TITLE 19 NATURAL
RESOURCES & WILDLIFE
CHAPTER 2 STATE
TRUST LANDS
PART 23 STATE
TRUST LANDS RESTORATION AND REMEDIATION FUND
19.2.23.1 ISSUING
AGENCY: Commissioner of
Public Lands - New Mexico State Land Office - 310 Old Santa Fe Trail - P. O.
Box 1148 - Santa Fe, New Mexico 87501.
[19.2.23.1 NMAC - N, 10/31/2017]
19.2.23.2 SCOPE: This part pertains to the expenditure of funds
from the state trust lands restoration and remediation fund created under
Section 19-1-11 NMSA 1978.
[19.2.23.2 NMAC - N, 10/31/2017]
19.2.23.3 STATUTORY
AUTHORITY: The state land office’s
authority to administer the state trust lands restoration and remediation fund
is found in Section 19-1-11 NMSA 1978.
Under Section 19-1-1 NMSA 1978, the commissioner is the executive
officer of the state land office. The
commissioner’s authority to manage the state trust lands is found in N.M.
Const., art. XIII, Section 2, and in Section 19-1-1 NMSA
1978. The authority to promulgate
this rule is found in Section 19-1-2 NMSA 1978.
[19.2.23.3 NMAC - N, 10/31/2017]
19.2.23.4 DURATION: Permanent.
[19.2.23.4 NMAC - N, 10/31/2017]
19.2.23.5 EFFECTIVE DATE:
October 31, 2017, unless a later date is
cited at the end of a section.
[19.2.23.5 NMAC - N, 10/31/2017]
19.2.23.6 OBJECTIVE: The objective of this part is to provide for
the orderly, lawful, and appropriate expenditure of funds from the state trust
lands restoration and remediation fund to administer contractual surface damage
and watershed restoration and remediation projects on state trust lands, which
are under the care, custody and control of the commissioner.
[19.2.23.6 NMAC - N, 10/31/2017]
19.2.23.7 DEFINITIONS: As used in 19.2.23 NMAC, the following terms
have the meaning set forth in this section unless otherwise indicated in the
text of this rule:
A. “clearance and compliance
requirements” means biological and archeological surveys, or site
delineation surveys, or any other state or federal regulatory requirement that
may be needed to proceed with a restoration or remediation project.
B. “commissioner” means
the New Mexico commissioner of public lands, and the commissioner’s appointees
under Section 19-1-7 NMSA 1978 acting within
the scope of their authority. The commissioner
may delegate to state land office staff the performance of functions required
of the commissioner under this part.
C. “contaminant”
means solid waste, hazardous materials, or any other state- or
federally-regulated substance that threatens, or could threaten, public health
or the environment.
D. “contractual
surface damage and watershed restoration and remediation projects” means
projects performed by vendors or service providers through contracts with the
state land office to repair surface damage on, restore or remediate state trust
lands.
E. “in-kind contribution” means a
contribution of labor, materials, or other non-monetary resources by an
individual or entity other than the state land office.
F. “matching
contribution” means a monetary contribution by an individual or entity
other than the state land office.
G. “reclamation”
means returning land that has been rendered unusable by human activities or
natural processes to a usable state.
H. “remediation”
means actions necessary to investigate, prevent, minimize, remove, or
mitigate threats to the public health or to the environment that may otherwise
result from a release or threat of release of contaminants.
I. “restoration”
means repairing or treating a site to return it to a desired previously
existing condition or to achieve native plant cover and diversity levels
equal to or exceeding the natural potential levels in undisturbed soils
adjacent to the project area.
J. “restoration
and remediation fund” means the state trust lands restoration and
remediation fund.
K. “state
land office” means the New Mexico state land office established under
Section 19-1-1 NMSA 1978, the executive officer of which is the commissioner.
L. “surface damage” means the
removal of, mechanical disturbance to, or introduction of hazardous materials
to, the ground surface, vegetation, or soils in a given location.
M. “trust lands” means those lands, their
natural products and all assets derived from them, which are under the care,
custody and control of the commissioner.
[19.2.23.7 NMAC - N, 10/31/2017;
A, 6/11/2019]
19.2.23.8 PERMISSIBLE
FUND EXPENDITURES:
A. Expenditures
made from the state trust lands restoration and remediation fund shall be used to
implement the following categories of projects:
(1) surface
damage remediation and restoration;
(2) watershed,
forest, or grassland restoration;
(3) illegal dump
site remediation and restoration; and
(4) contaminated
site remediation.
B. The restoration and remediation fund
shall not be expended for:
(1)
any project or portion thereof that is not located on state
trust lands;
(2)
any internal state land office operation cost,
administration expense, overhead, or salary; or
(3)
any other land office expense that is not related to
trust land restoration or remediation or is not part of a commissioner-approved
project proposal.
C. The restoration and remediation fund
shall not be used to make improvements to trust lands, unless such improvements
are necessary to protect the land or ensure the success of the restoration or
remediation project.
D. The restoration and remediation fund
shall not be used for project clearance and compliance requirements, as defined
in this rule. Other funding sources, including
in-kind contributions, matching contributions, or other state land office
funds, may be used to pay for clearance and compliance requirements.
E. The commissioner’s prior written approval
of a project proposal is required for all expenditures from the restoration and
remediation fund.
[19.2.23.8 NMAC - N, 10/31/2017]
19.2.23.9 PROJECT
PROPOSALS:
A. Land restoration or remediation
project proposals may be initiated by the commissioner or by outside
individuals or entities, as follows:
(1) the
commissioner may direct state land office staff to prepare proposals for state
trust land restoration or remediation projects; or
(2) individuals or entities that
wish to partner with the state land office on a restoration or remediation
project involving state trust lands may submit a written request to the
commissioner using guidelines provided by the land office. If, in the commissioner’s judgment, the
requested project should be considered for funding from the land restoration
and remediation fund, the commissioner shall direct land office staff to
prepare a project proposal in consultation with the requestor.
B. Project proposals shall provide
information necessary for the selection and prioritization of projects and
shall include:
(1) a statement
of need, including how the project addresses land office priorities in
19.2.23.10 NMAC;
(2) the project
category (see Subsection A of 19.2.23.8 NMAC);
(3) a detailed estimated total project
cost, including a description of project clearance and compliance requirements,
an estimate of the cost and time needed for clearance and compliance, an
explanation of how clearance and compliance requirements will be funded, and,
if applicable, a list of partners or collaborators and their anticipated
contributions to the total project cost;
(4) a location
description by section, township and range;
(5) a map
outlining the treatment area;
(6) an estimate
of the acres to be treated or restored;
(7) a
description of the current site conditions, including terrain, existing plant
communities, and native plant communities adapted to the project location;
(8) a description of the treatment type
and specifications, to include project objectives and desired outcomes, a
detailed description of the materials to be used, the machinery and labor
requirements, and project timing;
(9) a list of
current land office lessees within the treatment area, with contact
information;
(10) a description
of potential impacts to biological and cultural resources; and
(11) a description
of the procurement requirements for the project, such as contracting or bidding
requirements.
[19.2.23.9 NMAC - N, 10/31/2017]
19.2.23.10 SELECTION
OF PROJECTS: In considering which projects to fund, the
commissioner will give consideration to the following priorities:
A. emergency treatments requiring a timely
response to any situation that presents an imminent and substantial danger to
life, public health, property, or the environment;
B. projects that:
(1) protect
communities by reducing the risk of wildfire or the risk of harm to water
quality and quantity;
(2) restore or remediate
threats to forests, grasslands, or watersheds that have been identified by the commissioner
as priority resources;
(3) involve in-kind or matching contributions
for twenty percent or more of the total project cost;
(4) provide an equitable, statewide
geographic distribution of funds;
(5) build on previous expenditures or leverage
resources;
C. projects that have a high
probability of successful implementation, including the following
considerations:
(1) ability to
meet procurement requirements;
(2) time
required for and availability of other sources of funding to complete clearance
and compliance requirements; and
(3) total project cost, including matching and in-kind contributions.
[19.2.23.10 NMAC - N, 10/31/2017]
19.2.23.11 COST
RECOVERY:
A. For any expenditure made from the
restoration and remediation fund, the commissioner shall attempt to recover the
project costs from any person or entity that may bear liability for that
project under any lease, easement, or other agreement with the state land
office, or by statute, including the Voluntary Remediation Act (Chapter
74, Article 4G NMSA 1978), the New Mexico Mining Act (Chapter 69 Article 36
NMSA 1978), the Surface Mining Act (Chapter 69, Article 25A NMSA 1978), the Oil
and Gas Act, (Chapter 70, Article 2 NMSA 1978), the Water Quality Act (Chapter
74, Article 6 NMSA 1978), the Solid Waste Act (Chapter 74, Article 9, Sections
1-42, 72-73 NMSA 1978), or the Hazardous Waste Act (Chapter 74, Article 4 NMSA
1978).
B. Prior to making an expenditure from
the restoration and remediation fund for which the commissioner will seek to
recover project costs, the commissioner shall send written notice notifying the
person or entity, if known, that the commissioner may initiate an action to
recover project costs. Notwithstanding
the foregoing, lack of written notice does not waive the commissioner’s right
to recover project costs from any person or entity that may bear liability for
the project.
[19.2.23.11 NMAC - N, 10/31/2017]
HISTORY of 19.2.23 NMAC: [RESERVED]