Current through Register Vol. XLI, No. 23, June 7, 2024
Section 38-2-10 - Prime Farmlands10.1. Identification of Prime Farmlands. 10.1.a. Each permit application shall include the results of a reconnaissance inspection to determine whether or not all or part of the permit area is prime farmland. All or any part of a proposed permit area may be designated by the Secretary as prime farmland on the basis of a reconnaissance inspection, soil surveys, and other required information submitted as part of a permit application. For the purposes of this section, said surveys shall mean surveys developed in accordance with standards of the National Cooperative Soil Survey which includes the procedures set forth in the U. S. Department of Agriculture Handbook 436 (Soil Taxonomy) and 18 (Soil Survey).10.1.b. The requirements for said surveys may be waived by the Secretary if the applicant can demonstrate that a basis exists for making a negative determination of prime farmland.10.2. Negative Determination of Prime Farmland.10.2.a. Land within the proposed permit area shall not be considered as prime farmland where the applicant can demonstrate one or more of the following situations: 10.2.a.1. No land within the proposed permit boundaries have been historically used for cropland. For purposes of prime farmland determinations, historically used for cropland means: 10.2.a.1.A Lands that have been used for cropland for any five (5) years or more out of the ten (10) years immediately preceding the acquisition, including purchase, lease, or option, of the land for the purpose of conducting or allowing through resale, lease or option the conduct of surface coal mining and reclamation operations;10.2.a.1.B. Lands that the Secretary determines, on the basis of additional cropland history of the surrounding lands and the lands under consideration, that the permit area is clearly cropland but falls outside the specific five (5) years in ten (10) criterion, in which case the rules for prime farmland may be applied to include more years to cropland history only to increase the prime farmland acreage to be preserved; or10.2.a.1.C. Lands that would likely have been used as cropland for any five (5) out of the last ten (10) years, immediately preceding such acquisition but for the same fact of ownership or control of the land unrelated to the productivity of the land. 10.2.a.2. The slope of all land within the permit area is ten percent (10%) or greater;10.2.a.3. Other factors exist, such as a very rocky surface, or the land is frequently flooded during the spring or fall season more often than once in two (2) years, which clearly places all land within the area outside the purview of prime farmland; or10.2.a.4. A written determination based on soil surveys and other scientific findings made by a qualified person other than the applicant that land within the proposed mining area does not meet the requirements for prime farmlands. The soil survey shall be of the detail used by the U. S. Natural Resources Conservation Service for operational conservation planning and shall contain at a minimum a description of soil mapping units, pH, soil horizon depths and soil densities.10.3. Plan for Restoration of Prime Farmland.10.3.a. The applicant shall propose a plan for the mining and restoration of any prime farmland within the proposed permit area. This plan shall be made a part of the permit application and shall be the basis for determining the technological capability of the applicant to restore prime farmlands. The plan shall include: 10.3.a.1. A soil survey of the original undisturbed soil profile showing the depth and thickness of each of the soil horizons that collectively constitute the root zone. The soil survey shall be of the detail used by the U. S. Natural Resources Conservation Service for operational conservation planning and shall contain, at a minimum, a description of soil mapping units, pH, soil density, and the depth and thickness of each soil horizon;10.3.a.2. The proposed types of equipment and methodology to be used for removal, storage, and replacement of the soil in accordance with subsection 10.4 of this section;10.3.a.3. The Location of areas to be used for the separate stockpiling of the soil horizons and plans for soil stabilization before redistribution;10.3.a.4. The use of topsoil substitutes may be approved by the Secretary on the basis of scientific information provided by the applicant that the substitute material is suitable for the proposed postmining land use. Such information shall be made a part of the permit application;10.3.a.5. Plans for seeding and/or planting the regraded area and the conservation practices proposed to control erosion and sedimentation during the first twelve (12) months after regrading is completed;10.3.a.6. Scientific data from comparable areas that demonstrate that the applicant will achieve, within a reasonable period of time, equivalent or higher levels of yield after mining as existed before mining; and10.3.a.7. Information regarding productivity prior to mining, including the average yield of food, fiber, forage or wood products obtained under a high level of management.10.4. Special Requirements. 10.4.a. For all proposed mining operations on prime farmlands, the applicant shall meet the following special requirements: 10.4.a.1. All soil horizons to be used in the reconstruction of the soil shall be removed and stockpiled before drilling, blasting, or mining. Where removal of soil horizons result in erosion that may cause air and water pollution, the application shall specify methods or treatment to control erosion of exposed overburden. The application shall describe procedures to be used to: 10.4.a.1.A. Remove separately the entire A horizon or other suitable soil materials which will be used to create a final soil having a greater productive capacity than that which existed prior to mining. Such operations will be carried out in a manner that prevents mixing or contamination with other material before replacement;
10.4.a.1.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 greater productive capacity than that which existed prior to mining. Such operations shall be carried out in a manner that prevents mixing or contamination with other material; and10.4.a.1.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 greater thickness and that can be shown to be more favorable for plant growth than the B horizon, and that when replaced will create in the reconstructed soil a final root zone of greater depth and quality to that which existed in the natural soil.10.4.a.1.D. The aggregate total prime farmland acreage shall not be decreased from that which existed prior to mining. Water bodies, if any, constructed during mining and reclamation must be located within the post reclamation non-prime farmland portions of the permit area. The creation of such water bodies must be approved by the Department of Environmental Protection and have the consent of all affected property owners within the permit area.10.4.b. If stockpiling of soil horizons is necessary, the A horizon and B horizon shall be stored separately from each other. The stockpiles shall be sited within the permit area at a suitable Location where they will not be disturbed or exposed to excessive erosion by water or wind before the stockpiled horizons can be redistributed on the regraded surface. Stockpiles in place for more than thirty (30) days shall be protected from erosion.10.4.c. Soil Replacement.10.4.c.1. Soil reconstruction specifications established by the U. S. Natural Resources Conservation Service shall be based upon the standards of the National Cooperative Soil Survey and shall include, as a minimum, physical and chemical characteristics of reconstructed soils and soil descriptions containing soil-horizon depths, soil densities, soil pH, and other specifications such that constructed soils will have the capability of achieving levels of yield equal to, or higher than, those of nonmined prime farmland in the surrounding area.10.4.c.2. The minimum depth of soil and substitute soil material to be reconstructed shall be forty-eight (48) inches, or a lesser depth equal to the depth to a subsurface horizon in the natural soil that inhibits or prevents root penetration, or a greater depth if determined necessary to restore the original soil productivity capacity. Soil horizons shall be considered as inhibiting or preventing root penetration if their physical or chemical properties or water-supplying capacities cause them to restrict or prevent penetration by roots of plants common to the vicinity of the permit area and if these properties or capacities have little or no beneficial effect on soil productive capacity.10.4.c.3. The operator shall replace and regrade the soil horizons or other root-zone material with proper compaction and uniform depth.10.4.c.4. The operator shall replace the B horizon, C horizon, or other approved substitute material to the thickness needed to meet the requirements of paragraph 10.4.C.2 of this subsection.10.4.c.5. The operator shall replace the topsoil or other approved substitute materials as the final surface soil layer. This surface soil layer shall equal or exceed the thickness of the original surface soil layer, as determined by the soil survey.10.4.d. Apply nutrients and soil amendments as needed to establish quick vegetative growth.10.4.e. In those areas where the B or C horizons were not removed but may have been compacted or otherwise damaged during the mining operation, the operator shall engage in deep tilling or other appropriate means to restore premining capabilities.10.5. Revegetation. Each person who conducts surface coal mining and reclamation operations on prime farmland shall meet the following revegetation requirements during reclamation:10.5.a. following soil replacement, the operator shall establish a vegetative cover of the type and in the manner set forth in the approved permit. Seeding and/or planting shall be accomplished during the next period for favorable planting conditions. Suitable mulch and other soil stabilizing practices shall be used on all areas; and10.5.b. Within the time period specified in the permit, but not more than ten (10) years after completion of backfilling and rough grading, any portion of the permit area which is prime farmland must be used for crops. The crops may be grown in rotation with hay or pasture crops. The Secretary may approve the use of perennial plants for hay where this is a common long term use of prime farmland soils in the surrounding area.10.6 Revegetation and Restoration of Soil Productivity.10.6.a. following prime farmland soil replacement, the soil surface shall be stabilized with a vegetative cover or other means that effectively controls soil loss by wind and water erosion.10.6.b. Prime farmland soil productivity shall be restored in accordance with the following provisions:10.6.b.1. Measurement of soil productivity shall be initiated within ten (10) years after completion of soil replacement.10.6.b.2. Soil productivity shall be measured on a representative sample or on all of the mined and reclaimed prime farmland area using the reference crop determined under paragraph 10.6.b.6 of this subdivision. A statistically valid sampling technique at a ninety (90) percent or greater statistical confidence level shall be used and in consultation with the U. S. Natural Resources Conservation Service.10.6.b.3. The measurement period for determining average annual crop production (yield) shall be a minimum of three (3) crop years prior to release of the bond.10.6.b.4. The level of management applied during the measurement period shall be the same as the level of management used on nonmined prime farmland in the surrounding area.10.6.b.5. Restoration of soil productivity shall be considered achieved when the average yield during the measurement period equals or exceeds the average yield of the reference crop established for the same period for nonmined soils of the same or similar texture or slope phase of the soil series in the surrounding area under equivalent management practices.10.6.b.6. The reference crop on which restoration of soil productivity is proven shall be selected from the crops most commonly produced on the surrounding prime farmland. Where row crops are the dominant crops grown on prime farmland in the area, the row crop requiring the greatest rooting depth shall be chosen as one of the reference crops.10.6.b.7. Reference crop yields for a given crop season are to be determined from: 10.6.b.7.A. The current yield records of representative local farms in the surrounding area, with concurrence by the U. S. Natural Resources Conservation Service; or10.6.b.7.B. The average county yields recognized by the U. S. Department of Agriculture, which have been adjusted by the U. S. Natural Resources Conservation Service for local yield variation within the county that is associated with differences between nonmined prime farmland soil and all other soils that produce the reference crop.10.6.b.8. Under either procedure in paragraph 10.6.b.7 of this subdivision, the average reference crop yield may be adjusted, with the concurrence of the U. S. Natural Resources Conservation Service, for:10.6.b.8.A. Disease, pest, and weather-induced seasonal variations; or10.6.b.8.B. Differences in specific management practices where the overall management practices of the crops being compared are equivalent.