Santa Fe County passes ordinance to overhaul hard rock mining regulations

By Leah Cantor | Santa Fe Reporter
August 28, 2019

The room of the county building where the Santa Fe County Board of Commissioners holds its meetings was packed Tuesday evening in anticipation of the last item on the public hearing agenda: an ordinance amending the Sustainable Land Development Code (SLDC) to include the adoption of regulations for mineral resource exploration, extraction, and processing.

The ordinance, adopted on a unanimous 5-0 vote, completely overhauls antiquated mining laws and creates the first standardized regulatory procedure for evaluating new mining activity on federal lands in the county.

"This [ordinance] spells out what our options will be to regulate all mines in the future," said commissioner Anna Hamilton commented before public comments began. Commissioner Rudy Garcia asked County Attorney R. Bruce Frederick to clarify what kind of jurisdiction the county has over federal lands.

The federal government controls zoning and the ability to determine issues of land use, but the state and counties have jurisdiction over environmental regulation of mining activities that could have countywide impacts, Frederick explained. That means the county can't ban mining in general from an area, but a specific mine proposed on federal land within county boundaries must meet the regulations set by the county to get approved.

The topic on most people's minds was mineral exploration proposed by an Australian prospector near the Pecos Wilderness, only a few miles from the old Tererro mine that left a toxic legacy site upriver from Pecos communities and has caused environmental problems since it was abandoned in the 1930s.

The proposed mine has raised interest in the county's mining rules substantially. In April, the commission held a public hearing on the new regulations that was much more sparsely attended. Most who testified this time talked about the consequences of mining in the Pecos area.

"I was raised up above the Pecos in Tererro by my grandfather and my grandmother, my great grandfather homesteaded there back in the 1880s" one man, Rick Simpson, said in an emotional comment about the impact that pollution from the old mine had on his family and community over generations. "This is our land, this is the people's land … I just hope that there are enough people here that have the cojones to stand up to whoever is doing this."

Yet the county's rules are much greater than any one mining proposal. As one man representing the New Mexico Wilderness Alliance noted while expressing support for the ordinance, "the proposal in Tererro is likely only the tip of the iceberg."

According to The Diggings, a site that records mining claims on public lands throughout the country, there are 353 active mining claims in Santa Fe County alone, and 11,213 in the state of New Mexico. Based on reports by the industry, the Trump administration's pro-mining stance will likely result in an uptick in proposed developments of active mining claims.

County staff have spent nearly three years crafting additions and amendments to the county’s mining policies. The new regulations give the county greater oversight over proposed projects, enhance environmental protections and establish a standard procedure for applying regulations to all future mining activities that fall into the category of “Developments of Countywide Impact,” which include both hard rock mining and sand and gravel mines. Provisions that apply specifically to large scale sand and gravel mines were added as well.

"Extractive operations often fail to meet the terms of their permits and are organized to protect themselves from liability, as a result, local governments frequently bear the cost of clean up," a county document states. This scenario is all too common in New Mexico, where taxpayers have paid billions to clean up toxic legacy mine sites.

To avoid getting saddled with reclamation costs in the future, under the new ordinance companies applying for mining permits will have to provide background information to the county to demonstrate compliance with laws, regulations and clean-up orders on past projects. Companies also have to prove that they can pay for all aspects of the proposed project and reclamation costs, including an annual inspection fee that the county will charge the company to pay for assessments and inspections implemented by the county.

The ordinance includes other amendments aimed at strengthening environmental protections. New projects will have to provide analysis of existing environmental conditions up front and will be required to offset their greenhouse gas emissions to net zero. Projects must not result in net loss of wildlife habitats after reclamation, and must demonstrate how they will mitigate potential impacts to water sources in the area.

Enrique Romero, the staff attorney for the New Mexico Acequia Association, commended county staff for amendments that protect water quality. "I don't know how many people know this, but in January the state engineer forbid any new well permits in the area surrounding the old Tererro mine," he said, explaining that due to the concentration of toxins from past mining activities, the state issued "a moratorium in perpetuity unless [water] quality levels improve."

The ordinance also strengthens public participation requirements.

All individuals who gave public comment at the hearing supported the ordinance. The single person to raise objections was a representative of a commercial gravel company who argued that aspects of the new regulations would be overly burdensome to gravel and sand mining operations that are often far less destructive and have much slimmer profit margins than mining for precious metals and rare minerals.

In addition to this ordinance, county commissioners also passed a separate resolution Tuesday afternoon that authorizes county involvement in the state and federal proceedings related specifically to the new Tererro mine.

This article originally appeared in the Santa Fe Reporter.