House Bill text for HB0520

HOUSE BILL 520

49th legislature - STATE OF NEW MEXICO - first session, 2009

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; 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. develop and maintain a high-quality environment now and in the future and take all action necessary to protect, rehabilitate and enhance the environmental quality of the state;

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

C. prevent the contamination, genetic damage or elimination of fish and wildlife species due to human activities; ensure that fish and wildlife populations do not drop below self-perpetuating levels; and preserve for future generations representations of all plant and animal communities of this state;

D. ensure that the long-term protection of the environment, consistent with the provision of a suitable living environment for every state resident, shall be the guiding criterion in public decisions;

E. create and maintain conditions under which humans and nature can exist in productive harmony to fulfill the social and economic requirements of present and future generations;

F. require governmental agencies at all levels to develop standards and procedures necessary to protect environmental quality;

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

H. regulate activities of public agencies that are found to affect the quality of the environment so that major consideration is given to preventing environmental damage in this state;

I. deny projects as proposed if there are feasible alternatives or feasible mitigation measures available that would substantially lessen the significant environmental effects of such projects and to assist to identify both the significant effects of proposed projects and the feasible alternatives or feasible mitigation measures that will avoid or substantially lessen such significant effects; and

J. promote and encourage diverse public interest and participation in the project determination process and the carrying out of the purposes of the Consolidated Environmental Review Act.

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 applying for a permit required by law from a 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 either to:

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

(2) determine that further assessment 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 that act, is considered by a public agency prior to the agency's approval or disapproval of a project. The environmental impact statement shall 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, that briefly describes 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, commission or 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 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.

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 determine that the project may have a 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. On the basis of substantial evidence in light of the whole record, the public agency shall either determine that the project may have a significant effect on the environment or the public agency shall determine a finding of no significant impact. If there is substantial 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, an environmental impact statement or a finding of no significant impact.

Section 6. ENVIRONMENTAL IMPACT STATEMENTS.--

A. All public agencies shall prepare or cause to be prepared the completion of an environmental impact statement on any project 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 process pursuant to law, to prepare or cause to be prepared by contract the completion of 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 proposed project is implemented;

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

(4) any significant effect of the proposed project on human health;

(5) the cumulative environmental impact of the proposed project when connected with the environmental impacts of past or current projects or other proposed projects;

(6) mitigation measures proposed to minimize significant effects of the proposed project 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; and

(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 via pedestrian surveys, archival record searches and consultation with Native American tribes;

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

(10) the impacts upon the continuing existence or continuous access to archaeological, historic or culturally significant sites, particularly those of continuing significance to indigenous and historically significant communities, including impacts upon 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; and

(11) the impacts upon the continuing availability and use of forest and agricultural resources, including subsistence agriculture.

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 areawide 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, 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.

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 federal National Environmental Policy Act of 1969 and its implementing regulations, except that state public agencies shall review the federal agency's or state agencies' final action under the National Environmental Policy Act 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 shall 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, 2010 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 areawide 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 or plant and animal species, habitats or the ecological systems necessary for the survival of such plants and animals;

C. where no administrative appeals process for environmental determinations exists, an administrative appeals process for challenging a determination by a public agency regarding the necessity of an environmental assessment or an environmental impact statement;

D. if a public agency has an existing procedure for appeals of the agency's environmental determinations, the procedure shall at a minimum include the following for appeals of environmental assessments or environmental impact statements or findings of no significant impact:

(1) allow no more than one agency appeal proceeding on each procedural determination, the adequacy of a determination of significance or nonsignificance or of a final environmental impact statement;

(2) consolidate an appeal of procedural issues and of substantive determinations made under the Consolidated Environmental Review Act, such as a decision to require particular mitigation measures or to deny a proposal, with a hearing or appeal on the underlying governmental action by providing for a single simultaneous hearing before one hearing officer or body to consider the agency decision or recommendation on a proposal and any environmental determinations made pursuant to the Consolidated Environmental Review Act, with the exception of an appeal of a:

(a) determination of significance;

(b) procedural determination made by an agency if the agency is a project proponent or is funding a project and chooses to conduct its review pursuant to the Consolidated Environmental Review Act, including any appeals of its procedural determinations, prior to submitting an application for a project permit; or

(3) provide for the preparation of a record for use in any subsequent appeal proceedings that consists of findings and conclusions, testimony under oath and a taped or written transcript. An electronically recorded transcript may suffice for purposes of review under this subsection; and

(4) if a person aggrieved by a public agency's action has the right to judicial appeal, and if that agency has an administrative appeal procedure, the person shall, prior to seeking a judicial review, use the agency's administrative appeal procedure, unless expressly provided otherwise by law;

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

F. 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 shall be appropriated to the respective agencies to carry out the provisions of the Consolidated Environmental Review Act; and

G. 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.

B. The time limits specified in this section shall apply only to those circumstances in which a 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.

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, a notice of the project's 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 item 1) of this subparagraph; 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; and

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

B. Any member of the general public may secure a copy of an environmental assessment or environmental impact statement by requesting a copy from the public agency.

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

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

A. A person having an interest that is or may be adversely affected by a project or proposed project may commence a civil action to compel compliance with the Consolidated Environmental Review Act. That civil 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) a 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) a public agency alleging a failure 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. In an administrative proceeding or court action commenced by a public agency, a person whose interest may be adversely affected and who has provided notice pursuant to Subsection B of this section prior to the initiation of the action may intervene as a matter of right.

B. No action pursuant to this section shall be commenced 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 irreversibly 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, suits against a public agency shall be brought in the district court of Santa Fe county. Suits against only project or proposed project 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, the applicant may apply for a change of venue to the judicial district in which the project or proposed project is located. If not already a party, a project or proposed project applicant may intervene, upon a showing that the action relates primarily to a dispute regarding the project or proposed project, and apply for such a change of venue. The district court shall grant a change of venue upon a showing that the action relates primarily to a dispute regarding the project or proposed project and a showing that a forum non conveniens analysis suggests that the location of the project or proposed project is a superior venue.

D. In an action brought pursuant to this section, the lead agency may intervene.

E. 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. The court may, if a temporary injunction or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the rules of civil procedure.

Section 13. JUDICIAL REVIEW.--

A. Except as otherwise provided in the Consolidated Environmental Review Act, a 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 a public agency and who is adversely affected by such action 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 that an environmental impact statement, environmental assessment or a 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 only 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, a stay of the action being appealed may be granted pending the outcome of the judicial review. The stay of the action may be granted by the commission or by the court of appeals if the commission denies a stay within ninety days after receipt of the application.

Section 14. 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 15. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2010.

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