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<br /> <br />. <br /> <br />. <br /> <br />. <br /> <br />. <br /> <br />175 <br /> <br />mainstem will be caused by the diversion of water itself, the only way to prevent it would <br />be to impose a condition reducing or precluding that diversion, thereby impairing the <br />applicant's water right. The provision of Section 25-8-104(1), C.R.S., ... as well as <br />Regulation 82, make clear that the surface water classifications and standards may not <br />lawfully be interpreted or applied so as to impair the right to divert and apply water to <br />beneficial use, and therefore such regulations are not "applicable" to the downstream <br />water quality changes for purposes of this certification review. <br /> <br />With respect to the degradation of habitat on the North Fork, rather than conducting its own <br />review of compliance with Colorado's water quality standard governing aquatic habitat, the <br />Division relied exclusively on the Forest Service's detennination regarding the North Fork: <br /> <br />The Division has reviewed portions of the U.S. Forest Service ("USFS'') Aquatic <br />Resources Technical Report, Arapahoe Basin Sid Area MOP Proposal dated 1999, and <br />has consulted with the USFS regarding this issue. The Record of Decision issued for the <br />project by the USFS identifies a n\UDber of mitigation measures to which the applicant <br />has agreed which are intended to minimize potential impacts of reduced stream flow on <br />the trout population. The Division believes the biological evaluation rendered by the <br />USFS adequately addresses these concerns and that conditions attached to the USFS <br />project approval are protective of the aquatic life use classification assigned to the North <br />Fork of the Snake River. <br /> <br />Moreover. the Division rejected without comment the infonnation that TU had submitted during <br />the public comment period regarding flaws in the Forest Service analysis. <br /> <br />27. On December 26,2000, Colorado Wild and TU filed a timely appeal of the certification <br />with the Commission. <br /> <br />28. On January 8, 2001, the Commission considered the appeal and set a hearing date. In <br />addition, the Commission designated co-hearing officers and directed the parties to establish a <br />discovery schedule. Finally, the Commission directed the parties to file any other motions by <br />January 22, 2001. On January 10, 2001, the Commission issued an order reflecting its decisions, <br />establishing a discovery schedule running through February 23, 2001 and a subsequent briefing <br />schedule and noticing the hearing for April 9, 2001. <br /> <br />29. On January 22, 2001, Dundee filed a motion to dismiss, which in essence argued that <br />neither the Division nor the Commission had any jurisdiction to require mitigation of the water <br />quality impacts of the snow-making project, because such mitigation would constitute material <br />injury to Dundee's water rights, and therefore run afoul of Colo. Rev. Stat. ~ 25-8-104 (2000). <br />Colorado Wild and TU filed a joint opposition to this motion. The Division filed a response in <br />support of the motion. Dundee filed a reply to Colorado Wild and TU's pleading. <br /> <br />7 <br />