New regulation on overlapping and coexistence of mining-energy sector projects
The Ministry of Mines and Energy (“Ministry“) issued Resolution No. 40303 of August 5, 2022, which establishes the guidelines to promote and facilitate the coexistence of projects of the mining-energy sector (the “Projects“), in case of total or partial overlap between Projects that have the same legal rank of public utility and social interest and intend to be developed in the same areas, provided that such coexistence in technically viable. The purpose of such guidelines is to determine the procedure to be followed by the developers of the Projects, as well as the role of the Ministry and other public authorities of the sector.
The following are some of the guidelines established by the Ministry to ensure and promote the coexistence of the Projects:
- Projects information system
The Ministry will enable the National Information System of Projects of the Mining and Energy Sector (“System“), which will be a digital public system that consolidates the information of the Projects and that will allow the identification of partial or total overlaps, even since the initial phase of the Projects.
- Initial stages
Prior to the subscription of the hydrocarbon or mineral exploration and exploitation contract, the National Hydrocarbons Agency (“NHA”) or the mining authority, as applicable, will inform the Mining and Energy Planning Unit – UPME, the Ministry’s Electric Energy Direction, the NHA and/or the mining authority, as applicable, about the characteristics, scope and geographical delimitation of the Project, to verify if the area of the Project overlaps, either partially or totally, with other Projects. If such is the case, the ANH and/or the mining authority, as applicable, will notify the interested party.
- Contractual provisions
The contracts for exploration and exploitation of hydrocarbons or minerals must include a clause in which the holders are obliged to facilitate coexistence with other Projects in the event of overlap with other Projects. Failure to comply with this obligation will result in the imposition of the procedures established in the contract and other measures that the authority deems appropriate.
- Coexistence agreement
- In case of an overlap, the developers of the Projects shall enter into an Operational Coexistence Agreement (“Agreement“) in order to ensure that activities are carried out in an orderly and efficient manner.
- The Agreement must address the delimitation and establishment of the socio-environmental, technical and safety responsibilities of each of the Projects.
- For the subscription of the Agreement, the holders must undergo a negotiation process with a maximum duration of 180 working days.
- The developers of the Projects must carry out the necessary procedures before each of the competent authorities in order to incorporate the provisions and obligations arising from the Agreement, in the mining or hydrocarbons agreements and any other applicable instrument.
Author: Sofía Ángel I [email protected] I Natural resources / Mining
