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<br />~. <br />waters' is speculative and is inconsistent with newly established guidelines as <br />well as obtained data. As per reasons already described in items 1-3, GGI <br />believes that the toe seep water is related to base flows within Deadman Gulch. [t <br />therefore seems prudent to allow for the ongoing management practice (the lined <br />channel routing Deadman Gulch away from the waste rock pile) to elicit its <br />potential effect and wait until Spring 2008 to determine if a point source <br />dischazge is still required. GGI would also contend that Deadman Gulch does not <br />quality as a `waters of the United States'. Deadman Gulch represents an <br />intermittent drainage with little to no aquatic habitat. It would not be classified as <br />a `navigable water' or even a seasonal navigable water based upon the Federal <br />Register definition (CFR. Vo168, No. 10: January 15, 2003). As per the recent <br />`Rapanos v. United States & Cazabell v. United States' Supreme Court decision " <br />the agencies under the CWA will assert jurisdiction over traditional navigable <br />waters, wetlands adjacent to traditional navigable waters, non-navigable <br />tributaries that aze relatively permanent and wetlands that abut such tributaries. <br />The agencies will decide jurisdiction over non-navigable tributaries that are not <br />relatively permanent" (EPA, 2007a and b). Deadman Gulch has had flows once <br />in the past three yeazs, for approximately 2.5 months in total which places the <br />Gulch into acategory ofbeing anon-navigable tributary. The potential <br />application of the CWA is therefore in question. <br />In closing, GGI would like to extend an invitation to discuss these points further. GGI <br />personnel (Karmen KinglAquatic Toxicologist) is a member of the Scientific Advisory <br />Group (SAG) of the Arid West Water Quality Reseazch Project (AWWQRP) which <br />helped identify `arid west' applications to the Clean Water Act regulations and practices. <br />Recent developments (published by CDM [CDM,2007]) indicate that certain acid west <br />settings (such as those captured by intermittent drainages) do not lend themselves to <br />certain standard CWA assumptions. As such, the AWWQRP has developed a User's <br />Guide describing alternatives for these settings. GGI endorses the fact that Deadman <br />Gulch lends itself to narrative biological criteria as a suitable compliance endpoint. <br />Deadman Gulch provides transitional habitat settings for transient wildlife species. tt <br />also provides moisture for unique assemblages of vegetation. It does not contain suitable <br />habitat for aquatic life and it does not affect the water quality of the Lake Fork based <br />upon comparison of water quality measures to standazds protective of aquatic life. <br />Therefore the use of standard Coldwater aquatic criteria are inappropriate. Again, 1 <br />would extend the invitation to discuss these points further. <br />We appreciate your time and consideration in reviewing this material. As always, if you <br />have any questions or concerns, do not hesitate to contact me directly. <br />Sincer y; <br />~ r~.x~ ~jL97 - <br />C/ <br />annen 'ng/Aquatic Toxicologist/GGI <br />36 W. Main St. <br />Cortez, CO 81321 <br />(970) 565-0278 or (970) 565-1222 <br />FAX (970) 565-1226 <br />Page 4 of 16 <br />