2011-05-26_ENFORCEMENT - M1977300

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and other evidence in the record, are unsupported by substantial evidence, and do not support the Board's conclusions that Cotter violated Colo. Rev. Stat. § 34- 32- 116(7)(g). Defendants' assertion that, in finding a violation of Colo. Rev. Stat. § 34- 32- 116(7)(g), the "Board applied the proper statutory standard" is also unavailing. See Answer Brief at 37 n.12. Paragraph 40 of the Order explicitly found Cotter in violation of section 34- 32- 116(7)(g) "for failing to protect the prevailing hydrologic balance." Order ¶ 40, AR:00852 (emphasis added). As Cotter explained in its Opening Brief, section 34- 32- 116(7)(g) imposes no requirement that an operator "protect" the prevailing hydrologic balance, and "failing to protect" establishes a higher standard than the language set forth in the Act. Opening Brief at 30. Moreover, the Board's reference to the correct statutory standard in paragraphs 38 and 39 of the Order does not make the Board's error harmless, see Answer Brief at 37 n.12, as the Board explicitly based its finding of a statutory violation on the erroneous standard set forth in paragraph 40 of the Order. See Order ¶ 40, AR:00852. Further, the Defendants' assertion that the Board applied the proper statutory standard is undermined by their continued reliance on the erroneous statutory standard in their Answer Brief. There, in discussing section 34- 32- 116(7)(g), the Defendants continue to assert "[e]ach operator must therefore protect surface and ground water ....." Answer Brief at 11 (emphasis added). For these reasons, the Board's conclusion that Cotter violated Colo. Rev. Stat. § 34- 32- 116(7)(g) should be set aside. B. No Substantial Evidence Exists That the Mine Pool Supports a Violation of Colo. Rev. Stat. § 34- 32- 116(7)(c). Just as Defendants' Answer Brief falls short in establishing a nexus between the mine pool and a violation of Colo. Rev. Stat. § 34- 32- 116(7)(g), it fails to support a nexus between the 23