46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO UTILITIES; REQUIRING WATER CONSERVATION PLANS FOR CERTAIN ELECTRIC POWER GENERATING PLANTS; PRESCRIBING APPROVAL PROCEDURES; CHANGING RULING DEADLINES AND THE SIZE OF PLANTS SUBJECT TO LOCATION APPROVAL.

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

Section 1. Section 62-9-3 NMSA 1978 (being Laws 1971, Chapter 248, Section 1, as amended) is amended to read:

"62-9-3. LOCATION CONTROL--LIMITATIONS.--

A. The legislature finds that it is in the public interest to consider any adverse effect upon the environment and upon the quality of life of the people of the state that may occur due to plants, facilities and transmission lines needed to supply present and future electrical services. It is recognized that such plants, lines and facilities will be needed to meet growing demands for electric services and cannot be built without in some way affecting the physical environment where these plants, facilities and transmission lines are located. The legislature therefore declares that it is the purpose of this section to provide for the supervision and control by the commission of the location within this state of new plants, facilities and transmission lines for the generation and transmission of electricity for sale to the public.

B. [No] A person, including [any] a municipality, shall not begin the construction of [any] a plant designed for or capable of operation at a capacity of [three hundred] fifty thousand kilowatts or more for the generation of electricity for sale to the public within or without this state, whether or not owned or operated by a person that is a public utility subject to regulation by the commission, or of transmission lines in connection with such a plant, on a location within this state unless the location has been approved by the commission. For the purposes of this section, "transmission line" means [any] an electric transmission line and associated facilities designed for or capable of operations at a nominal voltage of two hundred thirty kilovolts or more, to be constructed in connection with and [to] transmit electricity from a new plant for which approval is required.

C. Application for approval shall contain all information required by the commission to make its determination, be made in writing setting forth the facts involved and be filed with the commission. The commission shall, after a public hearing and upon notice as the commission may prescribe, act upon the application. The commission may condition its approval upon a demonstration by the applicant that it has received all necessary air and water quality permits.

D. [No] An approval shall not be required for:

(1) construction in progress on the effective date of this section or for additions to or modifications of an existing plant or transmission line; or

(2) plants that have received, by January 1, 2003, the following permits, approvals or authorizations, if applicable:

(a) an authority to construct permit pursuant to the Air Quality Control Act;

(b) a ground water discharge permit pursuant to the Water Quality Act;

(c) a county site development plan approval; and

(d) Indian tribal or pueblo government permits.

E. The commission shall approve the application for the location of the generating plant unless the commission finds that the operations of the facilities for which approval is sought will not be in compliance with all applicable air and water pollution control standards and regulations existing. The commission shall not require compliance with performance standards other than those established by the agency of this state having jurisdiction over a particular pollution source.

F. The commission shall approve the application for the location of the transmission lines unless the commission finds that the location will unduly impair important environmental values.

G. [No] An application shall not be approved pursuant to this section [which] if it violates an existing state, county or municipal land use statutory or administrative regulation unless the commission finds that the regulation is unreasonably restrictive and compliance with the regulation is not in the interest of the public convenience and necessity, in which event and to the extent found by the commission the regulation shall be inapplicable and void as to the siting. When it becomes apparent to the commission that an issue exists with respect to whether a regulation is unreasonably restrictive and compliance with the regulation is not in the interest of public convenience and necessity, it shall promptly serve notice of that fact by certified mail upon the agency, board or commission having jurisdiction for land use of the area affected and shall make the agency, board or commission a party to the proceedings upon its request and shall give it an opportunity to respond to the issue. The judgment of the commission shall be conclusive on all questions of siting, land use, aesthetics and any other state or local requirements affecting the siting.

H. Nothing in this section shall be deemed to confer upon the commission power or jurisdiction to regulate or supervise any person, including a municipality, that is not otherwise a public utility regulated and supervised by the commission, with respect to its rates and service and with respect to its securities, nor shall any other provision of the Public Utility Act be applicable with respect to such a person, including a municipality.

I. The commission shall issue its order granting or denying the application within [six] nine months from the date the application is filed with the commission. Failure to issue its order within [six] nine months is deemed to be approval of the application; provided, however, that the commission may extend the time for granting approval for a transmission line that is subject to this section for an additional ten months upon finding that the additional time is necessary to determine if the proposed location of the line will unduly impair important environmental values."

Section 2. A new section of the Public Utility Act is enacted to read:

"[NEW MATERIAL] ELECTRIC POWER GENERATING PLANTS--WATER CONSERVATION PROVISIONS--APPROVAL PROCESS.--

A. Notwithstanding the provisions of Subsection H of Section 62-9-3 NMSA 1978, a person, including a municipality, shall not begin construction or expansion of an electric power generating plant that will consumptively use more than one hundred acre-feet of water in a year for the sale of electricity to the public within or without this state, whether or not owned or operated by a person that is a public utility subject to regulation by the commission, unless the construction or expansion has been approved by the commission. In considering an application to construct or expand an electric power generating plant, the commission shall require the applicant to submit a water utilization plan that:

(1) compares alternate water management practices, including effects on capital and operating costs, water use, wastewater management and energy efficiency; and

(2) includes information about alternative power plant cooling methods, including dry cooling, hybrid wet-dry cooling and the use of produced or other sources of waste or degraded water.

B. The commission shall submit the water utilization plan to the state engineer. Within forty-five days, the state engineer shall evaluate the proposed water utilization plan and provide the commission with a determination of whether the proposed plan is consistent with the conservation of water within the state. The state engineer may recommend to the commission any alternatives for consideration and shall comment on whether the plan meets the criteria set forth in Subsection C of this section.

C. The commission shall develop criteria for evaluating electric power generating plant water utilization plans, and shall reject an application that in its judgment does not meet the criteria. The criteria shall include:

(1) total all-in life-cycle costs for water acquisition, treatment, pumping, use and disposal;

(2) total all-in life-cycle costs for construction and operating costs;

(3) estimated impact of these costs on the retail cost of electric power;

(4) energy efficiency gains or losses; and

(5) any other derivative effects such as air pollution increases or decreases.

D. An applicant shall provide the commission at the time of filing the application with the commission proof that notice of the application, including a description of the proposed construction or expansion and how to obtain further information, has been:

(1) provided by certified mail to the owners of record, as shown by the most recent property tax schedule, of all properties within one-half mile of the property on which the construction or expansion is proposed to be located on or before the newspaper publication date required by this subsection;

(2) provided by certified mail to all municipalities and counties and tribal organizations within a ten-mile radius of the property on which the construction or expansion is proposed to be located on or before the newspaper publication date required by this subsection;

(3) published once in a newspaper of general circulation in the county in which the property on which the construction or expansion is proposed to be located; provided that 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 shall be printed in both English and Spanish;

(4) posted in at least four publicly accessible and conspicuous places on or before the newspaper publication date required by this subsection, including the entrances to the existing or proposed power plant, if the entrance is publicly accessible and conspicuous;

(5) mailed to all persons who have made a written request to the commission for notice of this application on or before the newspaper publication date required by this subsection; and

(6) mailed by certified mail to all persons on a list that shall be maintained by the commission of individuals and organizations who have requested notice of applications made pursuant to this section.

E. Within thirty days of receiving a determination from the state engineer pursuant to Subsection B of this section, the commission shall establish a date for a public hearing on the application. At least thirty days but no more than forty-five days prior to that date, the commission shall provide public notice of the date, location and subject of the hearing. The notice shall be distributed according to the public notice requirements described in Subsection D of this section.

F. The information required to be submitted pursuant to this section and the findings required by this section are supplemental to and do not supersede information and findings otherwise required by law.

G. The requirements of this section apply only to electric power generating units placed into service on or after January 1, 2003. In addition, any expansion of an electric power generating plant that has been placed into service prior to January 1, 2003 and that results in a plant capacity of three hundred thousand kilowatts or less is exempted from the requirements of this section."