Virginia Administrative Code
Title 4 - CONSERVATION AND NATURAL RESOURCES
Agency 25 - DEPARTMENT OF ENERGY
Chapter 130 - COAL SURFACE MINING RECLAMATION REGULATIONS
Part 785 - Requirements for Permits for Special Categories of Mining
Section 4VAC25-130-785.17 - Prime farmland
Universal Citation: 4 VA Admin Code 25-130-785-17
Current through Register Vol. 41, No. 3, September 23, 2024
(a) This section applies to any person who conducts or intends to conduct surface coal mining and reclamation operations on prime farmlands historically used for cropland. This section does not apply to:
(1)
Lands on which surface coal mining and reclamation operations are conducted
pursuant to any permit issued prior to August 3, 1977; or
(2) Lands on which surface coal mining and
reclamation operations are conducted pursuant to any renewal or revision of a
permit issued prior to August 3, 1977; or
(3) Lands included in any existing surface
coal mining operations for which a permit was issued for all or any part
thereof prior to August 3, 1977, provided that:
(i) Such lands are part of a single
continuous surface coal mining operation begun under a permit issued before
August 3, 1977; and
(ii) The
permittee had a legal right to mine the lands prior to August 3, 1977, through
ownership, contract, or lease but not including an option to buy, lease, or
contract; and
(iii) The lands
contain part of a continuous recoverable coal seam that was being mined in a
single continuous mining pit (or multiple pits if the lands are proven to be
part of a single continuous surface coal mining operation) begun under a permit
issued prior to August 3, 1977.
(4) For purposes of this section:
(i) "Renewal" of a permit shall mean a
decision by the division to extend the time by which the permittee may complete
mining within the boundaries of the original permit, and "revision" of the
permit shall mean a decision by the division to allow changes in the method of
mining operations within the original permit area, or the decision of the
division to allow incidental boundary changes to the original permit;
(ii) A pit shall be deemed to be a single
continuous mining pit even if portions of the pit are crossed by a road,
pipeline, railroad, or powerline or similar crossing;
(iii) A single continuous surface coal mining
operation is presumed to consist only of a single continuous mining pit under a
permit issued prior to August 3, 1977, but may include non-contiguous parcels
if the permittee can prove by clear and convincing evidence that, prior to
August 3, 1977, the noncontiguous parcels were part of a single permitted
operation. For the purposes of this Paragraph, clear and convincing evidence
includes, but is not limited to, contracts, leases, deeds or other properly
executed legal documents (not including options) that specifically treat
physically separate parcels as one surface coal mining operation.
(b) Application contents-reconnaissance inspection.
(1) All
permit applications, whether or not prime farmland is present, shall include
the results of a reconnaissance inspection of the proposed permit area to
indicate whether prime farmland exists. The division in consultation with the
U.S. Soil Conservation Service shall determine the nature and extent of the
required reconnaissance inspection.
(2) If the reconnaissance inspection
establishes that no land within the proposed permit area is prime farmland
historically used for cropland, the applicant shall submit a statement that no
prime farmland is present. The statement shall identify the basis upon which
such a conclusion was reached.
(3)
If the reconnaissance inspection indicates that land within the proposed permit
area may be prime farmland historically used for cropland, the applicant shall
determine if a soil survey exists for those lands and whether soil mapping
units in the permit area have been designated as prime farmland. If no soil
survey exists, the applicant shall have a soil survey made of the lands within
the permit area which the reconnaissance inspection indicates could be prime
farmland. Soil surveys of the detail used by the U.S. Natural Resources
Conservation Service for operational conservation planning shall be used to
identify and locate prime farmland soils.
(i)
If the soil survey indicates that no prime farmland soils are present within
the proposed permit area, Paragraph (b)(2) of this section shall
apply.
(ii) If the soil survey
indicates that prime farmland soils are present within the proposed permit
area, Paragraph (c) of this section shall apply.
(c) Application contents-prime farmland. All permit applications for areas in which prime farmland has been identified within the proposed permit area shall include the following:
(1) A soil survey of the permit area
according to the standards of the National Cooperative Soil Survey and in
accordance with the procedures set forth in U.S. Department of Agriculture
Handbooks 436 "Soil Taxonomy" (U.S. Soil Conservation Service, 1975) as amended
on March 22, 1982 and October 5, 1982, and 18, "Soil Survey Manual" (U.S. Soil
Conservation Service, 1951), as amended on December 18, 1979, May 7, 1980, May
9, 1980, September 11, 1980, June 9, 1981, June 29, 1981, November 16, 1982.
The U.S. Natural Resources Conservation Service establishes the standards of
the National Cooperative Soil Survey and maintains a National Soils Handbook
which gives current acceptable procedures for conducting soil surveys. This
National Soils Handbook is available for review at area and State NRCS offices.
(i) U.S. Department of Agriculture Handbooks
436 and 18 are incorporated by reference.
(ii) The soil survey shall include a
description of soil mapping units and a representative soil profile as
determined by the U.S. Natural Resources Conservation Service, including, but
not limited to, soil-horizon depths, pH, and the range of soil densities for
each prime farmland soil unit within the permit area. Other representative
soil-profile descriptions from the locality, prepared according to the
standards of the National Cooperative Soil Survey, may be used if their use is
approved by the State Conservationist, U.S. Natural Resources Conservation
Service. The division may request the applicant to provide information on other
physical and chemical soil properties as needed to make a determination that
the applicant has the technological capability to restore the prime farmland
within the permit area to the soil-reconstruction standards of Part
823.
(2) A plan for soil
reconstruction, replacement, and stabilization for the purpose of establishing
the technological capability of the permittee to comply with the requirements
of Part 823.
(3) Scientific data,
such as agricultural-school studies, for areas with comparable soils, climate,
and management that demonstrate that the proposed method of reclamation,
including the use of soil mixtures or substitutes, if any, will achieve, within
a reasonable time, levels of yield equivalent to, or higher than, those of
nonmined prime farmland in the surrounding area.
(4) The productivity prior to mining,
including the average yield of food, fiber, forage, or wood products obtained
under a high level of management.
(d) Consultation with the U.S. Secretary of Agriculture.
(1) The U.S. Secretary of
Agriculture has responsibilities with respect to prime farmland soils and has
assigned the prime farmland responsibilities arising under the Federal Act to
the Chief of the U.S. Natural Resources Conservation Service. The U.S. Natural
Resources Conservation Service shall carry out consultation and review through
the State Conservationist located in each State.
(2) The State Conservationist shall provide
to the division a list of prime farmland soils, their location, physical and
chemical characteristics, crop yields, and associated data necessary to support
adequate prime farmland soil descriptions.
(3) The State Conservationist shall assist
the division in describing the nature and extent of the reconnaissance
inspection required in Paragraph (b)(1) of this section.
(4) Before any permit is issued for areas
that include prime farmland, the division shall consult with the State
Conservationist. The State Conservationist shall provide for the review of, and
comment on, the proposed method of soil reconstruction in the plan submitted
under Paragraph (c) of this section. If the State Conservationist considers
those methods to be inadequate, he shall suggest revisions to the division
which result in more complete and adequate reconstruction.
(e) Issuance of permit. A permit for the mining and reclamation of prime farmland may be granted by the division if it first finds, in writing, upon the basis of a complete application, that:
(1) The approved proposed postmining land use
of these prime farmlands will be cropland;
(2) The permit incorporates as specific
conditions the contents of the plan submitted under Paragraph (c) of this
section, after consideration of any revisions to that plan suggested by the
State Conservationist under Paragraph (d)(4) of this section.
(3) The applicant has the technological
capability to restore the prime farmland, 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
(4) The proposed operations will be conducted
in compliance with the requirements of Part 823 and other environmental
protection performance and reclamation standards for mining and reclamation of
prime farmland of the regulatory program.
(5) The aggregate total prime farmland
acreage shall not be decreased from that which existed prior to mining. Water
bodies, if any, to be constructed during mining and reclamation operations must
be located within the post-reclamation non-prime farmland portions of the
permit area. The creation of any such water bodies must be approved by the
division and the consent of all affected property owners within the permit area
must be obtained.
Statutory Authority
§§ 45.1-161.3 and 45.1-230 of the Code of Virginia.
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