New Mexico Administrative Code
Title 19 - NATURAL RESOURCES AND WILDLIFE
Chapter 8 - COAL MINING
Part 36 - NEW MEXICO COAL SURFACE MINING REGULATIONS [CSMC 1979-1]
Section 19.8.36.36 - SPECIAL PERFORMANCE STANDARDS: PRIME FARMLANDS (716.7):[3]

Universal Citation: 19 NM Admin Code 19.8.36.36

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.

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