On April 20, 2016, the New Mexico Mining Commission ("NMMC") conducted a hearing to consider a rule change to the New Mexico Mining Act Reclamation Program ("MARP") regulations. The New Mexico Mining Association ("NMMA") proposed the rule change to expand eligibility for permitting under the "Part 3" minimal impact mining operations regulations set forth in 19.10.3 NMAC. The NMMC orally approved the rule expansion at the hearing and subsequently confirmed it by a Final Order issued April 28, 2016.

The newly revised regulations allow existing and new mining operations involving any of five specified minerals (dolomite, garnet, humate, perlite and zeolite) to disturb up to 40 acres and still be eligible for permitting as a minimal impact mine, increasing four-fold the allowable disturbance that had previously applied in the case of such minerals, and that still applies to all other minerals. The rule change applies in all New Mexico counties except for the three most populated counties, Bernalillo, Doña Ana and Santa Fe Counties. This rule change, while fairly narrowly tailored in scope, likely is the most significant substantive change to the MARP regulations since their adoption in 1994 pursuant to the New Mexico Mining Act of 1993.

Under the MARP regulations, Part 3 permitting for a minimal impact mining operation is much more streamlined and less onerous than permitting for operations that do not qualify for minimal impact status. Permitting new mining operations under the separate "Part 6" MARP regulations at 19.10.6 NMAC is substantially more burdensome in terms of public participation requirements, application and reclamation planning specificity, and overall performance standards.

For example, the Part 6 permitting process includes an expectation for advance submission and approval of a sampling and analysis plan that then is used for the collection of twelve months of baseline data across a range of environmental media and site conditions before an application may be deemed complete and reviewable, much less approved. Further, the public participation and technical review requirements under Part 6 are extensive, and involve a formidable multiple-agency technical review process. Since the adoption of the MARP regulations in 1994, not one new mining operation has been permitted successfully under Part 6, a fact that has been a source of consternation for both the NMMA and the primary agency charged with administering the Mining Act's permitting regimes, the New Mexico Mining and Minerals Division ("MMD").

Prior to the approved rule change, in order for a mining operation to qualify for minimal impact status, a mining operation (both new and existing) could not exceed 10 acres of disturbed land, except that a new or existing operation extracting humate could exceed 10 acres but not 20 acres of land if its approved closeout plan provided for concurrent reclamation of mined-out areas. Borrowing from this concept, the adopted rule change requires concurrent reclamation of minimal impact operations exceeding 10 acres of disturbance where practicable. The new rule change also requires MMD to conduct an on-site inspection of the proposed permit area prior to issuing a minimal impact mining operations permit, and to conduct annual inspections of minimal impact mining operations greater than 10 acres.

In adopting the rule change, the NMMC's April 28 Final Order included an express recognition of the need to enhance economic growth and development opportunities in rural areas of the State. The Commission also explicitly recognized that the expanded minimal impact rules do not erode, and in fact often may improve, environmental stewardship in New Mexico by encouraging the juxtaposition of mining and processing operations and concurrent, sensible reclamation practices.

The rule change will become effective once it is published in the New Mexico Registrar.