Santa Fe County, NM SECTION 9 OIL AND GAS OVERLAY ZONING DISTRICT CLASSIFICATION

SECTION 9.1 PURPOSES OF THE OIL AND GAS OVERLAY ZONING DISTRICT CLASSIFICATION AND SUBSEQUENT DEVELOPMENT APPROVAL PROCESSES.

This section applies to specific oil and gas facilities within the County. The regulations and approval processes established by this section ensure that oil and gas activity is compatible with the on- and off-site environment and adjacent properties and neighborhoods.

The specific purpose and intent of these provisions are to:

(a) provide for the timely application for, and consideration of an oil and gas overlay zoning district classification for specific oil or gas mineral estates and/or oil and lease projects;

(b) authorize a subsequent special use and development permit process;

(c) provide for required grading and building permits and a certificate of completion;

(d) provide for the appointment of a hearing officer;

(e) authorize establishment of capital improvement and services budgets, plans and programs (“CIP”) and public improvement or assessment districts for financing of infrastructure and services, the need for which is generated by oil and gas projects in the County;

(f) authorize an amendment to the General Plan creating an Oil and Gas Element;

(g) authorize development of a Galisteo Basin Area Plan;

(h) protect the health, safety, and welfare of the citizens of Santa Fe County;

(i) preserve the quality of life, economy, infrastructure, environment, historic, cultural, archaeological and eco-tourist resources, scenic vistas, natural resources, and natural landscapes of the County;

(j) protect the environment of the Galisteo Basin and Santa Fe County and protect its residents from the harmful or hazardous adverse effects or impacts of specific public nuisances resulting from oil and gas exploration, drilling, extraction, and transportation, including, but not limited to, degradation of air quality, global warming, stormwater and liquid materials runoff, ground and subsurface water quality, scenic quality, erosion of soils, noise and vibration, explosive hazards, traffic and road conditions, and any adverse effects and impacts of toxic chemical materials, degradation of wildlife and vegetation habitats and corridors;

(k) protect the scenic quality of Santa Fe County and its historic, cultural and archeological artifacts and sites;

(l) ensure the compatibility of the proposed oil and gas project with existing development and development anticipated in the future pursuant to the County’s adopted General Plan and relevant Area Plans, including but not limited to a Galisteo Basin Area Plan;

(m) assure that the required reclamation of oil and gas drilling areas that are disturbed by excavation activities is sufficient to provide for short- and long-term development meeting all environmental, infrastructure, health, safety, and aesthetic needs of the County and of surrounding properties and neighborhoods;

(n) assure the provision of adequate public facilities and services for roads, stormwater and liquid materials detention, police, fire and emergency response and off-site operation and maintenance for public roads and other facilities required to mitigate adverse effects and impacts of oil and gas facilities, are fully funded and available at the designated level of service (“LOS”) at the time of development approval of Overlay Zoning;

(o) provide for a fair and efficient system for the engineering, planning, environmental regulation, and monitoring of oil and gas activities, both on and off site, consistent with and in coordination with the OCD and rules and regulations of the New Mexico Oil Conservation Commission (“Commission”);

(p) protect the long-term usefulness of adjacent properties for their permitted purposes as identified in the County’s adopted General and Area Plans;

(q) protect the tax and fiscal base of the County;

(r) establish performance standards for the exploration, drilling, extraction, processing, use, and transport of oil, gas and other earth materials, and unconsolidated sediments in such a manner as to ensure maximum protection to surrounding properties and to the physical environment through proper siting, clustering and co-location of activities, wells and structures, and through the use of time of operation, buffering, setbacks, visual screening, landscaping, height limitations, proper access routing, and appropriate noise, light, odor, vibration, air quality, and water quality controls;

(s) ensure that all permitted oil and gas activities are compatible with the County, regional, state, and federal water quality plans and stormwater management plans and policies;

(t) ensure that all permitted exploration, drilling, extraction and transportation activities are compatible with all current and applicable neighborhood plans, area or regional plans, public facility and utility plans, County policies, and the County’s capital budget, plan and improvements program;

(u) coordinate with the underlying base zoning district; and

(v) comply with the findings and purposes of this Ordinance.

SECTION 9.2 EXEMPTIONS FOR WATER RIGHTS.

These regulations do not apply to the determination or adjustment of water rights or for the regulation of extraction of potable water.

SECTION 9.3 INCORPORATING GOALS.

This Chapter incorporates the goals, objectives, policies, and strategies in the General Plan Oil and Gas Element. All approvals of an Oil and Gas Overlay Zoning District Classification and subsequent Special Use and Development Permits, Building and Grading Permits and Certificates of Completion shall be consistent with the following plans:

(a) General Plan; including, but not limited to the Oil and Gas Element of the General Plan;

(b) any area plan, including but not limited to, the Galisteo Basin Area Plan;

(c) any capital improvement and services budget, plan and program, and the capital and operating budgets of the County and any adopted CIP for a public improvement or assessment district;

(d) any public improvement or assessment district plan; and

(e) any State of New Mexico departmental plans, regulations, and statutes including but not limited to plans from the Energy, Minerals and Natural Resources Department, Office of the State Engineer, New Mexico Environment Department, Department of Game & Fish, Department of Cultural Affairs, Department of Indian Affairs, Department of Tourism, Department of Health, Department of Agriculture, and Gubernatorial Executive Orders.

SECTION 9.4 APPLICATION CONSISTENCY.

Every application for an Oil and Gas Overlay Zoning District Classification must be consistent with the General Plan’s goals, objectives, policies and strategies and the findings and purposes of this Ordinance. Every Ordinance and/or Resolution to approve or deny an Oil and Gas Overlay Zoning District Classification and all subsequent approvals or denials for the Special Use and Development Permit and any Grading or Building Permits and Certificate of Completion required by the Land Development Code shall be defined as Development Approvals and Development Orders.

SECTION 9.4.1 SPECIAL PROVISIONS RELATED TO THE GALISTEO BASIN.

SECTION 9.4.1.1 GALISTEO BASIN LAND AND ENVIRONMENTAL SUITABILITY ANALYSIS (“LESA”) MAP.

(a) The Galisteo Basin is a highly unique and environmentally sensitive area of the County. A planning map of the Galisteo Basin is attached to this Ordinance as Exhibit “A.” Within the Galisteo Basin are unique state and federally designated historical, cultural, and archaeological artifacts and sites; significant state and federally protected wildlife and vegetation habitats; corridors; streams, floodways, floodplains, groundwater aquifers and basins; mountainous slopes and hillsides; highly unusual, fragmented, and fractured subsurface geological soils, rock, liquids and minerals susceptible to pollution of underground water reservoirs and aquifers; and traditional and historical Indian and community settlements, farms, and ranches, all combined with significant interspersed residential population growth, a poor transportation road network and limited fire, police, and emergency response services.

(b) The County has performed detailed studies of all of these factors from hundreds of documents, maps, reports, and professional analyses and has developed a composite Land and Environment Suitability Analysis Map (“LESA Map”), attached to this Ordinance as Exhibit “B,” for the Galisteo Basin which describes areas that are unsuitable for oil and gas activities based on the following factors:

Oil/Gas Unsuitability Factors
Factor 1	Farms/Ranches To Be Protected
1.1	Farm/Ranch size less than 40 acres
1.2	Farm/Ranch size less than 40 acres to 100 acres
1.3	Farm/ranch size less greater [sic] than 100 acres
Factor 2	Lands suitable for protecting native plant and animal species
2.1	Lands with high amphibian species richness
2.2	Lands with high reptilian species richness
2.3	Lands with high bird species richness
2.4	Lands with high mammal species richness
2.5	Lands with undisturbed natural grasslands
2.6	Lands with undisturbed Pinon-Juniper Woodlands
2.7	Lands with undisturbed forested areas
Factor 3	Lands suitable for Protecting Surface and groundwater quality
3.1	Lands proximal to natural springs
3.2	Lands proximal [to] permanent water bodies
3.3	Lands proximal to drainage buffers
3.4	Lands within Earth Works Riparian (and wetlands) Inventory
3.5	Lands proximal to quaternary alluvium geology
3.6	Lands soils classified as excessively or somewhat excessively drained
3.7	Lands with reservoir alluvium geology
Factor 4	Lands with Important Physical Characteristics
4.1	Lands within the 100-year floodplain
4.2	Steep slopes (greater than 30%)
Factor 5	Areas of cultural, historical and archaeological importance
5.1	Lands proximal to recorded archaeological, historical, and paleontological sites of demonstrated or potential significance
5.2	Lands proximal to major Pre-Columbian pueblo sites and zones of high archaeological or paleontological potential
5.3	Lands proximal to areas of importance to Native American groups (traditional cultural properties)
Factor 6	Lands with scenic value
6.1	Scenic Highways
6.2	Scenic dirt roads
6.3	Lands within Delphi-based scenic landmarks, outcrops, peaks, gaps and geologic features
Factor 7	Lands unsuitable for oil/gas
7.1	Lands proximal to community/public water system
7.2	Lands proximal to paved highway
7.3	Lands proximal to paved roadway
7.4	Lands proximal to fire station
7.5	Lands proximal to health care facilities
Factor 8	Land use compatibility
8.1	Identify lands proximal to designated conservation areas

(c) The LESA Map shall be amended and updated at least once a year from the effective date of this Ordinance. Amendments to the LESA Map may be considered more often than annually when needed to account for the development of new or more accurate information.

(d) 

Limited Oil and Gas Activity Areas:

(1) 

LESA Map Classifications.

Based upon the analysis of the factors as applied to the Galisteo Basin, the LESA Map classifies lands within the Galisteo Basin for oil and gas activities as:

(A) High Sensitivity Areas;

(B) Moderate Sensitivity Areas; and

(C) Low Sensitivity Areas.

(2) This Ordinance is consistent and in compliance with the OCD and Commission proposed and existing regulations relating to well spacing. The following sections supplement and complement the OCD regulations by regulating the number of drill sites permitted based on the sensitivity classification of surface lands. This Ordinance does not regulate well spacing.

(3) 

High Sensitivity Areas:

(A) In the High Sensitivity Areas oil and gas activity will create adverse public nuisance and land use effects and impacts upon the critical assets of the Galisteo Basin as set forth in Section 9.4.1.1(a). Oil and gas activity will be constrained so that the area of land does not authorize a greater number of oil and gas drill sites than ten percent (10%) of the number of wells allowed by the applicable OCD spacing rules. By example: each square mile (640 acres) of oil and gas project land without constraint would contain a maximum of sixteen (16) oil and gas wells taking into account that the applicable OCD spacing rule 19.15.3.104 NMAC provides for one (1) well for each forty (40) acres. If located within a High Sensitivity Area on the LESA Map it would be permitted 1.6 drill sites per square mile. The final number of oil or gas drill sites project-wide will be rounded off to the next highest integer.

(B) The number of drill sites permitted under the LESA Map is a maximum number. Each specific assessment, study, report, or plan may require that fewer or no oil and gas drill sites be authorized based upon the unique requirements of the project area’s mitigation requirements to avoid further specific adverse public nuisance and/or land use effects and impacts from oil and gas drill site locations. The drill site pad should be the least amount of land necessary to operate the drill site.

(C) For each well, the surface area shall not exceed 1/2 acre and total surface acreage for all drill sites-in High Sensitivity Areas shall not in any event exceed five (5) acres per square mile. The Board may upon application increase such acreage on case-by-case basis if there is an affirmative recommendation from a petroleum Engineer employed by the County certifying reasonable need, or to accommodate a transfer of development rights not to exceed one (1) acre in total size. The drill site pad shall be the least amount of land necessary to operate the drill site.

(D) Proposed oil or gas facilities within High Sensitivity Areas will be permitted to purchase development rights from other proposed oil or gas facilities that, after a beneficial use and value determination, would not be allowed any oil or gas drill sites. For each forty (40) acre sending area transferring a development right (“TDR”), the High Sensitivity Area receiving the TDR will be permitted to add an additional 0.3 oil and gas drill sites.

(4) 

Moderate Sensitivity Areas:

(A) In the Moderate Sensitivity Areas oil and gas activity will create adverse public nuisance and land use effects and impacts upon the critical assets of the Galisteo Basin as set forth in Section 9.4.1.1.(a). Oil and gas activity will be constrained so that the area of land does not authorize a number of oil and gas drill sites greater than thirty percent (30%) of the number of wells allowed by the applicable OCD spacing rules. By example: each square mile (640 acres) of project land would contain a maximum of sixteen (16) oil and gas wells taking into account that the applicable OCD spacing rule 19.15.3.104 NMAC provides for one (1) well for each forty (40) acres. If located within a Moderate Sensitivity Area on the LESA Map it would be permitted 4.8 drill sites per square mile. The final number of oil or gas drill sites project-wide will be rounded off to the next highest integer.

(B) The number of drill sites permitted under the LESA Map is a maximum number. Each specific assessment, study, report, or plan may require that fewer or no oil and gas drill sites be authorized based upon the unique requirements of the project area’s mitigation requirements to avoid further specific adverse public nuisance and/or land use effects and impacts from oil and gas drill site locations. The drill site pad should be the least amount of land necessary to operate the drill site.

(C) For each well, the surface area shall not exceed 1/2 acre and total surface acreage for all drill sites in Moderate Sensitivity Areas shall not in any event exceed seven (7) per square mile. The Board may upon application increase such acreage on case-by-case basis if there is an affirmative recommendation from a petroleum Engineer employed by the County certifying reasonable need, or to accommodate a transfer of development rights not to exceed two (2) acres in total size. The drill site pad shall be the least amount of land necessary to operate the drill site[.]

(D) Proposed oil or gas facilities within Moderate Sensitivity Areas will be permitted to purchase development rights from other proposed oil or gas facilities that after a beneficial use and value determination would not be allowed any oil or gas drill sites. For each forty (40) acre sending area transferring a development right (“TDR”), the Moderate Sensitivity Area receiving the TDR will be permitted to add an additional 0.8 oil and gas drill sites.

(5) 

Low Sensitivity Areas:

(A) In the Low Sensitivity Areas oil and gas activity will create adverse public nuisance and land use effects and impacts upon the critical assets of the Galisteo Basin as set forth in Section 9.4.1.1.(a). Oil and gas activity will be constrained so that the area of land does not authorize a greater number of oil and gas drill sites than forty percent (40%) of the number of wells allowed by the applicable OCD spacing rules. By example: each square mile (640 acres) of project land could contain a maximum of sixteen (16) oil and gas wells taking into account that the applicable OCD spacing rule 19.15.3.104 NMAC provides for one (1) well for each forty (40) acres. If located within a Low Sensitivity Area on the LESA Map it would be permitted only 6.4 drill sites per square mile. The final number of oil or gas drill sites project-wide will be rounded off to the next highest integer.

(B) The number of drill sites permitted under the LESA Map is a maximum number. Each specific assessment, report, or plan may require that fewer or no oil and gas wells be authorized based upon the unique requirements of the project area’s mitigation requirements to avoid adverse public nuisance effects and impacts from oil and gas specific well locations. The drill site pad should be the least amount of land necessary to operate the drill site.

(C) For each well, the surface area shall not exceed 1/2 acre and total surface acreage for all drill sites in Low Sensitivity Areas shall not in any event exceed nine (9) acres per square mile. The Board may upon application increase such acreage on case-by-case basis if there is an affirmative recommendation from a petroleum Engineer employed by the County certifying reasonable need, or to accommodate a transfer of development rights not to exceed three (3) acres in total size. The drill site pad shall be the least amount of land necessary to operate the drill site.

(D) Proposed oil or gas facilities within Low Sensitivity Areas will be permitted to purchase development rights from proposed oil or gas facilities that after a beneficial use and value determination would not be allowed any oil or gas drill sites. For each forty (40) acre sending area transferring a development right (“TDR”), the Low Sensitivity Area receiving the TDR will be permitted to add an additional 2.0 oil and gas wells.

SECTION 9.5 OTHER REQUIRED DEVELOPMENTAL APPROVALS.

(a) Oil and gas activities include a broad range of land disturbance activities, which require approval of an Oil and Gas Overlay Zoning District Classification, a Special Use and Development Permit (“SUDP”), grading or building permits and a Certificate of Completion and may require other local, state, and federal development approvals. It is the sole responsibility of the applicant to secure all development approvals required by other governmental entities for the proposed use. The County shall require that the State OCD approve an application for a permit to drill be issued prior to applying for the required SUDP, and to require the applicant to submit evidence of such other development approvals to the County as part of the SUDP application.

(b) Applicants are not required to apply for subdivision approval for oil and gas activities located in the subsurface of a single parcel of land unless the activity constitutes a subdivision or platting of two or more such lots or parcels, with the intent to sell or lease such subsurface subdivided lots or parcels in the future.

SECTION 9.6 APPLICATION FOR OIL AND GAS OVERLAY ZONING DISTRICT.

An applicant who submits an application for approval of an Oil and Gas Overlay Zoning District Classification shall submit a concept plan that includes:

(1) An accurate map of the project area including its relationship to surrounding areas, existing topography and key features;

(2) A detailed description of the proposed oil and gas activities on the entirety of the owner or applicant’s property in the same ownership:

(a) The planning objectives and the character of the development to be achieved through the overlay, and the approximate phases in which the exploration and drilling for and extraction of oil and gas from the property will occur.

(b) The approximate location of all neighboring development areas, subdivisions, residential dwellings, neighborhoods, traditional communities and community centers, and other nonresidential facilities and structures within five (5) miles of the concept plan site perimeter.

(c) The number and type of wells to be drilled, and the approximate location, arrangement, size, floor area ratio of any buildings and structures and parking facilities related to the drilling or exploratory activities.

(d) The proposed traffic circulation plan, including number of daily and peak hour trips to and from the site and the proposed traffic routes to the nearest intersection with I-25 (and NM-285 if located in the Galisteo Basin).

(e) The approximate or exact location of all fire, police, and emergency response service facilities and all roads shown on the capital improvement plan, budget and program for the area, floodways, floodplains, wetlands or other natural resource areas surrounding the applicant’s property; location of historic, cultural and archeological sites and artifacts, steep slopes greater than 11%, wildlife and vegetation habitats and habitat corridors within five (5) miles of the concept plan site perimeter.

(f) A statement explaining how the proposed overlay complies with the vision, goals, objectives, policies and strategies of the County’s General Plan Oil and Gas Element and any Area Plan covering the property, including but not limited to, the Galisteo Basin Area Plan.

(g) A statement or visual presentation of how the overlay will relate to and be compatible with adjacent and neighboring areas, within the five (5) mile radius of the project site perimeter.

(h) All application requirements set out in this Ordinance.

(3) All information required by the Administrator for the preparation of assessments, reports, plan or studies necessary to evaluate adverse effects and impacts of the proposed oil and gas project. The following assessments, reports, plan and studies will be prepared by the County, or by a professional consultant or consulting firm engaged by the County. The applicant, at the time of submission of the application, shall pay by certified check or furnish a suitable letter of credit from a banking institution, payable to the County at the time of the application for the cost to the County for retaining consultants and for the cost of a Hearing Officer presiding over the pre-application meeting, for each of the following required studies:

(a) Environmental Impact Report (See Section 9.6.1.);

(b) Adequate Public Facilities and Services Assessment (See Section 9.6.2.);

(c) Water Availability Report (See Section 9.6.4. [9.6.5.]);

(d) Traffic Impact Assessment (See Section 9.6.5. [9.6.6.]);

(e) Geohydrologic Report (See Section 9.6.6. [9.6.7.]);

(f) Emergency Response and Preparedness Plan (See Section 9.6.7. [9.6.8.]); and

(g) Fiscal Impact Assessment (See Section 9.6.8. [9.6.9.])

(4) Such other information as the Administrator shall require, including any additional information necessary to determine compliance with the standards for the approval of the Oil and Gas Overlay Zoning District Classification.

(5) The applicant shall submit all information at the time of application, required by the County necessary to carry out the above studies, reports, plan and assessments. In addition to the assessments, reports, plan or studies to be conducted by the County, listed in Section 9.6(3)(a)–(g) above, the applicant and any other interested party shall have the opportunity to prepare and furnish to the County its own assessments, plan, reports or studies, or parts thereof, as is deemed suitable and necessary.

(6) Prior to the submission of any application for an Oil and Gas Overlay Zoning District Classification, the applicant shall attend a meeting with all residents, owners/lessees of nonresidential structures, and all owners of subsurface mineral estates and oil and gas lessees within one mile of the perimeter of the project area and with all County groups, foundations and associations that have previously registered with and been accepted by the Administrator for notifications of applications for an Oil and Gas Overlay Zoning District Classifications and Special Use and Development Permits within the County. The applicant shall furnish an address list for the one-mile area to the Administrator who shall send out notices to all affected parties at least five business days prior to the meeting. Such meeting shall be conducted at the offices of the Growth Management Division and shall be presided over by a designated County Hearing Officer. The proceedings shall be informal and designed to resolve, to the extent possible, issues and problems between the parties. Such meeting shall not last longer than three (3) hours without the consent of the applicant, and the Hearing Officer shall have the authority to request invitees to consolidate presentations and otherwise cooperate so that effective and cordial discussion of issues and problems takes place.

(7) The Applicant shall provide certified evidence of public record registration of mineral estate and oil or gas leases within the same ownership.

(8) Existing water wells may be documented by any official document such as deeds and surveys, not exclusively by registration with the Office of State Engineer.

SECTION 9.6.1 ENVIRONMENTAL IMPACT REPORT.

9.6.1.1. 

Generally.

(a) The draft Environmental Impact Report (“draft EIR”) shall contain the information outlined in this Section. Each element shall be covered, and when these elements are not separated into distinct sections, the document shall state where in the document each element is discussed.

(b) The draft EIR shall be prepared as a separate document by the consultants engaged by the County.

(c) A Draft EIR shall contain the information required by Sections 3 through 12 [sic]. A Final EIR shall contain the same information and the subjects described in Section 13 [sic].

(d) No document prepared pursuant to this article that is available for public examination shall require the disclosure of a trade secret, except where the use of any trade secret involves a significant threat to health and safety. However, only specifically identified chemicals shall be used for any project, including, but not limited to drilling and excavation. The Administrator shall supply a list to each applicant of the approved chemicals, certified by a licensed petroleum engineer, which the applicant must certify as exhaustive of all chemicals that will be used in the project. No specific location of archaeological, historical or cultural sites and/or sacred lands shall be released to the public, but a draft EIR must thoroughly discuss all environmental issues relating to a proposed project and affecting any such sites.

(e) The applicant shall make a cash, certified or bank check, or letter of credit, deposit, to cover all of the County’s expenses in reviewing the draft EIR, engaging consultants, and for a Hearing Officer to conduct the first public hearing on the draft EIR. The County will provide an estimate of the cost of conducting the study, which shall provide the basis for the initial deposit. The applicant shall make additional deposits if the initial deposit is inadequate to reimburse the County for the costs of the study, and the County shall refund any unexpended funds on deposit after the study is completed.

9.6.1.2. 

Informational Document.

(a) The draft EIR is an informational document which will inform the County, the public and the applicant of the significant adverse environmental effects and impacts of a project, identify possible ways to minimize the significant adverse effects or impacts, and describe reasonable alternatives to the project. The County shall consider the information in the draft EIR along with other information which may be presented to the County by the applicant or interested parties.

(b) While the information in the draft EIR does not control the County’s ultimate discretion on the project, the County shall respond to each significant effect and impacts identified in the EIR by making findings.

(c) The information in a draft EIR shall constitute substantial evidence in the record to support the County’s action on the project if its development order is subsequently challenged in court.

9.6.1.3. 

Table of Contents and Index.

The draft EIR shall contain a table of contents and index to assist readers in finding the analysis of different subjects and issues.

9.6.1.4. 

Summary.

(a) A draft EIR shall contain a brief summary of the proposed actions and its consequences. The language of the summary should be as clear and simple as reasonably practical.

(b) The summary shall identify:

(1) Each significant adverse effect and impact with proposed mitigation measures and alternatives that would reduce or avoid that effect or impact;

(2) Areas of controversy known to the County including issues raised by agencies and the public; and

(3) Issues to be resolved including the choice among alternatives and whether or how to mitigate the significant effects.

(c) The summary shall not exceed 15 pages.

9.6.1.5. 

Project Description.

The description of the project shall contain the following information but shall not supply extensive detail beyond that needed for evaluation and review of the environmental impact.

(a) The precise location and boundaries of the proposed oil or gas facility containing all mineral estate fee interests, or oil and gas leases in the same ownership. Such location and boundaries shall be shown on a detailed topographical map. The location of the project shall also appear on a regional map.

(b) A statement of the objectives sought by the proposed oil or gas facility. A clearly written statement of objectives will help the County develop a reasonable range of alternatives to evaluate in the draft EIR and will aid the Board in preparing findings. The statement of objectives should include the underlying purpose of the project.

(c) A general description of the oil and gas project’s technical, economic, and environmental characteristics, considering the principal engineering proposals if any and supporting public service facilities.

(d) A statement briefly describing the intended uses of the draft and final EIRs.

(1) This statement shall include, to the extent that the information is known to the County,

(A) A list of the state, regional and federal agencies that may be expected to use the EIRs in their decision-making, and

(B) A list of permits and other governmental approvals required to implement the project, [and]

(C) A list of related environmental review and consultation requirements required by federal, state, or local laws, regulations, or policies.

(2) All the development approvals required for the oil and gas project shall be listed in the order in which they will occur.

9.6.1.6. 

Environmental Setting.

(a) A draft EIR must include a description of the physical environmental conditions in the vicinity of the project, as they exist at the time the notice of preparation is published, or if no notice of preparation is published, at the time environmental analysis is commenced, from both a County, sub-county area, regional, and state perspective. This environmental setting will normally constitute the baseline physical conditions by which the County determines whether an adverse effect or impact is significant. The description of the environmental setting shall be no longer than is necessary to an understanding of the significant effects of the proposed oil and gas project and its alternatives.

(b) Knowledge of the County and regional setting is critical to the assessment of environmental impacts. Special emphasis should be placed on environmental resources that are rare or unique to the County and region and would be affected by the project. The draft EIR must demonstrate that the significant environmental effects and impacts of the proposed project were adequately investigated and discussed and it must permit the significant adverse effects or impacts of the project to be considered in the full environmental context.

(c) The draft EIR shall discuss any inconsistencies between the proposed oil or gas facility and the General Plan and the General Plan Oil and Gas Element and any applicable Regional Plans or Area Plan, including, but not limited to, the Galisteo Basin Area Plan. Regional plans include, but are not limited to, the applicable air quality attainment or maintenance plan, area-wide waste treatment and water quality control plans, regional transportation-land use plans, habitat conservation plans, natural community conservation plans, historic, cultural and archaeological site and preservation plans.

(d) Where a proposed oil or gas facility is compared with an adopted plan, the analysis shall examine the existing physical conditions at the time the notice of preparation is published, or if no notice of preparation is published, at the time environmental analysis is commenced as well as the potential future conditions discussed in the plan.

9.6.1.7.1. 

Consideration and Discussion of Environmental Impacts.

All phases of an oil and gas project must be considered when evaluating its effect and impact on the environment: planning, acquisition, development, and operation. The subjects listed below shall be discussed as directed in Sections 9.6.1.7.2, 9.6.1.7.3, and 9.6.1.7.4, preferably in separate sections or paragraphs of the draft EIR. If they are not discussed separately, the draft EIR shall include a table showing where each of the subjects is discussed.

(a) Significant Environmental Effects of the Proposed Project.

(b) Significant Environmental Effects Which Cannot be Avoided if the Proposed Project is Implemented.

(c) Significant Irreversible Environmental Changes Which Shall be Involved in the Proposed Project Should It be Implemented.

(d) Growth-Inducing Adverse Effects or Impacts of the Proposed Project.

(e) The Mitigation Measures Proposed to Minimize or Eliminate the Significant Effects or Impacts.

(f) Alternatives to the Proposed Project, Including No Oil or Gas Drilling

9.6.1.7.2. 

Consideration and Discussion of Significant Environmental Impacts.

(a) 

The Significant Environmental Effects of the Proposed Oil and Gas Project.

A draft EIR shall identify and focus on the significant environmental effects of the proposed oil and gas facility. In assessing the impact of a proposed oil and gas project on the environment, the County shall limit its examination to changes in the existing physical conditions in the affected area as they exist at the time the notice of preparation is published, or where no notice of preparation is published, at the time environmental analysis is commenced. Direct and indirect significant effects and impacts of the project on the environment shall be clearly identified and described, giving due consideration to both the short-term and long-term effects and impacts. The discussion shall include relevant specifics of the area, the resources involved, physical changes, alterations to ecological systems, changes induced in the human use of the land, health and safety problems caused by the physical changes, and other aspects of the resource base such as water, historical, cultural and archaeological resources, scenic quality, and adequacy of public facilities and services. The draft EIR shall also analyze any significant environmental effects the facility might cause by bringing development, and/or subsurface drilling projects into the area affected. For example, a draft EIR on an oil and gas facility astride an active fault line or other geological condition threatening to degrade groundwater resources should identify as a significant effect the seismic and geo-hydrological hazard.

(b) 

Significant Environmental Effects Which Cannot be Avoided if the Proposed Oil and Gas Project is Implemented.

Describe significant adverse effects and impacts, including those which can be mitigated but not reduced to a level of insignificance. Where there are effects and impacts that cannot be alleviated without imposing an alternative design, their implications and the reasons why the oil and gas project is being proposed shall be described.

(c) 

Significant Irreversible Environmental Changes Which Would be Caused by the Proposed Oil and Gas Project Should it be Implemented.

Uses of nonrenewable resources during the initial and continued phases of the oil and gas project may be irreversible since a large commitment of such resources makes removal or nonuse thereafter unlikely. Primary effects and impacts and, particularly, secondary effects and impacts (such as highway improvements required to provide access to a previously inaccessible area) generally commit future generations to similar uses. Irreversible damage can result from environmental accidents, spills, explosions or fires associated with the oil and gas project. Irretrievable commitments of resources should be evaluated to assure that such current consumption is justified. Any and all potential effects on global warming attributable to the Oil or Gas Facility must be thoroughly analyzed, including necessary mitigation to minimize such effects and impacts. Applicant must comply with all New Mexico state statutes and regulations regarding global warming. In addition, Applicant must use the best available technology to analyze, report and mitigate any global warming effect associated with the Oil or Gas Facility.

(d) 

Other Adverse Effects or Growth-Inducing Impacts of the Proposed Project.

Discuss other characteristics of the project which may encourage and facilitate other activities that could significantly affect the environment, either individually or cumulatively. Discuss the characteristics of the project, especially the drilling aspect of the project, which may decrease the area’s suitability for other uses such as residential, commercial, historical, cultural, archaeological, environmental, eco-tourism or scenic uses.

9.6.1.7.3. 

Consideration and Discussion of Mitigation Measures Proposed to Minimize Significant Effects.

(a) 

Mitigation Measures in General.

(1) The draft EIR shall describe feasible measures which could minimize significant adverse effects and impacts, including inefficient and unnecessary consumption of energy and irreversible pollution attributable to the project that contributes to global warming.

(A) The discussion of mitigation measures shall distinguish between the measures which are proposed by oil and gas facility proponents to be included in the project and other measures proposed by the County or other interested persons which are not included but the County determines could reasonably be expected to reduce adverse effects and impacts if required as conditions of approving the project. This discussion shall identify mitigation measures for each significant environmental effect identified in the draft EIR.

(B) Where several measures are available to mitigate an effect or impact, each shall be discussed and the basis for selecting a particular measure shall be identified. Formulation of mitigation measures shall not be deferred until the Special Use and Development Permit Phase. Measures shall specify performance standards which would mitigate the significant effect of the project and which may be accomplished in more than one specified way.

(C) Energy conservation measures, as well as other appropriate mitigation measures, shall be discussed when relevant.

(D) If a mitigation measure would cause one or more significant effects and impacts in addition to those that would be caused by the project as proposed, the adverse effects and impacts of the mitigation measure shall be discussed.

(2) Mitigation measures must be fully enforceable through the development order conditions, a development agreement, or other legally-binding instruments.

(3) Mitigation measures are not required for effects or impacts which are not found to be significant.

(4) Mitigation measures must be consistent with all applicable constitutional requirements.

(b) 

Mitigation Measures Related to Effects and Impacts on Historical, Cultural and Archaeological Resources.

(1) In some circumstances, documentation of a historical, cultural, or archaeological resource, by way of historic narrative, photographs or architectural drawings, as mitigation for the adverse effects and impacts of demolition of the resource will not mitigate the effects and impacts to a point where clearly no significant effect or impact on the environment would occur.

(2) The County should, whenever feasible, seek to avoid adverse effects and impacts on any historical resource of a cultural or archaeological nature. The following factors shall be considered and discussed in the draft EIR for an oil and gas facility involving such a cultural, historic or archaeological site:

(A) Preservation in place is the preferred manner of mitigating impacts to historic, cultural or archaeological sites. Preservation in place maintains the relationship between artifacts and the historical, cultural, and archaeological context. Preservation shall also avoid conflict with religious or cultural values of Indian communities associated with the site.

(B) Preservation in place may be accomplished by, but is not limited to, the following:

1. Planning construction to avoid all historical, cultural or archaeological sites;

2. Incorporation of sites within parks, greenspace, or other open space;

(C) When data recovery through excavation is the only feasible mitigation, a data recovery plan, which makes provision for adequately recovering the scientifically consequential information from and about the historical, cultural, or archaeological resource, shall be prepared and adopted prior to any excavation being undertaken. If an artifact must be removed during project excavation or testing, curation may be an appropriate mitigation.

(D) Data recovery shall not be required for an historical, cultural or archaeological resource if the County determines that testing or studies already completed have adequately recovered the scientifically consequential information from and about the archaeological or historical resource, provided that the determination is documented in the draft EIR.

9.6.1.7.4. 

Consideration and Discussion of Alternatives to the Proposed Project.

(a) 

Alternatives to the Proposed Project.

The draft EIR shall describe a range of reasonable alternatives to the project, or to the location, number of wells or co-location of wells of the project, which would feasibly attain some of the basic objectives of the project but would avoid or substantially lessen all of the significant and adverse impacts or effects of the project, and evaluate the comparative merits of the alternatives. A draft EIR is not required to consider alternatives which are infeasible. The County shall select the range of project alternatives for examination and shall publicly disclose its reasoning for selecting those alternatives.

(b) 

Purpose.

Because the draft EIR must identify ways to mitigate or avoid the significant and adverse impacts and effects that an oil and gas project may have on the environment, the discussion of alternatives shall focus on alternatives to the project or its location which are capable of avoiding or substantially lessening any significant effects of the project, even if these alternatives would impede the attainment of the project objectives, or would be more costly.

(c) 

Selection of a range of reasonable alternatives.

The range of potential alternatives to the proposed project shall include those that could feasibly accomplish some of the basic objectives of the project and could avoid or substantially lessen one or more of the significant effects. The draft EIR should briefly describe the rationale for selecting the alternatives to be discussed. The draft EIR should also identify any alternatives that were considered by the County but were rejected as infeasible during the scoping process and briefly explain the reasons underlying the County’s determination.

(d) 

Evaluation of alternatives.

The draft EIR shall include sufficient information about each alternative to allow meaningful evaluation, analysis, and comparison with the proposed project. A matrix displaying the major characteristics and significant or adverse environmental effects and impacts of each alternative may be used to summarize the comparison. If an alternative would cause one or more significant or adverse effects or impacts in addition to those that would be caused by the project as proposed, the significant effects of the alternative shall be discussed.

(e) 

“No project” alternative.

(1) The specified alternative of “no project” shall also be evaluated along with its effects and impacts. The purpose of describing and analyzing a no project alternative is to allow the County to compare the adverse effects and impacts of approving the proposed project with such effects and impacts of not approving the proposed project. The no project alternative analysis is not the baseline for determining whether the proposed project’s environmental effects or impacts may be significant or adverse, unless it is identical to the existing environmental setting analysis which does establish that baseline.

(2) The “no project” analysis shall discuss the existing conditions at the time the notice of preparation is published, or if no notice of preparation is published, at the time environmental analysis is commenced, as well as what would be reasonably expected to occur in the foreseeable future if the oil and gas project were not approved, based on current plans and consistent with available infrastructure and community services. If the environmentally superior alternative is the “no project” alternative, the draft EIR shall also identify an environmentally superior alternative among the other alternatives.

(3) A discussion of the “no project” alternative shall proceed as follows:

(A) The “no project” alternative is the circumstance under which the oil and gas project does not proceed. Discussion shall compare the environmental effects of the property remaining in its existing state against the environmental and adverse public nuisance effects and impacts which would occur if the project were to be approved. If disapproval of the project under consideration would result in predictable actions by others, such as the proposal of some other oil and gas project, this “no project” consequence should be discussed. In certain instances, the no project alternative means “no build” and/or “no drill” so the existing environmental setting is maintained. However, where failure to proceed with the project will not result in preservation of existing environmental conditions, the analysis should identify the practical result of the project’s non-approval.

(B) After defining the no project alternative using one of these approaches, the County shall proceed to analyze the effects and impacts of the no project alternative by projecting what would reasonably be expected to occur in the foreseeable future if the project were not approved, based on current plans and consistent with available infrastructure and community services.

(f) 

Rule of reason.

The range of alternatives required in the draft EIR is governed by a “rule of reason” that requires the draft EIR to set forth those alternatives necessary to permit a reasoned choice. The alternatives shall be limited to ones that would avoid or substantially lessen any of the significant adverse effects or impacts of the project. The range of feasible alternatives shall be selected and discussed in a manner to foster meaningful public participation and informed decision-making.

(1) 

Feasibility.

Among the factors that may be taken into account when addressing the feasibility of alternatives are site suitability, economic use and value viability, availability of infrastructure, general plan and area plan consistency, other plans or regulatory limitations, jurisdictional boundaries (projects with a significant effect or impact should consider the countywide context), and whether the applicant can reasonably acquire, control or otherwise have access to an alternative site in the same ownership. No one of these factors establishes a fixed limit on the scope of reasonable alternatives.

(2) 

Alternative locations.

(A) 

Key question.

The key question and first step in analysis is whether any of the significant effects of the project would be avoided or substantially lessened by putting the project in another location within the same ownership. Only locations that would avoid or substantially lessen any of the significant effects of the project need be considered for inclusion in the draft EIR.

(B) 

None feasible.

If the County concludes that no feasible alternative locations within the same ownership exist, it must disclose the reasons for this conclusion, and should include the reasons in the draft EIR.

(3) The draft EIR need not consider an alternative whose effect cannot be reasonably ascertained and whose implementation is remote and speculative.

9.6.1.8. 

Organizations and Persons Consulted.

The draft EIR shall identify all federal, state, or local agencies, Indian communities, or other organization, and interested persons consulted in preparing the draft EIR.

9.6.1.9. 

Discussion of Cumulative Impacts.

(a) The draft EIR shall discuss cumulative effects and impacts of a project when the project’s incremental effect and impact is cumulatively considerable.

(1) A cumulative effect and impact is created as a result of the combination of the project evaluated in the draft EIR together with other oil and gas projects causing related effects and impacts. A draft EIR should not discuss other project effects and impacts which do not result in part from the oil and gas project evaluated in the draft EIR.

(b) The discussion of cumulative effects and impacts shall reflect the severity of the effects and impacts and their likelihood of occurrence. The discussion should focus on the cumulative effects and impacts to which the identified other projects contribute rather than the attributes of other projects which do not contribute to the cumulative effect and impact. The following elements are necessary to an adequate discussion of significant cumulative impacts:

(1) Either:

(A) A list of past, present, and probable future oil and gas projects producing related or cumulative impacts, including, if necessary, those projects outside the control of the County, or

(B) A summary of projections of other residential, commercial, industrial, agricultural or mining development contained in the general plan oil and gas element or in the LESA Map and Factors describing the Galisteo Basin area conditions contributing to the cumulative impact.

(2) When utilizing a list, as suggested in paragraph (1) of subdivision (b) factors to consider when determining whether to include a related oil and gas project should include the nature of each environmental resource being examined, the location of the project and its type. Location may be important, for example, when water quality impacts are at issue or when an impact is specialized, such as a particular air pollutant or mode of traffic.

(3) The County shall define the geographic scope of the area affected by the cumulative effect and impact and provide a reasonable explanation for the geographic scope utilized.

(4) A summary of the expected environmental effects to be produced by those projects with the specific reference to additional information stating where that information is available, and

(5) A reasonable analysis of the cumulative impacts of the relevant projects. A draft EIR shall examine reasonable, feasible options for mitigating or avoiding the project’s contribution to any significant cumulative effects or impacts.

(c) Approved land use documents including the General Plan, the General Plan Oil and Gas Element, Area Plans, including but not limited to the Galisteo Basin Area Plan shall be used in emulative impact analysis. A pertinent discussion of cumulative effects and impacts, contained in one or more previously certified final EIR oil and gas projects may be incorporated by reference.

9.6.1.10. 

Procedures For Adopting the Draft EIR.

9.6.1.10.1. Two public hearings shall be held by a Hearing Officer prior to submission of the draft EIR to the Board for consideration and adoption of a Final EIR.

9.6.1.10.2. The first public hearing shall be held early in the process of gathering data and information, so that the public has the opportunity to input into the EIR process. The second public hearing shall be held upon the consultants’ completion of the draft EIR. Upon receiving public comments, testimony and evidentiary exhibits at the first public hearing, the Hearing Officer shall forward such information to the consultants for inclusion in the draft EIR that will be forwarded to the Board for consideration in adopting the Final EIR.

9.6.1.11. 

Contents of Final Environmental Impact Report.

The final EIR shall consist of:

(a) The draft EIR or a revision of the draft.

(b) Comments and recommendations received on the draft EIR either verbatim or in summary by the applicant.

(c) The responses and recommendations of interested persons, organizations, Indian communities and State, Federal, or other public agencies and utilities commenting on the draft EIR.

(d) The responses of the County to significant environmental points raised in the review and consultation process.

(e) Any other information added by the County.

9.6.1.12. 

Adoption of Final Environmental Impact Report.

The final EIR shall be adopted by the Board at the public hearing held concurrently for development approval of the application for an Oil and Gas Overlay Zoning District Classification.

SECTION 9.6.2 ADEQUATE PUBLIC FACILITIES AND SERVICES ASSESSMENT.

9.6.2.1. 

PURPOSE AND FINDINGS.

An adequate public facilities and services assessment (“APFA”) ties a development approval of an application for an Oil and Gas Overlay Zone District Classification to the availability of infrastructure and public service capacity measured by adopted levels of service (LOS) in the Capital Improvement Plan, Budget and Program.

The APFA shall be used to deny overlay zoning applications or to time and sequence the oil and gas project based on availability of public facilities and public services as shown in an adopted, funded, and prioritized capital improvements plan, budget and program (CIP). A public improvement or assessment district assessment, rates, taxes or charges and provision in development agreements shall also be used for financing off-site infrastructure and public services attached to development approvals.

The applicant shall make a cash, certified or bank check, or letter of credit, deposit, to cover all of the County’s expenses in reviewing the APFA, engaging consultants, and for a Hearing Officer to conduct the first public hearing on the APFA. The County will provide an estimate of the cost of conducting the study, which shall provide the basis for the initial deposit. The applicant shall make additional deposits if the initial deposit is inadequate to reimburse the County for the costs of the study, and the County shall refund any unexpended funds on deposit after the study is completed.

An APFA is required prior to consideration by the Board of an application for an Oil and Gas

Overlay Zoning District Classification as follows:

(a) 

Adequate public facilities and services (“APF”):

These include water, stormwater and liquid material management and detention, police, emergency response services, fire protection, solid waste, and roads.

(b) 

Establishing Levels of Service:

Levels of service shall be established in the CIP, attached to this Ordinance as Exhibit “C” [on file in the offices of the county].

(c) 

Existing facilities:

When determining whether adequate capacity exists, both existing facilities and service capabilities and those included in the CIP are counted.

(d) 

Reservation of capacity.

When an oil and gas project is reviewed, the amount of pipeline capacity it utilizes must be debited against available capacity for future projects.

(e) 

Application:

If the LOS is not met, development approval can either be denied or the development may be timed and sequenced so that future stages of the project are approved only when adequate public facilities and services are available. Oil and gas projects are given the option to voluntarily advance capacity through a development agreement in order to obtain development approval.

9.6.2.2. 

Determination of Adequacy of Public Facilities and Services.

The APFA shall determine that:

(a) The application meets APF standards where public facilities and services are available at the adopted LOS.

(b) The application shall be denied where adequate public facilities and services are not available at the adopted LOS; or

(c) The application shall be approved conditioned to timing, sequencing and phasing of development of oil and gas wells until all public facilities and services are available for the year the CIP shows that facilities and services will be built and available if public facilities and services in the impact area are not presently adequate to meet the adopted LOS for the entire oil and gas project, in the same ownership, consistent with the requirements of Table 3-1 in section 9.6.3.1.

9.6.2.3. 

Oil and Gas Overlay Zoning District Classification Adverse Effects and Impacts.

An Oil and Gas Overlay Zoning District Classification may create a range of potential adverse effects and impacts and shall be reviewed as if the greatest adverse effect and impact results. The review of adequacy of public facilities and services for the application shall compare the capacity of public facilities and services to the maximum projected demand that may result from the proposed overlay zoning based upon the maximum density of oil and gas wells in the project and relevant affected areas. The adequacy of roads and highways shall be considered in relation to the full weight load of trucks and tankers carrying oil to refineries. Nothing in this section authorizes a development approval that would otherwise be inconsistent with the General Plan or any Area Plan.

9.6.2.4. 

Scope of Adequate Public Facilities and Services Assessment.

A determination of adequacy of public facilities and services for an oil and gas project finds that:

(a) Public facilities and services are available at the time of issuance of a development order approving the Oil and Gas Overlay Zoning District Classification; and

(b) Public facilities and services are deemed to be available at all subsequent stages of the development approval process through approval of a Special Use and Development Permit, Grading and Building Permits and the Certificate of Completion. Availability of facilities and services, present and future, shall be assured through a development agreement between the applicant and the County, in which case the public facilities will be considered to be available for the duration of the development agreement.

9.6.2.5. 

Duration.

A development order determining that public facilities and services are adequate is valid until the earlier of one of the following:

(a) The expiration of the development order or development agreement; or

(b) If no expiration period is provided in the development order or development agreement, the determination expires unless construction commences on at least one oil and gas well within two years after approval, and on at least 25 percent of all of the oil and gas wells within three years after approval.

9.6.2.6.1. 

Advancement of Public Facilities and Services Capacity.

In order to avoid denial or phasing of the oil or gas facility under the APF standards the applicant may voluntarily propose, through entering into a development agreement with the County, to construct or to secure funding for the public facilities and services necessary to provide capacity to accommodate the proposed development at the adopted LOS and at the time that the impact of the development will occur as an alternative to the denial or deferral of development consistent with the requirements of this section. Such development agreement may require an applicant to pay more than its roughly proportional share of infrastructure needs generated by the proposed oil or gas facility subject to subsequent reimbursement when appropriate.

9.6.2.6.2. 

Standards.

No advancement of capacity for public facilities and services needed to avoid a deterioration in the adopted LOSs shall be accepted by the County unless:

(a) The proposed public facility is a prioritized and funded capital improvement shown in the adopted CIP; or

(b) Appropriate conditions shall be included to ensure that the applicant will obtain any necessary approvals for construction of the public facilities from any agency other than the County.

9.6.2.6.3. 

Construction Commitment.

The commitment for construction or advancement of public facilities and services prior to the oil and gas overlay zoning approval shall be included as a condition of the development approval. The commitment shall contain, at a minimum, the following:

(a) For planned capital improvements or services, either a finding that the planned capital improvement or service is included within the CIP for the year in which construction of the project is scheduled or the applicant commits to advancing the facilities and services;

(b) An estimate of the total financial resources needed to construct or expand the proposed public facilities and services, and a description of the incremental cost involved;

(c) A schedule for commencement and completion of construction or expansion of the planned capital improvement and service with specific target dates for multiphase or large-scale capital improvements projects;

(d) A statement that the planned capital improvement and service is consistent with the General Plan, any Area Plan and the County’s CIP;

(e) A statement that the planned capital improvement and service is consistent with any ordinances relating to the construction and design of the public facility and service; and

(f) If the planned capital improvement and public service proffered by the applicant will provide capacity exceeding the demand generated by the proposed oil and gas project, but is needed to meet past deficiencies reflected in the overall capacity needed for the project, reimbursement shall be offered to the applicant for the pro rata cost of the excess capacity for the year in which the capital facility or service would have been built as shown in the prioritized CIP or from any funds paid by subsequent oil and gas development projects.

9.6.2.7. 

Partial Construction or Funding.

The construction or funding of only a portion of a public facility or service needed to meet the adopted LOS shall be approved only where:

(a) The public facility will be able to provide the capacity needed to meet the adopted LOS, and will be fully usable and operational, due to the characteristics of the facility; or

(b) The construction or funding of the balance of the public facility that is needed to meet the adopted LOS will be generated from other sources.

9.6.2.8. 

Financing of Adequate Public Services.

The applicant for an Oil and Gas Overlay Zoning District Classification shall provide for annual funding of all fire, police and emergency response services and county road maintenance and repair, the need for which is generated by the oil and gas project, to the extent that the property tax revenues from the project are inadequate to cover such annual funding, Such annual funding shall be provided for in the development agreement to be entered into between the County and the applicant as a condition of development approval of the Oil and Gas Overlay Zoning District Classification. If additional Oil or Gas Facilities are approved, the annual funding contribution shall be apportioned among all projects so approved.

SECTION 9.6.3 METHODOLOGY.

9.6.3.1. 

Methodology.

No determination as to compliance with this section shall be recommended by the County unless adequate public facilities and services are available at the adopted level of service set forth in Table 3-1 as follows:

[Table 3-1]
Facilities & Services	Level of Service (LOS) per 1,000 Residents*
Fire Department
Vehicles (Number)	1.55
Building (GSF)	1,977
Personnel (Number, Career & Volunteer)	4.27
Average Response Time (2006; approx)	10 mins
Fire Station Service Area (est)	4 miles
ISO Rating	7/9
Sheriff’s Department
Vehicles (Number)	1.82
Building (GSF)	91
Personnel (Number, Career)	1.44
Average Response Time (2007; approx):
Priority 1	26 mins
Priority 2	24 mins
Priority 3	41 mins
Priority 4	27 mins
Priority 5	21 mins
Priority 7	36 mins
Roads
Road Capacity	LOS “C”
Road Design	See Subdivision Regulations (Sec. 8.2, App 5.A, App B.1-B.3 [sic])

9.6.3.2. 

Level of Service Standards.

Compliance with LOS standards shall be measured for each public facility and service set forth in Column (A) of Table 3-1 in accordance with the corresponding standards set forth in Column (B) of Table 3-1.

9.6.3.3. 

Adequacy of Public Facilities.

Public facilities and services shall be adequate if it is demonstrated that they have available capacity at the adopted LOS to accommodate the demand generated by the proposed Oil or Gas Facility as well as committed pipeline Oil or Gas Facilities and other residential and nonresidential development approvals in accordance with the following calculation methodology:

(a) Calculate total capacity by adding together the total capacity of each public facility and service.

(b) Calculate available capacity by subtracting from the total capacity the sum of:

(1) The demand for each public facility and service created by existing oil and gas project;

(2) The demand for each public facility created by the anticipated completion of committed oil and gas project pipeline projects; and

(3) The demand for each public facility created by the anticipated completion of the proposed oil and gas project under consideration for determination.

9.6.3.4. 

Mitigation.

The APFA shall consider mitigation measures for alleviating public facility and service inadequacy:

(a) Phasing, timing and sequencing the subsequent SUDP so that no SUDP development order is issued before roads, fire, police, emergency service or stormwater drainage facilities needed to achieve the LOS standard are constructed; and

(b) Measures that allow the road network to function more efficiently by adding sufficient capacity to the off-site road system. Such mitigation measures may include, but are not limited to, pavement widening, turn lanes, median islands, access controls, or traffic signalization. All private roads must meet the same standards as provided for public roads in the Santa Fe County Oil and Gas and Growth Management Elements. Private roads will only be permitted if the Applicant enters into a development agreement for which construction, operation, maintenance standards and financial terms will be provided in the development agreement.

9.6.3.5. 

Fire, Police, and Emergency Services.

Needed fire flow shall be determined in accordance with the Insurance Services Office, “Fire Suppression Rating Schedule” (June 1980 edition). In determining the effect and impact of the proposed development on fire, police, and emergency service LOS, the County shall primarily take into consideration response times, and the number and location of available apparatus and fire, police, and emergency service stations that are manned by full-time professional service personnel. Calculation of response time shall include the time it takes volunteer emergency personnel to get to the station.

9.6.3.6. 

Water.

(a) Oil and Gas Overlay Zoning District Classification applications shall be analyzed with respect to the availability of adequate potable water, and shall be determined pursuant to the following information obtained from the required Water Availability Assessment to determine:

(1) System capacity;

(2) Capacity of wellfield, or other source of raw water supply;

(3) Historical average flow of potable water;

(4) Historical peak flow of potable water;

(5) Number of hook-ups and the estimated potable water demand per hook-up; and

(6) Number of hook-ups for which contractual commitments have been made.

(b) The development order of the County shall provide findings based on substantial evidence that the project is within its service area and that it has the capacity to serve the project as proposed. If the ability of a provider to serve a proposed development is contingent upon planned facility expansion in accordance with a CIP, details regarding such planned improvements shall be submitted.

(c) The determinations in this Section shall be made a part of the Water Availability Assessment.

SECTION 9.6.4 CAPITAL IMPROVEMENTS AND SERVICES BUDGET, PLAN AND PROGRAM (“CIP”)

The CIP is the mechanism by which the County shall measure the availability of new public facilities and services and expansion of existing capacity of public facilities and services, the need for which is generated by oil and gas projects. Revenue from oil and gas projects shall be utilized to supplement capital improvements and services provided by the County and State.

The applicant shall make a cash, certified or bank check, or letter of credit, deposit, to cover all of the County’s expenses in reviewing the CIP, engaging consultants, and for a Hearing Officer to conduct the first public hearing on the CIP. The County will provide an estimate of the cost of conducting the study, which shall provide the basis for the initial deposit. The applicant shall make additional deposits if the initial deposit is inadequate to reimburse the County for the costs of the study, and the County shall refund any unexpended funds on deposit after the study is completed.

The CIP shall:

(a)	Prioritize the need for public facilities and services subject to this section;
(b)	Estimate the cost of improvements for deficiencies or repairs needed to assure availability of public facilities and services for the Oil or Gas Facility;
(c)	Analyze the fiscal capability of the County and State to finance and construct improvements;
(d)	Establish financial policies to provide for the funding of improvements and services from grants, project exactions and impact fees, development agreements, money in lieu of land, dedications of land, taxes, assessments, rates, and charges; and
(e)	Schedule the funding, prioritization, and construction of improvements in a manner necessary to ensure that capital improvements and services are provided when required based on all needs identified in the General Plan and General Plan Oil and Gas Element.

9.6.4.1. 

Capital Improvements Data Requirements.

The CIP shall be based upon:

(a) Public facility and service needs as identified in the General Plan and applicable Area Plan. Where the General Plan Oil and Gas Element does not identify a need for public facilities and services within a given category, public facility and service needs shall be determined on the basis of the Oil and Gas Adequate Public Facility and Traffic Impact Assessments;

(b) The geographic service area and location of major system components for each public facility and service shall be identified; and

(c) Existing revenue sources and funding mechanisms available for capital improvement and public services financing shall be inventoried for each public facility and service.

9.6.4.2. 

Capital Improvements Analysis Requirements.

The CIP shall be based upon the following analyses:

(a) Current county practices that guide the timing, phasing, priority, and location of construction, extension, or increases in capacity of each public facility and service;

(b) The fiscal implications of existing deficiencies and future needs for each type of public facility and service. This analysis shall be based on the needed improvements and services as identified by applying the LOS within each impact area, and shall address the relative priority of need among facility types and shall be derived in part from the Fiscal Impact Assessment.

(c) The costs of needed capital improvements and services for mitigation of existing deficiencies, replacement, and new growth needs;

(d) The basis of cost estimates; and

(e) An assessment of the County is [sic] and the Oil and Gas project’s ability to finance capital improvements and services based upon anticipated population and revenues, including:

(1) Forecasting of revenues and expenditures for five years;

(2) Projections of debt service obligations for currently outstanding bond issues;

(3) Projection of improvement district ad valorem taxes, charges, rates and assessments;

(4) Projections of other tax bases and other revenue sources, such as development agreement financing, dedications, exactions, impact fees, and service charges;

(5) Projection of operating cost considerations; and

(6) Projection of debt capacity.

9.6.4.3. 

Requirements for Capital Improvements and Public Services Implementation.

The CIP shall contain:

(a) The five-year capital improvement budget of year-by-year capital improvements that the County has accepted to reduce existing deficiencies, to remain abreast of replacements, and to meet future demand;

(b) Project description and general location;

(c) A list of projected costs and revenue sources by type of public facility and public services for the five-year period; and

(d) A five (5) to fifteen (15) year Capital Improvement Plan and Program for public facility and service needs beyond the five (5) year capital improvement budget.

9.6.4.4. 

Standards for Exploratory Well Applications.

An application for an Oil and Gas Overlay Zoning District Classification consisting of only an exploratory well (or wells) is subject to all Over Lay Zone District Requirements including Studies, Reports and Assessments and is exempt only from paying for long-term CIP facilities. Applicants for exploratory wells shall provide all other CIP facilities and costs required by this Ordinance, including but not limited to, access services and all other necessary construction, operation and maintenance of infrastructure. Exploratory wells shall adhere to all SUDP performance standards, including the mitigation of noise and light disturbances. If after exploration, the Applicant seeks to further develop the site, a new application must be submitted with supplemental reports, assessments and studies that analyze and mitigate any development beyond those applicable to the previously approved exploratory well, including an Adequate Public Facilities Assessment, taking into account long-term CIP facilities, operations and maintenance.

No exploratory well may be produced without the application and supplemental reports, assessments and studies described above. An application for an exploratory well allows only exploration, no production of the well.

SECTION 9.6.5 WATER AVAILABILITY ASSESSMENT.

9.6.5.1. A Water Availability Report required for an application for an Oil and Gas Overlay Zone District Classification shall include:

9.6.5.1.1 An evaluation of a 50-year water supply for the oil and gas project;

9.6.5.1.2 An assessment of water supplies which addresses whether the total projected water supplies available during normal, single-dry and multiple-dry water years during a 50-year projection will meet the projected water demand associated with the proposed project, in addition to existing and planned use.

9.6.5.1.3 The applicant must identify any public water system or water company that may supply water for the project and request an assessment from each. The governing body of the water supplier must approve the assessment at a regular or special meeting. The public water system is to provide the assessment not later than 90 days after receiving a request from the applicant.

9.6.5.1.4 If there is no public water system, then the County shall prepare the assessment after consulting with any domestic water supplier whose service area includes the project site and any public water system adjacent to the project site.

9.6.5.1.5 The assessment must identify relevant, existing water supply entitlements, water rights, or water service contracts, and describe the quantities of water received in prior years. The identification shall be demonstrated by the applicant providing information related to all of the following:

(a) written contracts or other proof of entitlement to an identified water supply,

(b) copies of a capital outlay program for financing the delivery of a water supply that has been adopted by the public water system,

(c) federal, state, and local permits for construction of necessary infrastructure associated with delivering the water supply,

(d) any necessary regulatory approvals that are required in order to be able to convey or deliver the water supply.

9.6.5.2. If no water has been received in prior years under an existing entitlement, right, or contract, the assessment must identify other public water systems, water companies, or water service contract holders that receive a water supply or have existing entitlements, rights, or contracts, to the same source of water.

9.6.5.3. 

Supplies to Remedy Insufficiency:

If the public water system’s total projected water supplies available during a 50-year projection are insufficient, then the applicant must identify plans to acquire additional supplies that may include, but are not limited to:

9.6.5.3.1 The estimated total costs, and the proposed method of financing the costs, associated with acquiring the additional water supplies for the oil or gas facility,

9.6.5.3.2 All federal, state, and local permits, approvals, or entitlements that are anticipated to be required in order to acquire and develop the additional water supplies, and

9.6.5.3.3 The estimated timeframes within which the public water system or water company expects to be able to acquire additional water supplies.

9.6.5.4. If a water supply for a proposed project includes groundwater, the following additional information shall be included in the water supply assessment:

9.6.5.4.1 A review of any information contained in a water management plan relevant to the identified water supply for the proposed project,

9.6.5.4.2 A description of any groundwater basin or basins from which the proposed project will be supplied,

(a) For those basins for which a court or the board has adjudicated the rights to pump groundwater, a copy of the order or decree adopted by the court or the board and a description of the amount of groundwater the public water system has the legal right to pump under the order or decree.

(b) For basins that have not been adjudicated, information as to whether the State Engineer has identified the basin or basins as over-drafted or has projected that the basin will become over-drafted if present management conditions continue, in the most current information of the State Engineer that characterizes the condition of the groundwater basin, and a detailed description by the public water system of the efforts being undertaken in the basin or basins to eliminate the long-term overdraft condition.

9.6.5.5. A detailed description and analysis of the amount and location of groundwater pumped by the public water system for the past five years from any groundwater basin from which the proposed project will be supplied. The description and analysis shall be based on information that is reasonably available, including, but not limited to, historic use records.

9.6.5.6. A detailed description and analysis of the amount and location of groundwater that is projected to be pumped by the public water system, from any basin from which the proposed project will be supplied. The description and analysis shall be based on information that is reasonably available, including, but not limited to, historic use records.

9.6.5.7. An analysis of the sufficiency of the groundwater from the basin or basins from which the proposed project will be supplied to meet the projected water demand associated with the proposed project.

Editor’s note–The preceding subsections were renumbered to prevent duplicate numbering.

9.6.5.8. County’s Ability to Override Public Water Agency’s Determination: The County shall include an evaluation of the assessment in the EIR and in the Water Availability Report.

9.6.5.9. The County shall determine, based on the entire record, whether projected water supplies will be sufficient to satisfy the demands of the project, in addition to existing and planned future uses. If the County determines that water supplies will not be sufficient, the County shall include that determination in its findings for the Water Availability Report.

9.6.5.10. If the project has been the subject of an assessment that complies with the requirements of this Section, than [then] no additional water supply assessment shall be required for subsequent projects that were part of a larger oil and gas project for which water supplies were found sufficient. Exceptions are:

9.6.5.10.1 Changes in the oil and gas project that will substantially increase water demand,

9.6.5.10.2 Changes in circumstances that substantially affect the ability to provide a sufficient water supply, and

9.6.5.10.3 Significant new information as it becomes known.

9.6.5.11. The applicant shall make a cash, certified or bank check, or letter of credit, deposit, to cover all of the County’s expenses in reviewing the Water Availability Assessment, engaging consultants, and for a Hearing Officer to conduct the first public hearing on the Water Availability Assessment. The County will provide an estimate of the cost of conducting the study, which shall provide the basis for the initial deposit. The applicant shall make additional deposits if the initial deposit is inadequate to reimburse the County for the costs of the study, and the County shall refund any unexpended funds on deposit after the study is completed.

SECTION 9.6.6 TRAFFIC IMPACT ASSESSMENT.

9.6.6.1. 

GENERAL.

The intent of this section is to provide the information necessary to allow the Board to assess the transportation effects and impacts of site-generated traffic associated with a proposed oil and gas project. The information in the Traffic Impact Assessment will be coordinated with the Adequate Public Facilities and Services Assessment and the draft EIR.

The isolated and cumulative adverse effects and impacts of the proposed project to the traffic shed need to be understood in relation to the existing and future required capacity of the County and State road system, and to ensure that traffic capacity will be provided at established levels of service so as not to hinder the passage of police, fire and emergency response vehicles, oil tankers to and from the project site, degrade the quality of life, or contribute to hazardous traffic conditions. This section establishes requirements for the analysis and evaluation of adverse transportation effects and impacts associated with proposed oil and gas projects.

The applicant shall make a cash, certified or bank check, or letter of credit, deposit, to cover all of the County’s expenses in reviewing the Traffic Impact Assessment, engaging consultants, and for a Hearing Officer to conduct the first public hearing on the Traffic Impact Assessment. The County will provide an estimate of the cost of conducting the study, which shall provide the basis for the initial deposit. The applicant shall make additional deposits if the initial deposit is inadequate to reimburse the County for the costs of the study, and the County shall refund any unexpended funds on deposit after the study is completed.

9.6.6.2. 

PURPOSE.

Purpose and findings: The purpose of the traffic impact assessment is to identify the impacts on capacity, adopted level of service (LOS), and safety, which are likely to be created by the proposed oil and gas project. The traffic impact assessment shall identify the improvements needed to:

9.6.6.2.1 Ensure safe ingress to and egress from the site;

9.6.6.2.2 Maintain adequate road capacity on the County and State road system to accommodate all traffic to and from the site generated by the project;

9.6.6.2.3 Ensure safe and reasonable traffic operating conditions on roads and at intersections through which traffic to and from the site passes;

9.6.6.2.4 Avoid creation of or mitigate unsafe and hazardous traffic conditions from heavy weights of oil trucks and tankers traveling to and from the site;

9.6.6.2.5 Minimize the impact of nonresidential traffic on residential neighborhoods in the County;

9.6.6.2.6 Protect the substantial public investment in the existing road system;

9.6.6.2.7 Provide a basis for approving, modifying, or denying an application for an Oil and Gas Overlay Zoning District Classification based upon the adequacy or deficiency of the County and State road systems to handle the needs generated by the project; and

9.6.6.2.8 Provide a basis for applicant financing of all County and State road improvements as shown on the CIP through use of development agreements and/or Improvement District Assessments for capacity needs.

9.6.6.2.9 To evaluate whether adequate traffic capacity exists or will be available at the time a development order is granted for the application for the Oil and Gas Overlay Zone District Classification to safely and conveniently accommodate the traffic generated by the project on the County and State road system;

9.6.6.2.10 To evaluate traffic operations and impacts at site access points under projected traffic loads;

9.6.6.2.11 To evaluate the impact of site-generated traffic on affected intersections in the County;

9.6.6.2.12 To evaluate the impact of site-generated traffic on the safety, capacity and quality of traffic flow on public and private roads within the County;

9.6.6.2.13 To evaluate the impact of the proposed project on residential roads from the traffic to and from the site;

9.6.6.2.14 To ensure that site access and other improvements needed to mitigate the traffic impact of the development utilize County and State accepted engineering design standards and access management criteria;

9.6.6.2.15 To establish the monetary contribution that the applicant will be required to provide to the County or to any established area improvement district for the provision of all roads and highways shown on the CIP, the need for which is generated by the oil and gas facility;

9.6.6.2.16 To ensure that the proposed road layout is consistent with the public roadway design standards;

9.6.6.2.17 To ensure the proper design and spacing of site access points and identify where limitations on access should be established;

9.6.6.2.18 To ensure that potential safety problems on all roads to be used within the County have been properly evaluated and addressed;

9.6.6.2.19 To ensure that internal circulation patterns will not interfere with traffic flow on the existing County and State road system;[.]

9.6.6.3. 

PREPARATION.

The applicant shall deposit with the application for the Oil and Gas Overlay Zoning District Classification such funds as are necessary for the County to engage a traffic consultant with experience in the preparation of traffic impact assessment.

9.6.6.4. 

TRAFFIC SERVICE STANDARDS.

The standards for traffic service that shall be used to evaluate the findings of traffic impact assessment are as follows:

9.6.6.4.1 

Capacity:

A volume-to-capacity (V/C) ratio of 0.80 shall not be consistently exceeded on any freeway or expressway as designated on the thoroughfare plan, and a V/C ratio of 0.90 shall not be consistently exceeded on any arterial or collector street as designated on the thoroughfare plan. “Consistently” means that the V/C ratios are exceeded based on average daily peak-hour traffic counts, projections, or estimates.

9.6.6.4.2 

Level of service:

For corridors, including mainline, merging areas, and ramp junctions, an LOS C shall be maintained on any highway, freeway, or arterial, and an LOS C on any other designated nonlocal road on the transportation plan. At all intersections, an LOS C shall be maintained on any arterial or higher-order road and an LOS C on any other nonresidential road. Where the existing LOS is below these standards, the traffic impact report shall identify those improvements or transportation demand management techniques needed to maintain the existing LOS, and what additional improvements would be needed to raise the LOS to the standards indicated for the Overlay Zoning District Classification to be approved.

9.6.6.4.3 

Number of access points:

The number of access points provided shall be the minimum needed to provide adequate access capacity for the site. Evidence of LOS C operations for individual County and State road movements at access locations is a primary indication of the need for additional access points. However, the spacing and geometric design of all access points shall be consistent with the access management criteria of the LDC.

9.6.6.4.4 

Residential road impact:

Average daily traffic impinging on residential roads shall be within the ranges spelled out in the transportation plan for the class of road involved. No oil and gas project traffic shall increase the traffic on a residential road with at least 300 average daily trips by more than 15 percent, and shall contribute no more than 10 percent of the traffic on any road segment providing residential access.

9.6.6.4.5 

Traffic flow and progression:

The location of new traffic signals or proposed changes to cycle lengths or timing patterns of existing signals to meet LOS standards shall not interfere with the goal of achieving adequate traffic progression on major public roads in the County.

9.6.6.4.6 

Vehicle storage:

The capacity of storage bays and auxiliary lanes for turning traffic shall be adequate to insure that turning traffic will not interfere with through traffic flows on any public road.

9.6.6.4.7 

Internal circulation:

On-site vehicle circulation and parking patterns shall be designed so as not to interfere with the flow of traffic on any public road and shall accommodate all anticipated types of site traffic.

9.6.6.4.8 

Safety:

Access points and travel along all County and State roads within the County shall be designed to provide for adequate sight distance and appropriate facilities to accommodate acceleration and deceleration of site traffic. Where traffic from the proposed oil and gas project will impact any location with an incidence of high accident frequency the accident history should be evaluated and a determination made that the proposed site access or additional site traffic will not further aggravate the situation.

9.6.6.4.9 

Access Roads:

Shall not exceed 1.08 miles per section of road and shall contain a maximum width of twenty (20) feet paved surface based upon County road construction standards for heavy vehicles. Access roads shall be sited in a manner that mitigates or minimizes their impact on the environment and neighboring land uses.

9.6.6.4.10 

Private Roads:

All private roads must meet the same standards as provided for public roads in the Santa Fe County Oil and Gas and Growth Management Elements. Private roads will only be permitted if the Applicant enters into a development agreement for which construction, operation, maintenance standards and financial terms will be provided in the development agreement.

9.6.6.5. 

CONTENTS.

A traffic impact assessment shall contain [the following] information:

9.6.6.5.1 

Site description:

The traffic impact assessment shall contain illustrations and narratives that describe the characteristics of the site and adjacent land uses as well as future oil and gas projects for all transportation to and from the site to the nearest interchange on I-25 or S-285. A description of potential uses and traffic generation to be evaluated shall be provided. A description of the proposed oil and gas project, including access plans, staging plans, and an indication of the number and location of well sites on all land in the same ownership shall be provided.

9.6.6.5.2 

Study area:

The traffic impact assessment shall identify the geographic area under study and identify the roadway segments, critical intersections and access points to be analyzed for all transportation routes from the site to the nearest I-25 or S-285 interchanges.

9.6.6.5.3 

Existing traffic conditions:

The traffic impact report shall contain a summary of the data utilized in the study and an analysis of existing traffic conditions, including:

(a) Traffic count and turning movement information, including the source of and date when traffic count information was collected;

(b) Correction factors that were used to convert collected traffic data into representative design-hour traffic volumes;

(c) Roadway characteristics, including the design configuration of existing or proposed roadways, existing traffic-control measures (e.g., speed limits and traffic signals), and existing driveways and turning movement conflicts in the vicinity of the site; and

(d) Identification of the existing LOS for roadways and intersections without project development traffic using methods documented in the Highway Capacity Manual or comparable accepted methods of the latest ITE (International Traffic Engineers) evaluation. LOS should be calculated for the weekday peak hour and, in the case of uses generating high levels of weekend traffic, the Saturday peak hour.

9.6.6.5.4 

Horizon year(s) and background traffic growth:

The traffic impact assessment shall identify the horizon year(s) that were analyzed in the study, the background traffic growth factors for each horizon year, and the method and assumptions used to develop the background traffic growth. The impact of the project shall be analyzed for the year after the project is completed and 10 years after the development is completed.

9.6.6.5.5 

Time periods to be analyzed:

For each defined horizon year, specific time periods are to be analyzed. For oil and gas operations, this time period will be the weekday peak hours.

9.6.6.5.6 

Trip generation, reduction and distribution:

The traffic impact assessment shall summarize the projected peak hour and average daily trip generation for the proposed project and illustrate the projected trip distribution of trips to and from the site to the nearest interchange on I-25 or S-285, and should identify the basis of the trip generation, reduction, and distribution factors used in the study.

9.6.6.5.7 

Traffic assignment:

The traffic impact assessment shall identify projected design-hour traffic volumes for roadway segments, intersections, or driveways in the study area, with and without the proposed development, for the horizon year(s) of the study.

9.6.6.5.8 

Impact analysis:

The traffic impact assessment shall address the impact of traffic volumes of the projected horizon year(s) relative to each of the applicable traffic service standards and shall identify the methodology utilized to evaluate the impact. The weekday peak-hour impact shall be evaluated as well as the Saturday peak hour for those uses exhibiting high levels of weekend traffic generation.

9.6.6.5.9 At a minimum, the applicant shall be required at the time of development approval of the Oil and Gas Overlay Zoning District Classification to pay for applicant’s roughly proportional share of the cost for construction and operation and maintenance of all roads in the Capital Improvement Program for transportation facilities for the area in which the oil and gas project is located. If such roughly proportional share is insufficient to meet traffic adequacy, the applicant shall advance the cost of additional roadway system improvements and shall be reimbursed when additional oil and gas projects are approved.

9.6.6.5.10 

Mitigation/alternatives:

In situations where the traffic LOS standards are exceeded, the traffic impact assessment shall evaluate each of the following alternatives for achieving the traffic service standards by:

(a) Identifying where additional rights-of-way are needed to implement mitigation strategies;

(b) Identifying suggested phasing of improvements where needed to maintain compliance with traffic service standards;

(c) Identifying the animated cost of recommended improvements;

(d) If the applicant fails to advance improvements required in (i) [subsection (a)] above, the application for the Oil and Gas Overlay Zoning District Classification shall be denied for lack of adequate transportation system capacity, safety, and design.

9.6.6.6. 

PROCESS FOR THE REVIEW AND PREPARATION OF A TRAFFIC IMPACT ASSESSMENT.

This section provides an outline of the steps to be included in the preparation and review of a traffic impact assessment.

9.6.6.6.1 For the Galisteo Basin, the traffic impact assessment shall take into account the Capital Improvement Program for State and County road system improvement.

9.6.6.6.2 The traffic consultant shall meet with the applicant and the public to identify study issues, assumptions, horizon years, and time periods to be analyzed; analysis procedures; available sources of data; past and related studies; assessment requirements; and other topics relevant to study requirements.

9.6.6.6.3 Following initial completion of a traffic impact assessment, it shall be submitted to the Administrator for distribution to the County and State highway staffs involved in the construction and maintenance of public roadways serving the project.

9.6.6.6.4 Within 15 working days, County and State staff shall complete initial reviews to determine the completeness of the study and shall provide a written summary to the traffic consultant outlining the need for any supplemental analysis to adequately address the traffic service standards.

9.6.6.6.5 Following a determination that the technical analysis is complete, the traffic consultant shall prepare a report outlining recommendations that have been developed to address the findings and conclusions included in the study regarding the proposed development’s needs and impacts on the transportation system.

9.6.6.6.6 The traffic consultant’s recommendations will be presented to the Board as part of the proceedings for approval of the Oil and Gas Overlay District Classification application.

9.6.6.6.7 Mitigation based on the conclusions and findings resulting from the traffic impact report or analysis shall be required of the applicant. A development agreement, detailing the applicant’s responsibilities and the County’s responsibilities for implementing identified mitigation measures, shall be prepared following receipt of the traffic impact report.

9.6.6.7. 

TRAFFIC IMPACT ASSESSMENT FINDINGS.

9.6.6.7.1 If the traffic consultant finds that the proposed project will not meet applicable service-level standards, the traffic consultant shall recommend one or more of the following actions by the County or the applicant:

(a) Reduce the size, scale, scope, or number of well sites of the development to reduce traffic generation;

(b) Divide the project into phases and authorize only one phase at a time until traffic capacity is adequate for the next phase of development;

(c) Dedicate a right-of-way for street improvements;

(d) Construct new roads;

(e) Expand the capacity of existing roads;

(f) Redesign ingress and egress to the project to reduce traffic conflicts;

(g) Reduce background (existing) traffic;

(h) Eliminate the potential for additional traffic generation from undeveloped oil and gas properties in the vicinity of the proposed development;

(i) Integrate design components to reduce vehicular trip generation;

(j) Implement traffic demand management strategies (e.g., carpool or vanpool programs, flex time, and staggered work hours), to reduce vehicular trip generation; and

(k) Recommend denial or conditional approval of the application for the Oil and Gas Overlay Zoning District Classification.

SECTION 9.6.7 GEOHYDROLOGIC REPORT.

9.6.7.1. 

Geo-hydrologic Report Requirement.

9.6.7.1.1 A geo-hydrologic report shall be prepared to assess all geo-hydrologic information pertinent to the oil and gas project area including information from existing geology, hydrology or hydrogeology reports in the region of the oil and gas project area.

The applicant shall make a cash, certified or bank check, or letter of credit, deposit, to cover all of the County’s expenses in reviewing the Geohydrologic Report, engaging consultants, and for a Hearing Officer to conduct the first public hearing on the Geohydrologic Report. The County will provide an estimate of the cost of conducting the study, which shall provide the basis for the initial deposit. The applicant shall make additional deposits if the initial deposit is inadequate to reimburse the County for the costs of the study, and the County shall refund any unexpended funds on deposit after the study is completed.

9.6.7.1.2 The applicant shall drill sufficient exploratory wells to adequately characterize the aquifer and the vadose zone. A maximum of one (1) well per acre shall be authorized but up to three (3) wells per acre may be authorized if complex geohydrologic conditions so require.

(a) 

Borehole Geophysics Requirement

i. Electric Logs

1. Long and Short Resistivity

2. Spontaneous Potential

ii. Neutron Porosity

iii. Gamma-Gamma

iv. Caliper

v. Temperature

vi. Fluid Movement (Spinner)

(b) 

Pump Test Requirements

i. Pump tests should be designed to record drawdown at the well for a sufficient time to determine transmissivity of the aquifer. Duration of the test shall be a minimum of 24 hours.

ii. All tests should monitor the recovery of the water levels in all wells for the amount of time necessary for the water levels to return to the original level.

iii. Standard values for storage or specific yield listed in Exhibit 3 of the Hydrology Appendix to the Santa Fe County Development Code [sic] shall be utilized unless sufficient data is presented to justify an alternate storage or specific yield.

(c) 

Technical Specifications for Well Construction.

All such monitoring wells shall be constructed according to specifications provided by the Office of the State Engineer, and shall be properly plugged and abandoned when no longer required according to specifications provided by the Office of the State Engineer.

(d) Preparation of a 20 foot water table or potentiometric surface contour map covering a 2 mile radius from the project site showing depth to water and direction of groundwater flow.

(e) Preparation of Geologic Maps, cross-sections and descriptions of the aquifer and surface water systems including information of recharge areas, springs, boundaries and estimated thickness of saturated units.

9.6.7.1.3 

Water Quality.

(a) 

The applicant shall provide:

(1) an analysis of all single or multiple units or aquifers within a 2 mile radius of the project site;

(2) an analysis of all contaminant pathways leading from the project site to the aquifers in [subsection] (a)(1) above, including saturated sandy units within aquifers and unsaturated or vadose zone map;

(3) an unsaturated or vadose zone map; and

(4) an analysis of baseline water quality relating to:

(i) Up gradient Monitoring Wells;

(ii) Down gradient Monitoring Wells; and

(iii) Existing Wells

(5) recommendations for the location and type of groundwater monitoring stations.

SECTION 9.6.8 EMERGENCY RESPONSE AND PREPAREDNESS PLAN (“ERP Plan”).

An applicant for the Oil and Gas Overlay Zoning District Classification shall provide funds to the County to engage a professional consultant to provide an emergency preparedness and response plan (“ERP Plan”). The ERP Plan shall include a provision for the oil and gas operator to reimburse the appropriate emergency response service providers for costs incurred in connection with an emergency, This plan shall be filed with the County at the time of application for the Oil and Gas Overlay District Classification and shall be updated on an annual basis or as conditions change (e.g. turnover in responsible field personnel, change in substances used). The ERP Plan shall consist of the following information, at a minimum:

The applicant shall make a cash, certified or bank check, or letter of credit, deposit, to cover all of the County’s expenses in reviewing the ERP, engaging consultants, and for a Hearing Officer to conduct the first public hearing on the ERP. The County will provide an estimate of the cost of conducting the study, which shall provide the basis for the initial deposit. The applicant shall make additional deposits if the initial deposit is inadequate to reimburse the County for the costs of the study, and the County shall refund any unexpended funds on deposit after the study is completed.

9.6.8.1. Name, address and phone number, including a 24-hour emergency number of at least two persons responsible for emergency field operations;

9.6.8.2. A printed map, including GPS coordinates, showing the name, location, and description of all potentially dangerous facilities, including, but not limited to, the size and type of all pipelines, wells, and isolation valves. The map shall be prepared digitally on the County geographic information system parcel maps. The as-built facilities map that includes the information regarding the location of isolation valves shall be held confidentially by the County’s emergency management officer or other County designee, and shall only be disclosed in the event of an emergency, pursuant to the provisions of the Uniform Trade Secrets Act, NMSA 1978, Sections 57-3A and 57-3A-D;

9.6.8.3. A written response plan for the potential emergencies that may be associated with the operation of the facilities. This may include any or all of the following: explosions, fires, gas or water pipeline leaks or ruptures, hydrogen sulfide, methane or other toxic gas emissions, or hazardous material vehicle spills or vehicle accidents;

9.6.8.4. A fire prevention, response, and health and safety plan;

9.6.8.5. Project-specific emergency preparedness plans are required for any project that involves drilling or penetrating through known or likely zones of hydrogen sulfide or methane gas, as determined by the County. This plan shall be coordinated with and approved by the County’s emergency management officer prior to beginning field operations;

9.6.8.6. A list, including Material Safety Data Sheets, of all chemicals, additives, and organics used on site to the County. This information will be held in the strictest confidence and shares[d] with other relevant local emergency response personnel only on a “need to know” basis; and

9.6.8.7. The Consultant shall advise the Board as to whether the Emergency Response and Preparedness Plan is adequate to protect the public and whether the Board should approve conditionally or deny the Application for the Oil and Gas Overlay Zoning District Classification.

SECTION 9.6.9 FISCAL IMPACT ASSESSMENT.

9.6.9.1. 

Generally.

9.6.9.1.1. The fiscal impact assessment involves a study of the fiscal implications of oil and gas drilling in the County and in the Galisteo Basin. Drilling will be permitted only after a determination of the adequacy and financial provision for roads, highways, surface water runoff and detention facilities, emergency response service, fire and police substations and operational costs for additional police, fire and emergency response service full-time employees and technicians have been met. This includes the County public works costs to maintain roads, drainage areas, environmentally sensitive areas and historic, cultural and archeological artifacts and sites.

9.6.9.1.2. The fiscal impact assessment shall project urban levels of police, fire and emergency response service to affected areas of the County and Galisteo Basin. The assessment shall estimate the threshold minimum number of full-time paid public service workers necessary to provide fire, police, emergency response service, road, drainage, environmentally sensitive areas and historic, cultural and archaeological artifacts and site necessary for maintenance and operation of the facilities and services.

9.6.9.1.3. The assessment estimates the public service costs for new workers and worker families brought into an oil and gas project area for the exploration and drilling period and beyond.

9.6.9.1.4. The applicant shall make a cash, certified or bank check, or letter of credit, deposit, to cover all of the County’s expenses in reviewing the Fiscal Impact Assessment, engaging consultants, and for a Hearing Officer to conduct the first public hearing on the Fiscal Impact Assessment. The County will provide an estimate of the cost of conducting the study, which shall provide the basis for the initial deposit. The applicant shall make additional deposits if the initial deposit is inadequate to reimburse the County for the costs of the study, and the County shall refund any unexpended funds on deposit after the study is completed.

9.6.9.2. 

Determination of Costs and Revenues.

9.6.9.2.1. The fiscal and economic effects of oil and gas drilling shall be determined using nationally accepted and longstanding fiscal and economic models. The fiscal and economic models shall project what shall be needed in terms of public operating and maintenance services and provision of capital facilities and determine what funds will be available to pay for these facilities and services.

9.6.9.2.2. Costs shall be determined using current budgets, both operating and capital interviews with service providers to determine areas of deficient capacity and service where additional expenditures will be necessary.

9.6.9.2.3. Revenues shall be determined using budgets and formulas for calculating additional taxes, infrastructure and service fees, licenses, administrative fees, grants and improvement district assessments.

9.6.9.2.4. The fiscal impact assessment shall determine whether, and to the extent, an oil and gas project is fiscally and economically positive, as to whether forthcoming revenues (operating and capital) exceed the forthcoming costs (operating and capital) of the oil and gas project.

SECTION 9.6.10 COMPLETENESS DETERMINATION.

9.6.10.1. Within sixty (60) days after receiving an application for an Oil and Gas Overlay Zoning District Classification, the County shall mail or provide in person a written determination to the applicant, stating either that the application is complete, or that the application is incomplete.

9.6.10.2. If the County determines that the application is incomplete, it shall identify in its determination the parts of the application which are incomplete, and shall indicate the manner in which they can be made complete, including a list and specific description of the additional information needed to complete the application. The applicant shall then submit this additional information to the County within thirty (30) days of the determination, unless the County agrees in writing to a longer period.

9.6.10.3. The County shall determine in writing that an application is complete within thirty (30) days after receipt of the additional information indicated in the list and description provided to the applicant under section 9.6.10.2.

9.6.10.4. An application for an Oil and Gas Overlay Zoning District Classification is deemed complete under this Section if the County does not provide a written determination to the applicant that the application is incomplete within sixty (60) days of the receipt of an application under paragraph (a) [section 9.6.10.1.] or within thirty (30) days of the receipt of any additional information submitted under section 9.6.10.2.

9.6.10.5. An Oil and Gas Overlay Zoning District Classification application is complete for purposes of this Section when it meets the completeness requirements of, or is deemed complete under, this Section.

9.6.10.6. After an overlay application is complete or deemed complete, the County may request additional information or studies if new information is required or a substantial change in the proposed development occurs. It shall make a completeness determination as required by this section for any additional information or studies submitted.

SECTION 9.6.11 DEVELOPMENT AGREEMENTS.

9.6.11.1. The County shall enter into and adopt development agreements concerning the development of an Oil or Gas Facility or Facilities or Projects with the owners and lessees of subsurface mineral estates and/or oil and gas lessees and such Development Agreement may be entered into with other governmental units with jurisdiction, pursuant to this Section.

9.6.11.2. The purpose of this Section is to:

(a) provide a mechanism for the County and owners of mineral estates and oil and gas and lessees to form agreements, binding on all parties, regarding vesting, development, financing and land use of the oil and gas project;

(b) promote land development regulation by allowing the County to adopt development agreements that include terms, conditions, and other provisions that may not otherwise be able to be mitigated or implemented without the use of a development agreement;

(c) promote stability and certainty in oil and gas project regulation by providing for the vesting of rights in the project and for the mutual enforceability of development agreements by all parties;

(d) provide a procedure for the adoption of such agreements that ensures the participation and comment of the public and elected officials;

(e) provide a partial mechanism for the financing of all capital facilities and public services as provided for in this Ordinance; and

(f) provide a mechanism for assuring that the operation and maintenance costs of all facilities required by the County’s development approvals are proportionally assessed to each applicant on an annual basis.

9.6.11.3. A development agreement shall be entered into and adopted only pursuant to this Section and shall have the force and effect of a land development regulation.

(a) Except as provided expressly to the contrary in a development agreement, development and use of the oil and gas property that is the subject of a development agreement shall occur according to the terms, conditions, and other provisions of the agreement, notwithstanding inconsistent land development code regulations and amendments.

(b) Where the development agreement does not include any term, condition, or other provision concerning a matter that is regulated by one or more land development code regulations as amended, then those land development code regulations shall apply.

(c) A development agreement will not take effect until it is recorded, by either of the parties to the development agreement, with the County Clerk within thirty (30) days after its adoption.

9.6.11.4. A development agreement shall:

(a) be consistent with the County General Plan including the Oil and Gas Element, and any applicable Area Plan, including but not limited to a Galisteo Basin Area Plan;

(b) be adopted by an ordinance of the Board after notice and hearing as required for the adoption of land development code regulations;

(c) be enforceable by the County and other governmental units that are party to the development agreement in the same manner as a land development code regulation;

(d) be enforceable by the owners of subsurface mineral estates and oil and gas lessees who are party to the development agreement and their successors in interest by civil action against the local government or other parties as may be necessary, except that if an enforcement action upon the development agreement by the County has previously been commenced and is still pending, any and all enforcement or disputes shall be determined in the enforcement action;

(e) be in writing and include the following terms:

(1) the names of all parties to the development agreement;

(2) a description of the oil and gas project which is the subject of the development agreement;

(3) a statement detailing how the development agreement is consistent with the General Plan and any applicable Area Plan, including but not limited to the Galisteo Basin Area Plan;

(4) the effective date of the development agreement;

(5) the duration of the development agreement, which shall not exceed ten (10) years except where the development agreement authorizes phased development, the duration of the agreement shall not exceed fifteen (15) years;

(6) a reiteration in full of the provisions of section 9.6.11.5.;

(7) a reiteration in full of the provisions of section 9.6.11.4(d) and (e) above, and any other agreed terms concerning enforcement, including any agreement to submit disputes to arbitration or mediation before resorting to commencement of an enforcement action or civil action;

9.6.11.5. A development agreement may be cancelled at any time:

(a) by the mutual written consent of all parties thereto, with the consent of the Board by ordinance after a public hearing; or

(b) by the County if it finds in writing, after a public hearing with proper notice, that a hazard, unknown to the County at the time the development agreement was adopted, exists on or near the property of the oil and gas project that is the subject of the development agreement that would endanger the public health or safety if development were to commence or proceed pursuant to the development agreement.

(c) A development agreement, upon consent of all parties, may contain a mediation or arbitration procedure by which disputes concerning the development agreement may be decided. The decisions reached under such procedure shall be considered land-use decisions.

SECTION 9.7 TRANSFER OF DEVELOPMENT RIGHTS (“TDRs”).

9.7.1. The County herein adopts these provisions for the transfer of development rights, in the manner prescribed in this Section.

9.7.2. The purposes of this Section are to:

9.7.2.1. Authorize the owner of oil and gas mineral estates or oil and gas leasehold estates that requires relief pursuant to a beneficial use and value determination, to transfer one or more rights to develop oil or gas drill sites from a sending parcel to a receiving parcel for the following purposes:

(a) to conserve agriculture, ranch, and forestry uses of land;

(b) to protect lands and structures of cultural, architectural, and historic significance;

(c) to ensure that the owners of land that is so preserved, conserved, or protected may make reasonable use of their property rights by transferring their right to develop to other mineral estate owners, or oil and gas lessees that can make use of it;

(d) to provide a mechanism whereby drill site development rights may be reliably transferred;

(e) to ensure that development rights are transferred from both the owner of a mineral estate and oil and gas lessee to oil and gas mineral estates and leases that have received development approvals for an Oil and Gas Overlay Zoning District Classification and a Special Use and Development Permit;

(f) to authorize the County to create a TDR Bank, whereby oil and gas development rights may be purchased and conveyed by the County, in order to stabilize the market in development rights and to regulate or control the development property that the County intends to protect under subparagraphs (a) through (d) above;

(g) to authorize donations of development rights to the County or the TDR Bank.

9.7.2.2. The Board may approve a transfer of development rights by ordinance, and an ordinance pursuant to this Section shall be consistent with:

(a) the General Plan and the General Plan Growth Management and Oil and Gas Elements; and

(b) an Area Plan, including but not limited to a Galisteo Basin Area Plan[.]

9.7.2.3. The Ordinance shall:

(a) be adopted after a public hearing has been held on the proposed ordinance, with the same as required in Section 9.8 for the application for the Overlay Zoning District Classification;

(b) describe in detail both the sending and receiving properties;

(c) describe the development rights to be transferred in specific detail, quantifying the number of oil and gas drill sites permitted to be transferred and the number of oil and gas drill sites permitted to be located pursuant to subsection 9.4.1.1, with the location of such oil and gas drill sites on the receiving property which shall be described in detail;

(d) require that the mineral owner and/or the lessee of a sending parcel execute, and record with the County Clerk, a deed or instrument relinquishing the released development rights; and

(e) require that, once a transfer of development rights is approved, the County shall issue to the owner and/or lessee of the receiving parcel, and record with the County Clerk, a certificate assigning to the receiving parcel, and all present and future heirs, successors and assigns, the development rights that the receiving parcel is entitled to through the transfer of development rights. Such certificate shall describe the development rights, refer to the deed transferring the development rights, and the certificate shall have a copy of the deed attached.

9.7.2.4. No property shall be designated as a receiving property unless the Board has granted to such property a development order and a Special Use and Development Permit approving an Oil and Gas Overlay Zoning District Classification.

9.7.2.5. 

The County shall notify the County Assessor of the transfer of development rights within thirty (30) days of:

9.7.2.5.1 the adoption of a TDR Ordinance above;

9.7.2.5.2 the issuance of a certificate for the TDRs;

9.7.2.5.3 purchase of development rights by the County for its TDR Bank;

9.7.2.5.4 the receipt by the County or the TDR Bank of a donation of development rights;

9.7.2.5.5 the sale or conveyance of development rights by the TDR Bank; and the Assessor shall adjust the valuations for purposes of the real property tax of the sending parcel and of the receiving parcel or parcels, if any, appropriately for the development rights extinguished or received.

9.7.2.6. 

The County may, by separate ordinance, establish a transfer of development rights bank, otherwise referred to as a “TDR Bank.” The TDR Bank shall be operated by the County Manager[.]

9.7.2.6.1 The TDR Bank shall have the power to purchase development rights, subject to the approval of the Board;

9.7.2.6.2 The TDR Bank shall have the power to sell or convey any development rights it may possess, subject to approval of the Board;

9.7.2.6.3 The TDR Bank may, for conservation or other purposes, hold indefinitely any development rights it possesses; and

9.7.2.6.4 The TDR Bank may receive donations of development rights from any person or organization, public or private, subject to the approval of the Board.

9.7.2.6.5 The TDR Bank may be funded from:

(a) the general fund of the County;

(b) the proceeds of the sale of development rights by the TDR Bank; or

(c) grants or donations from any source.

9.7.2.6.6 A separate interest-bearing trust fund shall be established for the TDR Bank, supervised by the County Manager, into which fund all receipts shall be deposited and from which payments shall be made.

SECTION 9.8 NOTICE OF PENDENCY OF APPLICATION.

9.8.1. In the application, the Applicant shall provide all information required for the service of notice to all interested persons as set forth below and shall pay to the County all administrative costs required for service of notice to interested parties. In addition to any notice requirements set forth in the Santa Fe Land Development Code (1996) (as amended), a written notice of the pendency of an Application for an Oil and Gas Overlay Zoning District classification shall be provided by the County to each surface owner, royalty owner, overriding interest owner, unit operator, working interest owner, or severed mineral owner whose property interest abuts a private easement to be used to access the Oil or Gas Facility. The County shall provide proof of such notice by maintaining a copy of the letter providing such notice, a list of the individuals notified, and certified mail receipts. The notice shall be mailed no later than five (5) working days following submission of the Application. For purposes of notice for a proposed well or drill site on which multiple wells will be sited, surface owner, royalty owner, overriding interest owner, unit operator, working interest owner, or severed mineral owner shall receive notice if the property boundary of the surface owner is within three miles of the proposed drill site or well.

9.8.2. In addition to any notice requirements set forth in the Code, the notice of the pending Application shall also contain the following:

(a) A description of the boundaries of the proposed Oil and Gas Overlay Zoning District classification, including a legal description and a street address, if available. The notice must identify the operator and any designated agent for the application; the current business address and telephone number for the operator and its agent, if one has been designated; and a brief description of the facilities and equipment proposed to be located at the site when operational; and

(b) A statement that additional information concerning the application may be obtained from the administrator.

9.8.3. A notice shall be posted by the County in a conspicuous and visible location within the proposed Oil and Gas Overlay Zoning District Classification site, which shall contain the information required in subsections 9.8.1 and 9.8.2 above.

9.8.4. After a public hearing is set, a notice of the time, place and street address of the public hearing, together with a description of the location of the proposed Oil and Gas Overlay Zoning District classification and a detailed summary of the application, shall be published by the County in a newspaper of general circulation in the County at least twenty-one (21) days prior to the date of the public hearing. An affidavit of publication shall be obtained from the newspaper and provided to the administrator.

9.8.5. The County shall also provide notice to any other person, agency or organization that has filed a request with the administrator to receive notice of an application for an Oil and Gas Overlay Zoning District classification.

9.8.6. The County shall provide notice 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.

SECTION 9.9 APPLICATION FEE.

9.9.1. Each application for approval of an Oil and Gas Overlay Zoning District Classification shall be accompanied by a nonrefundable application fee in the amount set forth in Appendix A.[1] The application fee shall be paid by cashier’s check, wire transfer or certified funds.

[1] Editor's note–Appendix A is included as an attachment to this exhibit

9.9.2. At the time of certification of the completeness of the Oil and Gas Overlay Zoning District Classification Application, the applicant shall deposit with the Administrator either by certified bank check or letter of credit from a New Mexico banking institution a further sum as calculated by the Administrator for the consultant fees and expenses for the required assessments, reports and studies; hearing officer fees and expenses; and County expenses for preparation of a development agreement, reproduction costs, mailing and posting of notices and newspaper notice costs. This deposit shall be required prior to any further processing of the application. The deposit shall be adjusted from time to time for actual additional costs and fees incurred by the County, consultants and the hearing officer. Any deposit made in excess of costs and fees incurred at the time of the Board’s final development order on the application shall be refunded or credited to the applicant within thirty (30) days from the Board’s development order.

SECTION 9.10 REFERRALS.

9.10.1. The administrator shall refer an Application for approval of an Oil and Gas Overlay Zoning District Classification to other government agencies, cities, or entities having a statutory interest in the matter, or otherwise affected by the Application, for review and comment, including but not limited to, specifically, the New Mexico Oil Conservation Division, the New Mexico Taxation and Revenue Department, the New Mexico Environment Department, the New Mexico State Engineer, and the New Mexico State Land Office and the City of Santa Fe.

9.10.2. The Administrator may, in its discretion and at the expense of the Applicant, hire experts to review the Application and submittals or to evaluate specific technical issues, or require the Applicant to retain experts to provide analysis and studies of relevant issues to support the Application.

9.10.3. When an Application is scheduled for public hearing, the Administrator shall provide any comments received by other government agencies at the public hearing held on the Application.

SECTION 9.11 PUBLIC HEARING.

The CDRC and the Board of County Commissioners shall set public hearings for the Application after the Administrator’s determination that the Application is complete.

SECTION 9.12 REVIEW CRITERIA.

Each Application for approval of an Oil and Gas Overlay Zone shall be reviewed by the CDRC and the Board of County Commissioners:

(a) for consistency with the General Plan including the adopted Oil and Gas Element, and any applicable Area Plan including, but not limited to, a Galisteo Area Plan;

(b) to ensure that any environmental effects and impacts identified in the environmental impact report are appropriately mitigated;

(c) that adequate public facilities either exist or can be promptly funded as identified in the adequate public facilities assessment;

(d) that improvements identified in the adequate public facilities assessment can be provided as set forth in the capital improvement plan and when such facilities will be available;

(e) that water is available for the various phases of the oil and natural gas facility as set forth in the water availability assessment;

(f) that the impacts of traffic generated as a result of activities taking place in the proposed oil and gas overlay district can be mitigated;

(g) to determine whether the proposed location is compatible with adjoining uses given the size, design and operational characteristics of the proposed Oil or Gas Facility or Facilities, and whether the Facility or Facilities can be made compatible with the surrounding area by using reasonable efforts to mitigate any public nuisance or land use effects or impacts of operation of the Oil or Gas Facility or Facilities. Factors to be considered include impacts on property values, public safety, impacts on cultural, historical and archeological resources, emergency service response, wildlife and vegetation resources, noise, impacts on roads and highways, vibration, odor, glare, fire protection, access, visual impacts, and impacts upon air and water quality and quantity, the past performance of the Operator’s past compliance (or lack thereof) with federal, state and local laws pertaining to oil and gas exploration and production activities; and

(h) to determine whether the proposed Facility or Facilities will be detrimental to the safety, health, prosperity, order, comfort and convenience of the County pursuant to NMSA 1978, section 4-37-1.

SECTION 9.13 CDRC RECOMMENDATION.

The CDRC shall provide a recommendation to the Board of County Commissioners on the application for approval of an Oil and Gas Overlay Zone within 90 days of the Administrator’s certification that the Application is complete. The CDRC shall issue a written order containing its recommendations.

SECTION 9.14 DECISION OF THE BOARD OF COUNTY COMMISSIONERS.

The Board of County Commissioners shall render a decision on the application for approval of an Oil and Gas Overlay Zone within 90 days of receipt of the recommendation of the CDRC. The Board of County Commissioners may approve, conditionally approve, or deny the Application and shall issue a written order with findings of fact and conclusions of law.

SECTION 9.15 CONFLICTS OF INTEREST.

9.15.1. All applications for development approval for oil or gas facilities are subject to quasi-judicial procedural due process standards. No Board, CDRC, or Hearing Officer shall be involved in the processing of any such application where such person has (1) a conflict of interest; (2) received any ex parte communication from any person regarding the application; or (3) has made any unauthorized site visit without approval of the Board, CDRC, or County Attorney.

9.15.2. In the enforcement of any development approval, an Oil and Gas Inspector shall remove himself/herself in the event of a conflict of interest.