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<br /> <br />177 <br /> <br />. <br /> <br />35. The allegations contained in paragraphs 1-31 are incolporated by reference. <br /> <br />36. The Division's certification of Dundee's snowmaking project violates Clean Water Act <br />section 401,33 U.S.C. ~ 1341, the Colorado Water Quality Control Act, Colo. Rev. Stat. ~ 25-8- <br />302(1)(f), and Colorado Water Quality Regulations,S 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 impair the North Fork's <br />aquatic life classified use. There is no statutory or regulatory basis to support the Division's <br />reliance on the Forest Service standard or decision regarding protection of the North Fork's <br />aquatic life classified use. There is no evidence that the Forest Service considered whether its <br />pennit would assure compliance with the state's classified uses pursuant to the Clean Water Act <br />and Colorado Water Quality Control Act. The Forest Service has no direct responsibility for <br />enforcing water quality standards under Colorado's Water Quality Control Act. And, there is no <br />standard--either in state regulations or articulated by the Division-regarding protection of <br />classified uses under Colorado law. Certainly, there is nothing to suggest that anything less than <br />a 30% loss ofhaj:litat constitutes compliance with a classified aquatic life use. Moreover, the <br />Division's detennination that the snowmaking project, even as conditioned by the Forest Service, <br />will comply with the aquatic life use classification on the North Fork is not supported by the <br />record and is factually and legally incorrect. <br /> <br />. 37. The Division's certification is also contrary to law with respect to the North Fork because <br />the Division failed to comply with the process set forth in its own statute and regulations <br />regarding the resolution of water quality compliance issues where section 104 of the Water <br />Quality Control Act is implicated. Colo. Rev. Stat. ~ 25-8-104(2)( d); 5 C.C.R. ~ 1002-82.5. <br /> <br />THIRD CAUSE OF ACTION <br />THE COMMISSION'S DECISION VIOLATES COLORADO <br />WATER QUALITY LAW AND THE CLEAN WATER ACT WITH RESPECT TO THE <br />SNAKE RIVER <br /> <br />38. The allegations contained in paragraphs 1-31 are incolporated by reference. <br /> <br />. <br /> <br />39. The Commission violated Clean Water Act section 401, 33 U.S,C. ~ 1341, the Colorado <br />Water Quality Control Act, Colo. Rev. Stat. ~~ 25-8-302(1 )(f), and 25-8-104(2)( d) and Colorado <br />Water Quality Regulations, 5 C.C.R. ~ 1002-31.8, 5 C.C.R. 9 1002-82.1 and 82.S by dismissing <br />the appeal and affinning the Division's certification and the factual and legal reasoning contained <br />in th!lt certification. On the Snake, mitigation is required by law to offset the increase in metals <br />concentrations caused by the snowmaking project. There are disputed issues offact regarding <br />what, if any, mitigation options are available to protect water quality and whether all such <br />options were explored and considered as required by state regulation. To the extent that the <br />Commission's order dismissing the appeal relied on the ground that requiring off.site mitigation <br /> <br />9 <br />