Respecting the ban on deforestation in upper watershed areas

Alegalis - Every real estate developer planning a real estate project must carry out a Due Diligence that gives certainty for the development of the property; this investigation must have a legal and technical scope.

It is extremely important that within the investigation the location of the property is included according to the PLAN OF HYDROGRAPHIC BASINS of the Ministry of Agriculture, Livestock and Food, in order to determine that the property is not located within a high basin, since, in case of being within this type of basin, it is possible that the forest mass is not subject to a License of Change of Use of Soil, which allows its logging.

Article 47 of Decree Law 101-96, FORESTRY LAW, literally states: "It is prohibited to eliminate the forest in the upper parts of watersheds covered by forest, especially those located in water recharge areas that supply water sources, which shall enjoy special protection. Consequently, these areas will only be subject to sustainable forest management. In the case of deforested areas in important water recharge zones, on state, municipal or private lands, special regeneration and rehabilitation programs shall be established." (emphasis added).

The above article is important because there is an express prohibition to remove forest from the upper part of the watersheds and therefore, it is not feasible to apply to a license for change of land use.

Notwithstanding the above, such prohibition does not apply in case the forested area comes from a VOLUNTARY PLANTATION, duly registered with the National Forest Institute (INAB); for purposes of Voluntary Planting it is important to know the species of tree and the criterion used by the institution is that the trees are planted in straight lines (an orderly pattern); it is undoubtedly a subjective criterion...

It is important to take into consideration that the forestry law is not something new, but that it has been in force since 1996; however, previously there were doubts about the type of watersheds in which each of the properties were located; However, today this doubt no longer exists, since the Ministry of Agriculture, Livestock and Food has made available to the general public a map on which the exact location of the properties of interest can be geo-positioned and, based on this, the type of watershed in which they are located can be determined.

Our recommendation is that when you are interested in developing a property, take into consideration whether or not there are trees on it that must be cut down to make the project viable; if there are trees, it is essential to locate the type of watershed on which it is located; if the watershed is high, it is necessary to hire a forestry manager to determine whether the forest cover is natural or a voluntary plantation; If it is a voluntary plantation, it is essential that it is registered with the National Forestry Institute and if it is natural, we recommend that you do not invest more resources and look for another opportunity, since in this case, within the legal framework, it is not possible to proceed with logging through the Land Use Change License.

Likewise, in the event that the property of interest does not belong to a high basin and consequently it can be applied to a Change of Use License, we recommend you to take into consideration that the National Institute of Forests is currently accepting only and exclusively reforestation, which entails a 4-year obligation regarding the maintenance, care and conservation of the area to be reforested and two inspections per year by the National Institute of Forests.

The purpose of this bulletin is to enable them to take into consideration the express prohibition of the Forestry Law and, in turn, to take into consideration the cost of reforestation obligations in their financial model.

Author: Mario Andrés Rodríguez | Alegalis

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