(a) Scope. 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. Areas where mining is authorized under permits issued or mining plans approved prior to August 3, 1977, are exempt from the prime farmland reconstruction standards.
(b) Application contents for prime farmland. If land within the proposed permit area is identified as prime farmland under §§12.138 or 12.184 of this title (relating to Prime Farmland Investigation), the applicant shall submit a plan for the mining and restoration of the land. Each plan shall contain, at a minimum:
  (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 Handbook 436 (Soil Taxonomy, 1975) as amended on March 22, 1982 and October 5, 1982, and Handbook 18 (Soil Survey Manual, 1951), as amended on December 18, 1979, May 7, 1980, May 9, 1980, September 11, 1980, June 9, 1981, June 29, 1981, and 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.
    (A) U.S. Department of Agriculture Handbooks 436 (Soil Taxonomy) and 18 (Soil Survey Manual) are on file and available for inspection at the Surface Mining and Reclamation Division, Railroad Commission of Texas, 1701 N. Congress Avenue, Austin, Texas.
    (B) 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 unless other representative soil-profile descriptions from the locality, prepared according to the standards of the National Cooperative Soil Survey, are available and their use is approved by the principal officer in Texas of the U.S. Natural Resources Conservation Service, and by the Commission. The Commission may require the operator to provide information on other physical and chemical soil properties as needed to make a determination that the operator has the technological capability to restore the prime farmland within the permit area to the soil-reconstruction standards of §§12.620-12.622, 12.624, and 12.625 of this title (relating to Special Permanent Program Performance Standards--Operations on Prime Farmland);
  (2) a plan for soil reconstruction, replacement, and stabilization for the purpose of establishing the technological capability of the mine operator to comply with the requirements of §§12.620-12.622, 12.624, and 12.625 of this title (relating to Special Permanent Program Performance Standards--Operations on Prime Farmland);
  (3) scientific data, such as agricultural school studies, for areas with comparable soils, climate, and management (including water 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; and
  (5) in all cases, soil productivity for prime farmlands shall be returned to equivalent levels of yield as nonmined land of the same soil type in the surrounding area under equivalent management practices as determined from the soil survey performed pursuant to §12.201(b)(1) of this title (relating to Prime Farmland).
(c) Consultation with Secretary of Agriculture.
  (1) The Secretary of Agriculture has assigned the responsibilities under this section to the chief of the U.S. Natural Resources Conservation Service. The federal official who is responsible to the chief of the U.S. Natural Resources Conservation Service for its program in Texas currently has the title of State Conservationist. The State Conservationist is the principal officer in Texas of the U.S. Natural Resources Conservation Service and is responsible for consultation and review of plans submitted under this section.
  (2) Before any permit is issued for areas that include prime farmland, the Commission shall consult with the principal officer in Texas of the U.S. Natural Resources Conservation Service. The principal officer in Texas of the U.S. Natural Resources Conservation Service shall provide for the review of, and comment on, the proposed method of soil reconstruction in the plan submitted under subsection (b) of this section. If the principal officer in Texas of the U.S. Natural Resources Conservation Service considers those methods to be inadequate, he or she shall suggest revisions to the Commission which result in more complete and adequate reconstruction.
(d) Issuance of permit. A permit for the mining and reclamation of prime farmland may be granted by the Commission, 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 subsection (b) of this section, after consideration of any revisions to that plan suggested by the principal officer in Texas of the U.S. Natural Resources Conservation Service under subsection (c) of this section; and
  (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 §§12.620-12.622, 12.624, and 12.625 of this title (relating to Special Permanent Program Performance Standards--Operations on Prime Farmland) 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, shall be located within the post-reclamation non-prime farmland portions of the permit area. The creation of any such water bodies shall be approved by the Commission and the consent of all affected property owners within the permit area shall be obtained.

Source Note: The provisions of this §12.201 adopted to be effective April 7, 1997, 22 TexReg 3093; amended to be effective December 29, 1998, 23 TexReg 13041.