30 a.m. Objectors may withdraw their comments prior to the start of the Board Meeting if they choose not to be a party to this matter(must be in writing). If objections are not withdrawn,all pertinent issues will be presented to the Mined Land Reclamation Board at the April 25-26,2001 meeting. The Pre-hearing Conference Officer will present a draft hearing order to the Board. The Board will decide whether to adopt the draft Board order at the meeting prior to the actual Board Hearing on this matter. If you have any questions,please do not hesitate to call me at 303-866-4943. Sint ly, (fa,CI101) Erica Crosby Environmental Protection Specialist Enclosure cc: Bruce Humphries;DMG Carl Mount;DMG Sandy Brown;DMG w/enclosure Cheryl Linden;AGO w/enclosure Mark Held;AGO w/enclosure Stevan O'Brian;Environment Inc. w/enclosure All Parties&Interested Persons w/enclosure EXHIBIT 1 Rationale for Recommendation for Approval, Over Objections; Regular 112 Construction Materials New Application, Platte Sand & Gravel, LLC S & H Mine, File No. M-2000-158 April 6, 2001 Introduction On April 6,2001,the Division of Minerals and Geology("Division") issued its recommendation for approval of a 112 Construction Materials Amendment Application,over objections, This document is intended to provide a basis for the Division's recommended approval over various concerns and reasons for objection to the S&H Mine,File No. M-2000-158. The Platte Sand&Gravel LLC application was found complete and considered filed with the Division on December 27,2000. The site is located southeast of the South Platte River and approximately 2.5 miles northwest of Platteville in Weld County,Colorado. The property is located in portions of Section 26, 34 and 35 of Township 4 North,Range 67 West and portions of Section 2 in Township 3 North,Range 67 West of the Sixth Principal Meridian. The permit area is 1,239.40 acres in size,whereas 831.11 acres will be mined. A total of 408.29 acres will not be disturbed by the mining operation. The mining area is divided into 9 areas, summarized below: Mining Area Total Area Mined Area Buff Lake 143.71 92.83 _ Confluence Lake 39.86 23.18 Highlands Lake 78.03 42.78 Longhorn Lake 207.73 118.22 Lake St. Vrain 74.32 30.9 Krystal's Lake 51.54 12.7 Meadow Lake 212,34 154.10 _ Sand Flats Lake 80.72 61.05 Sharkey's Lake 351.15 296.73 Totals 1,239.40 831.11 No more than 35 acres of mined land will be disturbed at any one time. This includes 15 acres for processing, b h plant operations, and stockpiles, 15 acres for stripped pm-mining areas and 10 acres for partially reclaimed area . Mining depth will vary between 45 and 60 feet, Dewatering of the pit is limited to one acre in size in each pit to facilitate the dredging. During construction of the 1-acre pit,water will be removed by pumping from the low areas where water accumulates. Once the starter pit is mined, a dredge will be constructed in the pit. Dewatering will cease, and dredge("wet mining")will begin from that point in time. The site will be reclaimed to achieve a / combination of postmining land uses including recreation and wildlife habitat. 1 RPR. 1 .c'e _ :4,D.-.." - L Objections: The Division received objections from the following individuals and organizations during the initial public comment period. Objector Dated Date Received Kathryn A.Hardin February 5,2001 Michael J.Ptasnik February 2, 2001 February 7, 2001 Gale Scott February 12, 2001 February 14,2001 James J.Brochard February 12,2001 February 14,2001 Mike Depratt February 12,2001 February 14, 2001 Stan Odenbaugh February 12, 2001 February 14, 2001 Royce A.Reinick February 12, 2001 February 14,2001 Bruce W.Rippe February 12, 2001 February 14, 2001 Michael Decker February 16, 2001 Beth Decker February 16, 2001 David W. Siple(PATINA OIL& GAS) February 15,2001 February 16,2001 Dustin M.Ammons(representing HS February 15,2001 February 15, 2001 RESOURCES, INC.) Objections Received after the Public Comment Period: Objector Dated Received Sandra L.Boos February 15, 2001 February 20,2001 Jimmy 1.Boos Kenneth L.Boos Objections Received at the Informal Conference Held March 6,2001 and Within 5 Days of the Conference: Obiector Dated Received Marty Block(XCEL ENERGY) March 7,2001 March 9, 2001 Michael J.Ptasnik March 8,2001 March 9, 2001 Objections Withdrawn to Date: Objector Dated Received Norman &Judith Swank February 27, 2001 March 1,2001 2 IL ISSUES RAISED BY OBJECTORS: Issues raised by objecting parties are listed below, along with the names of the objectors. The Division's response to objection issues follows. Issues are listed under the application exhibit(application section)to which they pertain. Issues not pertaining to a specific application exhibit are listed next. Issues that the Division believes are not within the jurisdiction of the Division or Board are listed last. ISSUES WITHIN THE JURISDICTION OF THE DIVISION AND BOARD ISSUES RAISED DURING THE INITIAL PUBLIC COMMENT PERIOD Application Exhibit E-Reclamation Plan: 1. "No significant quantity of land proposed for reclamation. All the mined area will be multiple lakes(767 acres)and essentially only the banks of these lakes will be reclaimed,which is a total of only 64 acres of the entire site." (Michael J. Ptasnik;February 7, 2001) Response-All remaining lakes must be reclaimed to meet the standards of 3.1.5(7) of the Construction Material Rules and Regulations. Maximum slopes and slope combinations must be compatible with the selected land use of recreation and wildlife habitat. Reclaimed pond slopes must be no steeper than a ratio of 2h:ly, except from 5 feet above to 10 feet below the expected water line where slopes shall be no steeper than 3h:lv. The applicant has committed to these standards in the application,which is acceptable for the postmining land use of recreation. The wildlife habitat areas will not be disturbed,therefore reclamation is not necessary. As long as the applicant secures a well permit and a Substitute Supply Plan or Augmentation Plan to compensate for depletions due to evaporation loss from the Office of the State Engineer,this plan meets the minimum standards. 2. "The proposed Reclamation Plan does not reflect current benchmark practice and state-of-the-art design for mined land reclamation." (Scott, 13rochard, Depratt, Odenbaugh, Rolnick&.Rippe;February 14, 2001) Response-The Construction Material Rules and Regulations require mine operators to achieve minimum standards for reclamation. Such standards included steepest slope combinations compatible with the selected land use,topsoil replacement and revegetation of the disturbed land. The applicant has proposed the minimum required reclamation standards for the site. 3. "Environmental issues addressed in the application is vague and non-descriptive. An environmental impact statement should be provided up front,bringing into play run-on, run-off, discharge, clean water act and NPDES issues with solid solutions and goals/expectations." (Michael Decker;February 16, 2001) Response- An Environmental Impact Statement is not requited to be submitted to the Division in order to obtain a Mining and Reclamation Permit. However, the applicant does need to address surface water runoff issues, any mine dewatering and state if an NPDES permit will be obtained. Such procedures are included in the proposed mine plan to specifically address any off site impacts. The applicant has met the minimum standards addressing protection of the surface water and groundwater for this operation. Application Exhibit G—Water Information: 4. "Concerned with groundwater impacts. Domestic water is from a well and the ground is sub irrigated from the water level. Possible impacts to the water table level and loss of the domestic well...depriving us of water." (Kathryn A, Hardin;February 5, 2001) 3 Response-The applicant submitted a hydrologic evaluation of potential impacts to nearby wells prepared by Leonard Rice Consulting Water Engineers,Inc. This report evaluates impacts to lowered water levels in wells resulting from the dewatering of the 1-acre pit sites for dredge construction. The 1-acre starter pit will cause a maximum drop of 5 feet, 2000 feet from the starter pit site if located above the most permeable portion of the aquifer. In addition,mitigation effects of aquifer subflow and recharge will reduce the effects by 50 percent. If this occurs,the impacts to nearby well uses will be insignificant. Platte Sand& Gravel will also begin mining as far away from existing wells and as close to the river as allowed. Any change to this plan will need to be submitted as a revision to the permit. The Division believes that impacts to the surrounding well owners will be _..minimized, C5.,'We have 3 homes with 3 domestic wells and ten irrigationwells on the adjacent property. Wells are located within 69 feet to 516 feet of the applicant's land. Irrigation wells are located within 169 feet and 427 feet of the applicant's land and three wells are approximately 800 feet away. Wells are in danger if dewatering and dry mining techniques are utilized. My right to farm is threatened." (Michael Ptasnik; February 7, 2001) Response-The applicant will limit the dewatering pit to 1-acre in size to minimize impacts to adjacent well owners. In addition,the applicant will begin mining as far away from the existing wells and as close to the river as allowed. The report prepared by Leonard Rice Consulting Water Engineers,Inc. demonstrates that limiting the dewatering activity to a maximum area of 1-acre,will not impact adjacent well owners and infringe on their water rights.The applicant is also required to comply with the rules of the Colorado Division of Water Resources,Office of the State ngineer for all wells located within 600 feet of the area. "I have major concerns regarding the wetlands in the applicants permit. It has been relatively dry over the past few years,but there is no question multiple areas of wetlands exist in the areas requested for mining. The applicant has completely ignored the presence of wetlands stating that a U.S. Corps of Engineers permit is not required." - (Michael Ptasnik;February 7, 2001) Response- The applicant submitted a map titled,"Platte Sand & Gravel LLC Adequacy Exhibit 5 Wetlands Map" that delineates the wetland habitat. Platte Sand&Gravel states that they will not impact the wetland areas at this time. If and when a U.S. Army Corps of Engineers 404 Permit is issued, it must be submitted to the Division to determine what course of action will be needed regarding the reclamation plan and the reclamation cost estimate, "This entire area is in the 100 year flood plain. As recently as three years ago,hundreds of these acres were flooded and inaccessible for weeks. Approximately 25 years ago, this entire area was flooded and under water. The riverbanks in the spring erode regularly, and the river path continues to change significantly. Forty acres of riverbank were lost four years ago during spring flooding. Please do not allow the applicant to minimize the historical, real flooding that regularly occurs in this area." (Michael Ptasnik;February 7. 2001) Response- Potential floodwater elevations will actually decrease as the pit is mined out. Platte Sand& Gravel will not mine closer than 400 feet of the riverbank until an armoring and bank stabilization design has been submitted to the Division and approved. Topsoil piles and miscellaneous materials will be placed and bermed to ensure these features are not impacted by flooding. In addition,the applicant will not mine in the floodplain until a floodplain analysis and mitigation plan is developed and submitted to the Division for review and approval. 8. Groundwater protection; applicant leaves open the option to change the mining to a dry operation at the iscretion of the operator. A dry operation would require dewatering of the active mine pit. The application does not offer any protection to surrounding property owners or farmers regarding protection of adjacent _ agriculture or domestic wells.A slurry wall in active pits would be a minimum requirement for protection. Monitor wells drilled at the applicant's expense and monitored regularly by a neutral third party would be appropriate." (Scott, Brochard, Depratt, Odenbaugh, Reinick&Rippe;February 14. 2001) 4 Response-The applicant will limit the dewatering pit to 1-acre in size for dredge construction.Once the dredge is constructed,the pumps will be shut off and the area will be wet mined. In addition,the applicant will begin mining as far away from die existing wells as possible. The report prepared by Leonard Rice Consulting Water Engineers, Inc.demonstrates that limiting the dewatering activity to a maximum area of 1-acre,will not impact adjacent well owners and infringe on their water rights.Any change in this plan(including dry mining greater than 1-acre in size) will need to be submitted as a revision to the permit. At that time, the Division will review the impacts to the hydrologic balance and surrounding well owners. "Proper containment and disposal of mine and plant generated chemicals or other toxic by-products are essential to groundwater protection, These containment and disposal plans must be detailed prior to granting permit." (Scott, Brochard, Depratt, Odenbaugh, Reinick&Rippe;February 14, 2001) Response-The applicant is required to properly dispose of mine and plant generated chemicals in accordance with the Regulations of the Colorado Department of Public Health and Environment. Only"inert material"may be left on site and utilized in the reclamation plan. The plant area will facilitate portable structures including a process plant,asphalt batch plant and concrete plant. Water associated with the processing plant area will be directed to the silt pond and contained on the mining area, The concrete and asphalt plant will be lined with a double layer of 60- mil vapor barrier and will be used as a double liner in the depression. Four inches of clean sand will cover the barrier and will be capped with roadbase material. In addition,a small containment berm will be placed around the plant site to contain the area. The berm will be engineered to contain the amount of liquid products stored in each plant site area. 10 "The proposed site is entirely within the 100-year flood plain for the South Platte. The applicant should provide / a detailed plan of operation which will protect adjacent and downstream residents from mine or plant produced effluent in the event of periodic flooding of the adjacent South Platte River," (Scott, Brochard, Depratt, Odenbaugh, Reinick&Rippe;February 14, 2001) Response-The applicantwill not mine in the floodplain until a floodplain analysis and mitigation plan is developed and submitted to the Division for review and approval. 11. "The application should provide a site specific review and identification of jurisdictional wetlands prior to granting the permit. This study should be undertaken by a neutral third party agency" (Scott, Brochard, Depratt, Odenbaugh, Reinick&Rippe;February 14, 2001) Response-A preliminary wetlands study was completed by ERO Resources in 2000, and a copy of the wetlands identification map was submitted to the Division. Platte Sand& Gravel states that they will not impact the wetland areas at this time. A letter dated April 1,2001 from the Department of the Army Corps of Engineers states that the area to be mined in the next 15 years is not a wetland.If and when a U.S.Army Corps of Engineers 404 Permit is issued, it must be submitted to the Division to determine what course of action will be needed regarding the reclamation plan and the reclamation cost estimate. 12. "The water which would be required for augmentation of the evaporative loss from the lake surface in this reclamation plan is significant The water is currently available for agriculture production and it would be lost for j i' such purpose in perpetuity." 1/ (Scott, Brochard, Depratt, Odenbaugh, Reinick&Rippe;February 14, 2001) Response- Platte Sand&Gravel predicts that 2,274,23 acre-feet of water to evaporate from the exposed lake areas each year, This assumes a lake surface of 768.32 acres with an average net annual evaporation of 2,96 acre- ft/surface acre. The applicant states they have no current water rights to use for make up water. The applicant may not expose groundwater until a well permit is issued by the Colorado Division of Water Resources, Office of the State Engineer("OSE"). The applicant states that a Temporary Substitute Supply Plan ("TSSP")and well permit have been filed with the OSE. In the TSSP,the applicant will commit to buying water from Longmont to cover the industrial and evaporative uses associated with the operation during the first five years. The applicant has committed that groundwater will not be exposed until they have received necessary approvals from the OSE, 5 RPR. 1,c.CCU.. _ cam; ._ -- --- 13. "Water issues will be affected by the operation of this size and duration and statements in the application show no proof of protection to the landowners in the area. The liability to replace surrounding owners of water rights/irrigation rights are not addressed at all." (Michael Decker; February 16, 2001) Response-The applicant may not expose groundwater until a well permit is issued by the OSE. The applicant states that a TS SP and well permit have been filed with the OSE. In the TSSP,the applicant will commit to buying water from Longmont to cover the industrial and evaporative uses associated with the operation during the first five years. The applicant has committed that groundwater will not be exposed until they have received necessary approvals from the OSE. 14. "Afraid that the mining operation will deplete the aquifer that supplies my deep irrigation well, something that I have to have to continue fanning." (Beth Decker;February 16, 2001) Response- The applicant submitted a hydrologic evaluation of potential impacts to nearby wells prepared by Leonard Rice Consulting Water Engineers,Inc. This report evaluates the impact to lowered water levels in wells resulting from the dewatering of 1-acre pit sites for dredge construction. The 1-acre starter pit will cause a maximum drop of 5 feet, 2000 feet from the starter pit site if located above the most permeable portion of the aquifer. In addition,mitigation effects of aquifer subflow and recharge will reduce the effects by 50 percent. If this occurs,the impacts to nearby well uses will be insignificant. Platte Sand & Gravel will also begin mining as far away from existing wells as possible. Any change to this plan will need to be submitted as a revision to the permit, Based on the findings in this report, the Division believes that impacts to the surrounding well owners will be minimized. Application Exhibit H—Wildlife Information: 15. "This would also have a substantially negative impact on the existing wildlife and would adversely affect this habitat. The Platte River runs along the west and north side of this property. Deer, eagles and hawks, owls, ducks and other species live in this habitat." (Michael.): Ptasnik;February 7, 2001) Response- The wildlife habitat area as defined in the permit application will not be disturbed by the mining operation. This includes undisturbed areas along the river that are designated wildlife habitat. The applicant states that very few trees or shrubs will be removed by mining and none will be removed by the applicant in the wildlife habitat areas. In addition, the applicant is working with the Division of Wildlife ("DOW")and the US Fish and Wildlife Service to address the buffer distances regarding the eagle roost habitat. Once a buffer distance is set, a map will be sent to the Division showing this location. No mining will take place inside the buffer during the period November 1 to March 1. The applicant must comply with all threatened and endangered species that may exist on the mine site. 16. "The true and full adverse impact of this mining and industrial processing operation on critical wildlife habitat contained within the permit area should be fully evaluated by a neutral third party agency." (Scott, Brochard, Depart, Odenbaugh, Reinick&Rippe;February 14, 2001) Response- Comments and suggestions were obtained from the DOW. The designated wildlife habitat area will not be disturbed by the mining operation.The applicant is working with the DOW and the US Fish and Wildlife Service to address the buffer distance regarding the eagle roost habitat. Once a buffer distance is set,a map will be sent to the Division showing this location. No mining will take place inside the buffer during the period November 1 to March 1. The applicant must comply with all threatened and endangered species laws that may pertain to activities at the mine site. 6 Application Exhibit L—Reclamation Costs: 17. "Given the applicants lack of prior experience in the extraction of sand and gravel, it is important that the corporation's liability be confirmed. The maximum amount of posting of the required reclamation bond should be required." (Scott, Brochard, Depart, Odenbaugh, Reinick&Rippe;February 14, 2001) Response- All financial warranties are set and maintained at a level which reflects the actual current cost of fulfilling the requirements of the Reclamation Plan. The Division prescribes the amount of financial warranty taking into account the nature, extent and duration of the proposed mining operation, type and estimated cost of planned reclamation by the State of Colorado according to the requirements of the Act and reclamation plan. For die S & H Mine, the Division estimated a reclamation cost in the amount of$111,500.00. The estimate is based on applicant's commitment that no more than 35 acres of disturbance will be present at any time, The estimate includes dewatering a portion of the pit to facilitate reclamation,backfilling and grading the pit slopes to the required slopes, topsoil replacement,revegetation,mobilization/demobilization from the job site, and indirect costs. Application Exhibit N—Source of Legal Rieht to Enter: 18. "Family has retained%2 of the oil and gas royalties on the property. 43 oil& gas wells are currently in productions and 6-7 have yet to be drilled. I have major concerns regarding the ability to maintain and optimize the current oil & gas production and future drilling and redrilling operations, There is currently considerations and plans for well spacing capabilities to be changed to every 20 acres, Thus,my financial interest and ownership interests in the oil and gas wells seem to be in jeopardy here." (Michael1 Pasnik;February 7, 2001) Response- The applicant is required by law to protect any structures located within 200 feet of the affected land (Rule 6.4.19). The statute does not protect structures that have yet to be constructed,such as future oil and gas wells. Platte Sand& Gravel will not cross buried gaslines or use roads with gaslines under them as haul routes until copies of the signed working agreements are submitted to the Division. In lieu of an agreement, the applicant may submit crossing and road designs showing how the gaslines will be protected. The applicant has provided adequate setback distances to ensure structures are protected, The applicant will obtain an agreement from the owner of the structure if mining is to occur closer than the approved mining setback distance. 19. "Patina Oil& Gas Corp. is the owner of certain oil and gas leasehold rights under the application lands and operates one oil and gas well on the lands. Patina is concerned about the impact the mining operation will have on Patina's ability to develop, produce,operate and maintain oil and gas wells on the lands.,.Patina has received no confirmation from the applicant that Patina's real property rights to use a reasonable portion of the surface of the land for oil and gas development are being preserved...Patina is strongly opposed to any surface development that would require Patina to incur the additional costs and risk associated with directional drilling or that would impair Patina's access to its existing Scottsdale Ranch 2-11L well or other potential well locations." (David W. Siple-PATINA OIL & GAS;February 16, 2001) Response-The applicant is required by law to protect any structures located within 200 feet of the affected land (Rule 6.4.19). The statute does not protect structures that have yet to be constructed, such as future oil and gas wells. Platte Sand & Gravel will not cross buried gaslines or use roads with gaslines under them as haul routes until copies of the signed working agreements are submitted to the Division. In lieu of an agreement,the applicant may submit crossing and road designs showing how the gaslines will be protected. The applicant has provided adequate setback distances to ensure structure are protected.The applicant will obtain an agreement from the owner of the structure if mining is to occur closer than the approved mining setback distance. 20. "HS Resources currently operates several wells located on the Leaseholder Lands and has exploration rights for future development that will require reasonable surface access to the lands...HS Resources and the surface owner have not executed a surface use agreement covering the mine. HS Resources requests that any permit 7 approved by your agency accommodate HS Resource's rights or be contingent upon the execution of a surface use agreement between the applicant and HS Resources." (Dustin M Ammons-DAVISGRAHAM&STUBBS, LLP representing HS Resources, Inc.; February 15, 2001) Response-Platte Sand&Gravel will not cross buried gaslines or use roads with gaslines under them as haul routes until copies of the signed working agreements are submitted to the Division. In lieu of an agreement, the applicant may submit crossing and road designs showing how the gaslines will be protected. The applicant has provided adequate setback distances to ensure the structures are protected.The applicant will obtain an agreement from the owner of the structure if mining is to occur closer than the approved mining setback distance. Application Exhibit S—Permanent Man-Made Structures: I"Historical significance of the Fort St.Vrain area in the midst of the mining area. Indian burial grounds have been rumored to be in the area." (Michael I Ptasnik;February 7, 2001) Response-Platte Sand & Gravel will not mine closer than 222 feet from the Historical Monument, and will work with the Platteville Historical Society to preserve as much of the area as possible. A letter from the Platteville Historical Society dated February 16, 2001 states that the site will be preserved. In addition, the Platteville rstorical Society studied sites 5WL087 and 5W814 and determined that the mining sot backs are sufficient to protect the sites and the road leading into the sites.pr 22. "Two historical sites are located on the property. The applicant does not address any detailed plan of protection/mitigationfor these sites. Appropriateprotection for the original site must be outlined in the mine permit application." (Scott, Brochard, Depratt, Odenbaugh, Reinick&Rippe; February 14, 2001) Response- Platte Sand&Gravel will not mine closer than 222 feet from the Historical Monument,and will work with the Platteville Historical Society to preserve as much of the area as possible. A letter from the Platteville Historical Society dated February 16, 2001 states that the site will be preserved. In addition, the Platteville Historical Society studied sites 5WL087 and 5W814 and determined that the mining set backs are sufficient to protect the sites and the road leading into the sites. ISSUES RAISED AFTER THE INITIAL COMMENT PERIOD (During the Informal Conference Comment Period) X N 23. ' egional hydrologic impact analysis prepared by Leaf Engineering. Analysis prepared by Leaf Engineering states that the production from each well owned by Mr. Ptasnik will be decreased, and in some instances, surging will result(10 irrigation wells and two domestic wells)." (Michael Ptasnik;March 9, 2001) Response- The analysis prepared by Leaf Engineering dated February 28,2001 is based on drawdown calculations for the dry pit mining after 365 days of continuous dry mining in an average cell consisting of approximately 45 acres. The result of the analysis depicts potential injury to all of Mr. Ptasnik's wells at the end of the 90-day pumping period for the wells and the 365 days of continuous pit dewatering. The applicant submitted a groundwater analysis prepared by Leonard Rice Consulting Water Engineers,Inc.dated March 23,2001. The report is based on a 1-acre starter pit that will be excavated below the water table to a depth of 25 feet. During construction of the 1-acre pit,water will be removed by pumping from the low areas where water accumulates. Once the starter pit is mined, a dredge will be constructed in the pit. Dewatering will cease, and 8 dredging("wet mining")will begin from that point in time. Leonard Rice Consulting Water Engineers calculates the maximum amount of water level decline to be around 5 feet 2000 feet from the starter pit site located above the most permeable portion of the aquifer. To further minimize impacts,Platte Sand& Gravel will commit to mining in each dewatering area in early summer so that aquifer dewatering is complete prior to the next irrigation season and mining will be conducted in each lake area as hr from the wells as possible and as close to the river as practical. The applicant will need to submit an additional hydrologic assessment if changes to the dewater plan are necessary. Based on the analysis prepared by Leonard Rice Consulting Water Engineers,Inc.,impacts to the surrounding well owners will be minimized. jVL4. "We think the size of the concrete recycling storage piles should be clearly specified by the applicant and limited in the permit process. There are runoff concerns on any storage pile that should be addressed in the permit. Impacts to the river via storm water runoff or potential contaminates due to any recycling operation should be well investigated." (Marty Block-XCEL ENERGY;March 9,20(8) Response- Platte Sand&Gravel does not propose a concrete recycling plant under this operation. However, the applicant has specified that"inert material"may be used to reclaim the pit slopes. The definition of-inert material" includes concrete,which has been in a hardened state for at least 60 days. The Division only ensures that enough bond exists to reclaim the site according to the plan. This would include any"inert material" located on site used in the reclamation plan. The applicant is required to obtain a Storm Water Management Plan("SWMP")and an NPDES permit to dewater from the Colorado Department of Public Health and the Environment. 9 _ _._. ___ ISSUES RAISED DURING THE INITIAL COMMENT PERIOD THAT THE DIVISION BELIEVES ARE NOT WITHIN THE JURISDICTION OF THE DIVISION OR BOARD 1. "Destroying good agricultural land..." (Kathryn A. Hardin;February 5, 2001) 2. "Prime agricultural land including adequate water for irrigation and agriculture...Land historically home to 550 head cow/calf operation...1000 acres of dry land, sub-irrigated and irrigated pasture exists on the land. (Michael]. Ptasnik;February 7, 2001) 3. "Traffic issues regarding the operation. This Northern access route proposed seems relatively dangerous and a major concern regarding continuing agricultural use of surrounding land in the area because of the nearby traffic and congestion about this mined area...I would think a formal traffic study is warranted," (Michael] Ptasnik; February 7, 2001) 4. "Agricultural will begin to disappear further and further from the mining site...Approval would change this agriculturally zoned area to a true industrial area for 100 years." (Michael J. Ptasnik;February 7, 2001) 5. "The noise and dust pollution will be significant and should not be minimized." (Michael] Ptasnik;February 7, 2001) 6. "Property values will plummet." (Michael J. Ptasnik;February 7, 2001) 7. "Historical significance of the Fort St.Vrain area which exists in the midst of the requested area." (Michael]. Ptasnik; February 7, 2001) 8. "This entire area is indeed located in a flood plain. This appears to be a direct violation to the Weld County comprehensive plan." (Michael J. Ptasnik;February 7, 2001) 9. "Scope of operation is huge. This is one of the largest single pieces of agricultural land that remains in the immediate front range. It is beautiful open space that requires your help to survive." (Michael.1 Ptasnik;February 7, 2001) 10. "Scale of operation is extreme in reference to its size, length of permit and accompanying industrial activity." (Scott, Brochard, Depratt, Odenbaugh, Reinick&Rippe;February 14, 2001) 11. "No evidence that the applicant has any previous business experience in sand and gravel extraction." (Scott, Brochard, Depratt, Odenbaugh, Reinick&Rippe;February 14, 2001) 12. "Applicants status of"limited liability corporation" indicates that there is questionable legal liability carried by the applicant in regard to serious concerns about ground water protection,jurisdictional wetlands and wildlife habitat protection,and downstream protection from mine effluent during intermittent flooding of the adjacent South Platte River.." (Scott, Brochard, Depratt, Odenbaugh, Reinick&Rippe;February 14, 2001) 13. "The loss of agriculture water'is not compatible with Weld County's Comprehensive Plan," (Scott, Brochard, Depratt, Odenbaugh, Reinick&Rippe;February 14. 2001) 14. The company and the DBA as an L.L.C.protect the applicant and not the present surrounding landowners. (Michael Decker;February 16 2001) 10 15. "In a 20-square mile radius there are numerous sites of this type which truly questions the demand and experience of dealing with the business operation." (Michael Decker;February 16, 2001) 16. "It will create excessive noise and dust, cause pollution from the trucks and machinery and create an enormous amount of traffic on my quiet dirt road," (Beth Decker;February 16, 2001) 17. "My property value will also be affected negatively." (Beth Decker;February 16, 2001) ISSUES THAT WERE RAISED AFTER THE INITL4L COMMENT PERIOD WHAT THE DIVISION BELIEVES ARE NOT WITHIN THE JURISDICTION OF THE DIVISION OR BOARD 18. "We understand the applicant's right to mine the gravel on his property similar to what we may eventually propose. We do not understand the need or right for the other related asphalt batch plant and recycling operations and the applicant hasn't been clear around his business purposes for the expanded operations. The applicant indicated a current problem with excessive concrete spoils at their Denver operation and we are concerned about our neighborhood being negatively impacted by this part of the proposed operation." (Marty Block-XCEL ENERGY,' March 9, 2001) 19. "The DMG or Weld County should have a comprehensive approach for planning the gravel mining in this portion of Weld County." (Marty Block-XCEL ENERGY;March 9, 2001) 20, "The applicant will generate considerable truck traffic on roads adjacent to our plant, which may affect the safety of our employees and contractors." (Marty Block-XCEL ENERGY;March 9, 2001) 21. "Hwy 66 should be improved to accommodate this traffic and the increasing traffic associated with the growth in the area," (Marty Block-XCEL ENERGY;March 9, 2001) 11 Forrest Leaf, P.E. 13946 CR 56 , Hillrose,CO 80733 (970)396-8906 4 ' (970)352-1982 FAX cewcdleaf@yahoo.com LEAF ENGINEERING May 31, 2001 Kim R. Lawrence, Esq. Lind, Lawrence & Ottenhoff 1011 - 11th Avenue Greeley, CO 80631 Re: Western Mutural Ditch- S&H Mine Dear Kim: I have reviewed the information packet provided to Frank Praeer, Esq. This packet contains the application to the Division of Minerals and Geology(DMG), S&H's proposed mining plan and reclamation plan, in addition to numerous letters of correspondence between S&H's consultant, the DMG and several state agencies. I noted that the DMG has been very diligent in identifying issues and requiring S&H to address these issues. May of the issues that I initially identified as areas of concern for Western Mutual were identified and subsequently addressed by S&H. The following are items that I feel that were not adequately addressed by S&H and may impact easements owned by Western Mutual. 1. The proposed mining plan does not provide for a detailed description of the 1 acre de- watering proposed by S&H. Western Mutual owns numerous alluvial wells on the west side of the South Platte River which may be impacted by any de-watering on the S&H site. Western Mutual should required S&H to present a detailed de-watering plan that includes: 1. the exact location of the proposed de-watering pits, b. be limited to no more then one de-watering pit during any water year, (this is implied in the Leonard Rice report in that only one small pit was analyzed) c. identify the exact location of the discharge of water from the de-watering operation, d. the de-watering will result in substantial seepage loss to the Western Mutual ditch which S&H has not proposed to replace, d. and provide Western Mutual with an application for an NPDES permit and allow for Western Mutual to be active in the development of the terms and conditions of LEAF ENGINEERING EXHIBIT Hydrology " Hydraulics ' Water Resources ` Water Quality I E.ILeafiWestern Mutual\Lawrence Western Mutual Injury Letter,wpd Lawrence S&H Letter Page 2 the NPDES permit. Such S&H discharges shall not impair or degrade Western Mutual's future TMDL's that may result from future NPDES regulations. I cannot evaluate the impacts from S&H's de-watering discharges since there is insufficient detail in the application for me to base a technical opinion. 2. The proposed mining plan does not provide any detailed information with respect to monthly free water surface evaporation and resulting river depletions. Western Mutual owns numerous senior and junior water rights up-stream and down-stream of the S&H mine which may be injured by such depletions. By S&H's own admission, no water rights are owned by the mine corporation. Western Mutual should require the DMG to add a condition to the permit which only allows for mining after S&H obtains ownership of an augmentation source. S&H has made statements that an Substitute Supply Plan (SSP) will be approved by the State Engineer shortly. This SSP includes a short term effluent lease from the City of Longmont. This supply is not guaranteed and thus should not be allowed by the DMG or the State Engineer. S&H should be required to file for a permanent plan for augmentation in Division I Water Court. Western Mutual should insist that a Water Court approved augmentation plan be provided prior to the commencement of any mining operation and the exposure of alluvial ground water. This is the standard that Western Mutual and all other water users must comply. I noted that DMG did not include a bond requirement for S&H to ensure that if evaporative depletions are not augmented by S&H, then S&H must fill in all areas of exposed water surface. This is a standard requirement placed on other gravel operators. 3. S&H identified irrigation returns that have historically been received by the South Platte River in this location via a small ditch. However, S&H does not state how such returns be re-routed to the river as a result of its proposed mining. 4. DMG raised the issue of flood control and offsite impacts related to flooding. S&H states that Pickett Engineering has been retained to review this issue. I cannot provide any technical comments with regards to the proposed flood control measures that will be proposed by Pickett Engineering until I review the report. However, S&H proposes to armor the east bank of the South Platte River if mining occurs within 150 feet of the river bank. S&H does not present any detail as to the nature of material, easement acquisition. In addition, such armoring will require a U.S. Army Corps permit and also may require Federal Emergency Management Agency (FEMA) backwater analysis to ensure the adjoining land owners do not experience increased innundation due to flooding. 5. The proposed mining plan does not provide detail regarding air and noise quality and mitigation. These should be a condition put in the DMG and County permits. LEAF ENGINEERING Hydrology ' Hydraulics ` Water Resources ` Water Quality E:\Leal Western Mutual\Lawrence Western Mutual Injury Letter.wpd Lawrence S&H Letter Page 3 6. S&H is vague as to the nature of other types of operations on the proposed site. S&H refers to a concrete and asphalt batch plant, but does not provide specific plans as to expected annual and daily production values. These types of operations consume water an must be properly augmented. In my opinion, S&H should be required to provide a detailed explanation and operating plans to the DMG prior to the issuance of a permit. 7. S&H should be required to provide a delineation of wetland species and a plan to prevent the migration of prairie dogs to adjoining land owners property. I believe the DOW has provided sufficient comments to ensure that species of interest are protected from this mining operation. 8. Finally, the proposed mining plan does not address traffic volume and patterns. S&H states that 600,000 tons annually will be produced from the mine. Assuming a 6 day work week, the average daily truck traffic will be 52 large trucks. This volume of traffic is far greater than the present amount of truck traffic in the area. S&H does not present any detail regarding haul routes and improvements that will be necessary to ensure the health and safety of the community. 9. S&H had proposed in the past to keep all mining operations at least 150 feet from the Western Canal. Mining closer than 150 feet may cause stability issues and result in the breaching of the ditch. 10. S&H has not presented engineering plans for all bridge crossing or culverts. Therefore, I cannot evaluate the sufficiency of any of the proposed crossing. The Western Mutual will not allow for the installation of any structures within its easement until after the irrigation season to avoid disruption of water supply it is shockholders. Sincerely, LE GINEERING F s , P.E. LEAF ENGINEERING Hydrology " Hydraulics " Water Resources ` Water Quality E:\LeaFlWestem MutualU.awrence Western Mutual Injury Letter.wpd 673 P.2d 1013 Page 1 (Cite as: 673 P.2d 1013) C Colorado Court of Appeals, Div. I. For conflict to exist between statute and ordinance, both must contain express or implied conditions which C& M SAND&GRAVEL, DIVISION OF C& M are inconsistent and irreconcilable; otherwise, the READY MIX CONCRETE COMPANY OF two can coexist and both are effective. C.R.S. BOULDER, a 30-15-411. Colorado corporation, Bertha J. Heil, Johannes Heil, Robert C. Heil, Erwin S. [3] Municipal Corporations €111(2) Heil, Martha H. Hillman, and Donald E. Heil, 268k111(2) Trustees, Plaintiffs-Appellees and • Cross-Appellants, If there is no conflict between state statute and local v. Ordinance, there is nothing invalid about legislation on BOARD OF COUNTY COMMISSIONERS OF the the same subject by both local government and the COUNTY OF BOULDER, COLORADO, state. C.R.S.30-15-411. Defendant- Appellant and Cross-Appellee. [4] Zoning and Planning €14 414k14 No. 82CA0815. Mired land Reclamation Act does not preempt local Sept. 8, 1983. control of land use decision making. C.R.S. 34-32-101 et seq. Lessee-of land brought certiorari and declaratory judgment action to challenge denial of special use [5] Mines and Minerals €92.8 permit for mining of aggregate. The District Court, 260k92.8 Boulder County, Richard W. Dana, J., held that state law forbade county commissioners from interfering Reclamation act is primarily concerned with the with access to mineral deposits once they were so reclamation of land affected by the extraction of designated in county master plan but upheld minerals, both during and after mining operations. application of special use review in the case and C.R.S. 34-32-102. appeal and cross appeal were taken. The Court of Appeals, Van Cise, J., held that: (1) neither [6] Zoning and Planning €380 Preservation of Commercial Mineral Deposits Act nor 414k380 Mined Land Reclamation Act preempted local land use control, and (2) findings which led to denial of Unless subject land is zoned for mining use or special use permit in the instant case were supported permission for such use is granted by local by competent evidence. government following special use review proceedings, operator is not eligible to receive mining permit from Affirmed in part, reversed in part, and remanded. reclamation board. C.R.S. 34- 32-109(6), 34-32-115(4). West Headnotes [7] Zoning and Planning €79 [1] Municipal Corporations €111(2) 414k79 268k111(2) Preservation of Commercial Mineral Deposits Act No local government may adopt an ordinance or permits local governments to pass zoning ordinances resolution that is in conflict with state statute; if it which forbid mining operations in areas containing does, ordinance or resolution is void. C.R.S. commercial mineral deposits and local governments 30-15-411. can permit any use of such land so long as the permitted use is not incompatible with mining. [2] Municipal Corporations €111(2) C.R.S. 34-1-305O, 2). 268k111(2) Copr. ©West 2001 No Claim to Orig. U.S. Govt. Works EXHIBIT � K 673 P.2d 1013 Page 2 (Cite as: 673 P.2d 1013) [8] Zoning and Planning C=,14 of the County of Rio Blanco, Colorado. 414k14 Earl G. Rhodes, County Attorney, Garfield County, Local land use regulation is not preempted by the Glenwood Springs, for amicus curiae The Board of Preservation of Commercial Mineral Deposits Act. County Commissioners of the County of Garfield, C.R.S. 34-1-301 et seq. Colorado. [9] Zoning and Planning @=i42 Patrick R. Mahan, County Atty., H. Lawrence Hoyt, 414k42 Asst. County Atty., Golden, for amicus curiae Board of County Commissioners of Jefferson County. Zoning resolution setting out standards for granting or denying special use, including whether the use will be Marshall McClung, Fairplay, for amicus curiae in harmony and compatible with the character of the Board of County Commissioners, County of Park, surrounding area, whether it will be consistent with Colorado. county comprehensive plan, whether it will result in overintensive use of land, whether it will have VAN CISE, Judge. material adverse effect on community capital improvement programs, whether it will require This certiorari and declaratory judgment action was facilities and services greater than those available, instituted in the district court as the result of the whether it will result in traffic congestion, whether it denial of an application of plaintiff C & M Sand & will cause pollution, whether it will be adequately Gravel Division of C & M Ready Mix Concrete landscaped, and whether it will not otherwise be Company of Boulder (C & M) to defendant, Board of detrimental to the health, safety, or welfare of the County Commissioners of the County of Boulder (the county provided sufficient standards for denial of commissioners), for a special use permit to mine special use permit. aggregate in an unincorporated area within the county. The commissioners appeal a declaratory judgment [10] Zoning and Planning € 435 entered by that court holding that the county is barred 414k435 and preempted by the Preservation of Commercial Mineral Deposits statute, § 34-1-301, et seq., Although evidence was conflicting, eleven specific C.R.S.1973 (the Preservation Act), and the Colorado findings made by county commissioners in rejecting Mined Land Reclamation Act, § 34-32-101, et seq., request for special use permit for aggregate mining C.R.S.1973 (the Reclamation Act), as effective in were supported by competent evidence. 1980, from prohibiting mining operations by means of *1014 Hurth, Yeager & Sisk, John M. Yeager, special use review procedure under the county zoning Boulder, for plaintiffs-appellees and cross-appellants. resolution. The plaintiffs appeal the trial court's dismissal of their C.R.C.P. 106(a)(4) claim for Ann T. Raisch, County Atty., William F. Nagel, review of the commissioners' denial of C & M's Asst. County Any., Boulder, for defendant-appellant application for a permit. We affirm in part and and cross-appellee. reverse in part. Perry P. Burnett, Denver, for amicus curiae C & M leased from the individual plaintiffs 195 Colorado Counties, Inc. acres of land in an area known as Geer Canyon for the purpose of mining aggregate therefrom. Under J.D. MacFarlane, Any. Gen., Charles B. Howe, the county zoning resolution, part of this land is zoned Deputy Atty. Gen., Joel W. Cantrick, Sol. Gen., forestry and the balance is zoned agricultural. Janice L. Burnett, Paula C. Phillips, Asst. Attys. Mining is not a use by right in either zoning district. Gen., Denver, for amicus curiae Mined Land It is a use permitted only if approved by the Reclamation Board. commissioners after a special use review procedure as specified in the zoning resolution. Norton F. Tennille, Jr., Denver, George E. Benner, Jr., County Atty., Rio Blanco County, Meeker, for Geer Canyon is identified as a "mineral resource amicus curiae The Board of County Commissioners area'. and in particular an "aggregate resource area" Copr. ©West 2001 No Claim to Orig. U.S. Govt. Works 673 P.2d 1013 Page 3 (Cite as: 673 P.2d 1013, *1014) in the county comprehensive plan. It is also so activities in agricultural and forestry zoning districts is designated in the county's master plan for extraction, void because local regulation is both specifically promulgated pursuant to the requirements of the prohibited by and has been preempted by state law. Preservation Act and included within the comprehensive plan. However, the plan provides: The commissioners moved for summary judgment on *1015 "2.09 It shall be County policy to strongly C & M's second claim, the preemption issue. In discourage intensive uses in Aggregate Resource denying that motion, the trial court in effect entered a Areas. declaratory judgment that the Preservation Act forbids "2.10 Whether within or without a designated the Commissioners from interfering with the access aggregate or other resource area, the County shall to, and extraction of, commercial mineral deposits prohibit or regulate, including by Special Use once they are so designated, as here, in the county's Review and the like, the open mining of any master plan for extraction included in the county's mineral or earthen material including ... quarry comprehensive plan. It, therefore, determined that aggregate, sand and gravel, ... as well as all the special use procedure, as applied to mining accessory activities related thereto. It is operations, is void because it is prohibited by § emphasized that the extraction plan is fundamentally 34-32-109(6), C.R.S. 1973, which vests exclusive and primarily a preservation plan and that these authority in the Mined Land Reclamation Board (the portions of the County's commercial aggregate Reclamation Board) to grant mining permits, and deposits shall be protected from the encroachment because, as indicated in the Preservation Act, the area of land uses which tend to inhibit or preclude of mining regulation has been preempted by state extraction so that the options of future decision- regulations. makers will remain open in considering the demand for aggregate. Conversely, it is not intended that an The court then dismissed the first claim, for applicant for the extractive land use in an Aggregate C.R.C.P. 106(a)(4) review, holding that, if the Resource Area shall automatically be assured of special use review procedure as applied in this case success in lieu of addressing all environmental was valid, the standards set forth in the zoning concerns.... Rather it is reemphasized that the resolution for special use review were sufficient and extraction master plan shall insure the availability of there was competent evidence in the record to support an adequate supply of quality aggregate over the the commissioners' fact findings and conclusions. next 30 years so far as can be reasonably This appeal and cross-appeal followed. estimated." In October 1979, C & M applied to the PREEMPTION commissioners for a special use permit to mine aggregate on its leased property. The county The primary issue in this case is whether the trial planning staff and the planning commission court erred in determining that the entire field of recommended approval of the application subject to regulation of land use for mining operations has been certain conditions. Following a public hearing, the preempted by the Reclamation Act and the commissioners denied it. In their resolution denying Preservation Act. The commissioners contend that the application, the commissioners made 11 findings land use concerns are not included within the scope of detailing how C & M's proposal failed to meet the either of these statutes and that land use regulation has criteria required for special use approval. None of not been preempted. We agree with the the findings related to reclamation. Instead, the commissioners. findings related to the impact on the existing neighborhood of such a large mining operation, which *1016 [1][2][3] No local government may adopt an could exist for up to 40 years. ordinance or resolution that is in conflict with a state statute. Section 30-15-411, C.R.S. 1973 (1982 Plaintiffs timely filed this action in the district court, Cum.Supp.). If it does conflict, the ordinance or seeking (1) C.R.C.P. 106(a)(4) review of the resolution is void. City & County of Denver v. commissioners' denial of the application, and (2) a Howard, 622 P.2d 568 (Colo.1981). However, for a declaratory judgment that the county zoning resolution conflict to exist, both the state statute and the local requirement of a special use review for mining ordinance or resolution must contain express or Copr. ©West 2001 No Claim to Orig. U.S. Govt. Works 673 P.2d 1013 Page 4 (Cite as: 673 P.2d 1013, *1016) implied conditions which are inconsistent and developments which may result in significant irreconcilable one with the other. Otherwise, the two changes in population density; can coexist and both are effective. Ray v. City & (0 Providing for phased development of services County of Denver, 109 Colo. 74, 121 P.2d 886(1942) and facilities; . If there is no conflict between the two, there is (g) Regulating the use of land on the basis of the nothing invalid about legislation on the same subject impact thereof on the community or surrounding by both a local government and the state. City of areas; and Aurora v. Martin, 181 Colo. 72, 507 P.2d 868 (1973) (h) Otherwise planning for and regulating the use of land so as to provide planned and orderly use of " 'Determination of the question whether the land and protection of the environment in a manner [general assembly] has undertaken to occupy consistent with constitutional rights." exclusively a given field of legislation depends upon an analysis of the statute and a consideration of the Local governmental authority to -regulate mining facts and circumstances upon which it was intended operations by permit is also derived from a delegation to operate.... Where the [general assembly] has of authority in the Areas and Activities of the—State adopted statutes governing a particular subject Interest Act, § 24-65.1-101, et seq., C.R.S. -1973 matter, its intent with regard to occupying the field (1982 Repl.Vol. 10), and particularly in 1 to the exclusion of all local regulation is not to be 24-65.1-501. That section provides in subsection measured alone by the language used but by the (1)(a) that "[a]ny person desiring to ... conduct-an whole purpose and scope of the legislative scheme.' activity of state interest shall file an application fora " City of Golden v. Ford, 141 Colo. 472, 348 P.2d permit with the local government in which such ... 951 (1960). activity is to take place." Subsection (4) provides that "[t]he local government may approve an An analysis of the various state statutes pertaining to application for a permit to conduct an activity of state regulating land use, which includes mining, leads to interest [and this includes extraction -of and the conclusion that, contrary to the trial court's exploration for minerals] if the proposed activity holding, Colorado is committed to local control of complies with the local government's regulations-and land use decision making. guidelines for conduct of such activity. If -the proposed activity does not comply with the.*4017 The statutes pertaining to county planning, § guidelines and regulations, the permit shall be 30-28-101, et seq., C.R.S. 1973 (1977 Repl. Vol. 12) denied." See also§ 24-65.1-301(1)(c), C.R.S. 1973 , vest broad authority in the county to regulate "uses (1982 Repl.Vol. 10). of land for trade, industry [which includes mining], recreation, public activities, or other purposes," § [4][5] The Reclamation Act does not preempt local 30-28-111(1), C.R.S. 1973 (1977 Repl.Vol. 12), control of land use decision making. That Act is through zoning and land use controls, including primarily concerned with the reclamation of land special use review. The Colorado Land Use Act, § affected by the extraction of minerals both during and 24-65-101, et seq., C.R.S. 1973 (1982 Repl.Vol. after mining operations. See § 34-32-102, C.R.S. 10), provides in § 104(1)(b) that the land use 1973 (1982 Cum.Supp.). To assure that this commission "shall recognize that the decision-making objective is accomplished, section 109 of the Act authority as to character and use of land shall be at requires that a mining operator apply for and secure a the lowest level of government possible." The Local permit from the Reclamation Board. Section 112 Government Land Use Control Enabling Act, § specifies that in his application he must include a 29-20-101, et seq., C.R.S. 1973 (1977 Repl.Vol. detailed reclamation plan for the area affected. On 12), specifies in § 102 that "the policy of this state is receipt of a permit, section 116 provides that in his to clarify and provide broad authority to local mining operations he must comply with specific governments to plan for and regulate the use of land reclamation requirements, including: the submission within their respective jurisdictions." And in § of a reclamation plan and map each year; grading to 104(1) of that Act, each local government is the final land use; construction of earthen dams authorized "to plan for and regulate the use of land where necessary; proper handling of acid-forming or by," among other things: toxic materials mined; disposal of refuse so as to "(e) Regulating the location of activities and control deleterious effects; revegetation; use of Copr. ©West 2001 No Claim to Orig. U.S. Govt. Works 673 P.2d 1013 Page 5 (Cite as: 673 P.2d 1013, *1017) topsoil for revegetation; minimization of disturbance to the hydrological balance; protection from slides or It is, therefore, apparent from the statutory language damage; stabilization of surface areas; fire and itself as well as from the purpose and scope of the access roads through reclaimed areas; and slope legislation that there is no conflict or inconsistency stability. between the zoning resolution and the Reclamation Act, and that they can coexist. The Act preempts It is significant that the Reclamation Act does not only the authority of local government to set mention the many matters which are traditionally of performance standards for mined land reclamation concern to local zoning authorities such as lessening activities, but does not prohibit local regulation by of traffic congestion, compatibility of land use, permit of all aspects of land use for mining, including distribution of land use and development, protection the location of mining operations and related of tax base, effect on property values, increased reclamation activities and other environmental and noise, nuisance conditions, off-site safety problems, socioeconomic impacts. Reading the two together, and the nature of the end use of the land. See, e.g., we conclude that unless the subject land is zoned for § 30-28-101 et seq., C.R.S. 1973 (1982 Cum.Supp.); mining use or permission for such use is granted by § 24-67-101 et seq., C.R.S. 1973 (1982 Repl.Vol. the local government following special use review 10); and § 24-65.1-101 et seq., C.R.S. 1973 (1982 proceedings, the operator is not eligible to receive a Repl.Vol. 10). mining permit from the *1018 Reclamation Board. The laws are compatible with each other. [6] In fact, rather than preempting local regulation of mining operations, the Reclamation Act specifically [7][8] The Preservation Act is a narrow statute which provides, in § 115(4) that: "The board shall grant a permits local governments to pass zoning ordinances permit to an operation if the application complies with that forbid mining operations in areas containing the requirements of this article and all applicable commercial mineral deposits. Local governments local, state, and federal laws...." (emphasis are prohibited only from allowing "the use of any area supplied) Furthermore, one of the reasons for which known to contain a commercial mineral deposit in a a permit shall be denied is if "[t]he mining operation manner which would interfere with the present or would be in violation of any city, town, county, or future extraction of such deposit by an extractor." city and county zoning or subdivision regulations or Section 34-1-305O) and (2), C.R.S. 1973. By contrary to any master plan for extraction adopted zoning, rezoning, granting a variance, or other action pursuant to [the Preservation Act]." Section or inaction, local governments can permit any use of 34-32-115(4)(e), C.R.S. 1973 (1982 Cum.Supp.). such land so long as the permitted use is not (emphasis supplied) In addition, the Reclamation Act incompatible with mining, such as erecting permanent provides in§ 109(6): structures on this land. The Act, then, does not "[TJhe board shall not grant a permit in violation of require local governments to allow mining in any area city, town, county, or city and county zoning or where it is commercially practicable, but only to subdivision regulations or contrary to any master preserve access to the mineral deposits. And, this plan for extraction adopted pursuant to [the Act does not apply to counties whose population is Preservation Act] unless a prior declaration of less than 65,000. Local land use regulation is not intent to change or waive the prohibition is obtained preempted by this statute. by the applicant from the affected government subdivisions." (emphasis supplied) It is apparent that the general assembly intended that mining operations be subject to a multi-level and in§ 109(8): regulatory and permitting system involving both state "The board shall not grant a permit for a new agencies and local government. The Reclamation mining operation if the operator's reclamation plan Board is only one permitting authority, albeit the final for an area is inconsistent with an adopted plan by one. The trial court erred in holding that the special any county, city and county, city, or town unless a use review procedure under the county zoning prior declaration of intent to change or waive the resolution is void. prohibition is obtained by the applicant from the affected government subdivisions...." (emphasis II. supplied) C.R.C.P. 106(a)(4) REVIEW Copr. ©West 2001 No Claim to Orig. U.S. Govt. Works 673 P.2d 1013 Page 6 (Cite as: 673 P.2d 1013, *1018) Plaintiffs on cross-appeal contend that: (1) the inhabitants of the county. It provides that if a special commissioners exceeded their jurisdiction in denying use is granted, the commissioners may impose such C & M's application; (2) insufficient standards were conditions and safeguards as are necessary to insure provided in the zoning resolution for choosing compliance with these standards. between the withholding of a permit or the granting of a permit with conditions, and therefore, those These provisions provide sufficient standards for the standards cannot be construed to authorize the denial denial of a special use. See generally Tri-State of a permit; and (3) there was insufficient evidence Generation & Transmission Co. v. City of Thornton, to support the commissioners' decision. We 647 P.2d 670(Co10.1982); Cimarron Corp. v. Board disagree. of County Commissioners, 193 Colo. 164, 563 P.2d 946 (1977); Stroud v. City of Aspen, 188 Colo. 1, In addition to the preemption arguments disposed of 532 P.2d 720 (1975); Garel v. Board of County above, C & M claims Western Paving Construction Commissioners, 167 Colo. 351, 447 P.2d 209 (1968); Co. v. Board of County Commissioners, 181 Colo. Swisher v. Brown, 157 Colo. 378, 402 P.2d 621 77, 506 P.2d 1230 (1973) is dispositive of their (1965); and General Outdoor Advertising Co. v. contention that the commissioners exceeded their Goodman, 128 Colo. 344, 262 P.2d 261 (1953). jurisdiction. However, in view of the amendments to And, these standards were utilized by the the county zoning resolution since Western Paving commissioners in rejecting C& M's application. was decided, that case is now inapposite. Open mining of sand and gravel is no longer listed as a use *1019 [10] Finally, "[t]he standard of review under by right in any zoning district. Such mining Rule 106(a)(4) of final administrative action is operations are now only allowed upon approval of the whether, on the basis of the whole record, the commissioners following a special use review ultimate findings of the agency are supported by any proceeding. competent evidence." Cooper v. Civil Service Commission, 43 Colo.App. 258, 604 P.2d 1186 [9] The zoning resolution sets out general standards (1979). Based on our review of the record, we for granting or denying a special use, which include conclude that although some of the evidence was the requirements that the proposed use: (1) will be in conflicting, the 11 specific findings made by the harmony and compatible with the character of the commissioners were supported by competent evidence surrounding areas and neighborhood; (2) will beand, in turn, support the commissioners' ultimate consistent with the county comprehensive plan; (3) findings and decision. will not result in an over-intensive use of land; (4) will not have a material adverse effect on community The dismissal of the C.R.C.P. 106(a)(4) claim is capital improvement programs; (5) will not require a level of community facilities and services greater than affirmed. The declaratory judgment on preemption that which is available; (6) will not result in undue is reversed, and the cause is remanded for dismissal traffic congestion or traffic hazards; (7) will not of that claim and of the entire action. cause significant air, water, or noise pollution; (8) will be adequately landscaped, buffered, and BERMAN and TURSI, JJ., concur. screened; and(9) will not otherwise be detrimental to the health, safety, or welfare of the present or future END OF DOCUMENT Copr. C West 2001 No Claim to Orig. U.S. Govt. Works THE FOLLOWING ARE OVERSIZED EXHIBITS EXHIBITS 149 THRU 151 _ JI. !='J �' 3b '�t - ..z _tr = `-a. cwt '�,c55 Il_2 y1971J3G14S499-45 P.k12/1,d3 ■ Frank n.Prager Xcel Energy Assistant Genera)Ccunsel 1225 17th Street,Suite 900 Denver,Colorado 80202-5533 Phone:303.294.8108 Fax:303.294.8255 By Facsimile June 5, 200] Mr.Kim Ogle Weld County Department of Planning Services 1555 North 17th Avenue Greeley, CO 80631 Re: Platte Sand& Gravel Dear Mr. Ogle: • Today, the Weld County Planning Commission will hold a hearing regarding an application for a special use permit filed by Platte Sand & Gravel, LLC (USR-1306). In its application, Platte has proposed to construct a gravel mine and other facilities (the "Operation") at the intersection of WCR 23 and WCR 36 in Weld County. Public Service Company of Colorado, doing business as Xcel Energy, operates the Fort St. Vrain Generating Station nearby the proposed Operation. Xcel Energy objected to the proposed permit on several grounds. I am writing today to inform the planning commission that Xcel Energy and Platte have negotiated a settlement of all of Xcel Energy's concerns regarding the proposed permit. Among other things, this settlement requires Platte to request that Weld County incorporate the following provisions as conditions to the special use permit: 1. Platte shall ensure that, for the life of the Operation, the emissions from any facility constructed as part of the Operation shall not interfere in any way with the operation of the Fort St. Vrain Station. Without limiting the foregoing, Platte shall ensure that emissions (including, but not limited to, fugitive emissions) from any facility constructed as part of the Operation shall not enter air intakes of any combustion turbine or other electric generating facility located on the Fort St. Vrain Station property. 2. For the life of the Operation, Platte shall not discharge any waste water or pollutant into the South Platte River or any other water of the United States or the state of Colorado. EXHIBIT 1 152 UN 25 2001 1U:36 FR NEW CENTURY ENERGIES 303 294 225E f❑ 91'37U3U464'FS-45 F'.US/UU Kim Ogle June 5, 2001 Page 2 3. Platte shall not withdraw water from any aquifer or stream in quantities that interfere in any way with any Xcel Energy water right or result in reduction in the yield of any Xcel Energy water well. 4. Notwithstanding any provision of any instruments creating such rights-of-way, for the life of the Operation, Platte shall not commence any activities within existing or future Xcel Energy gas pipeline, electric transmission line, or other rights-of-way without receiving prior written permission from Xcel Energy to conduct such activities. In addition,Platte shall not conduct any activity outside of Xcel Energy's rights-of-way that affects or has the potential to affect the construction, operation, or maintenance of Xcel Energy facilities. I understand that Platte's attorney(Fred Ginsberg)will request the incorporation of these provisions into the special use permit at the hearing today. In light of Platte's agreement to make such a request, Xcel Energy hereby withdraws its opposition to the special use permit. Very Truly Yours, Frank P. Prager 7 Attorney for Xcel Energy Cc: Frederick L. Ginsberg, Esq. Marty Block, Fort St. Vrain Station ** TOTAL PRGE.a3 ** Hello