(a)
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A General and Area Plan Consistency Report demonstrating consistency
with the General Plan and the General Plan Oil and Gas Element’s
Goals, Objectives, Policies and Strategies and with any applicable
Area Plan, including but not limited to the Galisteo Basin Area Plan
and with state and federal statutes and regulations;
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(b)
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An Environmental Impact Report analyzing oil and gas adverse
effects and impacts to: wildlife and vegetation natural habitats and
corridors; floodplains, floodways, stream corridors and wetlands;
steep slopes and hillsides; air and water pollution; global warming,
traffic safety and congestion; excessive energy consumption from vehicle
miles traveled; priceless archeological, historical and cultural artifacts
and resources reflecting Hispanic, Anglo and Indian civilizations;
toxic chemical pollution and related diseases and conditions affecting
the health and safety of current and future residents; open space
and scenic vistas;
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(c)
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A Fiscal Impact Assessment describing the adverse effect and
impact upon County revenue and costs necessitated by additional public
facility and service costs generated by oil and gas projects and the
feasibility for financing such facility and service costs;
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(d)
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An Adequate Public Facilities and Services Assessment indicating
whether current county public facilities and services related to roads,
stormwater detention, fire, police, and emergency response services
are adequate to service proposed oil and gas projects;
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(e)
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A Water Availability Assessment to determine the availability
of and impacts to fresh water surface and subsurface resources;
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(f)
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An Emergency Service and Preparedness Report, identifying the
name, location and description of all potentially dangerous facilities
and Material Safety Data Sheets describing all additives, chemicals
and organics used on the site, including but not limited to pipelines,
wells and isolation valves, and providing for a written fire prevention,
health and safety response plan for any and all potential emergencies,
including explosions, fires, gas or water pipeline leaks or ruptures,
hydrogen sulfide methane or other toxic gas emissions or hazardous
material spills or vehicle accidents;
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(g)
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A Traffic Impact Assessment, providing information necessary
to assess adverse transportation effects and impacts of traffic generated
by proposed oil and gas projects, including isolated and cumulative
adverse effects and impacts to the traffic shed and traffic capacity,
the passage of public safety and emergency response vehicles and any
contribution to hazardous traffic conditions by heavily laden vehicles
going to and from the project site; and
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(h)
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A Geohydrologic Report, describing the adverse impacts and effects
of oil and gas development with respect to groundwater resources located
within geological formations in sufficient proximity to an oil and
gas project; identifying fractured, faulted and any other formations
that would permit extraneous oil, gas, dirty or gray water, mud or
other chemicals, toxic minerals and pollutants to degrade the ground
or subsurface water resources, or allow ground or subsurface water
resources to be reduced, polluted and unavailable for public or private
water supplies.
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Development of oil and gas resources shall only be permitted
where there is full mitigation of any present or future potential
adverse public nuisance and/or land use effects or impacts as shown
in the reports, plan, studies and assessments required in Section
9. To achieve these purposes this Ordinance establishes three distinct
processes for development approval of oil and gas projects: (1) an
application for discretionary administrative and quasi-judicial approval
of an Oil and Gas Overlay Zoning District Classification; (2) subsequent
to development approval of the Oil and Gas Overlay Zoning District
Classification and the subsequent issuance of a state permit to drill,
an application for a quasi-judicial discretionary Special Use and
Development Permit (“SUDP”); and (3) obtaining ministerial
Grading and Building Permits and a Certificate of Completion.
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This Ordinance is intended to be both a Land Development Code
Regulation and a stand-alone public nuisance ordinance which shall
apply to any area-wide or project-specific adverse public nuisance
and/or land use effects or impacts created by an oil or natural gas
facility.
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It is recognized that under New Mexico state law, surface and
mineral estates are separate and distinct interests in land. Owners
of subsurface mineral estates and oil and gas leases have certain
rights and privileges, to use that part of the surface estate reasonably
required to extract and develop the subsurface mineral or oil and
gas resources. Similarly, owners of the surface estate have protection
under the common law and pursuant to the Surface Owner’s Protection
Act, NMSA 1978 sections 70-12-1 through 70-12-12 (2007), including
protection of existing surface uses and protection from, or compensation
for, adverse land use effects and impacts associated with the development
of the mineral estate, and/or oil and gas lease.
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Taking into account these rights and privileges and in order
to evaluate whether, and if so, the extent to which this Ordinance
unconstitutionally creates a regulatory taking without just compensation
subsurface mineral fee interests and oil and gas leases, each applicant
for an oil or gas facility, if denied at the Overlay Zoning or Special
Use and Development Permit stages, shall be required to exhaust all
administrative remedies by applying for a beneficial use and value
assessment which application shall describe:
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(a)
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the extent of diminution of use and value with respect to the
entirety of the applicant’s, owner’s, or lessee’s
real property interests in the same ownership within the County;
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(b)
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the distinct investment backed expectations of the owner, lessee,
or applicant and predecessors in interest, in the same ownership within
the County;
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(c)
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the written lease document applicable to oil and gas drilling
under an oil and gas lease;
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(d)
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the availability of transfers of oil and gas development rights
or clustering and co-location of drill sites to the remainder of the
owner’s, applicant’s, or lessee’s entirety of property
in the same ownership; and
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(e)
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any variance or relief necessary to relieve any unconstitutional
hardship or regulatory taking created.
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