BOARD02473

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

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After noting that Dundee's water rights are subject to decreed in-stream flow
held by the Colorado Water Conservation Board,.the USFS detennined that several
mitiglltion measures would reduce impacts of the project to acceptable levels. The
USFS required DW1dee to: limit its diveIllions to September to December, maintain
.50 cfs by-pass flow during September, November and December; maintain 1.0 cfs
by-pass flow during brook trout spawning in October; and pennit 75% of the stream
flow to by-pass Dundee's diveIllion point during diversions. As a result of this
mitigation, the USFS fOW1d that any loss of spawning habitat for brook trout would be
less than the USFS's Forest Plan Standard of 30%4 habitat loss.

Construction of Dundee's diversion structure will require a pennit from the
U.S. Army Corps of EngineeIll under ~ 404 of the Clean Water Act, 33 U.S.C.
S 1344. That pennit in turn requires certification by the State of Colorado that the
project will comply with applicable water quality standards. 33 U.S.C. ~ 1341.
Colorado's ~ 401 certification provisions are fOWld at ~ 25-8-302(1)(t), C.R.S. (2000)
and Commission Regulation No. 82 [5 CCR loo2-82J.

DWldee applied to the Division for this certification. After review, the
Division issued a regular certification pursuant to Regulation No. 82, section
82.5(A)(5). The Division's certification included conditions requiring compliance
with specific best management practices designed to mitigate impacts of the project,
but it did not include any conditions modifying the amoWlt or manner ofDW1dee's
diveIllion of water.

POSITIONS OF THE PARTIES

Appellants challenged the. certification. Appellants allege, inter alia, that the
certification did not ensure compliance with water quality standards and classifica-
tions for the Snake because the Division did not require protective measures to offset
the impacts to the Snake that would not materially injure DWldee's water rights. The
Appellants also allege that the certification would not ensure compliance with
standards and classifications for the North Fork because the project would impair the
aquatic life use. In the Appellants' view, the Division improperly relied upon the
USFS's detennination that impacts from the project would be within the USFS's 30%
habitat standard and, therefore, failed to consider alternatives that would not affect
Dundee's water rights.

Appellants specifically suggested that the effects of the project could be
mitigated by requiring Dundee to: 1) move its point of diversion downstream so as to

4 The pleadings by the parties refer to either a 25% or 30% habitat standard. Resolution of
this discrepancy is not necessary at this point and the Commission makes no finding relative
to the standard.

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