The first paragraph of Article 73 of the Constitution of the Republic of Ecuador provides that the State will apply precautionary and restrictive measures on activities that could lead to the destruction of species or ecosystems, or the permanent alteration of natural cycles.
According to the provisions in Article 19 of the Environmental Management Law, public, private or mixed works, and public or private investment projects that could cause environmental impacts will be qualified previous to their execution. In this sense, it is up to the Ministry of Environment to determine the works, projects and investments that would be required to undergo the process of obtaining environmental permits.
As stated in article 35 of Ministerial Agreement No. 0061, projects, works or activities, either new or in operation, must comply with the environmental regulation process and have the corresponding environmental license, but in case they don’t do it, they would be subject to the sanctions under the applicable environmental regulations, notwithstanding of the civil, criminal or administrative actions derived from its lack of compliance. The Penal Integral Organic Code punishes the delivering of false information or concealment of information that serves as support for the issuance and granting of environmental permits, environmental impact studies, environmental audits and diagnoses.
The National Environmental Categorisation is a process designed by the Ministry of Environment within the scope of its powers for the “selection, treatment, planning, assessment, stratification, of the projects, works or activities existing in the country, according to the particular characteristics of these and the negative impacts caused to the environment.”2 It is important to emphasise that under environmental regulations, all the projects, works or activities developed or to be developed in the country shall be environmentally regularised.
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1 Official Register Special Edition No. 128, 29th April 2014.
2 Ministerial Agreement No. 006, Official Register Special Edition No. 128, 29th April 2014.
The National Environmental Categorization Catalogue reflects a listing of the different projects, works, industries or existing activities in the country according to the generated environmental impact and risk to the environment, as follows: a) No significant impacts; b) Low Impacts; c) Medium Impacts; and, d) High Impacts.
Category I (No significant Impacts-Environmental Registry)
In category I, are those projects, works or activities in which environmental impacts and risks are considered insignificant.
It must be emphasised that the environmental regulation of the activities or projects that are listed within this category is not mandatory, but they may do so by obtaining a certificate of environmental registration issued by the competent environmental authority using the SUIA (Single System of Environmental Information).
Notwithstanding the above, the Ministry of Environment, through technical evaluation tracking, by validating the intersection with Protected Areas, Protected Forest or State Forest Heritage, etc., and/or, in case those activities cause larger negative environmental impacts to those considered for this category; could dispose the certificate of environmental registration for such activity or its re-categorisation.
The steps to follow for registration would be the following: 1) Registration of the Promoter; 2) Registration of the Project; 3) Review of documentation; 4) Issuance of the Environmental Certificate and Good Environmental Practices Guide; and 5) Database Registration.
As examples of this category, we have:
– Construction and operation of residential complexes and/or residential areas buildings less than or equal to 20,000 m2 of gross area.
– Wholesale of cars and motor vehicles.
– Dealers of new cars.
Category II (Low Impacts – Environmental Record)
In this category we find projects, works or activities in which environmental impacts and/or environmental risks are considered of low impact.
All projects or activities within this category must be environmentally regularized by obtaining an environmental license, which shall be granted by the competent environmental authority through the SUIA, according to the procedures manual provided for this category, and according to the guidelines established by the competent environmental authority.
The steps for obtaining the Environmental License II are: 1) Registration of Promoter; 2) Registration of the project, work or activity; 3) Payment for administrative services; 4) Environmental Record Entry; 5) Verification of documentation; 6) Environmental License.
As examples of this category, we have:
– Construction and/or operation of aqua farms (shrimp farms) less than or equal to 100 acres.
– Construction of civil infrastructure less than or equal to 10,000 m2.
– Construction of residential areas.
– Car dealers with vehicle maintenance workshops.
Category III (Medium Impacts – Declaration of Environmental Impact)
Within this category are catalogued projects, works or activities whose environmental impacts or environmental risks are considered medium impact.
All projects, works or activities listed in this category shall be regulated environmentally by obtaining an environmental license, which shall be granted by the competent environmental authority in accordance to the SUIA.
The steps for regularization under this category are: 1) Registration of Promoter; 2) Registration of Project, work or activity; 3) Submit of the Environmental Impact Statement (Social Participation Process and Environmental Management Plan); 4) Verification of documentation; 5) Payment for administrative services; 6) Delivery of a policy or a performance bond; 7) Environmental License.
Within this category, among others, are:
– Cultivation of cocoa larger than 100 acres.
– Cultivation of coffee larger than 100 acres.
– Cultivation of sugar cane larger than 100 acres.
– Construction, installation and/or operation of undersea optical fibre.
Category IV (High Impacts – Environmental Impact Study)
Within this category are those projects, works or activities whose environmental impacts and/or risks are considered of high impact.
All projects, works or activities listed in this category shall be environmentally regulated by obtaining an environmental license, which shall be granted by the competent environmental authority in accordance to the SUIA.
The steps for regularization within this category IV: 1) Registration of Promoter; 2) Registration of Project, work or activity; 3) Elaboration of Terms of Reference; 4) Social Participation Process; 5) Environmental Impact Study; 6) Payment for administrative services; 7) Delivery of a policy or a performance bond; 8) Environmental License.
We find as examples:
– Construction and/or operation of flower farms over 6 acres.
– Cultivation of banana over 175 acres.
– Industrial Fishing.
– Oil Drilling Exploration and Advanced Perforation.
– Construction and/or operation of breweries.
Additional Considerations
For the issuance of administrative environmental authorisations, those projects, works or activities that include more than one activity or sub-activity described in the Catalog of National Environmental Categorization, shall begin their process of regularization with the activity of a higher category.
Besides the above stated, it is important to know that every project, work or activity that has an administrative environmental authorisation, and is going to make a modification or extension to its activity, must fulfil again the process of environmental regulation, according to the conditions provided in the environmental regulations.
Conclusions
1. Under the provision of the current environmental regulations, all projects, works or activities developed or to be developed in the country shall be environmentally regularized.
2. According to the National Environmental Categorization Catalogue, projects, works, industries or activities must be classified into 4 groups: a) Non significant impacts; b) Low Impacts; c) Medium Impacts; and, d) High Impacts.
3. According to each group or category, the requirements provided in the environmental regulations for obtaining, either the environmental record or the environmental license shall be followed.
4. In case of not complying with the process of environmental regulation, the competent authority may impose the penalties provided in the applicable environmental legislation, notwithstanding to any civil, criminal or administrative actions derivated from non-compliance.
