2010-05-06_ENFORCEMENT - C1981008

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As described below, PR-5 did not consider the Morgan property to be prime farmland. The pre-mining land uses for the Morgan property were: Irrigated Pasture-Hayland (50.6 acres), Irrigated Pasture (45.26 acres), Pastureland Irrigated Swale (9.4 acres) and Farmstead (1.62 acres). The approved PR-5 post-mine land uses for the Morgan Property were: Irrigated Pasture and Irrigated Hayland (primarily alfalfa with orchard grass and meadow brome). For the Morgan property, PR-5 required the A and B topsoil layers to be salvaged and they could be mixed. PR-5 required the A and B mix to be placed over a minimum of 26 inches of suitable subsoil. The total A and B plus the subsoil had to be 48 inches. Non-prime farmland requirements for topsoil removal, storage and redistribution are at Section 4.06.2 through 4.06.4. The provisions contained in PR-5 comply with the corresponding regulations. The active pit first entered Morgan lands in 2004, and continues to progress westward. Backfilling began at the eastern end in the fall of 2004, and 5.8 acres adjacent to 2700 Road were topsoiled in 2006. The currently approved mining plan shows that mining on the Morgan property is expected to be complete in 2012. Central to the permit chronology is that initially the Morgan property was determined not to be prime farmland. In your response you explain that the original soil survey based its conclusion on criteria listed in the National Soil Survey Handbook (1996 edition) for prime farmland soil. However, the Colorado Important Farmland Inventory states on page 3, "irrigated soils that have a pH higher than 7.4 are considered as having high conductivity and therefore are not considered prime." The soils in the relevant area had a pH higher than 7.4 and the relevant lands were not designated as prime farm land on the NRCS Colorado Important Farmland Inventory. At the time of review the Colorado Important Farmland Inventory was a current document. Accordingly, the Division made a negative prime farmlands determination based on the soils survey and the reference to the NRCS publication, Colorado Important Farmland Inventory. While it was unfortunate that the Morgan property was not declared prime farmland in PR-5, OSM finds that the Division followed the requirements in its program. There was opportunity for public review and comment and to object to the proposal to approve PR-5. There were no objections. The permit for non prime farmland required the A and B topsoil layers to be salvaged and they could be mixed. The A and B mix was placed over a minimum of 26 inches of suitable subsoil. The total A and B plus the subsoil had to be 48 inches. After 51.6 acres of the Morgan property had been stripped of topsoil, Colorado learned that the Colorado Important Farmland Inventory document, used in the PR-5 baseline evaluation, incorrectly stated that prime farmland designation in Colorado would not be given to any soil with a pH of over 7.4. NRCS explained the Important Farmland Inventory document was in error and that the threshold pH should have been 8.4, not 7.4 You state that once it was discovered that certain soil types within the New Horizon permit area were potentially prime farmlands, a meeting was convened between representatives of the Division, WFC, and the NRCS. The purpose of this meeting (held on February 15, 2008) was