On the Subtraction of Forest Reserves

July 23, 2021
Ángela Pinzón
Published in
Asuntos Legales, La República

The Ministry of Environment and Sustainable Development recently issued a draft decree, which will include a new section to Decree 1076/2015, to establish and modify the activities, requirements and procedure for subtraction of areas of national and regional forest reserves, contained in Resolution 1526/2012.

To date, the project is in the socialization stage, therefore, comments to the document may be sent, in the format provided for this purpose. Once issued, it would repeal Resolution 1526/2012 and would become effective as of its publication in the Official Gazette. Subsequently, the Ministry will have to establish a single request format and new terms of reference.

However, requests initiated prior to its entry into effect would continue to be governed by the regulation in force at the time of the request.

Specifically, the project proposes, among other things, the inclusion of a chapter on definitions, new activities subject to the subtraction procedure, the oral procedure, rules on subrogation and assignment, etc.

Within the new activities of public utility and social interest, subject to the forest reserve subtraction procedure, the following are included: (i) the construction of electric transmission lines, in areas used for construction activities such as storage yards, installation area, and their accesses; (ii) activities that require establishing Excavation Material Disposal Zones (Zodmes) and Surplus Material Disposal Zones (Zdms); and (iii) activities for compliance with disaster or public calamity declarations of Law 1532/2012, etc.

On the other hand, it also includes the possibility of requesting the assignment of rights and obligations of the subtraction process, as well as of the administrative act of granting. This is positive, since it will facilitate the execution of transactions for the purchase and sale of shares or assets, etc.

It should be noted that perhaps the most significant change is the incorporation of the oral procedure. Specifically in a new stage called “Information Meeting”, which would make it more agile by significantly reducing evaluation times. This stage would be convened by the environmental authority and its purpose is to be able to request additional information from the user for the decision on the merits, notify the user of the decisions adopted and allow it to file remedies against such decisions.

Regarding this stage, the main remark is that it would be important to allow (in addition to the attendance of the legal representative or proxy), the participation of a technical officer member of the requesting company; and thus, guarantee that the information presented is complete and duly socialized by a person with technical expertise and experience, in order to avoid that the evaluation may be negative.

However, it is positive that the meeting is allowed to be held virtually, taking into account the reality of the country during the pandemic, as it opens the possibility that in the future other environmental procedures may also include this method.

In any case, it will be necessary to analyze whether in practice the oral procedure would be suitable or inconvenient to guarantee the rights of defense and contradiction of the user through a more agile and simple procedure. We will see how the processing of this important decree moves forward.

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