June 22, 2013

New Legislation regarding Changes in Use of Forest Land, and the Federal Environmental Impact Statement

By Jorge Ojeda

When considering the development and construction of real estate in Mexico, it is necessary to verify whether
such land is considered "Forest Land" and, if so, to inform the Mexican Department of Environment and Natural
Resources (“SEMARNAT”), in advance, regarding the change of use of forest land. Such process requires,
among other things, an approval of the environmental impact, which involves conducting an Environmental
Impact Statement ("MIA"). The General Law for Sustainable Forest Development broadly defines "Forest Land"
by stating that such is land that is covered by "forest vegetation," or, "an environment where plants and fungi,
grow and develop naturally, forming forests, jungles, arid and semi-arid areas and other ecosystems, developing
the coexistence and balance of other resources and natural processes." This broad definition of Forest Land and
the lack of coordination between the federal, state and municipal governments have resulted in a contradictory
and confusing system in Mexico. For example, a property that is in compliance with the municipal urban
development plan, and is designated for use as urban land and for industrial or commercial use, may still be
considered Forest Land by federal authorities, even when such property is part of the urban area of ​​a municipality
and is in compliance with local ordinances and for which a local MIA has been obtained. Though Annex 1 of the
Decree which Integrates and Organizes Forest Zoning, which was published in the Official Journal of the
Federation on November 30, 2011, established that urban areas and areas of human habitation, among others, are
considered “non-forest land,” such decree did not resolve the lack of coordination between the three levels of
government and, by its terms, is not sufficiently clear. A reform to Article 32 of the General Law of Ecological
Balance and Environmental Protection ("LGEEPA") was published in the Official Journal of the Federation on
May 20, 2013. Its purpose was to establish and make it a mandatory requirement (previously optional) that in
order to modify local and municipal urban development plans, whether state, municipal, or federal, as the case
may be, authorization from SEMARNAT must be obtained with respect to the environmental impact, prior to the
change of use of forest land, as well as jungles and arid zones, in accordance with the provisions of Article 28 of
the LGEEPA. This recent amendment to the LGEEPA seeks coordination between the three levels of government
regarding the change of land use of forest areas, prior to approval and/or amendment of the applicable urban
development plans, which would incorporate additional land to urban areas and human habitations. Therefore,
developers will no longer be required to utilize a federal MIA for the change of use of forest land, though it will
still be subject to the requirements established by local law and plans applicable to environmental matters.