(a) The applicant shall conduct a pre-application investigation of the proposed permit area to determine whether lands within the area may be prime farmland.
(b) Land shall not be considered as prime farmland where the applicant can demonstrate one or more of the following:
  (1) the land has not been historically used as cropland;
  (2) the land within the proposed permit area which has a slope, as measured pursuant to §12.137(a)(11) of this title (relating to Cross Sections, Maps, and Plans), of greater than 5.0%. Only that portion of the land having a slope of greater than 5.0% will not be considered as prime farmland;
  (3) the land 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; or
  (5) on the basis of a soil survey of lands within the permit area, there are no soil mapping units which have been designated prime farmland by the U.S. Natural Resources Conservation Service.
(c) If the investigation establishes that the lands are not prime farmland, the applicant shall submit with the permit application, a request for a negative determination which shows that the land for which the negative determination is sought meets one of the criteria of subsection (b) of this section.
(d) If the investigation indicates that lands within the proposed permit area may be prime farmland historically used for cropland, the applicant shall contact the U.S. Natural Resources Conservation Service to 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 has been made for the lands within the proposed permit area, the applicant shall cause such a survey to be made. 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.
  (1) When a soil survey of lands within the proposed permit area contains soil mapping units which have been designated as prime farmland, the applicant shall submit an application in accordance with §12.201(b) of this title (relating to Prime Farmland) for such designated land.
  (2) When a soil survey of lands within the proposed permit area contains soil mapping units which have not been designated as prime farmland after review by the U.S. Natural Resources Conservation Service, the applicant shall submit a request for negative determination for non-designated land within the permit application establishing compliance with subsection (b) of this section.

Source Note: The provisions of this §12.138 adopted to be effective April 7, 1997, 22 TexReg 3093.