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Carol Pahlke December 23, 1980 Page 14 Finally, it is the position of Kerr Coal that no regulatory basis for the suggested design proce- dures of MLRD exists and that it is inappropriate for MLRD to raise this ditch design issue at this late date in the permitting process. Section 780.25 - Reclamation Plan: Ponds, Impoundments, Banks, T....... .....j v~.~L... - L....... ~ .. The revised Exhibit 29a showing emergency spillway designs appears as though some problems with erosion may occur during a 25-year discharge. Specifically the riprap on the spillways does not continue all the way to the stream channel. Also, this discharge would intercept the stream at a 90 degree angle. Because the discharge through the emergency spillway is an infrequent occurrence, we will accept the spillway designs as proposed, but will watch for any signs of erosion during our inspections. If problems are observed, mitigation will be required. Response: No response to this paragraph is required. Section 780.16 (a) - Fish and Wildlife Plan Kerr's plan for mitigation of impact on Sage Grouse (Sec. 780.16(a)) has been found to be acceptable with the following changes and conditions: A. Ammonium Nitrate fertilizer commonly being only 33.58 Nitrogen, Kerr must apply fertilizer at a rate of 100 lbs. of nitrogen/per acre. B. Any modification of any part of the proposed mitigation must be approved by the Mined Land Reclamation Division before initiation. C. The mitigation plan will be abandoned only if approved by MLR, and only if demonstrated that the approved plan has been ineffective as a mitigation tool. D. Kerr Coal needs to compare areas to be fertilized as mitigation with areas to be disturbed, relative to Sage Grouse habitat types as shown on Map 23. This insures that mitigation occurs in areas comparable to the areas disturbed by mining. A discussion of the similarity relative to Sage Grouse use, and accessibility to the birds needs to be provided.