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2 • • degasification borehole, and two ventilation shaft #3 boreholes. Being an existing road, MCC did not "alter a natural drainageway for light-use road construction", nor did MCC "locate" this light- use road in an intermittent or perennial stream. The road was already there. Thus, MCC complied with Rules 4.03.3(1)(a), 4.03.3(2)(b) and 4.03.3(4)(d). (Also note that Sylvester Gulch is an ephemeral stream.) Second, berms are not only constructed and utilized to comply with MSHA safety concerns, but are also an integral part of MCC's drainage and sediment control systems. The berms contain and direct flows from the road similarly to some installations of silt fence. The silt fence along the berm was actually a duplicative measure in this case, as the silt fence or the berm would provide the necessary drainage control. The berm was not constructed in the stream channel as alleged, but some soil and rock had rolled from the berm in a couple of locations. At the time this inspection concern was identified, work was immediately initiated to pull back the berm material and to reset the redundant silt fence. This work was being completed before the end of the inspection. Also, recognizing the magnitude of the ez_nhwork activities within close proximity to the stream channels, and the realistic potential for maintenance of literally miles of silt fence that had been installed to be problem-free, MCC constructed additional (and redundant) drainage and sediment control measures. In more than one location downstream of this azea, and within the permit area, straw bale filters had been constructed and have been a very effective measure to minimize sedimentation, prevent additional contributions of suspended solids, and to minimize disturbance to the prevailing hydrologic balance outsede the permit area, in compliance with rules 4.03.3(1)(b), 4.03.3(2(d), 4.05.1(1), 4.05.5(1)(a), and 4.05.5(1)(c). Third, MCC respectfully disagrees with the Division inspector's representation that these few azeas of soil material and rock actually "impeded" (i.e., "obstructed" or "blocked") the flow of this upper tributary of Sylvester Gulch, and that streamflow "appeared silty and was clearly impacted" by this material. Flow in the channel was continuing unimpeded. This portion of the tributary is not ahigh-gradient smooth-channeled area, so minor pooling occurs naturally along the stream. In many locations along Sylvester Gulch, the channel is deeply incised, indicating high natural erosion. MCC's representative had observed and pointed out to the inspector visibly cleaz flows across grass-lined portions of the chazmel just downstream, and areas where flows were exposed to naturally-eroded soils in this small channel. Certainly any such occurrence would be nearly indistinguishable from natural conditions, as silty sediments have historically been carried in the Sylvester Gulch stream, as evidenced by several naturally-occurring deltas downstream that currently support wetland and riparian vegetation, as well as the rocks, boulders and soil materials that have rolled down due to natural, geomorphologic activity. MCC has had extensive experience in the visual assessment and sampling of NPDES total suspended solids (TSS) limitations in sediment ponds, and have found that water that appears silty can be quite low in TSS. Since no water sampling was done at the time of the inspection and no comparison was made with natural, baseline conditions, it is difficult to conclude that significant siltation or erosion, if any, occurred. Finally, the construction of subsoil berms along temporary drill site roads, such as this road -- by windrowing topsoil from constructed roads and then subsoil on top of that topsoil -- has proven to be a very effective and disturbance-minimizing construction technique. MCC has utilized this type of construction (where subsoil temporarily covers topsoil) for many years, and reclamation of