GUIA_LEGAL_CHAPTER_8_COLOMBIAN ENVIROMENTAL REGIME.pdf

TO DOING
BUSINESS IN
COLOMBIA
LEGAL
GUIDE

This document reflects the valid Colombian
legislation at the date of its development and it seeks
to provide general and basic information of the
Colombian law. This message does not represent or
replace legal counsel of a specific or particular
matter. Such legal counsel must be obtained from
specialized legal services. To that effect, we suggest
that you contact any of the law firms that can be
found in the Investor’s Services Directory located in
the webpage of ProColombia
LEGAL
GUIDE
TO DOING BUSINESS
IN COLOMBIA
www.procolombia.co

COLOMBIAN
ENVIRONMENTAL
REGIME

8.1
THE NATIONAL
ENVIRONMENTAL SYSTEM -
SINA
As Jurisprudence and Doctrine have denominated it,
since the Political Constitution of 1991, this has been
recognized as the Ecological Constitution of Colombia,
under the conception of being a Charter that welcomes
and promotes the protection of renewable natural
resources and the environment and coined the concept of
sustainable development that since the mid 80's, was
already gaining strength worldwide.
In this way, the structure of the Colombian State, since the
Political Constitution of 1991, has been strengthening
and adjusting to the reality of territorial development and
management, which clearly has to contemplate each of
the environmental determinants of each region; in this
sense, in 1993, the Congress of the Republic issued Law
99 of 1993, which is well recognized as the Law that
created and organized the National Environmental
System – SINA for its acronym in Spanish.
The SINA is composed of the following elements:
Figure 1.
Chapter 8
COLOMBIAN
ENVIRONMENTAL
REGIME
Principles and
guidelines
Specific regulations
Non-governmental community
organizations
Public private, or mixed entities
that carry out activities for the
production or information of
scientific research and
technological development in
the environment field
State entities responsible
for environmental policy
and action
sources and Economic
resources for
environmental
management and
restoration
Source: Own elaboration
4

Based on the above, it is necessary that any natural
or legal person wishing to develop a project of a
different nature in Colombia takes into account the
following relevant aspects of the Colombian environ-
mental regime:
8.1.1. PRINCIPLES OF ENVIRONMENTAL
LAW OF GREATER RECOGNITION IN
DOCTRINE AND JURISPRUDENCE IN
COLOMBIA
In this regard, it is essential to point out that the
Principles of Environmental Law were proclaimed in
1992, in the Rio de Janeiro Declaration, whose
objective was to establish a new and equitable
global alliance, always seeking to reach internatio-
nal agreements in which the interests of all are
respected.
Based on this, 27 principles were proclaimed, of
which we consider it essential to mention those that
have had the greatest development or legal, doctrinal
and/or jurisprudential recognition in Colombia, all
of which are included in Law 99 of 1993.
8.1.1.1. Precautionary Principle
In the Rio Declaration, it is recognized as Principle
15, which basically states that where there are
threats of serious or irreversible damage, lack of
scientific information or certainty should not be used
as a reason for postponing effective measures to
prevent environmental degradation.
8.1.1.2. Prevention Principle
Due to its name, it is often confused with the Precautio-
nary Principle. However, this is based on the knowledge
that the activity, work or project to be carried out may
cause damage. Therefore, the authorities are called upon
to adopt measures to avoid or mitigate the cause of the
damage.
8.1.1.3. Polluter pays principle
This principle has been disseminated and recognized one
that gives an economic value to the environmental
impact, trying to anticipate the cost of the use and exploi-
tation of natural resources whose application has been
recognized in Colombia by the application of fees or
internalization of costs normally in the Environmental
Impact Study (EIA for its acronym in Spanish).
8.1.1.4. Principle of Environmental
Impact Assessment
This Principle is fundamental in Colombia, especially for
the development and execution of those works, activities,
and projects that may generate an impact that, due to its
magnitude, is subject to the decision of the environmental
authority approval.
8.1.1.5. In Dubio Pro Natura Principle
Based on the Precautionary Principle, in which it has
been widely recognized that "in the face of scientific
doubt and uncertainty about risks to the environment, it
must be resolved in favor of nature, which has been
jurisprudentially called in dubio pro natura or in dubio
pro ambiente, which is applied when there is no certainty
about the impact of a certain activity on the environment
and the certainty of the impact is legally assumed to be
negative"1
.
8.1.1.6. Principle of Sustainable
Development
In the Rio Declaration, it has been described as follows:
In order to achieve sustainable development, environmen-
tal protection must be an integral part of the development
process and cannot be considered in isolation2
. In the
report "Our Common Future" (1987), the genesis of this
concept, sustainable development was defined as "mee-
ting the needs of the present generation without compro-
mising the ability of future generations to meet their own
needs".
8.1.2. NORMATIVE PRINCIPLES
According to Law 99 of 1993, the exercise of environ-
mental functions by territorial entities shall be subject to
the principles of regional harmony, gradation of regula-
tions, and subsidiary rigor.
8.1.2.1. Principle of Regional Harmony
The Departments, Districts, Municipalities, Indigenous
Territories, as well as the regions and provinces to which
the law gives the character of territorial entities, shall
exercise their constitutional and legal functions related to
the environment and renewable natural resources in a
coordinated and harmonious manner, subject to the
superior norms and the guidelines of the National
Environmental Policy, to guarantee unified, rational and
coherent management of the natural resources that are
1
RODRÍGUEZ, Gloria A. Fundamentals of Colombian Environmental Law. National Environmental Forum and Friedrich-Ebert-Stiftung in
Colombia. First Edition, 2022
2
In this regard, it should be pointed out that the concept of Sustainable Development was born in the mid 80's, conceived in the report
prepared by the Brundtland Commission and called "Our Common Future", in which it was presented as "the development that meets the
needs of present generations without compromising the ability of future generations to meet their own needs".
5

part of the physical and biotic environment of the natural
patrimony of the nation.
8.1.2.2. Principle of Regulatory Gradation.
In regulatory matters, the rules issued by the territorial
entities concerning the environment and renewable
natural resources shall respect the superior nature and
hierarchical preeminence of the rules issued by authori-
ties and entities of higher hierarchy or of greater scope in
the territorial understanding of their competences. The
functions in environmental and renewable natural resour-
ces matters, attributed by the Political Constitution to the
Departments, Municipalities and Districts with special
constitutional regime, shall be exercised subject to the
law, regulations and policies of the National Govern-
ment, the Ministry of the Environment and the Regional
Autonomous Corporations (CARs for its acronym in
Spanish).
8.1.2.3. Principle of Subsidiary Rigor.
The rules and measures of environmental police, that is to
say, those that the environmental authorities issue for the
regulation of the use, management, exploitation and
mobilization of renewable natural resources or for the
preservation of the natural environment, whether they limit
the exercise of individual rights and public liberties for the
preservation or restoration of the environment, or require
a license or permit for the exercise of a certain activity for
the same reason, may be made successively and
respectively more rigorous, but not more flexible, by the
competent authorities at the regional, departmental,
district or municipal level, to the extent that the hierarchy
of norms is lowered and the territorial scope of
competences is reduced, when special local
circumstances so warrant, in accordance with Law.
The Administrative Acts issued in this way must
breasoned.
Concerning the Regulatory Principles, special reference
will be made to the Principle of Regulatory Gradation and
the Principle of Subsidiary Rigor due to the jurisprudential
development that this has had in Colombia.
8.1.3. Entities that make up the SINA:
(a) The Ministry of Environment and Sustainable
Development (MADS) is the governing body for the
management of the environment and renewable
natural resources, responsible for promoting a
relationship of respect and harmony between man
and nature and for defining the policies and
regulations to which the recovery, conservation,
protection, planning, management, use and
exploitation of renewable natural resources and the
environment of the Nation will be subject, to ensure
sustainable development; it is also the coordinator of
the National Environmental System (SINA).
(b) The National Environmental Licensing Authority
(ANLA), is the environmental authority that exercises
permitting and sanctioning powers with respect to
projects, works and activities under its jurisdiction. It
is responsible for ensuring that projects, works or
activities subject to environmental licensing, permits
or procedures comply with environmental
regulations, in such a way that they contribute to the
sustainable development of the country.
(c) Regional Autonomous Corporations (CARs),
Autonomous Corporations for Sustainable
Development and municipalities, districts and
metropolitan areas whose urban population exceeds
one million inhabitants within their urban perimeter,
which act as environmental authorities exercising
permitting and sanctioning powers with respect to
projects, works or activities subject to their
competence and jurisdiction.
The CARs are public entities, made up of territorial
entities that due to their characteristics
geographically constitute the same ecosystem or form
a geopolitical, biogeographical or
hydrogeographical unit, charged by law with
managing, within the area of their jurisdiction, the
environment and renewable natural resources and
promoting their sustainable development, in
accordance with legal provisions and the policies of
the Ministry of the Environment.
(d) Scientific entities attached and linked to the Ministry
of Environment and Sustainable Development:
• The Institute of Hydrology, Meteorology and
Environmental Studies, IDEAM;
• The Marine and Coastal Research Institute "José
Benito Vives de Andreis", INVEMAR;
• The Alexander Von Humboldt Biological Resources
Research Institute;
• The Amazonian Institute of Scientific Research
"Sinchi";
• The Pacific Environmental Research Institute "John
Von Neumann".
8.1.4.National System of Protected Areas
(SINAP)
It is the set of protected areas, social and institutional
actors, strategies, and management instruments that
contribute to the fulfillment of the country's general
6

conservation objectives. (Decree 2372 of 2010)3
.
Taking into account that the Convention on Biological
Diversity entered into force in Colombia in 1995 and that
due to the biological, topographic, and natural resource
diversity in the Colombian territory, the SINAP was
created, whose main focus is the protection and conser-
vation of certain areas with natural and cultural connota-
tions that have great ecological value.
In the SINAP, the National Natural Parks Unit of Colom-
bia plays a leading role, being in charge of:
(i) Coordinating the conformation, operation and
consolidation of the National System of Protected
Areas, in accordance with the policies, plans,
programs, projects and regulations that govern said
System and
(ii) Granting permits, concessions and other environ-
mental authorizations for the use and exploitation of
renewable natural resources in the areas of the Natio-
nal Natural Parks System and issuing a concept within
the framework of the environmental licensing process
for projects, works or activities of projects, works or
activities in the areas of the National Natural Parks
System, in accordance with the activities permitted by
the Constitution and the law, among others.
Protected areas are classified as public and private:
8.1.4.1. Public protected areas:
a) National Natural Parks System
b) Protective Forest Reserves
c) Regional Natural Parks
d) Integrated Management Districts
e) Soil Conservation Districts
f) Recreation Areas
8.1.4.2. Private protected areas: Civil
Society Nature Reserves.
The main aspect to highlight is that all extractive activi-
ties are prohibited in natural parks (national and
regional), which are the strictest conservation
category of the SINAP. Such activities are also prohi-
bited in protective forest reserves.
Figure No. 2.
Protected Area Categories
Public
protected
areas
Areas of the national natural
parks system
Protective forest reserves
Regional natural parks
Soil conservaion districts
Integrated management districts
Recreational areas
3
Decree regulating the National System of Protected Areas, the management categories that comprise it, and the general procedures
related to it.
7

8.1.4.3. Protected Area Concept
A geographically defined area that has been desig-
nated or regulated and managed to achieve speci-
fic conservation objectives (Law 165 of 1994).
8.1.5. Main Objectives of SINAP
(a) Ensure the continuity of natural ecological and evolu-
tionary processes.
(b) Guarantee the supply of environmental goods and
services essential for human well-being.
(c) Guarantee the permanence of the natural environment
or of some of its components, as the foundations for the
maintenance of the country's cultural biodiversity and the
social valuation of nature.
8.1.6. Other areas of special
Figure No. 3.
Protected areas of a private nature
Public protected areas
Registered with the parks
unit
Civil society
natural reserves
environmental protection
These are not part of the areas of the Protected Areas
System; however it is important to highlight that there are
other figures with legal recognition in Colombia, some of
them are still subject to declaration, zoning and establish-
ment of Environmental Management Plans for the proper
use and exploitation of renewable natural resources
associated with each of them, therefore it is essential to
mention them and make a brief description:
(a) Forest Reserves of Law 2 of 1959.
Seven forest reserve zones were created: i) Pacific Forest
Reserve Zone, ii) Amazon Forest Reserve Zone, iii) Central
Forest Reserve Zone, iv) Sierra Nevada de Santa Marta
Forest Reserve Zone, v) Cocuy Forest Reserve Zone, vi)
Magdalena River Forest Reserve Zone, and vii) Serranía
de los Motilones Forest Reserve Zone.
For the purposes of the development of activities, works
and projects of public utility and social interest, the Law
has established the figure of subtraction of forest reserve
areas, a procedure that is currently regulated by articles 7
and 8 of Resolution 1526 of 2012 and Resolution 110 of
2022.
Regarding the forest reserves created by Law 2 of 1959,
these may be subject to temporary or definitive subtraction
of area, to allow activities considered of public utility or
social interest and other types of activities, such as mining
activities, public infrastructure.
There are other areas that, despite not being categorized
as protected areas, are of special ecological importance,
which is why they have legal and regulatory restrictions
that prevent the development of certain types of projects,
works or activities, as they are strategic ecosystems, such
as, for example, moorlands and wetlands.
Due to the above, the due diligence exercise is essential to
identify overlaps in the area of interest.
(b) Moorland or Paramo ecosystems. De
Paramos or moors are considered strategic ecosystems
especially for their role in the regulation of the hydrological
cycle that sustains the supply of water resources for human
consumption and development of economic activities of
more than 70% of the Colombian population, these
territories are also characterized by their high biotic and
sociocultural richness.
The function of delimiting the paramos was granted to the
Ministry of Environment and Sustainable Development
since Law 1450 of 2011 and Law 1753 of 2015, a
function recently ratified by Law 1930 of 2018. In
compliance with the above, today, 35 of the 36 paramos
in the country have been delimited.
(c) Wetlands. Wetlands are "those extensions of
marshes, swamps, peat bogs or waters of natural or
8

artificial regime, permanent or temporary, stagnant or
flowing, fresh, brackish or salt, including extensions of
marine water whose depth at low tide does not exceed six
meters" (Fide Scott and Carbonell 1986). (Fide Scott and
Carbonell 1986)
Classification or types of wetlands in Colombia:
Mangroves, swamps, marshes, salt marshes, estuaries,
lagoons, natales, guandales, cananguchales, peat bogs
and thermal waters, among others, are part of the 55
types of wetlands that will be included in the classification
(Alexander Von Humboldt Institute).
(d) Watersheds. The first normative reference in
Colombia is found in Article 83 of Decree 2811 of
1974 (Natural Resources and Environment Code) and
characterizes them as inalienable and imprescriptible
assets of the State.
Additionally, it refers to them as follows: "A strip para-
llel to the line of maximum tides or that of the perma-
nent bed of rivers and lakes, up to thirty meters wide".
Based on the Decree 2245 of 2017, the environmen-
tal authorities must adequately manage and delimit the
water courses and define the order of priorities in the
exercise of delimiting the water courses in their
jurisdiction.
8.1.7. Permits, Authorizations and
Concessions Regime.
Based on the celebration of the United Nations Confe-
rence on the Environment in 1972 in Stockholm, in
December 1974, Decree-Law 2811 of 1974 was
issued, by means of which the “National Code of
Renewable Natural Resources and Environmental
Protection” was dictated, which is still in force.
In spite of being a regulation that is about to turn 50
years old, it has been considered that this Code was
quite avant-garde for its time, which knew how to
conceive the reality of natural resources and the
environment in Colombia, as well as the adequate
mechanisms for their protection, preservation, conser-
vation, use and management, establishing, among
other things, a series of permits, which are still in force
today.
The Colombian State has sought to develop an
environmental policy in accordance with the Colom-
bian ecosystemic reality. Based on the above, permits,
authorizations and concessions are the mechanism
through which the State authorizes the use and exploi-
tation of natural resources, the most widely recognized
or applied in Colombia are:
(a) Single, isolated and/or persistent Forest Harvesting
Permit.
(b) Groundwater/Surface Water Permit or Concession.
(c) Wastewater discharge permit.
(d) Selective collection and environmental management of
waste: light bulbs, tires, batteries, computers.
(e) Authorization for the transboundary movement of
hazardous waste.
(f) Authorization for export of biological diversity
specimens.
(g) Authorization for the construction of works that occupy
the bed of a stream or water reservoir.
(h) Authorization to grant the right to use the Colombian
Environmental Seal.
(i) Atmospheric Emissions Permit.
(j) Groundwater prospecting and exploration permit.
(k) Study permit for the collection of specimens of wild
species of the Biological Diversity for environmental
studies.
(l) Permit for suppliers of marking elements of the
National Identification and Registration System for
Wildlife Specimens in "Ex situ" conditions.
(m) Post-consumer product return management plans for
used lead acid batteries.
(n) Post-consumer return management plans for expired
drugs or medicines.
(o) Environmental management plans for packaging
waste.
(p) Pesticide post-consumer product return management
plans.
8.1.8. Environmental License
Following Decree 2811 of 1974, for the execution of
works, the establishment of industries or the develop-
ment of any other activity that, due to its characteris-
tics, may produce serious deterioration to renewable
natural resources or the environment, or introduce
considerable or notorious modifications to the landsca-
pe, it will be necessary to carry out a prior ecological
and environmental study and, in addition, obtain a
license.
Nowadays, this figure is regulated in Law 99 of 1993,
Decree 1076 of 2015 (which includes Decree 2041
of 2014).
8.1.8.1. What is the Environmental
License?
According to Decree 1076 of 2015, the "Environmental
License" is the authorization granted by the competent
environmental authority for the execution of a project, work
9

or activity, which in accordance with the law and regula-
tions, may produce serious deterioration to renewable
natural resources or the environment or introduce considera-
ble or notorious modifications to the landscape.
The competent environmental authority authorizes the execu-
tion of a project, work or activity from its installation to its
abandonment and dismantling, and subjects its owner to the
implementation of measures for the prevention, mitigation,
correction, compensation and management of the environ-
mental effects generated.
Generally, environmental licenses are only required for
works, projects or activities that are specifically indicated in
the regulations in force, i.e., only those projects, works or
activities that the law indicates should require an environ-
mental license.
8.1.8.2. Main features of the
Environmental License
(a) The environmental license must be obtained prior to the
exercise of rights arising from permits, authorizations,
concessions, contracts, and licenses issued by authorities
other than environmental authorities.
(b) The environmental license may be assigned in whole or in
part.
(c) The environmental license may be integrated with
another, as long as the object of the projects to be integrated
is the same, their areas are adjacent, and they could have
been advanced in the same process.
(d) The environmental license is normally granted for the
useful life of the project, work or activity and will cover the
phases of construction, assembly, operation, maintenance,
dismantling, final restoration, abandonment and/or termina-
tion.
(e) The same project, work or activity shall not require more
than one environmental license.
(f) For the development of projects, works and activities
related to mining and hydrocarbon exploitation, the compe-
tent environmental authority will grant a global environmen-
tal license covering the entire requested exploitation area.
(g) All environmental permits required for the development of
the project, work or activity, as long as they have been
requested within the licensing process, will be included in the
respective environmental license. The term of the environmen-
tal license, as well as of the environmental permits included
therein, will be equal to the duration of the project.
(h) If after five (5) years the project has not been built or
executed, the environmental license may lose its validity and
for this reason the environmental authority must declare the
loss of validity of the license.
8.1.8.3. Some projects requiring
environmental licenses and competent
authorities.
Section 2 of Decree 1076 of 2015, indicates the
projects, works and activities subject to environmental
licensing, namely:
a. Exploratory perforation of hydrocarbons.
b. Exploitation and pipeline transportation of
hydrocarbons.
c. Mineral exploitation.
d. Construction and operation of energy generation
plants, hydroelectric plants, and renewable energy
generation projects.
e. Construction of power lines for transmission and
distribution of energy.
f. Constructions of the sea and riparian ports and
projects of road and rail infrastructure.
g. Manufacturing facilities for the fabrication of
certain chemical substances.
h. Treatment, and recovery of hazardous waste.
i. Construction and operation of plants whose
purpose is the use and recovery of biodegradable
organic solid waste greater than or equal to twenty
thousand (20,000) tons/year.
j. Construction and operation of sanitary landfills.
k. Projects that affect areas of the National Natural
Parks System.
8.1.8.4. Process for obtaining an
Obtaining the environmental license must be done
through an administrative process regulated by law,
which can be initiated in two ways:
8.1.8.4.1. Projects requiring
Environmental Diagnosis of
Alternatives:
For some projects, works or activities, as established
by law, an Environmental Diagnosis of Alternatives
(DAA for its acronym in Spanish) must be presented,
except when the competent environmental authority
certifies that the presentation of the DAA is not
required. The purpose of this is to present the
competent environmental authority with sufficient
information to evaluate the different alternatives for the
development of the project, work or activity,
considering the geographical setting and its
environmental and social characteristics, and a
comparative analysis of the effects and risks inherent
to the project, work or activity.
The projects, works or activities that must consult the
competent environmental authority if they require the
10

presentation of the DAA, are:
1. Seismic exploration of hydrocarbons that requires
the construction of roads for vehicular traffic.
2. The transportation and conduction of liquid or
gaseous hydrocarbons, which are developed outside
the fields; of exploitation that imply the construction
and assembly of infrastructure of conduction lines with
diameters equal to or greater than six (6) inches
(15.24 centimeters), except in those cases of new lines
whose route is to be carried out through existing rights
of way or easements.
3. Liquid hydrocarbon delivery terminals, understood
as the storage infrastructure associated with pipeline
transportation.
4. The construction of refineries and petrochemical
developments.
5. Construction of dams, dams or reservoirs.
6. The construction and operation of electric power
generating plants.
7. Projects for the exploration and use of virtually
polluting alternative energy sources that come from
biomass for power generation with installed capacity
greater than ten (10) MW, excluding those that come
from solar, wind, geothermal and tidal energy
sources. (Added Decree 2462 of 2018, art. 1).
8. Laying of new transmission lines of the National
Transmission System.
9. Nuclear power generation projects.
10. The construction of ports.
11. Construction of airports.
12. The construction of highways, tunnels and other
associated infrastructure of the national, secondary
and tertiary road network.
13. The construction of second roads.
14. The execution of works in the national fluvial
network, except for deepening dredging.
15. The construction of railroad tracks and variants of
these.
16. Projects requiring transfer from one basin to
another.
Once the competent environmental authority makes a
decision regarding the viable alternative among those
presented in the Environmental Impact Assessment (EIA
for its acronym in Spanish), the environmental license
applicant must submit to the competent environmental
authority the Environmental Impact Assessment (EIA).
The EIA must include the information detailed in the
applicable regulations, including, among others, the
respective Environmental Management Plan (PMA for
its acronym in Spanish), which, in turn, must be
prepared based on the terms of reference published
by the Ministry of Environment and Sustainable
Development, or the terms of reference prepared by
the competent environmental authority for the specific
project, work or activity; and the indication of all
environmental permits required for the development of
the respective project, work or activity.
8.1.8.4.2. Projects that do not require
an Environmental Alternatives
Diagnosis:
For projects that do not require the presentation of the
Environmental Assessment of Alternatives (DAA), the
process will begin with the presentation of the
Environmental Impact Assessment (EIA) and the continuity
of this will be as previously described. Thus, in general
terms, the environmental licensing procedure in Colombia
is carried out in the following stages:
a. Environmental license application: To
the competent environmental authority, indicating the
location of the project, its characteristics, and possible
environmental impacts.
b. Environmental impact assessment: The
environmental authority reviews the application and
requests the applicant to submit an environmental
impact assessment (EIA) that evaluates the potential
environmental impacts of the project and proposes
mitigation measures.
c. Evaluation and approval of the EIA: It
includes an oral hearing meeting before the competent
environmental authority, in which said authority will request
for a single time the information required for the
comprehensive evaluation of the project. If the project is
found to be viable and adequate measures have been taken
to mitigate environmental impacts, the environmental license
is approved.
d. Compliance with conditions: once the
environmental license has been granted, the company
or project must comply with all the conditions
established in the license, such as the implementation
of environmental monitoring programs, investments in
mitigation measures, and compliance with the
established deadlines.
e. Supervision and monitoring:
The environmental authority is responsible for supervising
11

and monitoring compliance with the conditions of the
environmental license. The interested party or project
owner must pay for environmental assessment and
monitoring services in accordance with the fees set by the
National Government, and submit semi-annual or annual
environmental compliance reports4
. In case of
non-compliance, the environmental authority may impose
sanctions, revoke the license, or take other measures to
protect the environment.non-compliance, the
environmental authority may impose sanctions, revoke the
license, or take other measures to protect the environment.
Likewise, it is reminded that if with the execution of the
project, work or activity the owner evidences the need to
carry out activities involving the archaeological,
paleontological, historical and cultural heritage of the
Nation, he/she must request the respective authorization
from the Colombian Institute of Anthropology and History
(ICANH for its acronym in Spanish) to carry out the
respective excavations and/or intervene in the
archaeological heritage.
This institute oversees protecting, investigating, and
disseminating Colombia's cultural and archaeological
heritage, so it is necessary to obtain its authorization
before carrying out any activity involving the manipulation
or intervention of these elements.
Among the activities that require authorization from
ICANH are the exploration, excavation, collection,
extraction, transfer, exhibition, sale, commercialization,
and export of cultural and archaeological goods.
It is important to note that the lack of authorization to carry
out these activities may result in sanctions and fines, in
addition to being considered a crime against the country's
cultural heritage.
Figure No. 4.
Environmental licensing process
START
END
YES
YES
YES
YES
15 days
5 days
30 days
5 days
5 days
30 days
30 days
90 days
10 days
YES
¿Requires DAA
pronouncement?
Request for DAA
pronouncement Opportunity Third
Party Interveners
EIA filing in regional
AA and attach proof
to the IA application
Issuance of TC and
filing with ANLA
Filing Addiotional
information
File information
other entities
Issuance of Resolution
granting or denying
Fouronmental License
DAA Study
Filing
DAA pronouncement
document with TR for
DAA or EIA elaboration
Expedition Auto
additional information
Issuance of the
Order of Initiation
Filing of EIA
application and Droot of
payment of evaluation
service
Issuance of DAA
Evaluation
Initiation Order
Additive act
defines alternative
and sets TR for EIA
preparation
Issuance Order
declaring that
information has
been gathered
¿Does it
require
AAD?
¿Renewable
Natural Resource
Depletion?
Do yo
request
information
from other
entities?
Request
Information from
the interested
party
4
Law 633 of 2000. Article 96. The environmental authorities shall charge for the evaluation services and follow-up services of the environmental
license, permits, concessions, authorizations and other environmental control and management instruments established in the law and regulations.
(Regulated by Resolution 1280 of 2010).
12

8.1.8.5.2. Differences
8.1.8.5.
Similarities and differences between permits, authorizations/concessions, and
environmental licenses.
They are granted by the Environmental Authority
They are prior to the development of the projetc, work, or activity
Their issuance is regulated by a legal procedure
They are issued throught Administrative Acts
There is a possibility for citizen participation in the procedures
established for their issuance
They may be challenged for nullity at any time
under Article 73 of Law 99 of 1993
They are modifiable
They do not grant unmodifiable acquired rights
Non-compliance with them may generate sanctioning processes
The Environmental License requires the submission of a DAA
and/or an EIA. Permits do not require a DAA or EIA
The Environmental License is required for projects, works, or activities
previously established by the regulations: permits depend not on the
project, but on the use and exploitation of natural resources
The Environmental License includes the permits “implicity”
The Environmental permit can only regulate the use an
exploitation of a renewable natural resource
The validity of the Environmental License is for useful life
of project, while the validity of permits depends on the
resource, unless they are granted within the License
A project, work, or activity subject to environmental licesing only requires
an Environmental License, while a project, work or activity that does not
required an Environmental License may required one or more permits,
depending on the renewable natural resources affected
13

8.2
PRIOR CONSULTATION WITH
COMMUNITIES IN THE
PROJECT AREA
The Ministry of the Interior in Colombia is responsible
for listing those areas in which the prior consultation
process must be carried out and currently, by means of
an administrative act, determines whether prior consul-
tation is appropriate for the execution of projects,
works or activities.
In this sense, it is important to verify and identify if
within the areas of interest there is the presence of
ethnic communities, including indigenous, Afro-Colom-
bian, Raizal and Rom communities, considering the
fundamental right of the communities to be consulted,
and the owner must demonstrate good faith by
approaching and reaching agreements with the afore-
mentioned groups.
According to the jurisprudence of the Colombian
Constitutional Court, prior consultation does not entail
or imply a veto right of the ethnic communities in
relation to the execution of the project, work, or activi-
ty. However, in the event that it is not possible to
obtain the free, prior and informed consent of the
ethnic communities, the proportionality test has been
employed as a criterion used by the Colombian Consti-
tutional Court.
In any case, the free, prior, and informed consent of
the ethnic community must be obtained, and if this is
not obtained, the protection of the community will
prevail when the work, activity or project has implica-
tions related to: (i) a resettlement of the ethnic commu-
nities; (ii) the management or disposal of toxic waste
in their territory; and/or the execution of measures
that imply a high social, cultural and environmental
impact that puts their subsistence at risk.
8.3
CITIZEN PARTICIPATION
Any natural, legal, or private person, without the need to
demonstrate any legal interest, may intervene in
administrative proceedings initiated for the issuance,
modification or cancellation of permits or licenses.
The mechanisms for citizen participation in environmental
matters are:
(a) Intervention in environmental administrative proceedings.
(b) Participation of Afro-descendant and indigenous
communities in environmental decisions that may affect them.
(c) The tutela action (special and preferred judicial action),
popular, group, compliance, special nullity actions.
(d) Public hearings, administrative hearings on
environmental decisions in process
(e) Decisions terminating an action, for the issuance,
modification, or cancellation of a license, shall be notified to
any person requesting it in writing.
8.4
ENVIRONMENTAL
SANCTIONING REGIME
8.4.1. Administrative liability and
environmental sanctioning regime
The function of administrative sanctions and preventive
measures in environmental matters is:
(a) Administrative sanctions in environmental matters
have a preventive, corrective and compensatory
function, to guarantee the effectiveness of the princi-
ples and purposes set forth in the Constitution, the
International Treaties, the law and the Regulations.
(b) Preventive measures, on the other hand, have the
function of preventing, or avoiding the continuation of
the occurrence of an event, the performance of an
activity or the existence of a situation that threatens the
environment, natural resources, the landscape, or
human health.
8.4.2. An environmental infraction is
any action or omission that:
(a) Constitutes a violation of the norms contained in the
Renewable Natural Resources Code.
(b) Constitutes a violation of other environmental regu-
lations in force.
(c) Constitutes a violation in the administrative acts
issued by the competent environmental authority.
(d) Constitutes damage to the environment (if there is
damage, a causal link between the two).
If the environmental violation is proven within the
framework of the administrative investigation carried
out by the competent environmental authority, and if
the alleged violator does not disprove the presumption
of guilt or malice, he will be definitively sanctioned.
8.4.3. Preventive measures
At any time, the environmental authority is empowered to
14

impose preventive measures, which, according to the environmental sanctioning regime, preventive measures are:
(a) Written reprimand;
(b) Preventive seizure of products, elements and by-products of wild fauna and flora;
(c) Suspension of work or activity when damage or danger to the environment, natural resources, landscape, or human health
may result, or when the project has begun without an environmental permit, concession, authorization or license or in
non-compliance with them.
8.4.4. Sanctions
In accordance with the environmental sanctioning regime, the environmental authority may impose the following sanctions on
the environmental violator:
(a) Successive fines.
(b) Revocation or expiration of the environmental license or permit.
(c) Temporary or permanent closure of the establishment, and demolition of works as a preventive measure.
(d) Demolition of the work at the violator's expense.
(e) Definitive confiscation of specimens, exotic wildlife species, products and by-products, elements, means or implements used to
commit the infraction.
(f) Restitution of specimens of wild fauna and flora species.
(g) Community work according to conditions established by the environmental authority.
In addition to the administrative sanction, the violator may be civilly and/or criminally liable for the damages caused by the act
or omission.
15

Standard Regulated subject
Principles and institutional framework
Political Constitution.
Law 99 of 1993.
Law 1955 of 2019.
Partially regulated by Law 2214 of 2022
Added by Law 2195 of 2022
Partially added Law 2099 of 2021
Added by Decree 800 of 2020
Amended by Decree 575 of 2020
Amends Law 1951 of 2019
Adds Law 1508 of 2012
National Development Plan (2018 - 2022)
- establishes mechanisms for intervention
territories and establishes other relevant
provisions on environmental matters.
Decree 1076 of 2015.
Superseded by Decree 690 of 2021
Sole Regulatory Decree of the Environment and Sustainable
Development Sector (Decrees related to environmental
issues).
Renewable Natural Resources Code -establishes detailed rules
on the handling and managment of renewable natural
resources, such as forests, soils, water and the atmosphere.
It contains the basic principles and creates the environmental
institutional framework through the National Environmental
System (SINA).
Decree Law 2811 of 1974.
(Partially amended by Law 2099 of 2021).
Regulatory framework
Right of all people to a healthy
environment. Obligation of the State
and individuals to protect and conserve natural resources.
16

Sole Regulatory Decree of the Environment and
Sustainable Development Sector (Decrees related to
environmental issues).
17

Decree 1299 of 2008 (compiled in
Decree 1076 of 2015).
Regulates the SINAP.
MADS Resolution 415 of 2010.
Environmental licensing regime.
Regulates the Single Registry
of Environmental Violators (RUIA).
Environmental licensing
The obligation is created under certain circumstances to have an
Environmental Management Department in certain companies at
the industrial level.
Decree 1076 of 2015).
Regulates Law 99 of 1993
Payment for Environmental Services
(PES) and other conservation
incentives are established.
Creates the Single Registry of
Ecosystems and Environmental Areas (REAA), whose
objective is to identify and prioritize ecosystems
environmental areas of the national
territory, in which PES and other conservation incentives
may implemented, which are not registered in the Single
National Registry of Protected Areas (RUNAP).
Decree 1076 of 2015
18

Water
Protected areas
Environmental licensing
Law 2 of 1959
Establishes forest reserve areas
Decree 2310 of 2010 (compiled
Decree 1076 of 2015).
Establishes the legal regime of the
areas belonging to the SINAP.
MADS Resolution 110 of 2022
Establishes the regime for the
subtraction of forest reserve areas of
Law 2 of 1959.
Law 1930 of 2018
Law for the protection of moorlands
Law 9 of 1979. Establishes the National Sanitary Code
Environmental licensing regime.
Law 373 of 1997. Establishes the program for the efficient
use and saving of water.
Decree 1076 of 2015).
Use o non-maritime waters concessions.
19

Water
Decree 155 of 2004 (compiled in Decree 1076 of 2015). On water use fees and adopting other provisions.
Decree 1575 of 2007.
Establishes the system for the
protection and control of the quality of
water for human consumption.
Decree 3930 of 2010. (Compiled
Decree 1076 of 2015).
Water use and liquid waste - dumping
permits.
Decree 1076 of 2015).t
The retributive rate for the direct and
indirect use of water as a receptor of
punctual discharges is regulated.
Decree 1076 of 2015). Adds Decree 1076 of 2015
Environment and Sustainable
Development Sector.
The Efficient Water Use and Saving
Program is regulated.
Decree 1076 of 2015).
Amends Decree 1076 of 2015
Environment and Sustainable
Development Sector.
Creates the Regional Environmental
Councils of the Macrobasins
(CARMAC) and the Water Resource
and Dumping Management.
The characteristics, basic instruments
and frequencies of the control and
surveillance system for the quality of
water for human consumption are
indicated.
Repealed by resolution 1256 of 2021.
Provisions on the reuse of treated
Wastewater
Amended by resolution 2969 of 2015
The parameters and maximum permissible limit values for
pointdischarges to surface water bodies and
public sewage systems are established.
MADS Resolution 883 of 2018. By which the parameters and maximum permissible limit
values for point discharges into marine water bodies are
established.
MADS Resolution 1257 of 2018. Regulates the minimum content of the
Program for Efficient Water Use and Saving.
20

Outdoor Visual Advertising
Air
Odors
Noise
Soil
Law 140 of 1994. Regulates Outdoor Visual Advertising.
Decree 1076 of 2015).
Prevention and control of atmospheric pollution and protection of
air quality.
Partially establishes the factors from
which an atmospheric emission permit is required for
stationary sources.
Validity
Establishes the norms and standards for admissible emissions of
pollutants into the atmosphere from stationary
sources.
Regulates the permissible levels of
pollutant emissions that land mobile
sources must comply with.
Methods for the evaluation of pollutant
emissions from stationary sources and determines the
number of tests or runs
for the measurement of pollutants in
stationary sources.
MADS Resolution 1541 of 2013. Permissible immission levels and the
evaluation of offensive odor emissions.
MADS Resolution 627 of 2006. Establishes the national standard for
noise emission and environmental
noise.
Law 388 of 1997.
Amended by Law 2079 of 2021
Added by Law 2079 of 2021
Territorial development, which includes
the environmental component as a
basis for land use planning.
21

Flora
Decree 1076 of 2015).
Forest harvesting regime.
Fauna
Hazardous waste and residues
Decree 1608 of 1978 (compiledin
Decree 1076 of 2015).
.
Regulates the National Code of Natural
Resources and Law 23 of 1973
regarding wildlife.
Decree 1076 of 2015).
Regulates scientific research on
biological diversity.
Law 9 of 1979.
Modified by art. 36 of Decree 126 of
2010
Partially regulated by Decree 2493 of
2004.
1998.
1994.
1989.
1988.
1986.
It dictates sanitary measures.
22

Hazardous waste and residues
Law 142 of 1994.
Partially added Law 2099 of 2021
2007.
Regulated by Decree 1713 of 2002.
Partially amended by Law 632 of 2000
Regulated by Decree 302 of 2000
1995.
Establishes the regime of domiciliary
public services.
Law 1252 of 2008.
Prohibitive environmental regulations
concerning hazardous waste.
Decree 4741 of 2005 (compiled in Decree 1076 of 2015). Integrated waste and hazardous waste management.
Decree 2981 of 2013 Provision of public sanitation services.
MADS Resolution 1362 of 2007. Establishes the requirements and procedure for the
registration of hazardous waste generators.
Post-consumer management plans
MADS Resolution 1675 of 2013 Pesticide containers
MADS Resolution 0371 of 2009 Expired medicines or drugs
Resolution 0372 of 2009, modified by
MADS Resolution 361 of 2011
Used lead acid batteries
23

Post-consumer management plans
Chemicals
Resolution 1297 of 2010, as amended Batteries and/or accumulators
by MADS Resolution 2246 of 2017.
MADS Resolution 1326 of 2017 Used tires
.
MADS Resolution 1511 of 2010 Bulbs
MADS Resolution 1512 of 2010 Computers and peripherals
Resolution 1407 of 2018, as amended Containers and packaging
by MADS Resolution 1342 of 2020.
Validity
Resolution 851 of 2022 Electrical and Electronic Equipment (AEE
For its acronym in Spanish) and systems
for the collection and management of
Waste Electrical and Electronic Equipment
RAEE for its acronym in Spanish).
Law 55 of 1993. Safety in the use of chemical products
at work.
Decree 1609 of 2002 (compiled in Regulates the handling and automotive
Decree 1079 of 2015). land transportation of dangerous goods
by road.
Energy
Rational and efficient use of energy, promoting
the use of alternative energies.
Law 697 of 2001.
Law 1715 of 2014
Partially amended by Law 2099 of 2021
Promotion and incentives for non-
conventional energy sources.
Decree 1073 of 2015).
It dictates measures tending to the
rational and efficient use of electric energy.
24

Environmental Sanctions
It is important to clarify that, in addition to the national regulatory framework contained in the aforementioned
regulations, the Regional Autonomous Corporations and the Urban Environmental Authorities are empowered, by virtue
of the principle of subsidiary rigor, to issue more restrictive regulations within the scope of their jurisdiction. For this
reason, it is advisable for the investor to identify and define the national and regional environmental regulatory
framework applicable to its project, work or activity.
Penal Code.
Law 1259 of 2008.
Contemplates crimesagainst the environment.
Establishes in the national territory the application of the
environmentalcomparendo to violators of the rules of sanitation,
cleanliness and debris collection.
Whereby the environmental sanctioning procedure is established.
Reform of the Criminal Code, the Code of Criminal Procedure, the
Code of Childhood and Adolescence, and the rules on forfeiture
of ownership.
Establishes the Police Code.
Establishes the criteria for the imposition of the
sanctions established in Article 40 of Law 1333.
Methodology for the assessment of
fines established in numeral 1 of Article
40 of Law 1333.
Law 1333 of 2009.
Law 1453 of 2011.
Law 1801 of 2016.
Decree 1076 of 2015).
25

26
Address:
Phone:
Web page:
Carrera 13 #96 - 67 Bogotá, D.C. Colombia
+57 (601) 646 9641
https:/
/estudiolegalhernandez.com/

GUIA_LEGAL_CHAPTER_8_COLOMBIAN ENVIROMENTAL REGIME.pdf

GUIA_LEGAL_CHAPTER_8_COLOMBIAN ENVIROMENTAL REGIME.pdf

Recommended

Recommended

More Related Content

Similar to GUIA_LEGAL_CHAPTER_8_COLOMBIAN ENVIROMENTAL REGIME.pdf

Similar to GUIA_LEGAL_CHAPTER_8_COLOMBIAN ENVIROMENTAL REGIME.pdf (20)

More from ProexportColombia1

More from ProexportColombia1 (20)

Recently uploaded

Recently uploaded (20)

GUIA_LEGAL_CHAPTER_8_COLOMBIAN ENVIROMENTAL REGIME.pdf