New Regulation on Environmental Impact Assessment Proceedings for Offshore Hydrocarbon Activities

On November 27, 2019, Joint Resolution No. 3/2019 (“Joint Resolution”) issued by the Secretariat of State of Energy (“Secretariat of Energy”) and the former Government Secretariat of Environment and Sustainable Development, current Ministry of Environment and Sustainable Development (“Ministry of Environment”) entered into force. The Joint Resolution approved the new environmental impact assessment (“EIA”) proceedings applicable to hydrocarbon exploration and exploitation activities over the offshore areas located outside of 12 nautical miles from the shore.

Joint Resolution complements and updates the Resolution No. 25/2004, from the former Secretariat of Energy, as for EIA proceeding for offshore activities in accordance with Environmental Framework Law No. 25.675, that identifies EIA as one of the environmental management and policy instruments.

Any holder of a surface reconnaissance permit, exploration permit and/or production concession, or offshore project proposer must comply, prior to its execution, with the EIA proceeding provided by the Joint Resolution and obtain the Environmental Impact Declaration (“EID”).

1. Enforcement Authority

The Secretariat of Energy and the Ministry of Environment are the enforcement authorities for the Joint Resolution and both participate in the EIA proceeding. The Ministry of Environment is in charge of conducting the Final Technical Review Report, taking into account the recommendations made by the Secretariat of Energy. It is also the agency responsible for the EID issuance, providing the project´s approval or rejection.

2. The Environmental Impact Assessment proceedings

Unlike Resolution No. 25/2004, the Joint Resolution establishes that the EIA proceeding may be categorized as “ordinary” or “simplified”, according to the complexity of the work or activity to be developed and the features of the place in which will be located. Once the Project Notice that initiates the proceeding has been submitted, the Secretariat of Energy will be responsible for preparing the project´s pre-categorization, according to the list of types of working projects or activities provided in Annex II and subsequently, the Ministry of Environment categorizes it definitively.

The ordinary proceeding is initiated by the filing of an Environmental Impact Study before the Secretariat of Energy that prepares a Technical Report. Then the Ministry of Environment carries out the study´s technical review with the intervention of the Undersecretary of Fishing and Agriculture. The latter may prepare a technical report analyzing and assessing those elements of the study that directly or indirectly affect resources and the fishing activity.

The projects must be subject to public participation mechanisms, through the procedures of public hearing, to be implemented according to Decree No. 1172/03, or public consultation, through the Public Consultation Platform developed by the Secretariat of State of Modernization, pursuant to the principles of clarity, transparency, accessibility and being free of charge.

Once the public participation stage is completed, the proposer may submit additional information based on the observations that arise from it. The Secretariat of Energy will communicate its technical opinion on the results of the public participation stage to the Ministry of Environment and will make the recommendations. Finally, the Ministry of Environment will make the Final Technical Review Report and will issue the EID with the project´s approval or rejection.

The simplified EIA proceeding is very similar to the ordinary one but with shorter deadlines. The same stages of the ordinary proceeding must be fulfilled but adapted to the project or activity’s complexity. For example, the simplified proceeding starts with the filing of a Simplified Environmental Study. The public participation stage must be implemented so that the Secretariat of Environment issues the Final Technical Review Report and the EID with the project´s approval or rejection.

Regarding both the ordinary and the simplified EIA proceeding, there are five stages to be distinguished: (i) filing of an environmental impact study; (ii) studies revision and Technical Review Report preparation; (iii) public participation; (iv) preparation of the Final Technical Review Report; (v) EID granting.

In both cases, the Secretariat of Energy is in charge of monitoring and supervising the EID’s compliance and the corresponding Environmental Management Plan. It may require the Ministry of Environment´s collaboration.

The EIA proceeding will be implemented through the Distance Processing System platform (“TAD” after its Spanish acronym) that allows filings and  monitoring proceedings to be carried out virtually.

The Ministry of Environment and the Secretariat of Energy may request the adaptation of the works or activities of hydrocarbon exploration and production, which are currently in operation and are pre-existing to the validity of the Joint Resolution, taking into account the particularities of each case.

4. Structure and contents of the Environmental Impact Study

The Joint Resolution only regulates the structure and contents of the environmental impact study for exploration projects associated with seismic acquisition activities in Annex IV. The projects for drilling exploratory and production wells, and the abandonment of wells and production  of facilities will be governed by the provisions of Section 3 "Environmental Study Structure" of the Annex to Resolution No. 25/2004.

In general terms, the Joint Resolution follows the guidelines established in Resolution No. 25/2004, complementing it and placing special emphasis on the marine environment, ships’ information, their routes and the technology to be used.

The Joint Resolution takes up the four phases regarding the structure of the Environmental Impact Study, namely: (i) Phase 1: Evaluation of the initial conditions of the project area (environmental baseline); (ii) Phase 2: Identification and assessment of environmental impacts; (iii) Phase 3: Development of a Mitigation Plan; (iv) Phase 4: Environmental Management Plan. In addition, the Joint Resolution includes certain specific phases such as the Legal and Institutional Framework or the Project Description, which are contemplated within Phase 1 of Resolution No. 25/2004.

The Joint Resolution requests the identification of the study area delimiting the operational area (OA) and the area of ​​influence (AI), whose environmental baseline of physical (oceanographic characterization), biotic (areas used by marine mammals, turtles, sea ​​and coastal birds) and socio-economic (ports, marine transport traffic and shipping lines) must include them.

Finally, the Joint Resolution provides that the proposer must take as a reference, for the development of the structure and contents of the Environmental Impact Study, the guide for the preparation of environmental impact studies that can be found in the following link (https://www.argentina.gob.ar/ambiente/sustentabilidad/evaluacion-ambiental/impacto/guia-elaboracion-esia).