HOUSE ENERGY, ENVIRONMENT AND NATURAL RESOURCES

COMMITTEE SUBSTITUTE FOR

HOUSE BILL 206

54th legislature - STATE OF NEW MEXICO - first session, 2019

AN ACT

RELATING TO THE ENVIRONMENT; ENACTING THE ENVIRONMENTAL REVIEW ACT; PROVIDING RULEMAKING AUTHORITY TO THE ENVIRONMENTAL IMPROVEMENT BOARD; ENUMERATING THE POWERS AND DUTIES OF LEAD AND COOPERATING AGENCIES; MAKING APPROPRIATIONS.

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

     SECTION 1. [NEW MATERIAL] SHORT TITLE.--This act may be cited as the "Environmental Review Act".

     SECTION 2. [NEW MATERIAL] PURPOSE.--Pursuant to Article 20, Section 21 of the constitution of New Mexico, declaring a healthful environment to be of fundamental importance to the public interest, health, safety and general welfare of New Mexicans, it is the purpose of the Environmental Review Act to:

          A. provide the people of New Mexico with a high- quality environment now and in the future, which includes healthy wildlife populations and clean air, water and land;

          B. require government agencies at all levels to consider qualitative, technical and economic factors of a project that may impact public health, ecosystems and the environment; long-term as well as short-term benefits and costs of proposed projects; the cumulative impacts of proposed projects; and reasonable alternatives to proposed actions affecting the environment, communities or public health; and

          C. promote and encourage diverse public interest and participation in the project permitting process.

     SECTION 3. [NEW MATERIAL] DEFINITIONS.--As used in the Environmental Review Act:

          A. "applicant" means a person applying for:

                (1) funding from the state for a project; or

                (2) a lease, permit, license, certificate or other entitlement required by law from a public agency pursuant to any law enforced by the public agency;

          B. "cooperating agency" means a public agency other than a lead agency that has jurisdiction by law or special expertise with respect to an environmental impact or an Indian nation, tribe or pueblo if the project is proposed to occur within fifteen miles of the boundary of the Indian nation, tribe or pueblo;

          C. "cumulative impact" means the incremental environmental impacts of an individual project combined with the environmental impacts caused by past projects in proximity to the project property, including environmental impacts caused by other current projects and environmental impacts caused by reasonably foreseeable future projects;

          D. "environment" means the physical conditions that may be affected by a project, including land, air, water, minerals, flora, fauna, noise levels or objects of historic or aesthetic significance, including historic properties listed on the national register of historic places of the national park service or cultural properties defined by the Cultural Properties Act, traditional cultural properties or areas of cultural significance;

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

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

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

          F. "environmental impact statement" means an informational, detailed document prepared by a public agency, or that a public agency causes to be prepared, setting forth the matters specified in Section 6 of the Environmental Review Act, that, when its preparation is required by the Environmental Review Act, is considered by a public agency prior to the public agency's approval or disapproval of a project;

          G. "finding of no significant impact" means a written statement, following an environmental assessment, briefly describing the reasons that a project is not likely to have a significant effect on the environment and therefore does not require the preparation of an environmental impact statement;

          H. "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;

          I. "project" means an activity or proposed activity that:

                (1) is directly undertaken by a public agency, including rulemaking by a public agency;

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

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

                (4) is proposed on state land or land that is subject to state jurisdiction;

          J. "project property" means the land on which a project or a proposed project is located or proposed to be located;

          K. "proximity" means:

                (1) within one-fourth mile of a project property if the project property is in a class A or H class county or in a municipality with a population of more than two thousand five hundred people; or

                (2) within two and one-half miles of a project property if the project property is in a county other than a class A or H class county or in a municipality with a population of less than two thousand five hundred people;

          L. "public agency" means a state agency, board or commission, a post-secondary educational institution or a regional, county, municipal or local governmental entity;

          M. "significant effect on the environment" means a determination made by a public agency that a project is likely to have a significant effect on the environment; and

          N. "special expertise" means a statutory responsibility, an issue of concern within the mission of an agency, programmatic experience with an issue related to a project or expertise that is not readily available from other sources.

     SECTION 4. [NEW MATERIAL] DETERMINATION OF LEAD AGENCY--COOPERATING AGENCIES--POWERS AND DUTIES.--

          A. The public agency with primary responsibility for issuing a lease, permit, license, certificate or other entitlement required by law for a 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.

          B. When more than one public agency has responsibility for issuing recommendations or permit or license approvals for a project, only one agency shall act as the lead agency. The public agencies involved, by agreement, shall determine the lead agency based on:

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

                (2) each public agency's expertise concerning the 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. A lead agency may request data and information from other state agencies and nongovernmental entities as needed.

          D. If a project is proposed to occur within fifteen miles of the boundary of the land of an Indian nation, tribe or pueblo, the lead agency shall request the Indian nation, tribe or pueblo to become a cooperating agency.

          E. A lead agency shall:

                (1) secure appropriate funding for undertaking the Environmental Review Act process from an applicant;

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

                (3) use existing environmental analyses and proposals of cooperating agencies to the maximum extent possible consistent with its responsibility as lead agency;

                (4) meet with a cooperating agency at a cooperating agency's request;

                (5) determine the level of analysis that is required for a project;

                (6) ensure that the analysis is conducted and evaluate the analysis based on the agency's expertise, experience and the best available science;

                (7) after analysis, make a determination on whether or how to issue a requested permit or rule; and

                (8) to the extent funds are available, fund the major activities or analyses that the lead agency requests from cooperating agencies. A potential lead agency shall include funding requirements to carry out the Environmental Review Act in its budget requests.

          F. A cooperating agency:

                (1) shall participate in the Environmental Review Act process at the earliest possible time, in accordance with a cooperating agency's agreement with a lead agency;

                (2) shall, if capable and at the lead agency's request, assume responsibility for developing necessary information and preparing environmental analyses, including portions of the environmental assessment or environmental impact statement, for which the cooperating agency has special expertise;

                (3) shall, at the lead agency's request, provide staff support to enhance the lead agency's interdisciplinary capability;

                (4) shall use its own funds to participate in the Environmental Review Act process, unless funding is provided by the applicant or the lead agency; and

                (5) may, in response to a lead agency's request for assistance in preparing an environmental impact statement or reviewing an environmental assessment or environmental impact statement, negotiate the degree of involvement requested or decline to participate on the basis that other program commitments preclude involvement.

          G. Lead and cooperating agencies shall comply with the Cultural Properties Act regarding the confidentiality of historic, cultural and archaeological sites in carrying out their duties pursuant to the Environmental Review Act.

     SECTION 5. [NEW MATERIAL] ASSESSMENT OF ENVIRONMENTAL IMPACTS--SIGNIFICANT EFFECTS--FINDINGS OF NO SIGNIFICANT IMPACT.--

          A. A public agency shall evaluate a project under its authority or within its scope of duties and determine if the project may have a significant effect on the environment. If a public agency determines that a project may have a significant effect on the environment, the public agency shall perform an environmental assessment of the project. The environmental assessment shall be used as a source of information to guide permitting decisions or other approvals or agency decisions on the project.

          B. At minimum, an environmental assessment shall include:

                (1) the location of and a map of the project;

                (2) a description of the project;

                (3) a time line for completion of the project;

                (4) a description of the type of landscape or ecosystem in the project area;

                (5) potential mitigation for environmental impacts, including closure and reclamation plans;

                (6) a description of surface and ground water;

                (7) any hazardous wastes associated with the project;

                (8) a description of protected fish, plant and wildlife species in the area;

                (9) an inventory of cultural property surveys and reviews completed in the area;

                (10) a description of potential public health impacts of the project; and

                (11) potential cumulative impacts of the project.

          C. On the basis of substantial evidence in the whole record of an environmental assessment, a lead agency shall either:

                (1) determine that the project is likely to have a significant effect on the environment and an environmental impact statement is necessary; or

                (2) issue a finding of no significant impact.

          D. Unless a project is exempt pursuant to Section 8 of the Environmental Review Act, a public agency shall not approve a project that may have a significant effect on the environment without performing an environmental assessment. If a public agency determines that a project is likely to have a significant effect on the environment, an environmental impact statement is required before a project may be approved.

          E. Unless exempt, the following projects are presumed to require an environmental assessment:

                (1) projects costing or anticipated to cost two million dollars ($2,000,000) or more;

                (2) lease sales of state land for energy development or mining; and

                (3) projects that a public agency determines may have a significant effect on the environment based on weighing the:

                     (a) size, cost, context and intensity of the project;

                     (b) potential for adverse health, safety or environmental impacts from the project and the possible severity of those impacts;

                     (c) proximity of the proposed project to sensitive places, including historic and cultural properties, areas of cultural significance, wildlife corridors, riparian areas and endangered species habitat; and

                     (d) the likelihood of public controversy over the project.

     SECTION 6. [NEW MATERIAL] ENVIRONMENTAL IMPACT STATEMENT--REQUIREMENTS.--

          A. An environmental impact statement shall include a detailed statement setting forth:

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

                (5) the cumulative environmental impact of the project, taking into consideration the environmental, public health, safety, economic and environmental justice impacts of past, current and future activities undertaken in proximity to the project;

                (6) an analysis of the socioeconomic implications of the project, including long- and short-term economic costs and benefits;

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

                (8) the impacts of the project on cultural and historic resources of the state or Indian nations, tribes or pueblos located within the state, including the impacts on cultural and historic properties and areas of cultural significance located within the project area identified by methods such as pedestrian surveys, archival record searches or consultation with Indian nations, tribes or pueblos;

                (9) the impacts upon the continuing use or existence of or access to archaeological, historic or culturally significant sites or cultural properties, including continuing cultural significance to Indian nations, tribes or pueblos or impacts upon the ability of Indian nations, tribes or pueblos in the state to engage in cultural practices;

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

                (11) alternatives to the proposed project, including:

                     (a) a no-action alternative;

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

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

                (12) a brief statement indicating the reasons for determining that certain effects of a project on the environment are not significant and consequently have not been discussed in detail in the statement; and

                (13) all public comments and agency responses to substantive public comments received during the public comment period.

          B. Environmental impact statements shall be reviewed by the department of environment to ensure that environmental and public health impacts are sufficiently considered, and the department of environment may send an analysis back to the lead agency to make changes or additions within sixty days of receiving the environmental impact statement.

          C. A project costing or anticipated to cost one hundred million dollars ($100,000,000) or more is presumed to require the preparation of an environmental impact statement.

          D. The lead agency shall make the environmental impact statement publicly available and shall take and respond to comments from the public on the project.

     SECTION 7. [NEW MATERIAL] CONFLICTS OF INTEREST.--A person shall not provide contractual services related to the preparation of an environmental assessment or environmental impact statement without certifying under penalty of perjury that the person does not have a current financial interest of any kind in the project, nor any interest which may cause the contractual services to be biased. A contractor may be removed by the lead agency if the agency determines the contract is not being fulfilled or if the contractor is acting in bad faith.

     SECTION 8. [NEW MATERIAL] EXEMPTIONS.--The following projects are exempt from the provisions of the Environmental Review Act:

          A. law enforcement activities;

          B. emergency activities to protect public health, safety or the environment, including firefighting and flood management;

          C. purely ministerial actions, including maintenance of existing facilities or construction of temporary facilities;

          D. nondestructive data collection and scientific study;

          E. post-fire rehabilitation activities not exceeding four thousand acres, including tree planting, fence replacement, habitat restoration, heritage site restoration, repair of roads and trails and the repair of damage to minor facilities, including campgrounds, but not including post-fire logging;

          F. property acquisition;

          G. small-scale restoration activities consistent with the best available science;

          H. renewals and assignments of existing permits, leases and easements that are in good standing and where substantially no change in use occurs and continuation of the activity will not lead to significant environmental degradation;

          I. approval of mineral lease adjustments and transfers, including assignments and subleases;

          J. approval and issuance of cutting permits for forest products associated with small-scale restoration activities or vegetation management activities, Christmas tree permits or small wood gathering;

          K. improvement and maintenance of public roads;

          L. construction of bicycle and pedestrian lanes and paths adjacent to existing highways and within existing rights of way;

          M. installation of signs, displays or kiosks;

          N. issuance of hunting and fishing licenses;

          O. approval of leases, easements, funds or permits for residential home building;

          P. installation of underground utilities in previously disturbed areas having stable soils or in an existing utility right of way;

          Q. approval of unitization agreements, communitization agreements, drainage agreements, development contracts or geothermal unit or participating area agreements when the agreement or contract contains provisions to address inadvertent discovery of human remains or associated or unassociated funerary objects;

          R. vegetation management activities, including seeding, planting, invasive plant removal, installation of erosion control devices, such as mats, straw or chips, or mechanical treatments, such as crushing, piling, thinning, pruning, cutting, chipping, mulching, mowing or prescribed fire, when the activity is necessary for the management of vegetation;

          S. projects analyzed through the National Environmental Policy Act of 1969 and its implementing regulations;

          T. projects on lands owned by an Indian nation, tribe or pueblo or held in trust by the United States; or

          U. recreational access permits.

     SECTION 9. [NEW MATERIAL] BEST AVAILABLE SCIENCE--CHOICE OF ALTERNATIVE--MITIGATION.-- 

          A. Based on the best available science, a public agency shall:

                (1) select for agency approval the alternative to a project that, to the maximum extent practicable and in compliance with the agency's statutory mission and duties, avoids or minimizes adverse environmental effects; or

                (2) incorporate appropriate avoidance or mitigation of impacts into the conditions of the permit, license or other authorization for the project issued pursuant to law.

          B. A public agency may deny a lease, permit, license, certificate or other entitlement or authorization when an environmental impact statement concludes that the project will cause irreparable harm to the environment.

          C. Nothing in this section shall alter, change, restrict or diminish the rights, powers or duties of the commissioner of public lands in the administration, management, care or control of state trust lands as provided for by the Enabling Act for New Mexico or other applicable statutes.

     SECTION 10. [NEW MATERIAL] NOTICE--PUBLIC COMMENT.--

          A. If a public agency determines that an environmental assessment or an environmental impact statement is required for a project, reasonable efforts shall be made to reach the parties most likely to be interested in the project.

          B. At a minimum, notice that environmental assessment is being undertaken or has been finalized, as well as the final document, shall be posted electronically on the lead and cooperating agencies' websites.

          C. At a minimum, notice that an environmental impact statement is being undertaken or has been finalized, as well as the final document, shall be:

                (1) provided by certified mail to:

                     (a) the governing body of all municipalities and counties in which the project property is located; and

                     (b) the governing body of any county, municipality or Indian nation, tribe or pueblo when the boundary of the territory of the county, municipality or Indian nation, tribe or pueblo is within a fifteen-mile radius of the project property;

                (2) published once in the newspaper with the largest circulation in each county in which the project property is located and once in the largest newspaper in the state. The notice shall appear in a section of the newspaper that will give the public effective notice of the proposed project and shall be printed in both English and Spanish and posted on the newspaper's website, if one exists;

                (3) posted in at least four publicly accessible and conspicuous places and at one local post office;

                (4) posted electronically on the lead and cooperating agencies' websites; and

                (5) posted on the sunshine portal.

          D. A member of the general public may request a copy of a final environmental assessment or environmental impact statement from a public agency. Within five business days of receiving the request, a public agency shall either provide the requestor with a copy of the final environmental assessment or environmental impact statement or direct the requestor to a publicly available copy.

          E. At a minimum, the public shall be allowed thirty days to review an environmental impact statement and submit comments to the lead agency before a final decision on the project is made.

          F. Public comments that are substantive in nature, including those that provide new information, provide alternative scientific information or illustrate concerns not previously considered by the lead agency shall be responded to by the lead agency in the final environmental impact statement. A response by the lead agency shall include 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. When an agency receives multiple comments raising a substantially similar concern, the agency may elect to respond once to the issue raised, rather than repeating the same response multiple times.

          G. The requirements of this section represent the minimum public notice and comment requirements. The environmental improvement board may by rule impose additional notice and comment procedures consistent with existing law.

     SECTION 11. [NEW MATERIAL] ENVIRONMENTAL IMPROVEMENT BOARD--RULEMAKING.--

          A. By December 31, 2019, the environmental improvement board, in consultation with the department of environment, the energy, minerals and natural resources department, the state land office, the department of game and fish, 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 to implement the Environmental Review Act that is to become effective January 1, 2020.

          B. The rules shall include:

                (1) requirements for the preparation of a record of decision for use in appeal proceedings, including, at a minimum, that a public agency's record of decision consists of:

                     (a) the environmental assessment and the associated finding of no significant impact or environmental impact statement, as applicable;

                     (b) all public comments and agency responses to comments on the environmental impact statement; and

                     (c) all documents a public agency used to support its decision, including: 1) agency memoranda; 2) correspondence, including electronic mail and facsimiles, between the lead agency and the applicant and any cooperating agencies; 3) technical reports, papers or articles; and 4) technical findings and legal conclusions; provided that information provided to an agency concerning the location of archaeological resources, a cultural property or an area of cultural significance to an Indian nation, tribe or pueblo, the preservation of which is in the interest of the state of New Mexico or the Indian nation, tribe or pueblo, shall remain confidential and may only be disclosed to the public with the written consent of the Indian nation, tribe or pueblo;

                (2) a fee structure to be imposed upon applicants; provided that the fees shall be no more than the actual costs of implementing the Environmental Review Act. The fees paid by applicants are appropriated to the respective agencies to carry out the provisions of the Environmental Review Act;

                (3) procedures for creating categorical exemptions from the Environmental Review Act, as well as for ending categorical exemptions; provided that the rules shall require a categorical exemption determination to be reasonable, based on the best available science and to not be arbitrary, capricious or an abuse of discretion;

                (4) procedures for implementing the notice and comment requirements of the Environmental Review Act, including procedures to ensure that documents are easily accessible to the public, the public is able to submit comments on documents in a variety of ways including via the internet, and that members of the public who submit comments are updated on the project's progress; and

                (5) time limits in which public agencies shall comply with the provisions of the Environmental Review Act.

     SECTION 12. [NEW MATERIAL] ENVIRONMENTAL ASSESSMENT-- ENVIRONMENTAL IMPACT STATEMENT--TIME LIMITS.--

          A. A public agency shall take no more than:

                (1) six months to complete an environmental assessment and adopt a finding of no significant impact; and

                (2) one year to complete and certify an environmental impact statement and compile a record of decision.

          B. The environmental improvement board may adopt rules that establish different time limits or establish procedures for requesting an extension of time for preparing environmental assessments, environmental impact statements or findings of no significant impact for different types or classes of projects, but all time limits shall be measured from the date on which an application requesting approval of the project is received and accepted as administratively complete by the public agency. The rules adopted pursuant to this subsection may provide for a reasonable extension of time in the event that compelling circumstances justify additional time and the project applicant consents to the extension.

     SECTION 13. [NEW MATERIAL] ENFORCEMENT--COMMENCEMENT OF ACTION OR PROCEEDING--JUDICIAL REVIEW.--

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

                (1) the public agency with primary responsibility for preparing an environmental assessment or environmental impact statement under the Environmental Review Act; or

                (2) a public agency alleged to have failed to perform any nondiscretionary act or duty required by the Environmental Review Act.

          B. An action to compel compliance with the Environmental Review Act pursuant to Subsection A of this section shall not be commenced prior to sixty days after the plaintiff has given written notice to the appropriate public agency, the attorney general and the project applicant of the plaintiff's intent to commence an action; provided that when the violation 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 providing written notice to the proper parties. An action against a public agency for failure to comply with the procedures of the Environmental Review Act shall be brought in the first judicial district court of Santa Fe county.

          C. A person who is adversely affected by a project that is subject to review under the Environmental Review Act may appeal an agency's final decision on a project to the court of appeals.

          D. Appeals pursuant to Subsection C of this section shall be upon the public agency's record of decision and shall be taken to the court of appeals no more than thirty days after the public agency finalizes an environmental impact statement, environmental assessment or finding of no significant impact as complete or the public agency's final permitting, funding, leasing, certification or licensing decision, whichever is later. The court of appeals:

                (1) shall set aside the public agency's action if it is found to be:

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

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

                     (c) otherwise not in accordance with law; and

                (2) after a hearing and a showing of good cause, may grant a stay of the action being appealed pending the outcome of the appeal.

          E. A court in issuing a final order in an action brought pursuant to this section, may award costs of litigation, including attorney fees and expert witness fees and other reasonable fees and expenses, to a prevailing plaintiff or appellant other than a public agency, whenever the court determines such an award is appropriate.

     SECTION 14. [NEW MATERIAL] LIMITATIONS.--Nothing in the Environmental Review Act shall supersede requirements or standards of any other applicable federal or state law.

     SECTION 15. APPROPRIATIONS.--

          A. Five hundred thousand dollars ($500,000) is appropriated from the state lands maintenance fund to the state land office for expenditure in fiscal year 2020 for the state land office to hire and support two full-time-equivalent positions to carry out the office's duties pursuant to the Environmental Review Act. Any unexpended or unencumbered balance remaining at the end of fiscal year 2020 shall revert to the state lands maintenance fund.

          B. Two hundred fifty thousand dollars ($250,000) is appropriated from the general fund to the department of environment for expenditure in fiscal year 2020 to hire and support two full-time-equivalent positions to carry out the department's duties pursuant to the Environmental Review Act. Any unexpended or unencumbered balance remaining at the end of fiscal year 2020 shall revert to the general fund.

          C. Five hundred thousand dollars ($500,000) is appropriated from the general fund to the energy, minerals and natural resources department for expenditure in fiscal year 2020 for the department to hire and support two full-time-equivalent positions to carry out the department's duties pursuant to the Environmental Review Act. Any unexpended or unencumbered balance remaining at the end of fiscal year 2020 shall revert to the general fund.

          D. Two hundred fifty thousand dollars ($250,000) is appropriated from the general fund to the office of the state engineer for expenditure in fiscal year 2020 for the office to hire and support two full-time-equivalent positions to carry out the office's duties pursuant to the Environmental Review Act. Any unexpended or unencumbered balance remaining at the end of fiscal year 2020 shall revert to the general fund.

     SECTION 16. EFFECTIVE DATE.--

          A. The effective date of the provisions of Sections 11 and 15 of this act is July 1, 2019.

          B. The effective date of the provisions of Sections 1 through 10 and 12 through 14 of this act is January 1, 2020.

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