Current through Register Vol. 35, No. 18, September 24, 2024
3 - Enforcement of these
provisions promulgated pursuant to Sections 510(d) and 515(b)(7) of the federal
act will be enjoined to the extent they impose perfor mance standards on
operations that are exempt from these requirements pursuant to Section
510(d)(2).
A. Applicability.
(1) Permittees of surface coal mining and
reclamation operations conducted on prime farmland shall comply with the
general performance standards of Part 715 of this chaper in addition to the
special requirements of this Section. Prime farmlands are those lands defined
in Paragraph (b) [now Subsection B of 19.8.36.36 NMAC] of this Section that
have been used for the production of cultivated crops, including nurseries,
orchards and other speciality crops , and small grains for at least 5 years out
of the 20 years preceding the date of the permit application.
(2) The requirements of this Section are
applicable to any permit issued on or after August 3, 1977. Permits issued
before that date and revisions or renewals of those permits need not conform to
the provisions of this Section regarding actions to be taken before a permit is
issued. Permit renewals or revisions shall include only those areas that:
(a) Were in the original permit area or in a
mining plan approved prior to August 3, 1977; or
(b) Are contiguous and under State regulation
or practice would have normally been considered as a renewal or revision of a
previously approved plan.
B. Definition. Prime farmland means those
lands that meet the applicability requirements in Paragraph (a) [now Subsection
A of 19.8.36.36 NMAC] of this section and the specific technical criteria
prescribed by the secretary of agriculture as published in the FEDERAL REGISTER
on August 23, 1977. These criteria are included here for convenience. Terms
used in this section are defined in U.S. department of ag riculture
publications: Soil Taxonomy, Agriculture Handbook 436: Soil Survey Manual.
Agriculture Handbook 18; Rainfall-Erosion Losses From Cropland, Agriculture
Handbook 282; and Saline and Alkali Soils, Agriculture Handbook 60. To be
considered prime farmland soils must meet all of the following criteria:
(1) The soils have:
(a) Aquic, udic, ustic or xeric moisture
regimes and sufficient available water capacity within a depth of 40 inches or
in the root zone, if the root zone is less than 40 inches deep, to produce the
commonly grown crops in 7 or more years out of 10; or
(b) Xeric or ustic moisture regimes in which
the available water capacity is limited but the area has a developed irrigation
water supply that is dependable and of adequate quality (a dependable water
supply is one in which enough water is available for irrigation in 8 out 10
years for the crops commonly grown); or
(c) Aridic or torric moisture regimes and the
area has a developed irrigation water supply that is dependable and of adequate
quality.
(2) The soils
have a temperature regime that is frigid, mesic, thermic or hyperthermic
(pergelic and cryic regimes are excluded). These are soils that at a depth of
20 inches have a mean annual temperature higher than 32 degrees F. In addition,
the mean summer temperature at this depth in soils with an 0 horizon is higher
than 47 degrees F in soils that have no 0 horizon the mean summer temperature
is higher than 59 degrees F.
(3)
The soils have a pH between 4.5 and 8.4 in all horizons within a depth of 40
inches or in the root zone if the root zone is less than 40 inches
deep.
(4) The soils either have no
water table or have a water table that is maintained at a sufficient depth
during the cropping season to allow food, feed, fiber, forage and oilseed crops
common to the area to be grown.
(5)
The soils can be managed so that, in all horizons within a depth of 40 inches
or in the root zone if the root zone is less than 40 inches deep during part of
each year the conductivity of saturation extract is less than 4 mmhos/cm and
the exchangeable sodium percentage (ESP) is less than 15.
(6) The soils are not flooded frequently
during the growing season (less often than once in 2 years).
(7) The soils have a product of K
(erodibility factor) x percent slope of less than 2.0 and a product of I (soil
erodibility) x C (climatic factor) not exceeding 60.
(8) The soils have a permeability rate of at
least 0.06 inch per hour in the upper 20 inches and the mean annual soil
temperature at a depth of 20 inches is less than 59 degrees F.; the
permeability rate is not a limiting factor if the mean annual soil temperature
is 59 degrees F. or higher.
(9)
Less than 10 percent of the surface layer (upper 6 inches) in these soils
consists of rock fragments coarser than 3 inches.
C. Identification of prime farmland. Prime
farmland shall be identified on the basis of soil survey submitted by the
applicant. The regulatory authority also may require data on irrigation
drainage, flood control, and subsurface water management. The requirement for
submission of soil surveys may be waived by the regulatory authority if the
applicant can demonstrate according to the procedures in Paragraph (d) [now
Subsection D of 19.8.36.36 NMAC] of this Section that no prime farmlands are
involved. Soil surveys shall be conducted according to standards of the
National Cooperative Soil Survey which include the procedures set forth in U.S.
department of agriculture Handbooks 436 (Soil Taxonomy) and 18 (Soil Survey
Manual) , and shall include:
(1) Data on
moisture availability, temperature regime, flooding, water table, erosion
characteristics, permeability, or other information that is needed to determine
prime farmland in accordance with Paragraph (b) [now Subsection B of 19.8.36.36
NMAC] of this Section;
(2) A map
designating the exact location and extent of the prime farmland; and
(3) A description of each soil mapping
unit.
D. Negative
determination of prime farmland. The land shall not be considered as prime
farmland where the applicant can demonstrate one or more of the following
situations:
(1) Lands within the proposed
permit boundaries have been used for the production of cultivated crops for
less than 5 years out of 20 years preceding the date of the permit
application.
(2) The slope of all
land within the permit area is 10 percent or greater.
(3) Land within the permit area is not
irrigated or naturally subirrigated, has no developed water supply that is
dependable and of adequate quality and the average annual precipitation is 14
inches or less.
(4) Other factors
exist, such as a very rocky surface, or the land is frequently flooded, which
clearly place all land within the area outside the purview of prime
farmland.
(5) A written
notification based on scientific findings and soil surveys that land within the
proposed mining area does not meet the applicability requirements in Paragraph
(a) [now Subsection A of 19.8.36.36 NMAC] of this Section is submitted to the
regulatory authority by a qualified person other than the applicant, and is
approved by the regulatory authority.
E. Plan for restoration of prime farmland.
The applicant shall submit to the regulatory authority a plan for the mining
and restoration of any prime farmland within the proposed permit boundaries.
This plan shall be used by the regulatory authority in judging the
technological capability of the applicant to restore prime farmlands. The plan
shall include:
(1) A description of the
original undisturbed soil profile, as determined from a soil survey, showing
the depth and thickness of each of the soil horizons that collectively
constitute the root zone of the locally adapted crops and are to be removed,
stored and replaced;
(2) The
proposed method and type of equipment to be used for removal, storage, and
replacement of the soil in accordance with Paragraph (g) [now Subsection G of
19.8.36.36 NMAC] of this section;
(3) The location of areas to be used for the
separate stockpiling of the soil and plans for soil stabilization before
redistribution;
(4) If applicable,
documentation such as agricultural school studies or other scientific data from
comparable areas that supports the use of other suitable material, instead of
the A, B or C soil horizon, to obtain on the restored area equivalent or higher
levels of yield as non-mined prime farmlands in the surrounding area under
equivalent levels of management; and
(5) Plans for seeding or cropping the final
graded mine land and the conservation practices to control erosion and
sedimentation during the first 12 months after regrading is completed. Proper
adjustments for seasons must be made so that final graded land is not exposed
to erosion during seasons when vegetation or conservation practices cannot be
established due to weather conditions; and
(6) Available agricultural school studies,
company data or other scientific data for comparable areas that demonstrate
that the applicant using his proposed method of reclamation will achieve,
within a reasonable time, equivalent or higher levels of yield after mining as
existed before mining.
F. Consultation with secretary of agriculture
and issuance of permit.
(1) The regulatory
authority may grant a permit which shall incorporate the plan submitted under
Paragraph (e) [now Subsection E of 19.8.36.36 NMAC] of this section, if it
finds in writing that the applicant:
(a) has
the technological capability to restore the prime farmland within the proposed
permit area, within a reasonable time, to equivalent or higher levels of yield
as non-mined prime farmland in the surrounding area under equivalent levels of
management; and
(b) Will achieve
compliance with the standards of Paragraph (g) [now Subsection G of 19.8.36.36
NMAC] of this Section.
(2) Before any permit is issued for areas
that include prime farmlands, the regulatory authority shall consult with the
secretary of agriculture. The secretary of sgriculture will provide a review of
the proposed method of soil reconstruction and comment on possible revisions
that will result in a more complete and adequate restoration. The secretary of
agriculture has assigned his responsibilities under this paragraph to the
administrator of the U.S. soil conservation service and the U.S. soil
conservation service will carry out the consultation and review through their
state conservationist, located in each state.
G. Special requirements. For all prime
farmlands to be mined and reclaimed the applicant shall meet the following
special requirements:
(1) All soil horizons
to be used in the reconstruction of the soil shall be removed before drilling,
blasting or mining to prevent contaminating the soil horizons with undesirable
materials. Where removal of soil horizons result in erosion that may cause air
and water pollution, the regulatory authority shall specify methods of
treatment to control erosion of exposed overburden. The permittee shall:
(a) Remove separately the entire A horizon or
other suitable soil materials which will create a final soil having an equal or
greater productive capacity than that which existed prior to mining in a manner
that prevents mixing or contamination with other material before
replacement;
(b) Remove separately
the B horizon of the natural soil or a combination of B horizon and underlying
C horizon or other suitable soil material that will create a reconstructed root
zone of equal or greater productivity capacity than that which existed prior to
mining in a manner that prevents mixing or contamination with other material;
and
(c) Remove separately the
underlying C horizons or other strata, or a combination of such horizons or
other strata, to be used instead of the B horizon that are of equal or greater
thickness and that can be shown to be equal or more favorable for plant growth
than the B horizon, and that when replaced will create in the reconstructed
soil a final root zone of comparable depth and quality to that which existed in
the natural soil.
(2) If
stockpiling of soil horizons is allowed by the regulatory authority in lieu of
immediate replacement, the A horizon and B horizon must be stored separately
from each other. The stockpiles must be placed within the permit area and where
they will not be disturbed or exposed to excessive erosion by water or wind
before the stockpiled horizons can be redistributed on terrain graded to final
contour. Stockpiles in place for more than 30 days must meet the requirements
of Section 715.16(c).
(3) Scarify
the final graded land before the soil horizons are replaced.
(4) Replace the material from the B horizon
or other suitable material specified in Paragraph (g)(1)(ii) or (g)(1)(iii)
[now Subparagraphs b or c of Paragraph 1 of Subsection G of 19.8.36.36 NMAC] of
this Section in such a manner as to avoid excessive compaction of overburden
and to a thickness comparable to the root zone that existed in the soil before
mining.
(5) Replace the A horizon
or other suitable soil materials which will create a final soil having an equal
or greater productive capacity than existed prior to mining, as the final
surface soil layer to the thickness of the original soil as determined in
Paragraph (g)(1)(i) [now Subparagraphs a of Paragraph 1 of Subsection G of
19.8.36.36 NMAC] of this Section in a manner that:
(a) Prevents excess compaction of both the
surface layer and underlying material and reduction of permeability to less
than 0.06 inch per hour in the upper 20 inches of the reconstructed soil
profile; and
(b) Protects the
surface layer from wind and water erosion before it is seeded or
planted.
(6) Apply
nutrients and soil amendments as needed to establish quick vegetative
growth.