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Environmental Law Streamlines Development
Process And Protects Natural Resources
By Luis Pellerano
The National Congress of the Dominican Republic has passed a new
environmental law creating a Department of Environment and Natural Resources
and streamlining the environmental review process required for development.
The law defines dozens of
environmentally-related terms, from "sustainable use,"
"protected areas," and "environmental quality" to
"load capacity," "contaminant," and "sustainable
development." In addition, the law establishes a system of environmental
studies and permits, which should be familiar to entities subject to
environmental laws in the United States. Key definitions relating to these
environmental studies and permits include:
o "environmental audit," defined
as a systematic, documented, periodic and objective evaluation performed to
determine whether a particular management system and environmental behavior
are adequate;
o "environmental impact,"
defined as "any significant" alteration of one or more parts of the
environment and natural resources;
o "declaration of environmental
impact," defined as the process that analyzes a proposed act from the
point of view of its effect on the environment and natural resources;
o "environmental impact study,"
defined as the technical and scientific activities directed towards the
identification, prediction, and control of environmental impacts of a project
and its alternatives, presented in the form of a technical report and
performed according to the criteria established by the standards in effect;
o "environmental impact
statement," defined as a document prepared by a multidisciplinary team
under the responsibility of the proponent, by means of which is made known to
the appropriate government entity and other interested parties the results
and conclusions of an environmental impact study;
o "environmental license,"
defined as the document that records the fact that the corresponding
environmental impact study has been delivered, and that the activity, work,
or project can be carried out, under the conditions indicated in the license;
o "environmental permit,"
defined as the document granted by the appropriate government authority at
the request of an applicant that certifies that from the point of view of
environmental protection, the activity proposed by the applicant may be
carried out under the conditions indicated in the permit; and
o "toxic wastes," defined as any
product that contains "significant quantities" of substances that
present or may present a danger for the life or health of living entities
when freed into the environment or if manipulated incorrectly due to their
magnitude or their corrosive, toxic, poisonous, reactive, explosive,
inflammable, biologically harmful, infectious, or irritating characteristics.
The Natural Resources Department
The law creates the Natural Resources
Department as the governing body in charge of environmental matters. It also
establishes five divisions of the Natural Resources Department, responsible
for:
o environmental management;
o soils and waters;
o forestry resources;
o protected areas and biodiversity; and
o coastal and marine resources.
In addition, various existing government
entities, such as the National Directorate of Parks, the Environmental
Department of the National Planning Office, the National Institute of
Forestry Resources, the National Institute of Environmental Protection, and
the Office for the Protection of the Earth's Crust of the Department of State
of Public Works, are now subject to the control of the Natural Resources
Department.
Environmental And
Natural Resources Management
To guarantee the design and efficient
execution of the policies, plans, programs, and projects related to the
environment and natural resources, the law creates the National System of
Environmental and Natural Resources Management. This system constitutes the
full range of standards, activities, resources, projects, programs, and
institutions that make possible the application, execution, and
implementation of the principles, policies, and strategies adopted by the
government related to the environment and natural resources.
The head of the Natural Resources
Department and other individuals -- from both the public and private sectors
-- are members of this system. All of the members are expected to work
together to ensure interinstitutional coordination of environmental
management, subject to the directions of the Natural Resources Department.
The new law explains the methods that the Natural Resources Department may
use to manage the Dominican environment and its natural resources. These
include:
o environmental planning;
o environmental permits and licenses;
o strategic evaluation of environmental
impact;
o environmental inspection; and
o incentives.
Thus, as described in the law, the
planning of development throughout the country now must incorporate a
consideration of environmental issues. Toward that end, all development
plans, programs and projects -- whether of a national, regional, provincial,
or municipal nature -- must be drafted or adjusted to reflect the new law's
guiding principles and the applicable environmental policies, strategies, and
programs established by the Dominican government.
Moreover, the law requires that, within
three years, the Natural Resources Department together with other Dominican
agencies create and implement a National Plan that incorporates environmental
issues.
Protected Areas
A "National System of Protected
Areas," with particularly significant environmental properties such as
forests, wildlife refuges, and certain beaches, is created by the new law,
and made subject to the control of the Natural Resources Department. These
protected areas are subject to a temporary ban on modification until regulations
are developed regarding their use. These regulations will relate to the
conservation and use of these areas, and must facilitate scientific research
-- and promote recreational activities and sustainable tourism.
Significantly, the Dominican Republic may
establish agreements for the co-management and/or the management of protected
areas with interested entities, "so long as the interests of
conservation prevail over any other."
Environmental
Impact Statements
Developers must undertake certain steps
that the law refers to as "environmental evaluation" before they
may proceed with their projects. This evaluation includes the following
steps:
o environmental impact statement;
o strategic environmental evaluation;
o environmental impact study;
o environmental report;
o environmental license;
o environmental permit;
o environmental audits; and
o public consultation.
The Natural Resources Department will be
issuing regulations regarding this requirement. Among other things, they will
require that developers perform an analysis to make certain that plans are
consistent with the national policy on the environment and natural resources.
Additionally, every project or other
activity that could affect the environment and natural resources in one way
or another must obtain in advance from the Natural Resources Department an
environmental permit or license, depending on the magnitude of the effects it
could cause.
The law also sets forth the projects and
activities that require an environmental impact evaluation. These include:
o ports, docks, navigation ways,
breakwaters, piers, canals, shipyards, drains, maritime terminals,
reservoirs, dams, dikes, irrigation canals, and aqueducts;
o high voltage electrical transmission
lines and their sub-stations;
o hydro and thermo-electrical central
stations and nuclear generating plans;
o airports, bus and railroad terminals,
railroad lines, highways, roads, and public roadways;
o urban development projects;
o industrial plants, including sugar
mills, cement plants, liquor distilleries, beer factories, paper factories,
chemical factories, textile factories, producers of construction materials,
equipment, and metallic products, tanneries, and gas, halogen, hydracid and
acid facilities;
o agribusinesses and slaughterhouses, breeding
stables, milking establishments and animal feedlots of industrial dimensions;
o plans for agrarian transformation,
agricultural plantations, and cattle breeding, rural settlements, including
those carried out according to the Agrarian Reform laws;
o mining projects, including petroleum and
turbine; explorations or prospecting, removal of the earth's crust,
exploitations, construction, and operation of wells, dams, processing plants,
refineries and disposal of residues;
o extraction of dry materials (rocks,
gravel, and sand);
o installation of pipelines, gaslines,
mining ducts, and other analogous installations;
o importation, production, preparation,
transformation, use, marketing, storing, transportation, disposal, recycling,
or re-use of toxic, noxious, explosive, radioactive, inflammable, corrosive,
or reactive substances or others of evident dangerousness;
o systems of environmental sanitation,
such as sewage systems and potable water systems, sewage treatment plans, and
plants to treat toxic residues of industrial, residential, and municipal
origin, sanitary fills, underwater outlets, treatment and disposal systems
for solid, liquid, or gaseous effluvients;
o engineering projects that are projected
to be performed in protected forests or water production and other fragile
ecosystems, in rain or cloud forests, in upper basins, in wetlands, or in
coastal areas;
o hotel or tourism development
installations; and
o industrial parks, industrial free zones,
or industries of transformation, and assembly parks.
It should be noted that projects that do
not require an environmental permit or license nevertheless still must comply
with the Natural Resource Department's environmental regulations. The Natural
Resources Department is to establish rules to determine whether a project
merely requires an environmental permit, and therefore must present an
environmental impact statement, or whether it needs an environmental license,
in which case it must present an environmental impact study.
Costs of an environmental impact statement or environmental impact study are
to be borne by the developer, and are considered public documents subject to
disclosure.
Conclusion
The Dominican Republic's new environmental
law raises a number of environmental issues that developers and businesses
operating in the country need to consider. By placing the responsibility for
these matters in a newly created department, the law also reflects the
country's interest in attracting foreign investment and its recognition of
the need to allow businesses to discover what they need to learn to be able
to comply with the rules in a streamlined, meaningful, and cost effective
manner.
BIO: Luis R. Pellerano is a partner with
the Dominican Republic law firm of Pellerano & Herrera. He regularly
represents foreign investors in transactions in the Dominican Republic and
throughout the Caribbean and Latin America
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