The Ministry of Environment, Water and Ecological Transition has announced the reforms referring to citizen participation for environmental consultation in the regulations of the Organic Code of the Environment, which must go through the process of pre-legislative consultation prior to its entry into force. The following are the main elements of this[1] proposed regulation:

a) General

i. Citizen participation is defined as a process to guarantee public, free, and informed dialogue between the State and the community, to implement environmental consultation in the process to obtain environmental permits for projects, works or activities of high and medium environmental impact of the strategic and non-strategic sector and low environmental impact of the hydrocarbon and mining sector.

ii. Through citizen participation, the State must provide extensive and timely information on the content of the environmental permits, the possible environmental impacts and risks that may arise from the execution of the projects, works or activities, as well as the relevance of the actions to be taken.

iii. The process of citizen participation for the environmental consultation will be carried out prior to the granting of the corresponding environmental permits for the projects, works or activities.

iv. The process of citizen participation for the environmental consultation will be governed by the principles of equality and non-discrimination; opportunity, inclusion, interculturality, good faith, legitimacy and representativeness, maximum publicity; and transparency.

v. Its purpose is: 1. Guarantee the community or communities adequate, broad and timely access to information corresponding to the environmental permits; 2. Generate spaces for dialogue between the community and the State; 3. Collect, systematize and evaluate the opinions and observations of the community; 4. Consult the community or communities possibly affected prior to the issuance of the environmental permit.

vi.The environmental consultation is defined as a two-way dialogue that seeks to guarantee the community, especially the population that inhabits the area of direct social influence of the project, work or activity and that could be affected environmentally, their right to participate in the processes for the issuance of environmental permits,  through the delivery of the contents of the environmental technical information in a broad and timely manner and the consultation on the granting of environmental permits.

vii. The process must consider and respect the forms of organization and decision-making of the population that lives in the area of direct social influence of the project, work or activity. In the case of indigenous communes, communities, peoples, and nationalities, it will be carried out under their sociocultural and organizational characteristics.

viii. The Ombudsman’s Office will participate with accompaniment and vigilance throughout the process.

ix. The costs regarding the logistics of the process will be assumed by the operator of the project, work or activity.

b) Area of direct influence

i. The environmental consultation will be carried out in the area of direct influence. This space is where the environmental impacts generated by the development of the activities of a project, work or activity are directly manifested; this area is determined by the environmental components: physical, biotic and social.

ii. The identification of the individual units of the area of direct social influence (owners, possessors, or inhabitants, or territories of legally recognized indigenous peoples and nationalities and community lands of ancestral possession) is carried out in order to guide compensation actions, while the identification of social organizations of first and second order (communes, communities, precincts, neighborhoods or associations de facto or de jure), which make up the area of direct social influence, is carried out in order to establish compensation actions.

c) Subjects of consultation

i. The subjects of consultation are the community   or communities, regardless of their ethnicity, whose environment may be affected by any decision or permit in environmental matters.

ii. For a community, both rural and urban, to be subject to environmental consultation, it is not required that it possess a property title, nor State recognition through any registration, it is only required that the environmental decision or permit, as indicated in the Constitution, “can affect the environment” of said community.

d) Environmental technical instruments

i. The environmental technical instruments subject to citizen participation for environmental consultation; as the case may be, will be:

• Environmental impact study.
• Complementary studies.
• Management plan for the environmental registry of projects, works or activities of low impact in the hydrocarbon and mining sector.

ii. The operator of the project or activity must deliver to the competent environmental authority the physical and digital copies of the environmental technical instruments that it requires and the materials or communication supplies[2] for the didactic dissemination of its content in Spanish or the language of the communes, communities, peoples, and indigenous nationalities, if applicable.

e) Technical visit

i. The technical visit will be carried out by the designated environmental facilitator[3] in coordination with the local community and institutional representatives for the following purposes:

1. Identify the subjects of consultation.
2. Identify the issues, problems and socio-environmental conflicts that could be the subject of dialogue.
3. Determine the necessary and suitable information and consultation mechanisms to call for the information and consultative phase.
4. Determine the place, date and time tentative, as well as the linguistic translator, if necessary, for the application of the mechanisms of convocation and socialization.

ii. The environmental facilitator will prepare a report of the technical visit, including photos, maps, surveys, interviews, audio or video material, details of the convocation, attendance records, formats of records of receipt of observations, minutes, among others, and send it to the competente environmental authority for approval.

f) Information phase of citizen participation

i. The mechanisms for the informative phase of citizen participation, which will be convened by mass dissemination[4] or by personal invitations, will be determined in the report of previous visit of the projects, out of the following:

a) Informative assembly:  the environmental facilitator will present the content of the environmental technical instruments and the information corresponding to the processes of environmental regularization and citizen participation for environmental consultation and then a space for social dialogue will be generated where the community can present their opinions, observations, and points of view, as well as the concerns and observations about the project, work, or activity, will be answered. All community interventions will be recorded and included in the systematization report of the information phase of the citizen participation process for environmental consultation.

b) Website:  the information of the project, work or activity will be published, and the opinions and observations of the subject consulted will be received.

c) Informative video: the content of the environmental technical instruments may be disseminated on the electronic portal and other digital media at the public presentation assembly; workshops; and other spaces for participation.

d) Summary information: the environmental technical instruments may be summarized in physical documents and digital audios for the population of the area of direct and indirect social influence of the project, work, or activity through public information centers and/or personal invitations.

e) Public information center: it will be a fixed or itinerant physical space of a mandatory nature for the information phase, for socialization and debate, managed by the competent environmental authority, and which will remain open from 3 to 14 days, depending on the activity.

f) Environmental socialization workshops: spaces in which the community will be made aware of specific issues of the project, work or activity that require explanatory reinforcement, and that may be carried out before or after the public presentation assembly. The application of this mechanism is optional and may be applied when there are difficulties and limitations for the understanding and discernment of the community of the area of direct social influence with respect to extensive and technical documents. The time of its application will be while the public information center is open.

ii. The opinions and comments on the environmental technical instruments provided during the reporting phase shall be compiled in:

• Minutes of assemblies.
• Registration of public information centers.
• Reception by traditional mail.
• Reception by email.
• Other means depending on the area and the socio-cultural characteristics of the area of direct social influence.

iii. Once the fixed public information center is closed, the environmental facilitator will issue the systematization report of the informative phase of the citizen participation process for the environmental consultation for approval by the competent environmental authority. The report should contain a verbatim transcript of the opinions and observations submitted through the information mechanisms implemented and the identification of possible socio-environmental conflicts.

iv. Subsequently, the operators will be notified to include in the corresponding environmental technical instrument the opinions and observations generated during the information phase, provided that they are technically and economically feasible and will send [5] it to the competent authority for review and send it for approval by the competent environmental authority, with the possibility of  observations and  first and complementary corrections, subject to archiving of the process for non-compliance.  If the case may be, the competent environmental authority shall approve the report and arrange for the start of the advisory phase.

v. With this approval, the environmental facilitator must prepare a technical report for approval by the competent environmental authority that will include the convocation and schedule of the environmental consultation assembly to be held in the community or communities of the area of direct social influence.

vi. The community, among its participants, will designate two representatives or spokespersons to present the criteria of the participants who may agree or disagree about the granting of the environmental permit. Such statements or positions shall contain the reasons for their decision, which shall be recorded in the minutes of the meeting.

vii. At the end of the meeting, minutes will be drawn up and signed.

viii. If there is a majority opposition[6] by the community regarding the granting of the environmental permit, the decision to grant the permit by the competent environmental authority must be duly substantiated and motivated, which implies a technical and legal evaluation of the opposing points of view, and a detail of the parameters or measures of prevention, mitigation and minimization of impacts on the communities and the compensation mechanisms, as well as the  obligation to integrate community members into the workforce in the respective projects.

ix. If the communities do not exercise their right to participate in the process of citizen participation for the environmental consultation, having been duly convened, or there are de facto measures tending to hinder its realization, the process of citizen participation for the environmental consultation will continue; without this constituting grounds for nullity or suspension of this.

x. If there is agreement or conformity on the part of the community regarding the granting of the environmental permit, the competent authority will end the process of citizen participation and will order the continuity of the environmental regularization process, as established in current regulations.

xi. The environmental facilitator will make a report for consideration of the environmental authority detailing the convocation for the consultative phase and summarizing the development of the consultation assembly, in which the deliberation by the community will be emphasized.

xii. The competent environmental authority will pronounce by administrative act the approval of the systematization report of the consultative phase, evaluation of results and completion of the citizen participation process.

For more information, do not hesitate to contact us.

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[1] According to the schedule proposed by the MAATE, the public call phase takes place between March 6 and 17, 2023; the publication of the documentation between 6 March and 18 April; the phase of conducting the consultation between 20 March and 18 April; and the receipt of contributions between March 20 and April

[2] The communication materials or supplies for the didactic dissemination of the content of the environmental technical instruments will contain the following information:

1. Summary and illustrative description of the activities of the project work or activity;
2. Direct physical, biotic and social areas of influence;
3. Synthesis of environmental, biotic and social impacts; and
4. Synthesis of the environmental management plan.

They shall be included in advance in the environmental technical instruments as annexes for review.

[3] Public servant with a relationship of dependence with the competent environmental authority, responsible for coordinating, planning, executing and systematizing the activities developed in each phase of the Citizen Participation Process for environmental consultation.

[4] The following are established as means for convocation to the environmental information and consultation phases:

• Digital or written press;
• Radio;
• Television;
• Periphone;
• Information posters,
• Official electronic pages of the competent Environmental Authority; and
• Social Digital Networks.

[5] The opinions and observations generated during the information phase will be technically and economically viable when they are framed in the provisions of the applicable environmental regulations and in the responsibilities and obligations of the operator of the project, work, or activity.

[6] Majority opposition is defined as the situation in which half plus one of the community members consulted, duly registered during the information phase, that with duly substantiated and documented arguments or criteria support their opposition to the issuance of the environmental permit detailing: 1. The identification of the affectation, 2. The justification or argumentation of said affectation and 3. The means that support the foundation or argumentation of the affectation.

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