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consistent with that expected of anon-engineered structure subject to the ongoing physical forces of the South Platte River system. (9) Representatives of the Brantner Ditch Company represented in subsequent discussions with Applegate that that they have spent approximately $100,000 from 1980 to present in attempts to stabilize the Brantner diversion structure from continued degradation in the South Platte River. This degradation is the result of downstream mining in the river, rechannelization of the river, and sediment affinity caused by mining upstream of the diversion structure. The continued degradaton of the river would also impact the Bull Seep Slough where it discharges to the South Platte River downstream of the Brantner diversion structure by increasing the slope angle and water velocities throughout the Slough channel. (10) Certain digital photographs of the area in question taken in January 2001 and a February 2001 aerial photograph show a breach in the riverbank between the South Platte River and the Bull Seep Slough. The breach has an obvious gradient from the river into the Slough. The aerial photograph shows the breach as being formed into the Bull Seep Slough near the end of concrete rubble or riprap on the river side of the bank. See Applegate Figure 1-7. (11) The location of the January 2001 breach coincides almost exactly with the point of attack from the river and the location where the UDFCD made repairs after the May 5, 2001 event. The 2001 photographs confirm that the present location of the Bull Seep was unrelated to the failure of the South Platte River into the Bull Seep Slough on May 5, 2001. The breach depicted in the 2001 photographs occurred at a time when there would be low flows in the Bull Seep, thus supporting Applegate's conclusion that the bank failed from the river into the Slough. (12) The fact that a breach was evident some five (5) months prior to May 5, 2001 suggests that each flow during the intervening period that was higher than the breach elevation at the time of such flow would continue to erode the breach. As a result, progressively lower flows would succeed in reaching the Bull Seep Slough from the river. B. Natural and Progressive Bank Erosion Processes were the Principal Mechanism of Failure, Evidence of Which was Plainly Evident in the Area of the May 5, 2001 Event at Least Five 15) Months Prior to the Event. The DMG's reasoning in regard to the alleged violations appears to run as follows: if the Bull Seep was not located as provided in the Reclamation Plan, it must have been the reason there was a bank failure on the South Platte River on May 5, 2001. This reasoning is technically unsound and unsupported. It ignores the fact that 7