Written By: Jorge Ojeda
Cacheaux Cavazos & Newton
San Pedro Garza García, Mexico
When considering the development and construction of real estate in Mexico, it is necessary to verify whether such land is considered "Forest Land" and, if so, to inform the Mexican Department of Environment and Natural Resources ("SEMARNAT"), in advance, regarding the change of use of forest land. Such process requires, among other things, an approval of the environmental impact, which involves conducting an Environmental Impact Statement ("MIA"). The General Law for Sustainable Forest Development broadly defines "Forest Land" by stating that such is land that is covered by "forest vegetation," or, "an environment where plants and fungi, grow and develop naturally, forming forests, jungles, arid and semi-arid areas and other ecosystems, developing the coexistence and balance of other resources and natural processes." This broad definition of Forest Land and the lack of coordination between the federal, state and municipal governments have resulted in a contradictory and confusing system in Mexico. For example, a property that is in compliance with the municipal urban development plan, and is designated for use as urban land and for industrial or commercial use, may still be considered Forest Land by federal authorities, even when such property is part of the urban area of a municipality and is in compliance with local ordinances and for which a local MIA has been obtained. Though Annex 1 of the Decree which Integrates and Organizes Forest Zoning, which was published in the Official Journal of the Federation on November 30, 2011, established that urban areas and areas of human habitation, among others, are considered "non-forest land," such decree did not resolve the lack of coordination between the three levels of government and, by its terms, is not sufficiently clear. A reform to Article 32 of the General Law of Ecological Balance and Environmental Protection ("LGEEPA") was published in the Official Journal of the Federation on May 20, 2013. Its purpose was to establish and make it a mandatory requirement (previously optional) that in order to modify local and municipal urban development plans, whether state, municipal, or federal, as the case may be, authorization from SEMARNAT must be obtained with respect to the environmental impact, prior to the change of use of forest land, as well as jungles and arid zones, in accordance with the provisions of Article 28 of the LGEEPA. This recent amendment to the LGEEPA seeks coordination between the three levels of government regarding the change of land use of forest areas, prior to approval and/or amendment of the applicable urban development plans, which would incorporate additional land to urban areas and human habitations. Therefore, developers will no longer be required to utilize a federal MIA for the change of use of forest land, though it will still be subject to the requirements established by local law and plans applicable to environmental matters.
For more information about Mr. Ojeda, a partner at the Monterrey office of Cacheaux, Cavazos & Newton, please visit www.ccn-law.com or the International Society of Primerus Law Firms.