Regulation for Issuance of Certification of Non-Impact on Bodies of Water for Mining Operations

1. Ministerial Decree No. MAAE-2021-023 containing the “regulation for issuance of the prior administrative resolution provided for in Article 26(b) of the Mining Law” (hereinafter the “Regulation”) was published on August 18, 2021, in Official Register No. 518 to regulate the procedure for obtaining the prior administrative resolution concerning non-impact on bodies of water provided for in Article 26(b) of the Mining Law[1].
2. Under the Regulation, the Environment Ministry identifies the permit for productive use of water regulated by the Water Resources Law (permits for use and utilization) and the certification of non-impact on bodies of water and observance of the order of precedence for access to water as separate authorizations. Therefore, the Regulation establishes a new specific procedure for the latter.
3. Holders of mining concessions must apply for the prior administrative resolution from the Environment Ministry for the initial exploration, advanced exploration, and exploitation phases, concurrently with the application for environmental registration or approval of the environmental impact study and license, as appropriate. The application may be filed for each mining project.
4. The aforementioned administrative process includes an on-site inspection of the mining concessions by the Environment Ministry prior to the issuance of the resolution, which must be issued within 40 days from the date of the inspection.
5. If the Environment Ministry fails to issue the resolution within the established period, the holder of the mining concession will be entitled to provide evidence of compliance by way of an affidavit made before a notary public and accompanied by a copy of the application filed and a statement to the effect that no response was received within the established period.
6. The transitory provisions of the Regulation establish that any holders of mining concessions that have filed an application for this certification (prior to the reform) may request that the process be suspended and re-apply under the new process.
7. Mining concessions that are in the advanced exploration, economic evaluation, or exploitation phase and have obtained (i) permits for water use and utilization and (ii) environmental licenses are not required to obtain the permit referred to in the Regulation.

[1] Art. 26.  Prior administrative resolutions.  For the performance of mining activities, it is mandatory to obtain prior, reasoned and favorable administrative resolutions issued by the following entities within the scope of their respective authority: (…) (b) the Water Authority in respect of any eventual impact on bodies of surface water or groundwater and observance of the order of precedence in relation to the right of access to water.