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DateNameCompanyComment
11/10/2016Brian PosewitzAttorney at LawThese comments are submitted on behalf of Deborah Noble with respect to applications for extensions of time on Permits R-14453, R-14454, R-14455, R-14456, 5-54463 and G-15980. Noble was a party to the settlement agreement affecting the reservoir permits, which are interrelated with the other two permits. The permit holder already has been storing water under the reservoir permits (indeed, the permits were issued in part to legalize an existing illegal use). The permit holder therefore was required to comply with all permit conditions while storing water. The Department’s review should include a determination of whether all permit conditions were in fact met while the permit holder was storing water. In particular, the Department should determine if the permit holder ever measured inflow to the property, made the required determinations of bypass flow, and provided the required bypass flow. The permits require records of those measurements and determinations to be kept for at least two years. (Measurement Condition B.) The Department should inspect those records. If they do not exist, the permit holder cannot be said to have exercised due diligence and good faith in development of the permits. To the extent the permit holder claims there has never been functional measuring devices at the site, that would also show an inexcusable lack of due diligence and good faith. Ten years is more than enough time to obtain and install functional measuring devices, even assuming a “false start” with measuring devices that did not work. The Department should also assess due diligence and good faith with respect to all other permit conditions, including restoration of riparian areas. Thank you for considering these comments.