August 4th/2023.
On July 31, 2023, the Government issued Presidential Decree 1277 of 2023 (the “Decree 1277”), which adopts environmental and sustainable development measures bearing the declaration of the State of Economic, Social and Ecological Emergency in La Guajira, in order to increase the availability of water for human, domestic and subsistence consumption, and to ensure the sustainable use and exploitation of this resource.
It is important to remember that through Presidential Decree 1085 of July 2, 2023, a State of Economic, Social and Ecological Emergency was declared in La Guajira, for a term of 30 days with the purpose of adopting measures to adapt the existing legal procedures and criteria in ordinary legislation; and make budgetary and fiscal modifications, in order to ensure the resources intended for that purpose and guarantee its implementation.
Within the measures adopted through Decree 1277, are the following:
New functions for the Ministry of Environment and Sustainable Development (“MADS” for its acronym in Spanish): Regarding the regulation of special conditions, Decree 1277 adds to Article 5 of Law 99 of 1993 the following functions of MADS:
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- Regulate the special conditions for the use, management, protection, and conservation of water in La Guajira and regarding the respective environmental procedures, measures to be implemented by the competent environmental authorities.
- Establish criteria and measures to adjust water use priorities in La Guajira and redistribute the uses currently under concession to prioritize human and domestic consumption. This measure may affect current concessions and reduce the authorized flow for concessions for industrial use.
- Adopt, in cooperation with the Ministry of Agriculture and Rural Development, measures to regulate the use and exploitation of water in La Guajira to ensure the supply for subsistence, family and community agriculture and aquaculture uses.
- Define the special procedure for the licensing process of projects, works or activities of energy transition in La Guajira. This measure is aimed at reducing licensing times for this process and accelerate the energy transition process.
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Regional Autonomous Corporations: The third article complements Article 31 of Law 99 of 1993 with the following functions of the Regional Autonomous Corporations:
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- Establish the modification of the uses and affluents granted by means of a single administrative act with respect to multiple concessions, fully individualized and identified.
- To grant the use of groundwater in a progressive manner for prioritized areas, to public entities that are conducting emergency actions in La Guajira.
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Abbreviated environmental requests procedure: Article five establishes the obligation to give priority to the requests for environmental permits, concessions or authorizations looking to guarantee access to water for subsistence agriculture and aquaculture uses, for which purpose the authorities must:
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- Reduce to one third the term of the administrative procedure in charge of the competent environmental authorities.
- Grant water concessions according to the order of priorities defined by the Ministry of the Environment and Sustainable Development.
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Special protection to water sources: Decree 1277 adds transitory article 61A to Law 99 of 1993, declaring the special protection of the department’s water sources, whose priority destination will be for human and domestic consumption, prohibiting:
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- Adding or extending mining concession contracts or authorizing exploitation expansions of existing coal mining projects.
- Deviate from the natural course of the Ranchería River or its tributaries.
- Develop new coal mining exploration or exploitation activities over aquifer recharge zones or that imply the removal of aquifer layers.
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These prohibitions will be maintained until the Strategic Environmental Assessment of the Department of La Guajira is completed, which will define the mining exclusion and restriction areas.
Budget measures: Finally, Decree 1277 states that the entities of the environmental sector in La Guajira must focus and prioritize the allocation of resources to implement the measures and execute the projects and interventions aimed at overcoming the State of Emergency, authorizing to carry the required budget modifications for these purposes.
The Constitutional Court is reviewing the constitutionality of Decree 1085 of 2023. In case it is declared unconstitutional, Decree 1277 would have no effect.