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of Co o 1111111111111111111 <br /> 999 <br /> y F <br /> � 18T8 � <br /> GALE A. NORTON STATE OF COLORADO� STATE SERVICES BC[LDING <br /> Attorney General 1525 Sherman Street - 5th Floor <br /> DEPARTMENT OF LAW Denver, Colorado 80203 <br /> STEPHEN, K. ERKENBRACK Phone (303) 8664500 <br /> Chief Deputy Attorney General OFFICE OF THE ATTORNEY GENERAL FAX (303) 866-5691 <br /> TIDIOTH ' N1. Ti'btKOVICH <br /> Solicitor General <br /> ll <br /> ,April 1 , 1994 � � � � 77- 37c� <br /> Jerry W. Raisch, Esq. <br /> Vranesh & Raisch, LLC <br /> 1720 14th Street, Suite 200 <br /> P.O. Box 871 <br /> Boulder , Colorado 80306 <br /> RE: Your Letter of March 18, 1994 - Sunnyside Gold Corp. <br /> Dear Jerry: <br /> Thank you for your letter and attached copy of the NWF v. Gorsuch <br /> Xase. It had been a couple of years since I last read the case <br /> and going over it again to evaluate your arguments regarding the <br /> Sunnyside mine situation was very helpful . After carefully <br /> reviewing the case and your arguments I remain convinced that the <br /> Division ' s position in this matter is legally sound and well sup- <br /> ported by pertinent statutory and case law. Gorsuch is inappo- <br /> site to the case at hand. <br /> Gorsuch stands for the proposition that raw water discharges from <br /> dams are not point source discharges of pollutants that require <br /> NPDES permits . In the Sunnyside situation, there is neither a <br /> dam nor a discharge of raw water in the lawful exercise of water <br /> rights . These factors, absent in the Sunnyside situation, are <br /> crucial to the Gorsuch decision. For example, the Gorsuch <br /> Court ' s finding that the dam release did not "add" pollutants <br /> from a point source is based on EPA' s view that the transfer of <br /> nonpoint source pollution from one body of navigable waters to <br /> another through a point source does not constitute the addition <br /> of pollutants from a point source. See Gorsuch at 1119 . Such is <br /> the description of a dam release but not of a discharge of water <br /> impacted by mining operations through a seep. Thus, the rationale <br /> behind the "no addition" of pollutants conclusion in Gorsuch does <br /> not apply in this case. <br /> Interestingly enough, while EPA' s rationale, adopted by the Court <br /> in Gorsuch, does not translate to the factual situation at hand, <br /> the Court ' s deference to EPA' s interpretation of what constitutes <br /> an "addition" of pollutants under the Clean Water Act does . As <br />