This Ordinance is enacted to protect and promote the health, safety and general welfare of present and future residents of the County. This Ordinance implements the plans, studies and preparation of an Oil and Gas Ordinance and General Plan Oil and Gas Element required by the Interim Development Ordinance, Ordinance 2008-02, enacted on February 27, 2008. This Ordinance is a police power, public nuisance and land use regulation designed to establish separate land use, environmental, fiscal, adequate public facility, traffic, cultural, historical and archeological, emergency service and preparedness, health and safety, and toxic chemical pollution standards to protect from adverse public nuisance and/or land use effects and impacts resulting from oil and gas exploration, drilling, extraction or transportation in the County. Applications for Oil and Gas Overlay Zoning District Classifications may be found to constitute as applied public nuisances and/or land uses affecting and impacting the health and safety of nearby and countywide residents and resources and such projects are required to fully mitigate all adverse public nuisance and/or land use effects and impacts prior to obtaining a development order granting development approval. The Land and Environmental Suitability Analysis (“LESA”) as set forth in this Ordinance legislatively determines areas of environmental suitability for oil and gas facilities and shall be applied, together with all plans, studies, reports and assessments, upon review of application for oil and gas facilities to specifically determine the extent of any as applied adverse public nuisance and/or land use effects and impacts for the Galisteo Basin.
No oil or gas facility is permitted as of right in the County. Prior to authorizing any oil or gas facility, the County shall require the owner of the mineral estate, or oil and gas lessee of the mineral estate, to apply for, and obtain: an Oil and Gas Overlay Zoning District Classification; Special Use and Development Permit, Grading and Building Permits; and a Certificate of Completion. In connection with the approval process for obtaining an Oil and Gas Overlay Zoning District Classification, the County shall require the following detailed studies, plans, reports and assessments:
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(a)
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A General and Area Plan Consistency Report demonstrating consistency with the General Plan and the General Plan Oil and Gas Element’s Goals, Objectives, Policies and Strategies and with any applicable Area Plan, including but not limited to the Galisteo Basin Area Plan and with state and federal statutes and regulations;
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(b)
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An Environmental Impact Report analyzing oil and gas adverse effects and impacts to: wildlife and vegetation natural habitats and corridors; floodplains, floodways, stream corridors and wetlands; steep slopes and hillsides; air and water pollution; global warming, traffic safety and congestion; excessive energy consumption from vehicle miles traveled; priceless archeological, historical and cultural artifacts and resources reflecting Hispanic, Anglo and Indian civilizations; toxic chemical pollution and related diseases and conditions affecting the health and safety of current and future residents; open space and scenic vistas;
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(c)
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A Fiscal Impact Assessment describing the adverse effect and impact upon County revenue and costs necessitated by additional public facility and service costs generated by oil and gas projects and the feasibility for financing such facility and service costs;
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(d)
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An Adequate Public Facilities and Services Assessment indicating whether current county public facilities and services related to roads, stormwater detention, fire, police, and emergency response services are adequate to service proposed oil and gas projects;
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(e)
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A Water Availability Assessment to determine the availability of and impacts to fresh water surface and subsurface resources;
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(f)
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An Emergency Service and Preparedness Report, identifying the name, location and description of all potentially dangerous facilities and Material Safety Data Sheets describing all additives, chemicals and organics used on the site, including but not limited to pipelines, wells and isolation valves, and providing for a written fire prevention, health and safety response plan for any and all potential emergencies, including explosions, fires, gas or water pipeline leaks or ruptures, hydrogen sulfide methane or other toxic gas emissions or hazardous material spills or vehicle accidents;
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(g)
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A Traffic Impact Assessment, providing information necessary to assess adverse transportation effects and impacts of traffic generated by proposed oil and gas projects, including isolated and cumulative adverse effects and impacts to the traffic shed and traffic capacity, the passage of public safety and emergency response vehicles and any contribution to hazardous traffic conditions by heavily laden vehicles going to and from the project site; and
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(h)
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A Geohydrologic Report, describing the adverse impacts and effects of oil and gas development with respect to groundwater resources located within geological formations in sufficient proximity to an oil and gas project; identifying fractured, faulted and any other formations that would permit extraneous oil, gas, dirty or gray water, mud or other chemicals, toxic minerals and pollutants to degrade the ground or subsurface water resources, or allow ground or subsurface water resources to be reduced, polluted and unavailable for public or private water supplies.
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Development of oil and gas resources shall only be permitted where there is full mitigation of any present or future potential adverse public nuisance and/or land use effects or impacts as shown in the reports, plan, studies and assessments required in Section 9. To achieve these purposes this Ordinance establishes three distinct processes for development approval of oil and gas projects: (1) an application for discretionary administrative and quasi-judicial approval of an Oil and Gas Overlay Zoning District Classification; (2) subsequent to development approval of the Oil and Gas Overlay Zoning District Classification and the subsequent issuance of a state permit to drill, an application for a quasi-judicial discretionary Special Use and Development Permit (“SUDP”); and (3) obtaining ministerial Grading and Building Permits and a Certificate of Completion.
This Ordinance is intended to be both a Land Development Code Regulation and a stand-alone public nuisance ordinance which shall apply to any area-wide or project-specific adverse public nuisance and/or land use effects or impacts created by an oil or natural gas facility.
It is recognized that under New Mexico state law, surface and mineral estates are separate and distinct interests in land. Owners of subsurface mineral estates and oil and gas leases have certain rights and privileges, to use that part of the surface estate reasonably required to extract and develop the subsurface mineral or oil and gas resources. Similarly, owners of the surface estate have protection under the common law and pursuant to the Surface Owner’s Protection Act, NMSA 1978 sections 70-12-1 through 70-12-12 (2007), including protection of existing surface uses and protection from, or compensation for, adverse land use effects and impacts associated with the development of the mineral estate, and/or oil and gas lease.
Taking into account these rights and privileges and in order to evaluate whether, and if so, the extent to which this Ordinance unconstitutionally creates a regulatory taking without just compensation subsurface mineral fee interests and oil and gas leases, each applicant for an oil or gas facility, if denied at the Overlay Zoning or Special Use and Development Permit stages, shall be required to exhaust all administrative remedies by applying for a beneficial use and value assessment which application shall describe:
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(a)
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the extent of diminution of use and value with respect to the entirety of the applicant’s, owner’s, or lessee’s real property interests in the same ownership within the County;
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(b)
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the distinct investment backed expectations of the owner, lessee, or applicant and predecessors in interest, in the same ownership within the County;
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(c)
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the written lease document applicable to oil and gas drilling under an oil and gas lease;
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(d)
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the availability of transfers of oil and gas development rights or clustering and co-location of drill sites to the remainder of the owner’s, applicant’s, or lessee’s entirety of property in the same ownership; and
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(e)
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any variance or relief necessary to relieve any unconstitutional hardship or regulatory taking created.
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See
SECTION 9: OIL AND GAS OVERLAY ZONING DISTRICT CLASSIFICATION for complete, detailed information.
