Environmental enforcement: PROFEPA and SEMARNAT

For the last severa years (2007-2008) there were a number of homeowners who were visited by PROFEPA enforcement officers conducting investigation of compliance with environmental regulations in construction or development of East Cape and Los Zacatitos properties. Some times these visits were met by 'f*** off' (which does disservice to our community) or simply ignoring the inspection requests. Well, it's time to read what a lawyer posted on the 'Baja Pony Express' in the service of explaining what these organizations do, and what they can do when faced with 'non compliance' with environmental regulations:

SEMARNAT is the environmental authority which has the job of making rules regarding environmental issues. It is the government agency that has as fundamental intention "foment the protection, restoration and conservation of the ecosystems and natural resources, and goods and environmental services, in order to propitiate (cause) the utilization and sustainable development " (see http://www.semarnat.gob.mx/Pages/inicio.aspx )

To make sure the rules are respected PROFEPA was formed. It is basically the DA (Defense Attorney) of SEMARNAT. (see http://www.profepa.gob.mx/profepa )

One who acquires real estate property in Mexico must abide by the rules which are made by SEMARNAT regarding the use of the land, forestation, etc., etc., and if one does not PROFEPA will send an inspector who will make a report, said report once analyzed will generate a RESOLUTION which will either emit a sanction or not.

The sanctions are fines based on three factors, the fault, the minimum wage in Mexico and the financial situation of the person who will be fined. The procedure is the following:

A notice of an inspection, the inspection, the study of the findings, the emission of a decision, the notice of the fine and request for payment; if payment is not done SAT which is the IRS of Mexico will do procedures to seize the property. At times one can exchange the fine for community benefit or work.

Thus one must know when and if a resource person, with the appropriate knowledge, needs to be contacted before starting a building project anywhere in Mexico. The answer to this is very easy: When ever one changes the environment, by this we mean cutting down shrub, tree, or planting new trees, building any construction. The other question is how to do this or who to contact for such work. There are a number of experts in the environmental field and one can easily find such experts by going at any SAMARNAT office and ask what must be done. At times the law will require one to have an environmental study done; this work is carried out by persons who are recognized by SAMARNAT as expert in their field.

What one must do if there is an inspection done on the property? First of all let the inspector do his job, second provide accurate information and third wait for the resolution.

Once the resolution has been served two avenues are open: Pay the indicated fine in one payment or make an arrangement with PROFEPA, the second avenue is to appeal the resolution, to do this one has a number of days to present the appeal and follow very strict rules of law thus the need of a lawyer who is an expert in such matters or better a legal firm which has several lawyers who are qualified to do the job (two brains better than one).

Most procedures are faulty and this opens the door to the annulment of the fine but does not get rid of the problem, by this we mean that PROFEPA will come back until the situation is fixed thus the need to have a legal representative to negotiate a permanent fix.

For any comment or information on this subject or any other legal situation please fell free to send me a note at CAN_AM_MEX@HOTMAIL.COM

JACQUES-EDOUARD BEAULNE, LAWYER