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Ms. Terry Debin <br />Mr. Tom Japhet <br />November 24, 2010 <br />Page 4 of 9 <br />C. Ramifications of the Inspection and Report <br />1. Procedural Due Process <br />At no time was WFC or the Division given an opportunity to discuss the inspection or its <br />findings with anyone from OSM or NRCS before Ms. Turner attempted to introduce the <br />November 16, 2010 report into evidence before the Board. Had she succeeded in doing so, WFC <br />and the Division would have been faced with the prospect of responding on the fly to a negative <br />comment on a permit decision they had already made in reliance upon NRCS's prior approval <br />without having had any opportunity to review the report or its findings. There appears to be no <br />explanation or excuse for the lateness of the report, given the specific involvement of MRCS in <br />this very issue in the permit process dating back to 2008. <br />Fortunately, the Board showed a concern for due process that is apparently lacking at the federal <br />agencies and deemed the November 16, 2010 reports inadmissible at the hearing. After a four - <br />hour proceeding, the Board then unanimously adopted the Division's recommendation and <br />approved PR -06. However, the objector discussed the reports in her remarks and the members of <br />the Board, during their colloquy preceding approval, expressed their frustration at the <br />contradictory and inconsistent information that had been supplied to the parties by the NRCS. <br />Before proceeding to discuss the substantive faults of the November 16, 2010 report, let me just <br />emphasize how totally inappropriate the actions of both OSM and NRCS were as representatives <br />of purportedly impartial government agencies. At the behest of, and apparently in complete and <br />uncritical reliance upon an objector to a permit the NRCS had already reviewed and approved, <br />NRCS and OSM rendered a totally misleading report which the objector intended to spring on <br />WFC and the Division without any prior notice or opportunity to review on the very day of the <br />hearing on the appeal of the WFC permit. OSM and NRCS cooperated fully in this attempt, with <br />full knowledge of the pre - hearing schedule and process due to their participation in that very <br />process. NRCS and OSM participated fully and knowingly in the objector's plan to circumvent <br />the deadlines that had been established in the Pre - Hearing Order and engage in a trial by ambush <br />of both WFC and the Division on the appeal of PR -06. <br />WFC has already had a monumentally difficult task in drafting a permit document to gain the <br />acceptance of various stakeholders with conflicting interests. Nothing about PR -06 has been <br />easy, and in fact it has been an extraordinarily exacting and difficult process for all concerned. <br />During the permit review, WFC was particularly careful to solicit and obtain the input of NRCS, <br />and is absolutely mystified that NRCS would attempt to reverse its favorable determination in so <br />precipitous a manner, based on a one -day investigation that appears to have been specifically <br />calculated to prevent either WFC or the Division from having any input. WFC has always <br />enjoyed an extremely productive and valuable relationship with the government agencies with <br />jurisdiction over its operations, and is dismayed that certain of these agencies chose to disregard <br />