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<br />1~6 <br />, <br /> <br />regulations provide a dual system that limits ithe ability of both the water court and the <br />water quality control agency to address cc11l\1n water quality issues. The Court also <br />noted that section 25-8-104 reinforces the legislative intent that minimum stream <br />flows are not a valid tool for protecting water quality. City of Thornton, 926 P.2d at <br />94. Despite the primacy of water rights, thollgh, the Court concluded that "[wJater <br />quality regulation that affects water rights without causing material injury or <br />impainnent is not necessarily prohibited." !g. at 92. In this context, the Division, on <br />a case-by-case basis, may impose conditions: upon a ~ 401 certification that may <br />affect the exercise of water rights. The DivUiion may not, however, impose conditions <br />that impair the right to divert water, materi~ly injure water rights, or require a <br />. minimum stream flow. ~ 25-8-104: Regulation No. 82. See also City of Thornton, <br />926 P.2d at 92-94. <br /> <br />The Appellants propose that the Divi.sion should require Dundee to: 1) move <br />its point of diversion downstream so as to avoid impacts from reduced flows in the <br />North Fork; 2) replace diverted water with water from the Roberts Tunnel so as to <br />avoid loss of dilution flows in the Smike or 3) add additional storage. Each of these <br />measures is directed at maintaining a long-t~nn minimum stream flow in either the <br />North Fork or the Snake. Since neither the Commission nor the Division may require <br />minimum stream flows, the Commission lacks authority to provide relief to the <br />Appellants in the fonn of any of these propQsed measures. <br /> <br />The Appellants also proposed additienal requirements as conditions for the <br />certification. First, they maintain that Dun4ee should remediate metals-laden mine <br />drainage in the Snake River drainage in ord~r to offset the loss of dilution flow that <br />will occur as a result of the diversion. Those remediation activities would occur on <br />mine sites owned by third parties. Second, the Appellants argued at the hearing. that <br />Dundee should perfonn stream restoration activities in the North Fork in order to <br />mitigate habitat loss that will occur as a result of the diversion. The stream <br />restoration identified as a mitigation measute by the Appellants at the hearing is not <br />directed to the construction or operation of ;Dundee's diversion structure. This <br />restoration is intended to offset 'depletions ~f the stream rather than to ameliorate the <br />, <br />effects of the diversion structure and therefpre is the equivalent of a remedy that <br />would establish a minimum stream flow. i <br /> <br />The Commission notes at the outsetithat any diversion in the State of water <br />that is cleaner than water downstream has tpe effect of reducing available dilution. <br />One effect of that reduction may be an increase in pollutant concentrations. All <br />diversions also reduce the flow below the 4iversion structure. <br /> <br />The remediation and stream restoration measures proposed implicate the scope <br />of sections 25-8-104 and 25-8-302(1)(1). 1'he scope of the Division's authority under <br />these provisions is a legal issue akin to one of jurisdiction and thus appropriately <br />. considered in a motion to dismiss. In this appeal the issue is whether the Division <br /> <br />6 <br /> <br />"""--'. <br />