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e e e by-pass flow would be established, The Corps relied on these agreements in the permit decision as evident in an August 23, 1978 letter from the Corps to Mr. Peter Ziegler who objected to the issuance of a permit. The Corps letter states that we are relying on these agreements to protect the environment. The Petitioners point out that they believe the SWSD has not honored their agreements. Furtherrnore, they contend tbat the survival flow of 4 cfs, developed without any scientific basis, does not adequately protect the aquatic environment in light of the new technical information, The Petitioners cite the information included with the petition that documents that the 4 cfs survival flow is not adequate to protect the aquatic enviroument. The Petition provides the appropriate sections of the regulations that require the Corps to evaluate the impacts of a discharge of dredged or fill material, including secondary impacts, on the aquatic environment. The information cited by the Petitioners is new since the issuance of the original permit as various parties developed this information during the CWCB hearings and the Forest Service EIS on the Snowmass Ski Area. These reports will be discussed in more detail below. Third, the Petition cites new infornlation developed on the diversion's impact on downstream wetlands particularly the .effects of a 4 cfs minimum flow, The Caucus hired Dr. David Cooper of Colorado State University to evaluate the effects of a 4 cfs flow on the high quality beaver pond wetlands downstream ofthe diversion. 4, Permittee's Response to Petition: The Permittee's attorney provided a response to the petition including exhibits similar to the petition. The Permittee refutes the Petitioners' claim that the SWSD failed to uphold the 1978 agreements by stating that in 1995 the Caucus filed a lawsuit in District Court on the same grouIlds. The judge ruled against the Caucus in a February 1999 decision, The applicant also pointed out that the Corps has limited authority to modify permits and stated a position that the CWCB's changing the in-stream flow was not grounds for the Corps to modify this permit. They also state that the request for modification is not warranted because there is not any impact to the trout fishery from a 4 cfs minimum flow as documented in their consultant's reports. The applicant's response will be discussed in more detail below, 5. Failure to Uphold 1978 Agreement Issues: Both sides, the Petitioners and the Permittee, make valid arguments on the issue of failure to uphold the 1978 Agreements, The Caucus lost a lawsuit claiming the SWSD did not adhere to the 1978 Agreements, However, the Petitioners are not requesting the modification simply on the grounds that the SWSD did not adhere to the agreements. The point ofthe Caucus request regarding the 1978 Agreements is that the Caucus withdrew objections to the permit based on the fact that the SWSD assured them that the diversions would not affect the trout fishery in Snowmass Creek. In fact, the SWSD assured the Corps of Engineers that the County agreement would protect minimum flows in Snowmass Creek (Richard Ward ofSWSD testimony at Corps Public Hearing). Besides the SWSD representations to the Caucus that the fishery would not be affected, they also agreed to develop a by-pass flow, termed a "survival flow", ill the County agreement to protect the trout fishery. The district court found in the February 6, 2000 decision that the 4 cfs survival flow was not developed without the Caucus's knowledge, but the Court did not make a finding that 4 cfs flow was adequate to protect the trout fishery in Snowmass Creek. The Court simply found that the 3