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<br />, <br />30. At a hearing held on February 13, 2001, the C!>mmission heard oral argument from all <br />parties and then voted to grant Dundee's Motion to Dismiss. As a result, the Commission <br />vacated the hearing set for April 9, 2001. Consequently, the Division's certification remained <br />the final state action for purposes of Clean Water Act; ~401. <br /> <br />31, On March 13, 2001, the Commission adoptedjan order memorializing its decision. In its <br />March 13, 2001 order, the Commission stated that it ljlonsidered, for purposes of its ruling, <br />Colorado Wild and TU's appeal, Dundee's Motion to; Dismiss, including the attachments thereto <br />(one of which Wllll the Division's letter of certificatiop,), the parties' legal briefs and oral <br />arguments. The Commission order concluded that ~y mellllures to mitigate the water quality <br />impacts of Dundee's project would have constituted either instream flows in violation of Section <br />25-8-104, or constituted "off-site mitigation," which pte Division had no authority to require. <br /> <br />FIRST CAUSE OJ,? ACTION <br />THE DIVISION'S CERTIFICATION VIOLATES COLORADO <br />WATER QUALITY LAW AND THE CLEAN 'YATER ACT WITH RESPECT TO THE <br />SNAKE RIVER <br /> <br />32. The allegations contained in paragraphs 1.31 are incorporated by reference. <br /> <br />33. The Division's certification of Dundee's snoWmaking project violates Clean Water Act <br />section 401,33 D.S.C. ~ 1341, the Colorado Water Quality Control Act, Colo. Rev. Stat. ~ 25-8- <br />302(1)(t), and Colorado Water Quality Regulations, ,is C,C.R. ~ 1002-31.8,5 C.C.R. ~~ 1002- <br />82.1 and 82.5. The Division's decision certifies that. Dundee's snowmaking project will comply <br />with all applicable water quality standards when, in fact, the project will exacerbate existing <br />water quality standards violations in the Snake downstream of the confluence of the mainstem of <br />the Snake and the North Fork. The Division's deteqnination that water quality standards are <br />"inapplicable" to the water quality violations cause<J; by Dundee's project is further contrary to <br />the water quality standards and the Clean Water Acti. Finally, the Division's finding that any <br />mitigation of the water quality impacts of Dundee's iproject would reduce or preclude Dundee's <br />right to divert is not supported by the record, and is factually and legally incolTect. <br /> <br />34. The Division's certification is also contrary to law with respect to the Snake because the <br />Division failed to comply with the process set forth ;in its own regulations regarding the <br />resolution of water quality compliance issues where; section 104 of the Water Quality Control <br />Act is implicated. Colo. Rev. Stat. ~ 2S-8-104(2)(d); 5 C.C.R. ~ 1002-82,5. <br />I <br />SECOND CAUSE:OF ACTION <br />THE DIVISION'S CERTIFICATION VIOLATES COLORADO <br />WATER QUALITY LAW AND THE CLEAN WATER ACT WITH RESPECT TO THE <br />NORTH FORK <br /> <br />8 <br /> <br />1 {~ <br />. <br /> <br />~ <br /> <br />~ <br /> <br />l <br />