BOARD02473

• Board Meeting Date: 3/26/2001
• Description: Joint Water Quality Meeting Follow-Up
• Board Meetings - Doc Type: Memo

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was beyond the authority of the Division or the Comm~ssion, that decision is without legal basis.
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FOURTH CAUSE OF ACTION
THE COMMISSION'S DECISION VIOLATES COLORADO
WATER QUALITY LAW AND THE CLEAN WATER ACT WITH RESPECT TO THE
NORTH FORK
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40. The allegations contained in paragraphs 1-31 ~e incorporated by reference.
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41. . The Commission violated Clean Water Act sedtion 401, 33 U.S.C. ~ 1341, the Colorado
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Water Quality Control Act, Colo. Rev. Stat. ~~ 25-8-302(1)(f) and 25-8-104(2)(d), and Colorado
Water Quality Regulations, 5 C.C.R. ~ 1002-31.8, 5 C,C.R. ~~ 1002-82.1 and 82.5 by dismissing
Colorado Wild and TU's appeal and affinning the Di~sion's certification and the factual and
legal reasoning contained in that certification. On the ;North Fork, there are disputed issues of
fact regarding whether the snowmaking project will cqmply with the classified.use. In addition,
there are disputed issues of fact regarding what, if anyj mitigation is available to protect water
quality on the North Fork and whether all such mitigation was discussed as required by state
regulation. Because the Division did not reach the section 104 issue on the North Fork in
granting its certification, moreover, there is an issue of fact as to whether the Division even could
have complied with the provisions of its own regulatiqns regarding mitigation for the North Fork.
Finally, the Commission's decision that stream restor~tion is the equivalent of an instream flow
is factually and legally incorrect. i

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FIFI'H CAUSE OFiACTION
THE COMMISSION'S DECISION VIOLATES 'l!1m COLORADO ADMINISTRATIVE
PROCEDURES ACT

42. The allegations contained in paragraphS 1-31 are incorporated by reference.
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43. The Commission's decision to grant the motio~ to dismiss is a denial of due process and
violates Colorado Administrative Procedure Act ~ 24-:4-105, Colo. Rev, Stat. ~ 25-8-302(1)(f),
and 5 C.C.R. ~~ 21.4, 21.10, as there are no statutoryprregulatoryprovisions that allow the
Commission to refuse an appellant the opportunity to tlevelop a complete record and present its
case at a fonnal adjudicatory hearing following a timt1ly appeal and notice of hearing. The
Commission denied the appeal without a complete reQord. For example, on the North Fork, the
Division did not reach the question of mitigation in it~ certificati~n detennination; therefore,
there was insufficient infonnation before the Commis~ion to decide what if any mitigation might
have been appropriate and whether such mitigation w?uld comply with Colorado law. The
Commission's decision to dismiss the appeal in this procedural context denied Colorado Wild
and TU their due process and is factually and legally incorrect.

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