In the Second Supplement to the Official Gazette No. 518 of August 18, 2021, was published the regulation for the issuance of the previous administrative act established in literal b) article 26 of the Mining Law (hereinafter “Regulation“). Below, we present the most relevant points of the Regulation:

Article 26(b) of the Mining Law

Article 26 (b) of the Mining Law establishes that in order to carry out mining activities, are required motivated and favorable administrative acts, granted by the Single Water Authority (today Ministry of the Environment, Water and Ecological Transition) with respect to the possible affectation of surface and/or underground water bodies and compliance with the order of priority over the right to access to water (hereinafter “Prior Administrative Act”).

Purpose of the Regulation

The Regulation aims to regulate the procedures, process, and sub-processes for the issuance of the Prior Administrative Act, which will be issued by the Ministry of the Environment, Water and Ecological Transition (hereinafter “MAATE”).

About the Prior Administrative Act

The Prior Administrative Act will contain the analysis on the impact on water bodies, and prevention, mitigation, and control measures, which must be complied by the holder of the mining right, clearly indicating the conditions of monitoring or follow-up of water quality and quantity to which it will be submitted, based on the proposed environmental management plan presented.

The motivation and analysis contemplated in the resolution of the MAATE will depend on the mining regime in which the concession is classified, the activity and according to the stage and period that it is intended to develop.

Request of the Prior Administrative Act

The request for the Prior Administrative Act may be submitted by the mining right holder together with the request for approval of an environmental permit, environmental registration or environmental impact study and licensing, as appropriate.

The request may be made for mining projects.[1]

Content of the request of the Prior Administrative Act

The request addressed to the MAATE must contain the following information:

a) Identification of the mining title holder and means of contact.

b) Name and cadastral code of the mining right, administrative political location and area.

c) Table of coordinates of the mining right polygon and/or operational area object of the request.

(d) Type of mining and mining regime as appropriate.

e) General description of the reference mining activities according to the stage, phase or period for which the administrative act is required.

f)  Relevant technical information, depending on the characteristics of each particular case, which will be the same one sent for obtaining the respective environmental permit, with specific reference and focused on the identification, evaluation and assessment of the physical factor or water element, description of the activity or project, any potential affectation, alteration or impact to the surface and / or underground water bodies, as well as mitigation measures, management plan and follow-up and monitoring activities.

g) Certified copy of the mining rights in force.

Procedure for obtaining a Prior Administrative Act

Review of requirements: Submitted the request of the Prior Administrative Act, the MAATE, within 10 days, will review that the documentation is complete. If the file is not complete, the petitioner will be asked to complete the requirements within 10 days.

Inspection: Reviewed the information, the MAATE, within 3 days will notify with the day and time to perform a field inspection to verify technical aspects of the information reported. The inspection shall be carried out no later than 15 days from the date of notification.

Within a maximum of 5 days from the date of the inspection, the MAATE shall draw up the technical inspection report.

Results of the Inspection Report: Once the technical inspection report has been drawn up, the following procedure shall be carried out:

(i) If the technical report has no comments, the MAATE shall draw up the respective resolution of the Prior Administrative Act; or,

(ii) If the technical report submits observations, the petitioner shall be requested to submit, within 10 days, information that extends and/or clarifies information. Once the information has been entered, the MAATE will analyze and issue the respective technical report within 15 days. If the technical report does not submit observations, the petitioner shall be notified and shall determine its conformity with the information included. In case of observations by the petitioner, within 15 days the MAATE must include the information, if applicable. Once the observations have been included, the MAATE shall issue the administrative decision.

Issuance of administrative resolution

Once the technical report has been issued, the MAATE will issue the corresponding resolution within a maximum period of 5 days.

If the administrative resolution is not issued in the maximum terms established in the Regulation, the request will be deemed accepted.

The petitioner will prove the fulfillment of the obtaining of the Prior Administrative Act through an affidavit before a notary in which he attaches a copy of the request made and the declaration of not having received the response within the deadlines and terms indicated in the Regulation.

Modifications and Updates

Change of holder of mining rights: In case of assignment and transfer of mining rights, the new holder of mining rights must request the change of holder in the resolution, for which he must attach the deed of assignment and transfer of mining rights with their respective inscription in the Mining Registrar.

Modification to the mining activity: If during the execution of the mining activity it is concluded that the study should be extended regarding the modification of river courses or affectation of the order of priority on which the Prior Administrative Act was issued, the mining title holder must request an update of this including the technical justifications that support the changes. Changes which do not affect the quantity and quality of water shall not be regarded as a modification.

Divisions, accumulations, or renounces of areas:  In case of divisions, accumulations or renounces of areas, the mining concessionaire must submit a request for updating the Prior Administrative Act.

Validity of the Prior Administrative Act

The Prior Administrative Act shall be valid for the entire period or stage concerned and shall be valid equal to the term of the mining project or activity reported in the petition and in accordance with the environmental authorization or license.

Administrative Fees

Within 90 days the MAATE will set the administrative fee for the issuance of the Prior Administrative Act.

Petitions in Progress

The petitions in progress will continue to be processed in accordance with the procedures in force and information required at the time of their presentation. In the absence of a procedural rule, the provisions of this Regulation will apply.

The petitioners may request the archiving of the procedure in progress and request the initiation of a new petition with application of the provisions of the Regulation.

Permits for the use of water issued

Concessions that are in the period of advanced exploration, economic evaluation or exploitation phase and that have: i) permits for the use of water issued; and, ii) environmental licenses on the basis of environmental impact studies approved by the Environmental Authority, which cover hydrological studies in relation to the possible affectation to bodies of water,  it is understood that they comply with the Prior Administrative Act, so they must not initiate the process regulated in the Regulation.

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[1] ^{The Regulation defines a mining project as the area of one or more contiguous mining concessions, hold by the same mining right title holder, which has as its object the execution of activities aimed at the discovery, valuation, and quantification of a deposit, and which, for its development, requires a set of related activities}