(a) Surface coal mining operations may not be conducted on the following lands unless those lands either qualify for the exception for existing operations under subsection (b) of this section or are subject to valid existing rights, as determined under §12.72(c) of this title (relating to Procedures for Compatibility Findings, Public Road Closures and Relocations, Buffer Zones, and Valid Existing Rights Determinations):
  (1) Any lands within the boundaries of:
    (A) the National Park System;
    (B) the National Wildlife Refuge System;
    (C) the National System of Trails;
    (D) the National Wilderness Preservation System;
    (E) the Wild and Scenic Rivers System, including study rivers designated under section 5(a) of the Wild and Scenic Rivers Act, 16 U.S.C. 1276(a), or study rivers or study river corridors established in any guidelines issued under that Act; or
    (F) National Recreation Areas designated by Act of Congress.
  (2) Any federal lands within a national forest, except that this prohibition must not apply if the Secretary finds that there are no significant recreational, timber, economic, or other values that may be incompatible with surface coal mining operations, and:
    (A) any surface operations and impacts will be incident to an underground coal mine; or
    (B) with respect to lands that do not have significant forest cover within national forests west of the 100th meridian, the Secretary of Agriculture has determined that surface mining is in compliance with the Act, the Multiple-Use Sustained Yield Act of 1960, 16 U.S.C. 528-531; the Federal Coal Leasing Amendments Act of 1975, 30 U.S.C. 181 et seq.; and the National Forest Management Act of 1976, 16 U.S.C. 1600 et seq.
  (3) Any lands where the operation would adversely affect any publicly owned park or any place listed in the National Register of Historic Places; however, this prohibition does not apply if, as provided in §12.73(d) of this title (relating to Commission Obligations at Time of Permit Application Review), the Commission and the federal, state or local agency with jurisdiction over the park or place jointly approve the operation.
  (4) Within 100 feet, measured horizontally, of the outside right-of-way line of any public road, except:
    (A) where a mine access or haul road joins a public road, or
    (B) when, as provided in §12.72(a) of this title, the Commission (or the appropriate public road authority designated by the Commission) allows the public road to be relocated or closed, or the area within the buffer zone to be affected by the surface coal mining operation, after:
      (i) providing public notice and opportunity for a public hearing in accordance with §12.72(a)(3) of this title; and
      (ii) finding in writing that the interests of the affected public and landowners will be protected.
  (5) Within 300 feet, measured horizontally, of any occupied dwelling; except when:
    (A) the owner of the dwelling has provided a written waiver consenting to surface coal mining operations within the protected zone, as provided in §12.72(b) of this title; or
    (B) the part of the operation to be located closer than 300 feet to the dwelling is an access or haul road that connects with an existing public road on the side of the public road opposite the dwelling.
  (6) Within 300 feet, measured horizontally, of any public building, school, church, community or institutional building, or public park.
  (7) Within 100 feet, measured horizontally, of a cemetery; however, this prohibition does not apply if the cemetery is relocated in accordance with all applicable laws and regulations.
(b) Exception for existing operations. The prohibitions and limitations of subsection (a) of this section do not apply to surface coal mining operations for which a valid permit, issued under Subchapter G of this chapter (relating to Surface Coal Mining and Reclamation Operations, Permits and Coal Exploration Procedures Systems), exists when the land comes under the protection of subsection (a) of this section; this exception applies only to lands within the permit area as it exists when the land comes under the protection of subsection (a) of this section.

Source Note: The provisions of this §12.71 adopted to be effective June 9, 2003, 28 TexReg 4412