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"Seriousness" <br />On the date the Division issued the violation, the <br />section of ditch was in fact functioning and flowing water but was <br />undergoing an interim period during which maintenance was being <br />completed. The division issued a violation on evidence that the <br />ditch had breached prior to their inspection. The statement <br />"sediment and/or topsoil reached the permit boundary and probably <br />Goodsprings Creek" was not observed during the inspection and based <br />upon speculation. Please refer to our correspondence to the <br />Division dated May 20, 1993 concerning previous work on the ditch. <br />The statement regarding a subsequent storm event (May 16, <br />1993) is not relevant to NOV C-93-073 and should not be part of <br />this discussion. Moreover, the storm event leading to NOV C-93-077 <br />was later determined to be in excess of the 10-year, 24 hour event <br />for which the ditch was designed for and certainly not relevant to <br />the discussions of NOV C-93-073. <br />"Fault" <br />Colowyo has continually worked with the Division <br />regarding the ditch. The implication appears to be that Colowyo <br />ignored the Division's concerns. As noted above by Colowyo's <br />August 12, 1993 memo, this is simply not supported by fact. <br />Response to July 8. 1993 Civil Penalty Assessment <br />In general, Colowyo believes that much of the analysis <br />found in the Assessment reflects the result of misrepresentation of <br />the facts by the Division, particularly such as those we have noted <br />above regarding the June 1, 1993 DMG memo. The following comments <br />address particular sections of the Penalty Assessment. <br />B. Seriousness <br />Throughout the Assessment, the Division appears to <br />conclude, incorrectly, that the erosion from the topsoil stockpiles <br />(NOV C-93-072) was the direct cause of the breach in the ditch. <br />The topsoil stockpiles in question are located 6,000 feet <br />upgradient along the ditch from the breach. As we noted in our May <br />20, 1993 submittal to the Division, the ditch breach was caused by <br />drifted snow on the north facing slope. <br />The ditch as constructed is oversized as compared to the <br />requirements of the design storm event. This is due in part <br />because of the large mining equipment necessary to construct the <br />ditch and the desire to handle larger runoff events caused by <br />snowmelt. <br />