Regulation of the Native Forests’ Protection Law

More than a year after Law No 26,331 for the Native Forests’ Protection (the “Forest Law”) was passed (please see “Protection of Native Woods” in Marval News # 67 of November 30, 2007), on February 13, 2009, the Executive issued regulatory Decree No 91/2009 (hereinafter the “Decree”), in force since February 24, 2009.

Decree 91/2009 sets forth the powers and obligations comprised within the scope of action of the Forest Law’s enforcement authority. These powers include, among others:

(i)            the preparation of methodological guides aimed at evaluating the environmental services generated by the Native Forests;

(ii)           the approval of the Native Forests’ organization at a federal level;

(iii)           the monitoring of compliance with soil conservation, handling and exploitation plans; and

(iv)          the control of the several reports prepared and delivered by other jurisdictions pursuant to  this Law and its regulation.

In order to duly comply with the process of organizing the Native Forests in each jurisdiction, the Decree vests the enforcement authority with the obligation of performing the necessary actions towards maintaining the coherence among the forest’s categories determined by the different jurisdictions. Once the organization had been performed, it shall be updated once every five years in each of the jurisdictions.

The activities that may be carried out in each forest according to the category assigned vary from the simple maintenance and non-aggressive tourism in the case of the first category, to soil exploitation in the case of the third category. The implementation of plans and the granting of prior permits is always required.

The construction of public works, public interest works and infrastructure inside the forests ranked within the two highly protected categories is allowed, as long as an authorization from the local enforcement authority had been granted, subsequent to the corresponding environmental impact assessment.

The efficient and profitable use of the waste arisen from the clearance and exploitation of Native Forests must be promoted by local enforcement authorities. Likewise, the federal enforcement authority must implement a plan for biomass energy generation. Pursuant to these instructions, burning of waste will only be allowed when accumulation of same entails a serious threat of forest fire.

The Decree defines the behaviors to be considered infringements and, therefore, punishable pursuant to the sanctions established in the Forests Law. Despite the fact that certain behaviors are clearly defined in the Decree, the power to regulate others is granted to local jurisdictions. In order to consider the magnitude of the infringement, aggravating and mitigating circumstances will be evaluated.

As instructed by the Forests Law, the Decree creates the National Fund for the Enrichment and Conservation of Native Forests, whose resources will be addressed in the Budget Law as from 2010.

Finally, the Decree provides that in case of damages caused to a Native Forest that are attributable to its owner, the federal and provincial authorities will be entitled to perform the necessary restoration tasks at the expense of the owner, the person for whom the owner is responsible or the person responsible for the damages. The tasks may be also performed by these persons directly, under the supervision of the correspondent authority.