Flatirons Open Space Committee

Regulatory Background Information, from Alan Taylor

Date: Thu, 07 Jun 2001 13:55:13 -0600
From: "Alan Taylor" TaylorA@ci.boulder.co.us
To: bbinder@ddginc.com
Cc: ... dallured@indra.com ...
Subject: RE: CU's Center of Excellence for Wetlands Destruction

Ben, I do not know if an environmental attorney has reviewed the
position the Corps has taken on the wetland impacts. When this 
issue came up I contacted CU, the DMG and the Corps to obtain 
information about the activities that are occuring. I spoke with 
Tim Carey at the Corps (303-979-4120) and he described the 
process they applied to regulate onsite wetlands and faxed me a 
copy of the letter they used to regulate CU (I have it somewhere 
but have to dig through piles to find it). I was actually 
surprised that there was any Corps involvement since the mining 
permit was issued in 1979 and no 404 permits were on the record. 
Apparently, the Corp went in in 1999 to deal with the site and 
used 1977 aerial mapping information to estimate the wetlands in 
existense before mining to retroactively establish a wetland 
protection requirement. Outside of that, I am not aware of any 
wetland regulatory activities.

I'm sorry if this sounds like company line, but all I know for 
sure is that the city doesn't have any jurisdictional authority 
over the site and the Corps has already taken some form a 
regulatory action. Because the site is still under reclamation 
with respect to the mining permit, I'm not sure any other 
wetland protections are in play.

Let me know if you are aware of anything different. By the way, 
thanks for the great job you and the CAG have done on South 
Boulder Creek. I am impressed with your report. Alan

>>> "Ben Binder" bbinder@ddginc.com 06/07/01 01:17PM >>>
Thanks for the report of your research on the permitting aspects of CU's
wetlands obliteration project.

It is a good summary of the Flatiron Companies', the US Corps of Engineer's,
and the Colorado Mine Land Reclamation Board's company line, but, has a
trained environmental attorney interested in protecting wetlands reviewed
the issues?

Ben Binder

 -----Original Message-----
From:     Alan Taylor [mailto:TaylorA@ci.boulder.co.us] 
Sent:     Thursday, June 07, 2001 8:35 AM
To:       ...
Subject:  Re: CU Regents Wetlands Destruction Project

Ben, please see my research on this issue in the HOTLINE response I sent
earlier this year. I am also sending this information to Tess so she can
distribute to the Citizen Advisors, and Molly for the IRP. I don't believe
any legal action can be taken by the city against CU for this activity.

Good pictures! Alan

Please forward the following response to Council member Havlick's HOTLINE
regarding the drainage plans at the CU-Boulder South Campus/Flatiron
Property. Alan

The proposed drainage work at the Flatiron Property is not a new plan or
change in expected activities at the site. The plan to install drainage
systems and underdrains was an included interest in the reclamation plan
revisions approved by the Mined Land Reclamation Board (MLRB) and Division
of Minerals and Geology (DMG) in 1997. The city had opposed revisions to the
reclamation plan that eliminated several open ponds on the original Deepe
Farm Pit mining permit reclamation plan, but we were unsuccessful in
convincing the MLRB to deny the reclamation plan changes during the public
hearings held in 1997.

As activities stand today for the Deepe Farm Pit sand and gravel mining
permit, the following applies:

o Recommendations to install groundwater control measures, such as
subsurface underdrains or surface swales, were included in the materials
submitted to the DMG and MLRB as part of the 1997 reclamation plan
revisions. These drainage features were intended to minimize the formation
of wetlands in areas of the property considered for development.

o The DMG has authorized the proposed underdrain construction as being
consistent with the approved reclamation plan grades and conditions.

o The Army Corps of Engineers issued a "determination of jurisdictional
status, under Section 404 of the Clean Water Act," of wetlands on the
Flatiron Property that addresses: (1) historical wetlands (in 1977); (2)
existing wetlands; and (3) wetlands that will be present upon the release of
the DMG mining permits.
    1. Analysis of historical wetlands within the boundaries of areas
covered by DMG mining permits found that 21.6 acres of wetlands and 6.6
acres of open water were present and considered jurisdictional in 1977.
    2. At the present time, since DMG mining permits are still active, 21.6
acres of wetlands and 6.6 acres of open water are jurisdictional under
Section 404. All other wetlands and open waters present within the DMG
permit boundaries are non-jurisdictional and may be eliminated, manipulated
or filled until the mining activities are abandoned and released by the DMG.
    3. Upon release of the DMG permits, a delineation of wetlands and open
waters will be submitted to the Corps for approval. This delineation will
identify: (1) acreage of wetlands and open waters that meet jurisdictional
waters standards; and, (2) the location of the 21.6 acres of wetlands and
6.6 acres of open waters that will be considered historical waters. Wetlands
and open waters in excess of the 28.2 acres considered to be historical will
be considered "banked," of which 50% will not be considered jurisdictional
and may be relocated on-site of eliminated without the requirement for a
Section 404 permit.

o The DMG mining permit is still active (while actual mining has ceased) and
is in the reclamation phase to establish final reclamation and revegetation
of the site prior to the DMG's final approval release of the mining bonds.

What this means is that it appears all necessary review and approvals to
install underdrains to prevent, remove or eliminate the formation of
wetlands on the property beyond the 28.2 acres of jurisdictional waters
outlined above have been obtained. In addition, it appears that existing
site conditions at the property currently exceed the 21.6 acres of wetlands
and 6.6 acres of open waters that will be considered jurisdictional by the
Corps. This estimate includes areas on the property located outside of the
existing berm, undisturbed wetlands on the western side, and open waters
that are reflected in three existing ponds.

If there are questions about this infomration please contact Alan Taylor at
303-441-4232 or by e-mail at taylora@ci.boulder.co.us.

>>> Spense Havlick 04/26/01 05:31PM >>>
Why was it only published in the COLORADO DAILY that the controversial
gravel pit CU purchased in the South Boulder Creek floodplain is planned to
be drained???/
Where was our Boulder Daily Camera on this story....if it is true? The story
ran yesterday on the front page.I would hope that city staff and especially
CAO are challenging this ,especially since is has been clearly stated what
the city council stand is on the CU property which is best suited for
riparian open space and flood retention and flood storage /water
recharge.....and of course habitat preservation ,and urban shaping versus
sprawl.Have Corps of Engineer 404 permits been requested ,and county,and
state wetland and drainage permits obtained...or does CU think that they are
immune from federal ,county and state regulations for draining wetlands?
Please brief council as to what action staff is taking on this.


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