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Colorado Coal Program, based upon the soil pH that Mr. Irvine determined from his survey and <br />from consulting data contained in a publication of the Natural Resources Conservation Service <br />( "NRCS "), a unit of the United States Department of Agriculture. <br />20. Based upon this soil survey, and existing soil surveys that the NRCS had <br />previously completed in the area in 1992 and 1996, the Division determined that the Morgan <br />Property was not Prime Farmland. <br />21. The proposed permit for WFC's operations on the Morgan Property, referred to as <br />PR — 05 (standing for "Permit Revision Number 5 ") was published and made available to all <br />members of the public. It was approved by the Board on June 1, 2000 after the Division received <br />not a single objection. <br />22. Active mining on the Property began in 2004. <br />23. In this time frame, WFC also installed an irrigation pipeline to replace a ditch that <br />had previously existed, and pressurized the pipeline and installed screens to prevent foreign <br />materials from entering the water, permitting the Morgan family to use the pipeline to operate <br />center pivot irrigation systems and irrigate and conduct farming activities on 112 acres that they <br />had previously been unable to farm. <br />24. As approved, WFC's Permit for operations on the Morgan property (PR -05) <br />required the A and B topsoil layers to be salvaged, mixed, and placed over a minimum of 26 <br />inches of suitable subsoil to a total average depth of 48 inches. The permit also required WFC to <br />distribute the topsoil to its final resting place immediately following the mining of that area, <br />meaning that WFC was required to place some topsoil from the Morgan Property on previously - <br />mined areas located on another property. In total, approximately 20,000 cubic yards of such <br />topsoil was moved from the Morgan Property to the other property. <br />25. These activities were authorized both by the Permit and by the Coal Mining <br />Lease. During the negotiation of the Coal Mining Lease, removal of topsoil was specifically <br />discussed by the parties and the Lessors agreed it would be permitted as long as enough topsoil <br />remained to reclaim the Property. <br />26. In 2006, WFC terminated its contractual relationship with M &M Custom <br />Farming. <br />27. In mid -2007, Ms. Turner contacted NRCS and requested that the agency revisit <br />the negative prime farmland determination that had been made by the Division in 1999. NRCS <br />determined that the publication WFC and the Division had relied upon contained an inaccurate <br />reference value for the pH used to identify Prime Farmland soil, and that the Morgan Property <br />should have been designated as Prime Farmland. <br />28. This determination was communicated to WFC and the Division during a meeting <br />on February 15, 2008 among the Division, WFC, and the NRCS. At the meeting, without <br />waiting to be ordered to do so, WFC immediately agreed to implement Prime Farmland soil <br />salvage techniques on the Morgan Property, keeping the Lift A and Lift B topsoil layers separate <br />and using other required techniques. <br />(00026036.1) 4 <br />