HB0206

HOUSE BILL 206

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

INTRODUCED BY

Gail Chasey and Mimi Stewart

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 permit 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 ten 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, vibration or objects of historic or aesthetic significance, including historic properties listed or eligible for listing 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 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-half 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 five 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 or programmatic experience with an issue related to a project.

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

A. The public agency with primary responsibility for issuing recommendations or permit or license approvals 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. Upon request of a 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 Environmental Review Act process may be a cooperating agency. A public agency may request a lead agency to designate it as a cooperating agency by written agreement. The written agreement shall establish the terms of the cooperating agency's involvement.

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

E. A lead agency shall:

(1) secure appropriate funding for undertaking the Environmental Review Act process from an applicant that is external to the agency;

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

(3) use 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; 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 the cooperating agency's agreement with the 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, challenge the degree of involvement requested or decline to participate on the basis that other program commitments preclude involvement.

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.

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 timeline for completion;

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

(5) the permits required;

(6) potential mitigation for environmental impacts;

(7) a description of surface and ground water;

(8) any hazardous wastes associated with the project;

(9) a description of protected fish and wildlife species in the area;

(10) a description of cultural properties in the area;

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

(12) 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; 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 one million dollars ($1,000,000) 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, wildlife corridors, riparian areas and endangered species habitat; and

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

F. Environmental assessments and 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.

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

(7) 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 properties located within the project area identified by methods such as pedestrian surveys, archival record searches or consultation with Indian nations, tribes or pueblos;

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

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

(10) 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

(11) 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

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

B. 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;

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, assignments and conversions of existing permits where substantially no change in use occurs; the new permit assignment will not go to an operator that is underfunded or with less experience; and continuation of the activity will not lead to environmental degradation;

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

J. approval and issuance of cutting permits for forest products not to exceed three thousand dollars ($3,000) in value;

K. activities involving remediation of hazardous waste sites if undertaken in compliance with applicable laws;

L. improvement and maintenance of public roads;

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

N. installation of signs, displays or kiosks;

O. issuance of hunting and fishing licenses;

P. approval of leases, easements or funds for single family homesites that encompass five acres or less of contiguous land and associated improvements, including construction of homes, outbuildings, access roads and utility lines; provided that the homesites and associated improvements do not adversely affect tribal cultural resources or cultural properties and are in compliance with applicable federal and tribal laws;

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

R. approval of unitization agreements, communitization agreements, drainage agreements, underground storage agreements, development contracts or geothermal unit or participating area agreements;

S. 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 on public lands;

T. projects analyzed through the National Environmental Policy Act of 1969 and its implementing regulations; provided that state public agencies shall review a federal agency's final action under the National Environmental Policy Act and may require additional information and evaluation of a project before approving any permits, licenses or authorizations required under state law; or

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

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

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

(1) authorize 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 permit, license or other authorization when an environmental impact statement concludes that the project will cause irreparable harm to the environment.

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. At a minimum, notice that an environmental assessment, environmental impact statement or finding of no significant impact is being undertaken or has been finalized 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 within proximity of the project property;

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

(c) 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 ten-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 either the classified or legal advertisements section of the newspaper and in 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 and posted on the newspaper's website;

(3) posted in at least four publicly accessible and conspicuous places, including at the entrance of the project property and at one local post office;

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

(5) posted on the sunshine portal.

B. A member of the general public may request a copy of an 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 environmental assessment or environmental impact statement or direct the requestor to a publicly available copy.

C. At a minimum, the public shall be allowed:

(1) fifteen days to review an environmental assessment and submit comments to the lead agency before the agency makes any determination about the environmental assessment; and

(2) thirty days to review an environmental impact statement and submit comments to the lead agency before a final decision on the project is made.

D. 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 either the finding of no significant impact or 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.

E. 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 July 1, 2020, 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.

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 assessment and 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;

(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 time limits specified in this section shall apply only when the public agency is the applicant.

C. The environmental improvement board may adopt rules that 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 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 shall not be commenced pursuant to Subsection A of this section 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. Except as otherwise provided in Subsections A and B of this section, a person who is adversely affected by a project subject to the Environmental Review Act and who participated in a permitting action or appeal of a certification before any public agency, including by submitting comments to the agency, may appeal to the court of appeals for further relief.

D. Appeals 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 certifies an environmental impact statement, environmental assessment or finding of no significant impact as complete or the public agency's final permitting, funding, 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

(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. TEMPORARY PROVISION--PROJECT APPROVAL PRIOR TO ADOPTION OF RULES--LOCAL ENVIRONMENTAL REVIEW.--

A. After the effective date of the Environmental Review Act and until the environmental improvement board adopts regulations necessary to carry out the provisions of the Environmental Review Act, county or municipal environmental review laws or ordinances shall apply to projects within a county's or municipality's jurisdiction.

B. If a county or municipality does not have environmental review laws or ordinances, an environmental assessment or environmental impact statement shall not be required for a project until the environmental improvement board adopts regulations implementing the Environmental Review Act.

SECTION 16. APPROPRIATIONS.--

A. Two hundred fifty thousand dollars ($250,000) 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. Two hundred fifty thousand dollars ($250,000) 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 17. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2019.

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