SECTION 11.165. Elements of Unsuitability

When an application is made to conduct a surface mining operation, the commission shall immediately cause the areas proposed to be included within the proposed permit to be surveyed prior to the issuance of a permit. Following the survey and/or hearing where one is warranted, the area may be designated unsuitable for all or certain types of surface mining if:

(1) the commission determines that reclamation pursuant to the requirements of the Act is not feasible;

(2) such operations will result in significant damage to important areas of historic, cultural, or archaeological value or to important natural systems;

(3) such operations will affect renewable resource lands resulting in a substantial loss or reduction of long-range productivity of water supply or food or fiber products, such lands to include aquifers and aquifer recharge areas;

(4) such operations are located in areas subject to frequent flooding or areas of unstable geology and may reasonably be expected to endanger life and property;

(5) such operations will adversely affect any national park, national monument, national historic landmark, property listed on the national register of historic places, national forest, national wilderness area, national wildlife refuge, national wild and scenic area, state park, state wildlife refuge, state forest, recorded Texas historic landmark, state historic site, state archaeological landmark or city or county park (a surface mining operation will be presumed to not adversely affect any of the areas listed in this paragraph if the agency or governmental body responsible for such area has no objection to the proposed surface mining operation);

(6) where such operations would endanger any public road, public building, cemetery, school, church, or similar structure or existing dwelling outside the permit area (a surface mining operation will be presumed to not adversely affect any of the preceding if the person or governmental body which owns or is responsible for the administration or maintenance of the above has no objection to the surface mining operation); or

(7) areas subject to frequent flooding or areas located within recharge zones of aquifers which provide drinking water to the public may be unsuitable for conventional surface mining operations and any operations proposed for those areas will be critically evaluated by the commission.

Source Note: The provisions of this §11.165 adopted to be effective March 24, 1976, 1 TexReg 502.