HOUSE BILL 458

51st legislature - STATE OF NEW MEXICO - first session, 2013

INTRODUCED BY

Gail Chasey

AN ACT

RELATING TO THE ENVIRONMENT; ENACTING THE CONSOLIDATED ENVIRONMENTAL REVIEW ACT; PROVIDING FOR RULES TO BE ADOPTED BY THE ENVIRONMENTAL IMPROVEMENT BOARD; PROVIDING FOR FEES; PROVIDING FOR CITIZEN CAUSE OF ACTION; MAKING APPROPRIATIONS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. SHORT TITLE.--This act may be cited as the "Consolidated Environmental Review Act".

     SECTION 2. PURPOSE.--It is the purpose of the Consolidated Environmental Review Act to:

          A. take all action necessary to provide the residents of New Mexico with clean air and water; enjoyment of aesthetic, natural, scenic and historic environmental qualities; healthy fish and wildlife populations; and freedom from threats to human health and excessive noise and light pollution;

          B. create and maintain a clean and healthy environment as the economic development foundation for both rural and urban communities;

          C. require governmental agencies at all levels to consider qualitative, technical and economic factors; long-term as well as short-term benefits and costs; the cumulative impacts of a proposed project; and all reasonable alternatives to proposed actions affecting the environment; and

          D. to the extent possible, consolidate regulatory processes and environmental reviews to mitigate any burden on project proponents.

     SECTION 3. DEFINITIONS.--As used in the Consolidated Environmental Review Act:

          A. "applicant" means any person applying for funding from the state for a project or any person applying for a permit required by law from the public agency pursuant to any law enforced by the public agency;

          B. "cumulative impact" means the incremental environmental impacts of an individual project combined with the environmental impacts caused by past projects, the environmental impacts caused by other current projects and the environmental impacts caused by reasonably foreseeable future projects;

          C. "environment" means the physical conditions that will be affected by a proposed project, including, but not limited to, land, air, water, minerals, flora, fauna, noise, vibration or objects of historic or aesthetic significance, including historic properties listed or eligible for listing on the national register of historic places or the New Mexico state register of cultural properties, and traditional cultural properties;

          D. "environmental assessment" means an informational document prepared by a public agency or that a public agency causes to be prepared for proposed projects, and that has as its purpose to:

                (1) issue a "finding of no significant impact"; or

                (2) determine that further assessment or evaluation of the project is necessary through preparation of an environmental impact statement;

          E. "environmental impact statement" means an informational, detailed document setting forth the matters specified in the Consolidated Environmental Review Act, that, when its preparation is required by the act, is considered by a public agency prior to its approval or disapproval of a project. The environmental impact statement must provide public agencies and the public with detailed information about the effect that a proposed project is likely to have on the environment, to list and reasonably analyze ways in which the significant effects of such a project might be minimized and to indicate all reasonable alternatives to the proposed project;

          F. "finding of no significant impact" means a written statement, which may be included in an environmental assessment, briefly describing the reasons that a proposed project will not have a significant effect on the environment and therefore does not require the preparation of an environmental impact statement;

          G. "lead agency" means the public agency primarily responsible for the preparation and evaluation of environmental impact statements, environmental assessments or findings of no significant impact;

          H. "person" means an individual or any other entity, including partnerships, corporations, associations, responsible business or association agents or officers, the state or a political subdivision of the state or any agency, department or instrumentality of the United States and any of its officers, agents or employees;

          I. "project" means any activity that may cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment and that is any of the following:

                (1) an activity directly undertaken by any public agency;

                (2) an activity undertaken by a person that is supported, in whole or in part, through contracts, grants, subsidies, loans or other forms of assistance from one or more public agencies; or

                (3) an activity that involves one or more public agencies issuing a lease, permit, license, certificate or other entitlement;

          J. "public agency" means any state agency, board or commission, post-secondary educational institution or any regional, county, municipal or local entity responsible for administering state environmental laws; and

          K. "significant effect on the environment" means a substantial or potentially substantial impact on or change in the environment.

     SECTION 4. DETERMINATION OF LEAD AGENCY.--

          A. The public agency with primary responsibility for issuing recommendations or permit or license approvals for a project or proposed project shall be considered the lead agency for the purposes of preparing and evaluating environmental impact statements, environmental assessments or findings of no significant impact. When more than one public agency is involved in preparing and evaluating environmental impact statements, environmental assessments or findings of no significant impact, only one agency shall act as the lead agency.

          B. When more than one public agency is involved in preparing and evaluating environmental impact statements, environmental assessments or findings of no significant impact, the public agencies involved, by agreement, shall determine the lead agency based on:

                (1) the magnitude of each agency's involvement in the project approval process;

                (2) expertise concerning the project or proposed project's environmental impacts;

                (3) the duration of each public agency's involvement in the project's approval process, with longer involvement favoring designation of lead agency status; and

                (4) the sequence of each public agency's involvement.  

          C. Upon request of the lead agency, any other state agency that has jurisdiction by law shall be a cooperating agency. In addition, any other state agency that has special expertise with respect to any environmental issue that should be addressed in the statement may be a cooperating agency upon request of the lead agency. An agency may request the lead agency to designate it a cooperating agency.

          D. The lead agency shall:

                (1) request the participation of each cooperating agency in the Consolidated Environmental Review Act process at the earliest possible time;

                (2) use the environmental analysis and proposals of cooperating agencies with jurisdiction by law or special expertise, to the maximum extent possible consistent with its responsibility as lead agency; and

                (3) meet with a cooperating agency at the latter's request.

          E. Each cooperating agency shall:

                (1) participate in the Consolidated Environmental Review Act process at the earliest possible time;

                (2) assume, on request of the lead agency, responsibility for developing information and preparing environmental analyses including portions of the environmental assessment or environmental impact statement concerning which the cooperating agency has special expertise;

                (3) make available staff support at the lead agency's request to enhance the latter's interdisciplinary capability; and

                (4) normally use its own funds, unless funding is provided by the applicant. The lead agency shall, to the extent available funds permit, fund those major activities or analyses it requests from cooperating agencies. Potential lead agencies shall include such funding requirements in their budget requests.

          F. A cooperating agency may, in response to a lead agency's request for assistance in preparing the environmental impact statement or reviewing the environmental assessment or environmental impact statement, reply that other program commitments preclude any involvement or the degree of involvement requested in the action that is the subject of the environmental impact statement.  

     SECTION 5. ASSESSMENT OF ENVIRONMENTAL IMPACTS OF PROPOSED PROJECTS--SIGNIFICANT EFFECTS--FINDINGS OF NO SIGNIFICANT IMPACT.--

          A. A public agency shall perform an environmental assessment of any state-funded project under its authority or within its scope of duties, including pursuant to contracts with political subdivisions, instrumentalities of the state or local governments. The public agency shall either determine that the project may have significant effect on the environment or determine a finding of no significant impact. If the public agency determines that an activity or a project may have a significant effect on the environment, an environmental impact statement shall be prepared by the public agency.

          B. All public agencies shall require an applicant, as part of a permitting, licensing or certification approval process pursuant to law, to prepare or cause to be prepared by contract the completion of an environmental assessment on all proposed projects. The public agency shall either determine that the project may have significant effect on the environment or the public agency shall determine a finding of no significant impact. If there is evidence that a project may have a significant effect on the environment, an environmental impact statement shall be prepared by the applicant. A public agency shall not approve a project, except as provided by the Consolidated Environmental Review Act, without an environmental assessment or environmental impact statement or a finding of no significant impact.

     SECTION 6. ENVIRONMENTAL IMPACT STATEMENTS.--

          A. Any public agency shall prepare, or cause to be prepared, an environmental impact statement on any project it undertakes that may have a significant effect on the environment.

          B. All public agencies shall require an applicant, as part of the permitting, licensing or certification approval process pursuant to law, to prepare or cause to be prepared by contract an environmental impact statement on any project that the applicant proposes to carry out that the public agency determines may have a significant effect on the environment.

          C. The environmental impact statement shall include a detailed statement setting forth all of the following:

                (1) all significant effects on the environment of the proposed project;

                (2) any significant effect on the environment that cannot be avoided if the project is implemented;

                (3) any significant effect on the environment that would be irreversible if the project is implemented;

                (4) any significant effect on human health;

                (5) the cumulative environmental impact of this project when connected with the environmental impacts of past, current and proposed projects;

                (6) mitigation measures proposed to minimize significant effects on the environment and a description of how those measures would be implemented;

                (7) alternatives to the proposed project, including:

                     (a) a no-action alternative;

                     (b) a description of the significant effects to the environment that would result from each alternative; or

                     (c) the agency's preferred alternative and proposed course of action;

                (8) the impacts of the proposed project on cultural and historic resources of the state or Indian tribes or pueblos within the state, including the impacts on historic properties and traditional cultural properties located within the project area identified by methods including, but not limited to, pedestrian surveys, archival record searches and consultation with Indian tribes;

                (9) the impacts on communities already burdened by previous environmental impacts and existing industries that required water or air quality permits and any federal permits or licenses;

                (10) the impacts on the continuing existence or continuous access to archeological, historic or culturally significant sites, particularly those of continuing significance to indigenous and historically significant communities, including impacts on the abilities of indigenous and historic inhabitants and communities of New Mexico to engage in the practices that constitute their ways of life-rituals, ceremonies and other culturally significant practices;

                (11) the impacts on the continuing availability and use of forest and agricultural resources, including subsistence agriculture and other subsistence practices; and

                (12) all agency responses to substantive comments received by the public during the comment period.

          D. The environmental impact statement shall contain a brief statement indicating the reasons for determining which various effects on the environment of a project are not significant and consequently have not been discussed in detail in the statement.

          E. An area-wide or overview environmental impact statement may be prepared only when similar actions, viewed with other reasonably foreseeable or proposed actions, share common timing or geography.

          F. No person may provide contractual services related to the preparation of an environmental assessment or environmental impact statement without certifying under penalty of perjury that the individual or corporate entity has not provided such services or been employed by the project proponent, its predecessors in interest, its successors in interest, assigns, heirs, parent corporations, holding companies, partnerships or any other relation for at least seven years and currently has no financial interest of any kind with the project proponent and the individuals and entities related to it, or the project itself.

     SECTION 7. EXEMPTIONS.--Exempted from the provisions of the Consolidated Environmental Review Act are:

          A. enforcement activities;

          B. emergency activities to protect public health, safety or the environment;

          C. purely ministerial actions;

          D. activities permitted by the office of the state engineer and the interstate stream commission, including water transfers or appropriations, except where they are also permitted by another public agency pursuant to law; and

          E. actions subject to the National Environmental Policy Act of 1969 and its implementing regulations, except that state public agencies shall review the federal agency's or agencies' final action under the National Environmental Policy Act of 1969 and may require additional information and evaluation on a project or proposed project before approving any permits, licenses or authorizations required under New Mexico law.

     SECTION 8. BEST AVAILABLE ALTERNATIVE--MITIGATION.--Each public agency shall choose the best available alternative to a proposed project that, to the maximum extent practicable, minimizes or avoids adverse environmental effects and incorporate that alternative in the conditions of a permit, license or other authorization for the proposed project issued pursuant to law.

     SECTION 9. ENVIRONMENTAL IMPROVEMENT BOARD--PREPARATION AND DEVELOPMENT OF RULES--FEES--APPROPRIATIONS.--The environmental improvement board, in consultation with the department of environment, the energy, minerals and natural resources department, the department of health, the department of transportation, the historic preservation division of the cultural affairs department and the office of the governor, shall adopt rules by July 1, 2015 for the implementation of the Consolidated Environmental Review Act by public agencies. The rules shall include:

          A. objectives and criteria for the orderly evaluation of projects and the preparation of documents, including provisions for accepting environmental assessments and environmental impact statements prepared pursuant to federal law to be accepted for compliance with the Consolidated Environmental Review Act;

          B. criteria and thresholds for public agencies to follow in determining whether or not a proposed project requires preparation of an environmental assessment or environmental impact statement, including area-wide or overview environmental impact statements, as a component in the permitting process pursuant to law. The criteria shall require a finding that a project may have a significant effect on the environment if:

                (1) a proposed project has the potential to degrade substantially the quality of the environment or to interfere substantially with proper ecosystem functioning in the environment;

                (2) the possible effects of a project are individually limited but cumulatively considerable; or

                (3) the environmental effects of a project may cause substantial adverse effects on human beings and plant and animal species, habitats or the ecological systems necessary for the survival of such plants and animals;

          C. provision for the preparation of a record of decision for use in any appeal proceedings. At a minimum, a public agency's record of decision shall consist of:

                (1) the environmental assessment, environmental impact statement or finding of no significant impact;

                (2) all public comments and agency responses to those comments on the environmental assessment, environmental impact statement or finding of no significant impact; and

                (3) all documents a public agency used to support its decision, including, but not limited to:

                     (a) agency memoranda;

                     (b) correspondence, including electronic mail and facsimiles, between the lead agency and the applicant and any cooperating agencies;

                     (c) technical reports, papers or articles; and

                     (d) technical findings and legal conclusions;

          D. directions to public agencies for the consolidation of permit reviews and environmental impact statement processes to the extent possible to reduce the regulatory burden on applicants while fulfilling the purposes of the Consolidated Environmental Review Act;

          E. a fee structure for each public agency to recover from applicants no more than the actual costs for implementing the Consolidated Environmental Review Act. Those fees are appropriated to the respective agencies to carry out the provisions of the Consolidated Environmental Review Act;

          F. procedures for taking public comments on environmental assessments, environmental impact statements and findings of no significant impact;

          G. procedures for responding to public comments on environmental assessments, environmental impact statements and findings of no significant impact; and

          H. procedures for granting variances from the requirements of the Consolidated Environmental Review Act.

     SECTION 10. ENVIRONMENTAL ASSESSMENTS AND ENVIRONMENTAL IMPACT STATEMENTS--DEADLINES.--

          A. Each public agency shall adopt rules for time limits that do not exceed the following:

                (1) six months for completing environmental assessments and adopting findings of no significant impact; and

                (2) one year for completing and certifying environmental impact statements and compiling a record of decision.

          B. The time limits specified in this section shall apply only to those circumstances in which the public agency is the applicant. The rules may establish different time limits for preparing environmental assessments, environmental impact statements or findings of no significant impact for different types or classes of projects, but all limits shall be measured from the date on which an application requesting approval of the project is received and accepted as complete by the public agency.

          C. Rules adopted pursuant to this section may provide for a reasonable extension of the time period in the event that compelling circumstances justify additional time and the project applicant consents thereto.

     SECTION 11. NOTICE--OPPORTUNITY TO COMMENT--AVAILABILITY TO LEGISLATURE AND GENERAL PUBLIC.--

          A. Whenever a public agency determines that an environmental assessment or an environmental impact statement should be prepared for a project, notice of the environmental assessment, environmental impact statement or finding of no significant impact shall be:

                (1) provided by certified mail to:

                     (a) the owners of record, as shown by the most recent property tax schedule, of all properties: 1) within one hundred feet of the property on which the project or proposed project is located or proposed to be located if the project or proposed project is or will be in a class A or H class county or a municipality with a population of more than two thousand five hundred persons; or 2) within one-half mile of the property on which the project or proposed project is located or proposed to be located if the project or proposed project is or will be in a county or municipality other than those specified in Paragraph (1) of this subsection; and

                     (b) all municipalities and counties in which the project or proposed project is or will be located and to the governing body of any county, municipality, Indian tribe or pueblo when the boundary of the territory of the county, municipality, Indian tribe or pueblo is within a ten-mile radius of the property on which the project or proposed project is proposed to be constructed, operated or closed;

                (2) published once in a newspaper of general circulation in each county in which the property on which the project is proposed to be constructed, operated or closed is located. This notice shall appear in either the classified or legal advertisements section of the newspaper and at one other place in the newspaper calculated to give the general public the most effective notice and, when appropriate, shall be printed in both English and Spanish;

                (3) posted in at least four publicly accessible and conspicuous places, including the project entrance on the property on which the project is or is proposed to be located; and

                (4) posted electronically on the lead and cooperating agencies' web sites.

          B. Any member of the general public may request a copy of an environmental assessment or environmental impact statement from the public agency. Upon receiving a request for a copy of an environmental assessment or environmental impact statement, a public agency shall either provide the requestor with a copy of the environmental assessment or environmental impact statement within fifteen days of receiving the request or direct the requestor to a publicly available copy.

          C. At a minimum, the public shall be allowed fifteen days to review environmental assessments and submit comments to the lead agency and thirty days to review environmental impact statements and submit comments to the lead agency before a final decision is made. Comments that are substantive in nature, including those that provide new information, provide alternative scientific information and illustrate concerns not previously considered by the lead agency, shall be responded to by the lead agency in either the finding of no significant impact or the final environmental impact statement. Proper response includes an explanation of why the substantive comment did not merit a change in outcome or an explanation of how the outcome was changed due to the substantive comment.

          D. The requirements of this section represent minimum notice and comment requirements. The environmental improvement board or a public agency may, by regulation, impose additional notice and comment procedures consistent with existing law.

     SECTION 12. ENFORCEMENT--COMMENCEMENT OF ACTIONS OR PROCEEDINGS.--

          A. Any person having an interest that is or may be adversely affected by a project or proposed project may commence a civil action on that person's own behalf to compel compliance with the Consolidated Environmental Review Act. Such action may be brought against:

                (1) a public agency with primary responsibility for requiring an environmental impact statement, environmental assessment or finding of no significant impact under the Consolidated Environmental Review Act;

                 (2) any person who is alleged to be in violation of a rule, regulation, order or permit issued pursuant to the Consolidated Environmental Review Act; or

                (3) any public agency alleged to have failed to perform any nondiscretionary act or duty required by the Consolidated Environmental Review Act; provided, however, that no action pursuant to this section shall be commenced if the public agency has commenced and is diligently prosecuting a civil action in a court of this state or an administrative enforcement proceeding to require compliance with the Consolidated Environmental Review Act.

          B. No action shall be commenced pursuant to this section prior to sixty days after the plaintiff has given written notice to the appropriate public agency, the attorney general and the alleged violator of the Consolidated Environmental Review Act; provided, however, when the violation or order complained of constitutes an immediate threat to the health or safety of the plaintiff or would immediately and irreparably impair a legal interest of the plaintiff, an action pursuant to this section may be brought immediately after notification of the proper parties.

          C. Except as otherwise provided herein, suits pursuant to the Consolidated Environmental Review Act against any public agency shall be brought in the district court of Santa Fe county. Suits only against the project's or proposed project's applicants shall be brought in the district court where the project or proposed project is located. If an action is brought against a public agency and the project or proposed project applicant, such applicant may apply for a change of venue to the judicial district in which the project or proposed project is located.  

          D. The court, in issuing a final order in an action brought pursuant to this section, may award costs of litigation, including attorney and expert witness fees, to a party whenever the court determines such award is appropriate.

     SECTION 13. JUDICIAL REVIEW.--

          A. Except as otherwise provided in the Consolidated Environmental Review Act, any person who is adversely affected by a project or proposed project subject to the Consolidated Environmental Review Act or who participated in a permitting action or appeal of a certification before any public agency, including submitting comments to the agency, may appeal to the court of appeals for further relief. All such appeals shall be upon the record made before the public agency and shall be taken to the court of appeals within thirty days after the public agency certifies an environmental impact statement, environmental assessment or finding of no significant impact or the final agency permitting, funding, certification or licensing decision, whichever comes last.

          B. Upon appeal, the court of appeals shall set aside the public agency's action if it is found to be:

                 (1) arbitrary, capricious or an abuse of discretion;

                 (2) not supported by substantial evidence in the record; or

                 (3) otherwise not in accordance with law.

          C. After a hearing and a showing of good cause by the appellant, the court of appeals may grant a stay of the action being appealed pending the outcome of the judicial review.  

     SECTION 14. INTERIM PROGRAM--LIMITATIONS.--

          A. Nothing in the Consolidated Environmental Review Act shall supersede current or future requirements and standards of any other applicable federal or state law.

          B. After the effective date of the Consolidated Environmental Review Act and until the environmental improvement board adopts regulations necessary to carry out the provisions of the Consolidated Environmental Review Act, county or municipal environmental review laws or ordinances shall apply to projects within their jurisdictions in New Mexico.

          C. If a county or municipality does not have any environmental review laws or ordinances, no environmental assessment or environmental impact statement shall be required for a project until the environmental improvement board adopts regulations implementing the Consolidated Environmental Review Act.

     SECTION 15. SEVERABILITY.--If any part or application of the Consolidated Environmental Review Act is held invalid, the remainder or its application to other situations or persons shall not be affected.

     SECTION 16. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2013.

- 23 -