The law today

Environment / Natural Resources

Updated Law Ministry of the Environment – Identifies the products that constitute Containers and Packages

On May 10, 2022, the Ministry of the Environment published Exempt Resolution No. 240 dated March 8, 2022, which identifies precisely the products that constitute packaging, indicating, in addition, the category to which they correspond. This is part of the implementation of the REP Law, specifically Supreme Decree No. 12/2020 on Collection and Recovery Goals for Containers and Packaging.

The resolution regulates:

i. The identification of products that constitute packaging (establishing criteria of function and excluding criteria); and

ii. The categories to which the containers correspond (differentiating criteria for household and non-household).

Industries with special interest in this regulation are Food (food and beverage), Hygiene, Pharmaceutical, Agro-industrial, Construction, Apparel, Electronics, Fuels, among others.

It is convenient to remember that the producers of Containers and Packaging must comply with the collection and recovery goals by September 2023, and must adhere to a Management System.

Should you require additional information on this matter, please contact: Javier Naranjo jnaranjo@jdf.cl and Martín Esser, messer@jdf.cl.

Ministry of Public Works – Law No. 21.435 / Reforms the Water Code

On April 6, 2022, Law No. 21.435, which reforms the Water Code (CoA”), was published in the Official Gazette, so its provisions, already reported here, enter into force.

It is important to bear in mind the following transitory provisions, in relation to water use rights and their implementation:

1. The holders of water use rights recognized, constituted or regularized prior to the reform and who have not built the necessary works to capture them will be subject to the extinction of their water use right in that part not effectively used (non-consumptive rights 10 years and consumptive rights 5 years from their inclusion in the list published the year following the entry into force of the reform).

2. The uses that require to be regularized by means of transitory articles 2 and 5 may only do so within 5 years from the publication. After that, they will not be admitted, except for those applications from indigenous people and indigenous communities (Law No. 19,253). Those who have filed their regularization applications prior to the reform, may apply to the new procedures established for such purpose.

3. The holders of water use rights constituted by act of authority, who have not registered their rights in the Water Property Registry of the corresponding Real Estate Registry within 18 months after its publication, will be subject to the expiration of their rights. For small agricultural producers (Law 18.910), the aforementioned term will be 5 years. The above, among other exceptions to the application of forfeiture.

4. The holders of water use rights constituted by act of authority, who, having their rights registered, have not incorporated them to the Public Water Cadastre (article 122 of the CoA), must accredit within 18 months their incorporation to the cadastre to the DGA, under penalty of a second degree fine (51 to 100 UTM). Self-reporting is allowed, with a 50% reduction of the fine.

5. The holders of water use rights constituted prior to the publication of the reform, and who wish to use them for the development of non-extractive projects and with ecological functions within protected areas, may be exempted from the payment of the non-use patent. To do so, they must comply with the requirements of the regulations issued for this purpose, as well as with the provisions of Article 129 bis 1A of the CoA.

Likewise, the exemptions from payment for non-use of water, conditioned to an amount of extraction volume (former number 4 of article 129 bis 4, the final paragraph of article 129 bis 5 and the second and third paragraphs of article 129 bis 6 of the CoA) revoked by the reform, will continue to be in force until the second year of entry into force and in cases of volumes of less than 10 liters per second, until the fifth year.

6. The General Water Directorate may suspend the exercise of permanent and continuous consumptive water use rights granted after the declaration of an exhausted basin, by prior resolution.

7. The factor of the equation to determine the amount of the payment of patents for non-use is increased by 4, from the eleventh and fifteenth year inclusive, from the date on which the water use right is constituted, recognized or authorized. Likewise, in the following five-year periods, the amount shall be calculated by doubling the previous factor, and so on.

8. The holders of mining concessions for exploitation and exploration who use water found by virtue of their mining work shall, within 15 months of the publication of the reform, inform the General Water Directorate of the volumes extracted, with the form and volumes extracted, in the manner and with the requirements prescribed in article 56 bis.

9. The provision that only third parties holding water use rights constituted and registered in the Water Property Registry of the corresponding Water Conservatory may oppose administrative proceedings in which they feel their rights are affected, shall enter into force within 2 years following the publication of the reform.

10. In all restriction areas or prohibition zones declared prior to the reform, the procedures to form Groundwater Communities must be initiated within 1 year. Once the term has expired, the DGA will not be able to authorize changes in the capture point in such zone, with respect to those persons who have not taken part in the process of conformation of such communities.

11. With respect to the registrations made in the Water Property Registry of the corresponding Water Registrar based on former N° 1, 2, 3 and 8 of article 114, they shall continue to be in force, but a fifth degree fine (1,001 to 2,000 UTM) and the offense provided in article 460 bis of the Penal Code (both related to the fact of taking advantage of a double registration) shall be applicable to them. Notwithstanding the foregoing, any holder of rights who has been recognized within the constituent titles of a users’ organization must have a title individually registered in his name.

12. For the transfer of water use rights, the holders must, within 5 years of the publication of the reform, note in the margin of their registrations the proof of their registration in the Public Water Cadastre. Failure to do so and after the term has elapsed, the Registrar shall not register the respective transfers.

Should you require additional information on this matter, please contact: Javier Naranjo jnaranjo@jdf.cl; Martín Esser, messer@jdf.cl

Environmental Evaluation Service Issues instructions on the application of the modifications introduced by the Urban Wetlands Law.

On January 17, 2022, the Environmental Evaluation Service (“SEA”), issued the Ordinary Office of the Executive Directorate No. 20229910238, which gives instructions regarding the application of paragraphs p) and s) of Article 10 of Law No. 19,300, Law on General Bases of the Environment (“LBGMA”).

This is due to the amendments introduced by Law No. 21.202, which modifies several legal bodies with the purpose of protecting urban wetlands. In summary, the entry of a project or activity, or its modification, may have as a cause for entry into the Environmental Impact Assessment System (“SEIA”), one of the literals p) or s) of Article 10° of the LBGMA, or both. Thus:

1. Project or activity, or its modification, related to urban wetlands recognized by the Ministry of Environment:

 a. Located within the perimeter of the urban wetland, they enter through letters p) and/or s).

 b. Located outside the perimeter of the urban wetland, they enter by literal s).

 c. Located inside and outside the perimeter of the urban wetland, are entered under letter p) as the main typology for works, programs or activities located within the perimeter of the urban wetland. By literal s), as secondary typology, the works, programs or activities that are located outside the perimeter of the urban wetland.

2. Project or activity, or if modification, related to urban wetlands not recognized by the Ministry of the Environment: entered by letter s).

3. The SEA’s instructions attempt to systematize its own pronouncements (Ordinaries of the Executive Directorate N°130844/2013; 161081/2016 and 202099102647), of the Comptroller General of the Republic (Opinions E12941/21 and E157665/21), as well as to collect some criteria used by the current Jurisprudence (Judgments CS Rol N°129273/2020; 21. 970/2021; and 42.687/2021), all in the context of the environmental assessment of projects or activities that must be submitted to the Environmental Impact Assessment System.

Should you require additional information on this matter, please contact: Martin Esser, messer@jdf.cl

Ministry of Public Works – DGA fixes water use rights subject to payment of patent for non-use.

On January 15, 2022, Exempt Resolution No. 3.592, dated December 29, 2021, was published in the Official Gazette, in which the General Directorate of Water establishes the list of water use rights subject to the payment, for tax benefit, of the patent for non-use of water, process 2022.

Within this process, it is necessary to keep in mind the following times:

– Term to challenge the resolution (articles 136 and 137 of the Water Code).
– Time limit to comply with the payment obligation (article 129 bis 7° of the Water Code).
– Deadline for the General Treasury of the Republic to include the Rights in the judicial auction lists (article 129 bis 11° and 12° of the Water Code).

It should be noted that, for these purposes, the rules of the current Water Code, in force, are cited. However, the regime of patents for non-use underwent some modifications with the bill that Reforms the Water Code, soon to be enacted and published.

Should you require additional information on this matter, please contact: Martin Esser, messer@jdf.cl

Ministry of Public Works – Bulletin No. 7.543-12 / Reforms the Water Code

On January 12, 2022, and after 11 years of processing, the Senate approved the report of the Joint Commission, as did the Chamber of Deputies on January 11, 2022. With this, the bill reforming the Water Code is on the verge of becoming a law, with only the promulgation by the President of the Republic and its subsequent publication in the Official Gazette remaining.

Substantial changes to the current regime include the following:

1. Term of exploitation rights: 30 years, unless the authority, by means of a well-founded resolution, determines a shorter term. The term for which a right of use is granted shall be extended by the sole authority of the law and successively, unless the Directorate General of Water accredits its non-use or it affects the sub-surface or surface source.

2. Extinction of exploitation rights for non-use: 5 years for consumptive rights and 10 years for non-consumptive rights. The term will run from the publication of the resolution that includes them for the first time in the list of exploitation rights subject to the payment of patent for non-use. This will apply, as well as all other provisions on exercise, enjoyment and charges of the new Water Code, to exploitation rights constituted prior to the reform.

3. Expiration of unregistered exploitation rights: 18 months to register rights granted prior to the reform, recognized, or exploitation rights granted after the reform in the Water Registry of the corresponding Conservator. This period shall run as from the publication of the Law.

4. Express recognition of the Human Right to water and sanitation: therefore, the use rights will be constituted based on the public interest, and the State must consider (i) the safeguard of human consumption and sanitation, (ii) the preservation of the ecosystem, (iii) the availability of water, (iv) aquifer sustainability, and (v) promote a balance between efficiency and safety among the different productive uses of water.

5. Modification to the Miner’s Waters: the waters found by the mining concessionaires (exploration and exploitation) may be used (i) to the extent that they are necessary for the exploitation operations and (ii) they are reported for registration, within 90 calendar days from their discovery, to the General Water Directorate, indicating their location and volume per unit of time and the activities that justify such need. Upon such request, the General Water Directorate may limit such use if (i) there is a serious affectation of the aquifers or (ii) third party rights.

6. Modifications to the regime of patents for non-use: increase of the factors for the determination of the amount of the patents; changes in the exemptions to the payment thereof; surcharges for late payment; as well as some modifications to the auction procedure.

7. General Water Directorate: it is mandated to prepare Strategic Water Management Plans; it is granted greater sanctioning powers; it is given tools to have and demand more information; and among others, greater powers to limit use rights.

8. Regularization of use rights: they may only be initiated within 5 years after the publication of the reform. Also, a new procedure is established, without a judicial phase (those who filed their request before the entry into force of the reform may submit to this procedure). Among other changes.

In case you require additional information on this matter, please contact: Martin Esser, messer@jdf.cl

Ministry of the Environment – Amends Supreme Decree N°3/2012 – Sludge Management in the fruit and vegetable processing industry.

On October 26, 2021, the modification of Supreme Decree No. 3/2012 of the Ministry of the Environment (D.S. No. 3/2012) was published, which approves the regulations for the management of sludge from effluent treatment plants of the fruit and vegetable processing industry.

The main modification consists of eliminating the requirement of sludge stabilization (Article 4 of D.S. N°3/2012), i.e. to reduce volatile solids by at least 38% and to have a moisture content of no more than 70%; or to comply with a requirement listed in Article 6 of Supreme Decree N°4/2009 of the Ministry General Secretariat of the Presidency, regulation for the management of sludge generated in sewage treatment plants.

This is due to the fact that there was no technical justification for requiring the same terms as for sludge generated in sewage treatment plants, which ultimately discouraged the reuse of such material.

Should you require additional information on this matter, please contact: Martin Esser, messer@jdf.cl

Ministry of the Environment – Supreme Decree N°39 establishes emission standards for mobile machinery

On October 21, 2021, Supreme Decree No. 39 of the Ministry of the Environment was published, which establishes emission standards for mobile machinery (defined in letter a) of Article 2°), coming into force today.

Scope of application: mobile machinery, which importation is made 24 months from the present date. In the case of tractors, a period of 36 months from the present date shall apply.

Obligated parties: Manufacturers or their legal representatives in Chile, distributors or importers of mobile machinery subject to the emission limits required by the standard, which must submit the respective documentation to the Superintendence of the Environment.

Inspection: Superintendencia del Medio Ambiente.

If you require additional information on this matter, please contact: Martín Esser, messer@jdf.cl

Ministry of the Environment – D.S. N°12/2021 which establishes collection, recovery and other obligations for containers and packaging.

On September 21, 2021, the Ministry of the Environment published Exempt Resolution No. 1026 of September 14, 2021, which approves the proposed Resolution that identifies the products that constitute packaging, also indicating the category to which they correspond, in accordance with the provisions of Article 2°, number 5), second paragraph of Supreme Decree No. 12/2021, which establishes collection and recovery goals and other associated obligations for containers and packaging.

The respective Citizen Participation process expires on October 21, 2021, being able to make the respective observations to the proposal in the following link: https://consultasciudadanas.mma.gob.cl/portal/consulta/112

Should you require additional information on this matter, please contact: Martin Esser, messer@jdf.cl

Dirección General de Aguas – Orders the installation and maintenance of measurement and transmission systems of effective extractions for ground and surface waters.

On September 15, 2021, the following resolutions were published in the Official Gazette, ordering the installation and maintenance of measurement and transmission systems of effective extractions for ground and surface water in different sectors of different regions of the country:

1. Surface water:

(i) Exempt Resolution No. 1,124 of August 19, 2021, orders users whose collection points are located in the Metropolitan Region of Santiago, specifically in the coastal basin between Maipo and Rapel.

(ii) Exempt Resolution No. 1,421 of August 19, 2021, orders users whose collection points are located in the Valparaíso Region, specifically in the coastal basin between Maipo and Rapel.

(iii) Exempt Resolution No. 491 of August 26, 2021, orders users whose collection points are located in the Araucanía Region, in the Imperial river basins; Budi river basin; coastal basins between Budi and Toltén rivers; Toltén river basin; and Queule river basin.

(iv) Exempt Resolution No. 182 of August 30, 2021, orders users whose catchment points are located in the Magallanes and Chilean Antarctica Region, specifically in the basins “Coastal between Andrew Sound and Hollemberg River and Islands to the East” and “Coastal between Laguna Blanca (inc), Otway Sound, Jerónimo Channel and Magallanes”.

2. Ground Waters:

(i) Exempt Resolution N°261 of August 31, 2021, orders the holders whose water catchment points are located in the Tarapacá Region, specifically in the Hydrogeological Sector of Common Use called Salar de Sur Viejo.

(ii) Exempt Resolution No. 721 of August 16, 2021, orders the holders whose water catchment points are located in the Libertador General Bernardo O’Higgins Region, specifically in the Hydrogeological Sectors of Common Use (SHAC): Yerbas Buenas Chain; El Monte – Tinguiririca; Estero Hidango; Estero Paredones; Estero Pupuya; Estero Quiahue; Estero San Antonio; Estero Topocalma; Laguna Bucalemu; Laguna de Cahuil; Nilahue before Quiahue; Nilahue in Santa Teresa; San Fernando; Tinguiririca Superior; and Chimbarongo.

(iii) Exempt Resolution No. 691 of August 23, 2021, orders the holders whose water catchment points are located in the Maule Region, specifically in the Hydrological Sector of Common Use (SHAC) Chimbarongo.

Should you require additional information on this matter, please contact: Martín Esser, messer@jdf.cl

Ministry of the Environment – Supreme Decree N°38 establishes emission standards for generator sets

On September 15, 2021, Supreme Decree No. 38 was published, which establishes the emission standard for generators, coming into force today. This standard is part of the environmental regulation program 2020-2021 of the Ministry of Environment.

Scope of application: new generator sets (those whose importation takes place 24 months after the entry into force of this decree), throughout the national territory, which are powered by internal combustion engines with compression ignition, with a maximum engine power greater than or equal to 19 kW.

Exception: generator sets operating in areas without access to the National Electric System, whose main use is the supply of residential customers.

Mandatory: Manufacturers or their legal representatives in Chile, distributors or importers of generators subject to the emission limits required by the standard, which must submit the respective documentation to the Superintendence of the Environment.

Should you require additional information on this matter, please contact: Martin Esser, messer@jdf.cl.

Ministry of Public Works – Modifies the Regulation of Major Hydraulic Works (Article 294 of the Water Code).

On September 15, 2021, Supreme Decree No. 131 of July 8, 2021, of the Ministry of Public Works was published in the Official Gazette, which amends Supreme Decree No. 50 of January 13, 2015, of the same ministry, which approves the regulation referred to in Article 295, paragraph 2°, of the Water Code, establishing the technical conditions to be met in the design, construction and operation of the hydraulic works identified in Article 294 of the aforementioned legal text (hereinafter the “Regulation”).

Among the most important modification is the inclusion of the term “Commissioning” (defined in the new letter r) of the Regulation), which is incorporated for those projects that, in practice, require to be operated with water in order to verify their safety, prior to their reception.

Likewise, they include deadlines and the way in which this process must be carried out, which provides greater certainty when requesting the approval of the definitive project.

Notwithstanding the above, all those project owners who have Project Approval and construction authorization prior to these modifications and who do not have reception of works and operation authorization, when submitting to the corresponding reception procedure, may opt to apply the rules of the old Regulation or the new one.

For those owners of projects without Works Reception, whose works have been executed and their commissioning is in progress or exceeded, before the entry into force of these modifications, the new regulations will be applicable.

The provisions of the new second paragraph of Article 55 of the Regulation shall not be applicable to them.

Should you require additional information on this matter, please contact: Martin Esser, messer@jdf.cl.

Ministry of the Environment – Law No. 21.368 regulates the disposal of single-use plastics and plastic bottles

On August 13, 2021, Law No. 21.368 was published, which regulates the delivery of single-use plastics and plastic bottles (“Law No. 21.368”) and modifies certain legal bodies (mainly Law No. 19.300 on General Bases of the Environment and Law No. 20.417, which creates the Superintendency of the Environment and establishes its organic law).

Obligations established:

Prohibitions and/or limitations on the delivery of single-use products inside and outside food vending establishments.
Plastic certification system (not limited to those regulated by the Law).
All disposable plastic bottles marketed by any natural or legal person must be composed of a percentage of plastic that has been collected and recycled within the country.
Returnability obligation for beverage sellers.

Control:

In charge of the municipalities and the fines will be between 1 and 5 UTM for each single-use product delivered in contravention of the provisions of this law; and from 1 to 20 UTM in contravention of those sections related to environmental education and information. The sanctions will be applied by the competent Local Police Court, in accordance with the ordinary procedure contemplated in Law No. 18.287.

Regulatory power:

The Ministry of the Environment shall issue the regulation referred to in this Law in February 2022.

Validity:

From August 13, 2021. Bear in mind the deferred validity for certain provisions established in the first transitory article.

Should you require additional information on this matter, please contact: Martin Esser, messer@jdf.cl

Ministry of Environment – Supreme Decree N°12, establishes collection and recovery targets and other obligations associated with packaging.

On 16 March 2021, Supreme Decree N°12 (“D.S. N°12/2021”), dated 8 June 2020, was published, which establishes the targets for the priority product containers and packaging and, therefore, must also comply with the provisions of Law N°20.920 which establishes the framework for waste management, extended producer responsibility and the promotion of recycling (“REP Law”).

This decree comes into force as of today, with the exception of titles III (collection and recovery targets) and IV (obligation of design, coverage and operation of waste reception and storage facilities; selective collection systems for household recycling), which will come into force as of 16 September 2023.

The SMA will monitor compliance with the targets and other obligations established in the supreme decrees of the priority products, as well as the functioning of the management systems.  It should be remembered that these supreme decrees can be appealed before the Environmental Courts. The deadline for lodging an appeal is 30 days from today.

If you require further information on this matter, please contact: Martin Esser (messer@jdf.cl)

Directorate General of Water sets water use rights subject to payment of a patent for non-use.

On January 15, 2021, Exempt Resolution No. 2.662, of December 28, 2020, was published in the Official Gazette, in which the General Directorate of Water established the list of water use rights subject to the payment of a patent for non-use of the water, for fiscal benefit, when the water is not associated with a collection (and restitution) work necessary to use it (Article 129 bis 9 of the Water Code), process 2021.

Within this process, it is necessary to have the following times in sight:

– Deadline to appeal the decision (Appeal for Reconsideration or Claim, article 137 of the Water Code): until 26 February 2021.

– Deadline to comply with the obligation to pay (Article 129 bis 7° of the Water Code): until 31 March 2021.

– Term of the General Treasury of the Republic to include the Rights in the judicial auction lists (article 129 bis 11° and 12° of the Water Code): between the first of April and the first of June 2021.

In case you require additional information on this matter, you may contact Sven Herlin, sherlin@jdf.cl; and/or Martin Esser, messer@jdf.cl

General Directorate of Water – Supreme Decree No. 53 of the Ministry of Public Works, approves regulations for monitoring effective surface water extraction.

On October 15, 2020, Supreme Decree No. 53 (“D.S. No. 53/2020”), dated April 3, 2020, of the Ministry of Public Works (“MOP”) was published, which regulates some of the amendments introduced by Law No. 21. 064, published on January 27, 2018, that is, to make explicit the terms, criteria, and technical conditions necessary to apply the well-founded resolutions issued by the General Water Directorate to comply with the obligation to install and maintain a Measurement and Transmission System to control, measure, and report the water extracted by users’ organizations or the exclusive owner of an aqueduct that extracts water from a natural stream, including water extracted from accumulation works located on the natural course. Also, users’ organizations or the exclusive owner of an aqueduct that draws water from a natural stream, and are users of non-consumptive surface water rights, must install a measurement system at the point of restitution (Article 38 and 307 bis of the Water Code).

In case you require additional information on this matter, you can contact Marcelo Mardones, mmardones@jdf.cl; Martin Esser, messer@jdf.cl

General comptroller’s office, ecological conservation areas defined in territorial planning instruments should be considered as areas placed under official protection

On September 30, 2020, the General Comptroller of the Republic (“CGR”), issued Opinion No. 39766/2020, in which it ruled that the Ecological Preservation Areas, defined in territorial planning instruments, must be considered as areas placed under official protection for purposes of Article 10, letter p), of Law No. 19,300, on the General Basis of the Environment, so that projects or activities, likely to cause environmental impact, which are located in such areas, must enter the Environmental Assessment System.

In combination with this, the CGR orders the Environmental Evaluation Service to adapt the Instructional Letter No. 130,844, of 2013, and said service must inform the CGR of this within 30 days. The aforementioned document unifies criteria and technical requirements on areas placed under official protection and protected areas for the purposes of the Environmental Impact Assessment System.

Notwithstanding, this Opinion shall not apply to projects already approved.

In case you require additional information on this matter, please contact Marcelo Mardones, mmardones@jdf.cl; and/or Martín Esser, messer@jdf.cl.