On January 19, 2023, the Ministry of Environment and Sustainable Development (“MADS”) issued Notice SG-40002023E4000013, through which it established the guidelines for issuing the environmental certificates ordered by the Council of State in its ruling of August 4, 2022, as clarified by the writ dated September 29 of the same year, concerning the overlap between SINAP ecosystems and in situ conservation areas of legal origin, and areas of interest for the development of mining projects.
In April of this year, MADS issued a new administrative act extending the scope of the aforementioned notice, establishing additional guidelines for the processing, issuance, and minimum content of the environmental certificate (the “Notice”). While the guidelines regarding the content of the application remain unchanged, some aspects related to the process and content of the certification have been adjusted.
In particular, with respect to the processing of the certificate, among other matters, the Notice clarifies that when the area of interest for the development of a mining project presents environmental overlaps under the jurisdiction of more than one environmental authority, the authority that initially receives the application must forward it to the other environmental authorities so that they may issue opinions exclusively with regard to the areas and matters within their respective jurisdictions.
Regarding the minimum content of the certificate, MADS indicates that when the administrative act establishing the legal regime of the overlapping area expressly prohibits mining activities, even if the area does not have an adopted zoning instrument, there will be certainty regarding the incompatibility with such activity.
Likewise, if the area overlaps with an ecosystem where, in accordance with the applicable regulations, a carve-out is feasible, this circumstance must be included in the certificate, clarifying that it does not inhibit the possibility of granting a mining title. Similarly, where there is technical and legal certainty, the environmental authority may include in the certificate other environmental categories different from those expressly provided for in Chapter II.3.3 of the judgment, in which mining is incompatible. Likewise, the environmental authority may include information of interest that does not entail an environmental prohibition that could lead to the rejection of the mining procedure, but that is rather relevant for subsequent proceedings, such as environmental licensing.
Finally, MADS established a certificate template that environmental authorities must use to ensure uniform, standardized information.