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WELBORN DUFFORD BROWN £~ TOOLEY. P. C. Mr. Jim Pendleton Colorado Mined Land Reclamation Division February 9, 1988 Page 6 As shown above, Trapper's permit has established the appropriate sediment control measures for the tributary ditch and the rest of its operations, and Trapper has complied with them. More importantly, the discharge reports show that additional suspended solids have not been contributed to stream flow or runoff outside the disturbed area from the Coyote Gulch sediment control system. In addition, the stockponds and revegetation have minimized the sediment flow to the ditch and the rest of the system by stabilizing the surrounding areas. Trapper will further minimize the sediment load of the ditch by repairing it next year in accordance with the approved drainageway stabilization plan for 1988-92. To find that a violation of this Rule existed under these circumstances would require a distorted interpretation of the Rule. It would require the conclusion that stream flow in a ditch designed to carry sediment to a sediment pond, constitutes a violation because sediment was carried in that very stream flow. This makes no sense. Finally, the NOV alleges that section 34-33-120(2)(j)(V) of the Act has been violated. As with all the Rules cited, this statute also requires implementation through specific terms for a particular operation, and there can be no violation unless those permit terms are violated. Section 34-33-120(1) states that "any permit shall require [the operation to7 meet all applicable performance standards." Among the performance standards which the permit must meet in section 120(2)(j)(V) is minimizing "the disturbances to the prevailing hydrologic balance by avoiding channel deepening or enlargement." But, that provision has also been implemented specifically for the Trapper Mine, and the tributary ditch particularly, by the terms of the permit. Under the revision approved in 1984, no treatment was required if the ditch is part of a permanent drainageway being reestablished. Under the revised drainageway stabilization plan for 1988-92, failures of ditches such as this one are specifically contemplated, with the repair requirement arising in that case. Such repairs are exactly what Trapper has always intended to do during the neat construction season, in accordance with the prior and new permit terms. Furthermore, it has already taken steps to avoid deepening or enlargement of the tributary ditch by construction of the stockponds and revegetation of the surrounding areas to minimize the flow through the ditch. And of course, any sediment in the discharge from the ditch is caught by the Coyote Dam sediment pond. Thus, Trapper has and is minimizing any disturbance to the hydrologic balance in this case. The statute is not an absolute prohibition against any disturbance.