The legal framework that had provided for environmental protection in the Dominican Republic before the year 2000 was comprised of several special laws, presidential decrees,  resolutions and administrative measures, which were often contradictory and lacked a truly scientific character. Therefore, although comprehensively regulated, natural resources were not effectively protected in the country.

After the signature and ratification of several international agreements, such as the Vienna Convention (Ozone Layer Protection), the Rio Agreement (Biological Diversity) and other important agreements, one of the main challenges of the Dominican Republic was the modernisation of its policies and laws on environmental protection.

In October 1999 a bill for a General Law on Environment and Natural Resources was submitted to Congress approval, to be passed as Law 64-00 on 18 August 2000. In addition, special laws in areas such as tourism, electricity and telecommunications, pay particular attention to environmental concerns.

PRINCIPLES AND OBJECTIVES
Law 64-00 recognises the importance of the protection, preservation and sustained use of natural resources for the well-being of humanity, underlining the need of special protection for the unique, but fragile, threatened and deteriorated, natural resources of the country, and of urgent measures to correct the deforestation and dry conditions currently prevailing throughout the national territory, and to prevent, control and repair the degradation of the environment.

Under Law 64-00 the effective protection of the environment is placed as an essential duty of the State, which must for such purposes adopt an integral policy to be executed with the participation of all institutions related to natural resources, as a way to concentrate all, until then scattered, efforts, and thus ensure the effectiveness thereof.

The State assumes the responsibility of protecting and restoring the environment, and shares it with society in general and with each individual in particular. In this manner, the law provides for the mandatory inclusion of environmental programs in all social and economic development programs.

Furthermore, the law recognises the principle of precaution by providing that "lack of scientific absolute certainty shall not be called as a reason not to adopt preventive effective measures in any activities having a negative influence on the environment".

The main objective of Law 64-00 is "to provide rules for the protection, improvement and restoration of the environment and natural resources, by ensuring the sustained development thereof".

Law 64-00 regulates soil, water and air contamination, dangerous products, elements and substances, domestic and municipal waste, human settlings and sonic contamination. It also regulates the granting of rights by the SEMARN and/or municipal authorities for the use of natural resources, including the use of soil, water, coastal and sea resources, forests, caves and mineral resources.

THE MINISTRY OF ENVIRONMENT AND NATURAL RESOURCES

The administration of the environment, ecosystems and natural resources is placed under the responsibility of the Ministry of Environment and Natural Resources ("Secretaría de Estado de Medio Ambiente y Recursos Naturales - SEMARN"), created by Law 64-00 for such purposes. Its main tasks are to draft, execute and supervise the application of national policies on environment and natural resources, and to ensure the preservation, protection and sustained
use of natural resources, the improvement of soil, air and water contamination rules, the proper exploration and exploitation of mineral resources, the preservation of coastal and sea resources, and the establishment of general environmental rules for human settings and industries.

Existing environment-related institutions and/or attributions created by special measures, such as the Natural Resources Office of the Ministry of Agriculture and the Earth Crust Protection Office of the Ministry of Public Works, have been transferred to the SEMARN.
In this manner, environmental aspects of all economic or human activities will be, controlled by the SEMARN, which will act by way of authorisations, supervision, recommendations or consultations, in co-operation with other government, municipal and civil authorities and institutions, to ensure the comprehensive protection of natural resources in the country.

On the other hand, the National Council of Environment and Natural Resources will be an organ formed of State and civil society members with the task of programming and evaluating environmental policies and of establishing the national strategy of biodiversity preservation.

INSTRUMENTS OF ENVIRONMENT ADMINISTRATION
Law 64-00 has a predominantly technical and scientific character. Therefore, the basic instruments for the establishment of environment policies are the studies of environmental impact evaluation and environmental reports.

In this regard, any industrial activities undertaken in the country must be provided with an environmental license, which certifies that the respective environmental impact evaluation has been made, and that the activity, work or project may be carried out under the conditions set in the environment administration program established therein.

Other instruments of environment administration are environmental planning, the national plan of territorial organisation, the national system of protected areas, the national information system on environment and natural resources, environment supervision, environmental education, scientific and technical investigation, incentives, the national fund for environment and natural resources, and the declaration of emergency areas.

OBTAINING ENVIRONMENTAL PERMITS AND LICENSES
Environmental licenses and permits must be obtained by companies interested in executing works or projects that may affect, in any manner whatsoever, natural resources, environmental quality or the health of the population, including its psychological and moral well-being.

Resolution 05/2002 of the Ministry of Environment of 18 March 2002 creates the Regulations of Environmental Permits and Licenses, the Classification of Works, Activities and Projects, and the Procedures for Environmental Permits for Existing Establishments and for Studies of Environmental Impact.

a) Projects Requiring Environmental Permits or Licenses
Article 41 of Law 64-00 designates the projects that have to be subject to the process of environmental impact evaluation. In general terms, there are for the purposes of the environmental administration four categories of projects.

Category A Projects
These are projects, works or activities with complex environmental impact, which may have regional and even national effects. They are projects of great size having a strategic nature from the economic and social standpoint. Their promoter must file an environmental license request based on an exhaustive Study of Environmental Impact.

Category B Projects
These have significant environmental impact, but limited to the area of the project and their zone of direct influence. Their promoter must file an environmental permit request based on a Declaration of Environmental Impact, but additional environmental studies may be required.

Category C Projects
These have a limited potential environmental impact that may be easily identified and corrected. Their promoter must file an environmental permit request based only on a Declaration of Environmental Impact.

Excluded Projects
Projects, works or activities that are not expressly mentioned in Law 64-00 and that have not been included by the regulations in any of the above-mentioned categories, do not have to follow the environmental evaluation process. They do not require any environmental permit, but their promoter may request a Certification of Exclusion to the Ministry of Environment.

b) Procedures
Requests are made in writing to the Ministry of Environment, and they have to be joined by the respective forms according to the category of the project (Form of Previous Analysis for Projects in category A and Form of Declaration of Environmental Impact for Projects in categories B and C) and by the documents required in the forms.

This first stage may end with a Declaration of Non-Significant Environmental Impact, which recommends the issuance of the environmental permit. However, when Studies of Environmental Impact or Additional Environmental Studies are required, at the end of this phase SEMARN delivers to the promoter the terms of reference for the elaboration of such
studies. Environmental studies must be made by an interdisciplinary group of specialists, whose professional qualifications will depend on the nature of the study. These consultants must be registered with SEMARN.

SEMARN will decide on the granting of the permit or license based on the recommendation made by the Evaluation Committee pursuant to the Technical Report, which verifies whether the studies filed by the promoter comply with the terms of reference, and taking into account the comments of the interested parties and the public in general, as applicable.

After the environmental license or permit has been granted, the promoter must comply with the program of environmental management set forth therein, being subject in the event of non-compliance to the sanctions provided in the law.

The terms established for the different phases of the procedure are the following:

  • Previous analysis and review of the Declaration of Environmental Impact, 21 days from the date of filing;
  • Elaboration of the required environmental studies by the promoter, not more than one year after the date of delivery of the terms of reference;
  • Review of the Study of Environmental Impact or Additional Environmental Studies and preparation of the Technical Report, including the stage of public consultation, 90 days after the date of filing of the studies; and
  • Taking of decision, 15 days after the delivery of the Technical Report.

c) Costs

  • Request of environmental permit or license: 1/3 of a monthly minimum wage.
  • Request of Certificate of Exclusion: one monthly minimum wage.
  • Issue of environmental license: 15 monthly minimum wages plus an amount calculated pursuant to the estimated initial investment of the project.
  • Issue of environmental permit: 5 monthly minimum wages plus an amount calculated pursuant to the estimated initial investment of the project.

Furthermore, the promoter is liable for all costs resulting from studies or reports, from the execution of mitigation measures and the environmental management program, and from any required publications, notifications and public hearings.

In addition, in order to ensure that the environmental management program established in the environmental permit or license is put into effect, the promoter must provide a performance bond for a sum amounting to ten percent of the total costs of the works or investments required to comply with the program.

SANCTIONS
Law 64-00 provides administrative and criminal sanctions for those who violate its provisions. Administrative sanctions may be applied by the SEMARN and include fines, as well as suspension or closure of operations.

Law 64-00 creates the notion of "environmental crime", committed by any person who, knowingly or intentionally, violates its provisions and application rules. Activities such as alteration of, or damages to, protected areas, cutting or destruction of trees in protected forests, capture or damage of endangered species, illegal disposal of toxic waste,
etc., constitute environmental crimes that may be punished with fines of up to 10,000 minimum salaries and prison of up to three years, as well as obligation to repair damages, closure of establishment, withdrawal of permits, etc.

Tort liability for environmental damages arises whenever damages to the environment or to third parties are caused by the non-compliance with environmental laws.

Criminal sanctions may be applied by the Court of First Instance, at the request of the Environment Attorney's Office, an agency created by the law as a department of the General Attorney's Office to represent the interests of the State and society in all procedures of environmental laws violations.

LAW 202-04 ON PROTECTED AREAS

In the year 2004 was enacted Law 202-04 on Protected Areas, which was subject to a lot of questionings by different sectors of society. An annulment appeal was even filed with the Supreme Court of Justice against this statute on the grounds of being contrary to the Constitution. This appeal was rejected in 2005.

INTERNATIONAL AGREEMENTS

It is also worth mentioning that the Dominican Republic is a member of several environmental conventions, agreements and protocols originating mostly within the framework of the United Nations Environment Programme.

These agreements may in one way or another have an influence in business activities:

• Basel Convention on Control of Cross-border Movements of Dangerous.
• Vienna Convention on Protection of the Ozone Layer.
• Montreal Protocol on Substances Damaging the Ozone Layer.
• United Nations Frame Convention on Climate Change.
• Kyoto Protocol of the United Nations Frame Convention on Climate Change.
• Convention of Biological Diversity.
• Cartagena Protocol on Biotechnology Safety.
• Convention on International Trade of Endangered Species.
• United Nations Convention on Fight against Desertification and Dry Conditions.
• RAMSAR Convention on Wetlands.
• Convention for Protection and Development of the Marine Resources in the Wider Caribbean Region (Cartagena Convention).
• Protocol on Sea Pollution Sources from Terrestrial Sources and Activities.
• Protocol on Specially Protected Areas and Wildlife in the in the Wider Caribbean Region (SPAW).
• Protocol on Fuel Spills.
• International Convention for the Prevention of Marine Pollution from Ships (MARPOL).
• Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals in International Trade.
• Stockholm Convention on Persistent Organic Pollutants.

The Dominican Congress has already ratified most of these international instruments, which are thus already in force.

Written by: Pellerano & Herrera, Attorneys at Law, ph@phlaw.com
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