BOARD02473

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

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avoid impacts from reduced flows in the Nor(h Fork; 2) replace diverted water with
water from the Roberts Tunnel so lIS to avoid!loss of dilution flows in the Snake; 3)
add additional storage and 4) remediate mine/drainage in the Pero Creek drainage. As
explained at the hearing by counsel for the Appellants, the change in location of the
point of diversion would be a significant distance, nearly to the confluence with the
Snake River. At the hearing Appellants also suggested that the impacts on the North
Fork could be mitigated with stream restoratipn.

. Dundee argues that the Commission sllould dismiss the appeal because the
Commission lacks statutory authority to grant the rellef sought by the Appellants.
Specifically, Dundee contends that under ~ 2$-8-104, C.R.S. (2000), the Division and
the Commission cannot impose a condition ~ the certification or interpret the
Colorado Water Quality Control Act in a maImer that impairs the exercise of a water
right or requires instream flows. Dundee characterizes the rellef sought by the
Appellants as intruding upon the jurisdiction ~fthe water courts and the Colorado
Water Conservation Board. Dundee argues t\tat the appeal should be dismissed
because AppeUants are contending that the Division and the Commission must..
require instream flows to protect clllSsified wjes in the North Fork, which Dundee
maintains is prohibited by ~ 104. Dundee a1~0 points out that it will not discharge any
metals to the North Fork or the Snake and th* metals in the Snake come from
property owned by third parties. In Dundee'S view, the Appellants' contention that
Dundee should be required to clean up or oth~rwise offset pollution from mine sites
owned by third parties would impair the exercise of its water rights as prohibited by
~ 104.

The Division maintains that its autho*y is not limited to just the discharge
that triggers the requirement for a ~ 404 pemp.t (in this Calle, the dredge and/or fill to
construct the diversion structure), but that onpe the threshold element of a discharge is
established, its authority then extends to the donstruction and operation of the project.
The Division, however, also agrees that it m~st exercise its authority to impose
conditions upon a project such as this within ;the limits imposed by sections 25.8-104
and 25-8-302(1 )(f). :
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The Division also argued at hearing tJ?at, under ~ 25-8-302(1)(f) and
Regulation No. 82, there was an insufficient pexus between the project and the eff~ts
in the Snake. rite Division contends that it lacks authority to require Dundee to
remediate pollution on someone else's property that was unrelated to the project unless Dundee, the applicant, agreed to such 'conditions. It is undisputed that no such
agreement has been reached in this case.

CONCLUSIO~S OF LAW
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Motions to dismiss are generally vie~ed with disfavor and should be carefully
scrutinized. Dunlap v. Colorado Sprin~s Cablevision, Inc., 829 P.2d 1286 (Colo.
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