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seams, the "C" seam being the deepest. These seams are <br />essentially parallel, horizontal plane that dip {i.e. angle <br />downward) to the north on Empire's property at a rate of 15 <br />per cent and strike in an east-west direction. Because the <br />seams angle towards the surface in the south, all of the <br />above seams outcrop (i.e. have the same edge exposed at the <br />surface) on the property along an east-west line. The "P" <br />seam which is closest to the surface outcrops approximately <br />midway between the north and south property lines and the <br />each deeper seam outcrops successively further south on the <br />property. <br />The existing mining operations and planned operations extend <br />under drainages of the Williams Fork and Yampa Rivers, both <br />of which meander through areas identified as an alluvial <br />valley floor on Exhibit A hereto. Expert analysis on the <br />confirmation of the alluvial valley floor has been attached <br />hereto as Exhibit S. Because of the deepening angle at <br />which the coal seams are deposited, the lowest of these <br />seams is more than 2,000 feet below the Yampa River <br />Drainage. <br />III. LEGAL AUTHORITY <br />Section 510 (b)(5) of the FSMCRA imposes limitations on coal <br />mining that may be conducted in a manner that materially <br />damages alluvial valley floors. In addition to establishing <br />limitations on mining in such areas, Section 510 (b) <br />provides the following exemption to such limitations: <br />"provided, that this paragraph (5) shall not affect <br />those surface coal mining operations which in the year <br />preceding the enactment of this Act (I) produced coal <br />in commercial quantities and were located within or <br />adjacent to alluvial valley floors, or (II) had <br />obtained specific permit approval by the State <br />regulatory authority to conduct surface coal mining <br />operations within said alluvial valley floors." <br /> <br />Thus, Congress created a qualification by which a surface <br />coal mining operation could meet the grandfather exemption: <br />either (1) through commercial production or (2) by having <br />obtained specific permit approval prior to August 3, 1977. <br />it is this provision, as well as 30 CFR 785.19(1) and <br />822.12, on which Empire relies in seeking this exemption. <br />The State of Colorado has established the following compar- <br />able exemption provision in CRS 34-33-114(2)(e)(II): <br />.~ <br />2 <br />