The Railroad Commission of Texas adopts amendments to §12.3, relating to Definitions; the repeal of §12.71, relating to Areas Where Mining is Prohibited or Limited; new §12.71, relating to Areas Where Surface Coal Mining Operations are Prohibited or Limited; the repeal of §12.72, relating to Procedures; new §12.72, relating to Procedures for Compatibility Findings, Public Road Closures and Relocations, Buffer Zones, and Valid Existing Rights Determinations; the repeal of §12.73, relating to Responsibility; new §12.73, relating to Commission Obligations at Time of Permit Application Review; new §12.74, relating to Responsibility; and amendments to §12.77, relating to Applicability and Restrictions on Exploration on Land Designated as Unsuitable for Surface Coal Mining Operations; §12.111, relating to General Requirements: Exploration That Will Remove More Than 250 Tons of Coal or That Will Occur on Land Designated as Unsuitable for Surface Coal Mining Operations; §12.112, relating to Applications: Approval or Disapproval of Exploration of More Than 250 Tons of Coal or That Will Occur on Land Designated as Unsuitable for Surface Coal Mining Operations; §12.113, relating to Applications: Notice and Hearing for Exploration of More Than 250 Tons; §12.118, relating to Relationship to Areas Designated Unsuitable for Mining; §12.151, relating to Protection of Public Parks and Historic Places; §12.152, relating to Relocation or Use of Public Roads; §12.158, relating to Relationship to Areas Designated Unsuitable for Mining; §12.191, Relating to Protection of Public Parks and Historic Places; §12.192, relating to Relocation or Use of Public Roads; §12.207, relating to Public Notices of Filing of Permit Applications; and §12.216, relating to Criteria for Permit Approval or Denial, without changes to the versions published in the April 4, 2003, issue of the Texas Register (28 TexReg 2835).

The Commission repeals §12.71, relating to Areas Where Mining is Prohibited, and replaces it with new §12.71, relating to Areas Where Surface Coal Mining Operations are Prohibited or Limited. New §12.71 adds subsection (b) which is an exception for existing operations to areas where surface coal mining operations are prohibited or limited.

The Commission repeals §12.72, relating to Procedures for Permit Application, and replaces it with §12.72, relating to Procedures for Compatibility Findings, Public Road Closures and Relocations, Buffer Zones, and Valid Existing Rights Determinations. New subsection (c) explains which agency determines if there is a valid existing right and the process for determining if a valid existing right exists.

The Commission repeals §12.73, relating to Responsibility, and replaces it with new §12.73, relating to Commission Obligations at Time of Permit Application Review. New §12.73 establishes the criteria to be used for rejection of any portion of an application containing protected lands and establishes procedures for joint approval of mining operations that will adversely affect publicly owned lands

The Commission adopts new §12.74, relating to Responsibility, which is merely a renumbering of current §12.73, relating to Responsibility.

The Commission adopts amendments to §12.3 to remove the definition of Surface coal mining operations, which exist on the date of enactment, and to parallel the federal regulation 30 Code of Federal Regulations (CFR) §761.5. The adopted change to the definition of "valid existing rights" is intended to clarify the circumstances under which a valid existing right exists. As stated in Texas Natural Resources Code §134.012(d), the Commission is not authorized to adjudicate property title or property rights disputes. To demonstrate that a valid existing right exists, except for usage or construction of roads, a person must document that property rights existed on August 3, 1977, and must document compliance with one of the two standards listed in paragraph (187)(B). The two standards are the good faith/permits standard and the needed for and adjacent standard. Other definitions are renumbered as applicable.

The Commission amends §12.77, relating to exploration on land designated as unsuitable for Surface coal mining operations, by clarifying that lands listed under §12.71(a), relating to areas where Surface coal mining operations are prohibited or limited, are subject to designation as unsuitable for surface coal mining.

The Commission amends §12.111 and §12.112 to specify that the applicant shall demonstrate that the proposed exploration activities are designed to minimize interference with the value for which the lands were designated as unsuitable for Surface coal mining operations and document consultation with the owner of the feature that causes the land to come under §12.71(a) of this title.

The Commission amends §12.113 to add that notice also be sent to commenters; amends §12.118 to include areas within 100 feet of a public road; and amends §§12.151, 12.152, 12.158, 12.191, 12.192, 12.207, and 12.216, to conform rule citations to other adopted changes.

The Commission received no comments on the proposed repeals, new sections, and amendments.

Subchapter A. GENERAL

Subchapter C. CLASSIFICATION, REGISTRATION, AND EXAMINATION