“Whereby an Environmental Management Plan is modified and other decisions are made.”

THE MINSTER OF THE ENVIRONMENT, HOUSING AND REGIONAL DEVELOPMENT,

further to her legal powers, and especially those conferred on her by Law 99 of 1993, Decree 1753 of 1994 and Decree 1180 of 2003, and

WHEREAS

Each and every activity and component of this program should be set within the context of current environmental regulations so that constitutional assumptions can be complied with, which impose a duty on the State to protect environmental diversity and integrity, preserve areas of special ecological importance, and stimulate education so that these goals may be attained.

The State should likewise, in furtherance of PECIG, prevent and control factors which might harm the environment, impose legal sanctions, and demand redress for damage caused.

Article 144 in Law 9 of 1979, the National Sanitary Code, which is currently in force, establishes that waste material from application operations should not be poured directly into water courses or reservoirs, the ground or the air. They should be subjected to treatment and disposed of in such a way that they do not represent a health risk.

Article 87 in Decree 1843 of 1991, which regulates Law 9 of 1979, reads as follows: “The Safety Strip. Pesticides may not be applied in rural areas inside a 10-metre safety strip when application is done on land or a 100-metre strip when done by air, from bodies of water, water courses, trunk roads, human and animal population nuclei, or any other area where special protection might be required”.

The “Illicit Crop Eradication Program Using Aerial Spraying with Glyphosate” (PECIG) has an Environmental Management Plan which was imposed by this Ministry by means of Resolutions 1065 of 2001 and 108 of 2002, and this contains measures for ensuring that the program is executed in accordance with current environmental regulations.

According to the provision stipulated in Ministry Resolution No. 099 dated 31 January 2003, the dose used on coca crops in the “Illicit Crop Eradication Program Using Aerial Spraying with Glyphosate” is 10.4 l/ha.

The aforementioned Environmental Management Plan was imposed at the time on the National Narcotics Division (DNE), as this was the competent entity for controlling development and execution of National Government policy on narcotics control, prevention and repression, to which PECIG refers, in the terms stated under Number 2 in Decree 2159 of 1992, modified by means of Decree 1575 of 1997.

In an official document which was filed with this Ministry under number 3111-1-12366 on 12 August 2003, the National Narcotics Division (DNE) submitted an application for the Environmental Management Plan imposed by means of Resolution 1065 of 2001 to be modified, and this application was complemented by official document number SPD-383, which was filed with this Ministry on 18 September 2003.

Modifying Environmental Management Plan records as requested is legally viable, as established in Article 28 in Decree 1180 of 2003, the first and third paragraphs of which read as follows.

“TRANSITION REGIME. Any projects, works or activities for which permits, concessions, licences and authorisations of an environmental nature have been obtained under regulations which were in force prior to the date on which this decree is issued shall continue their activities under the terms and conditions and with the obligations stated in the administrative acts thus issued.

(.....)

In the aforementioned cases, the environmental authorities shall continue to carry out the necessary control and follow-up activities, with a view to establishing whether environmental regulations are being complied with. They may likewise stipulate, by means of a reasoned administrative act, any additional environmental management measures which they might deem necessary and/or adjustments to those currently being implemented”.

The “Illicit Crop Eradication Program Using Aerial Spraying with Glyphosate” (PECIG) was being executed prior to the date on which Decree 1180 of 2003 came into force, under the provisions governing it at the time, and was subject to the terms, conditions and obligations stipulated in the respective administrative acts that were issued.

The Environmental Management Plan is a dynamic instrument which can be adjusted in line with the individual features of the activity and environmental conditions in the area where the project is being executed, and the modification document submitted by DNE accordingly proposes a strategy consisting of adjusting the thirteen (13) records which make up the present Environmental Management Plan for the Illicit Crop Eradication Program Using the Herbicide Glyphosate” (PECIG), as follows.

1. RECORD 1. SPRAYING OPERATIONS MANAGEMENT PROGRAM. This combines Record No. 1 - Spraying Operations Management - with Record No. 6 - Spraying Operations Inspection, Verification and Control Program, with certain objectives and activities in these adjusted.

2. RECORD 2. OVERALL SAFETY PROGRAM AT OPERATIONS BASES. This combines Record No. 2 - Glyphosate Management Program at Operations Bases - with No. 3 - Fuel, Vehicle, Equipment and Transportation Management Plan - and No. 11 - Overall Safety Program at Operations Bases - in the current plan.

3. RECORD 3. SOLID WASTE MANAGEMENT PROGRAM. This corresponds to the present Record No. 4 - Solid Waste Management Program.

4. RECORD 4. WASTE WATER MANAGEMENT PROGRAM AT PECIG BASES. This corresponds to the present Record No. 5 - Waste Water Management Program.

5. RECORD 5. ENVIRONMENTAL MONITORING PROGRAM. This combines Record No. 7 - Representative and Demonstrative Plot Research Program - with No. 8 - Environmental Monitoring Program - in the present Environmental Management Plan.

6. RECORD 6. SOCIAL MANAGEMENT AND COMMUNICATION PROGRAM. This combines Record No. 9 - Social Management Program - with No. 10 - Educational Communication Program - and No. 12 - Environmental Administration and Inter-Institutional Coordination Program.

7. RECORD 7. PUBLIC HEALTH PROGRAM. This corresponds to the health care activities included in Record No. 9 - Social Management Program - in the present Environmental Management Plan. It is added to the Environmental Management Plan as a new public health program.

8. RECORD 8. CONTINGENCY PLAN. This corresponds to the present Record No. 13 - Contingency Plan - in PECIG.

The proposed amendments to the PECIG Environmental Management Plan were evaluated in Technical Opinion No. 1059 dated 24 September 2003, which stated the following.

“The National Narcotics Division (DNE) proposal is based on experience gained during execution of the Program and application of the environmental management records, and this has revealed that a number of them can be combined in that they have similar scopes and objectives, and if this is done, it will allow greater control to be exercised in PECIG environmental management measures and improve coordination relations with the different entities involved in the program.

We should also remember that because of the characteristics of the illicit crop eradication activity, a dynamic Environmental Management Plan is required, one which simplifies effective execution of the proposed activities in line with the varied environmental, social and safety conditions in the country.

The National Narcotics Division has said that the National Police Anti-Narcotics Division, as the entity responsible for executing the Illicit Crop Eradication Program with the Herbicide Glyphosate, is faced with risks all the time in its eradication activities because illegal armed groups are harassing and attacking the aircraft as they spray the herbicide Glyphosate, and in many cases this is preventing the environmental management records being implemented adequately.

This situation has been verified by the Ministry during Eradication Program Environmental Management Plan follow-up activities, when it has also been noted that illicit crop growers use a number of strategies to prevent areas where coca is planted from being sprayed. These include mixing illicit crops with licit ones, planting only sections of illicit crops, fixing wires between trees in order to try and get the fumigation aircraft to overturn when it descends, and having extremely high isolated trees on plots to make it more difficult for spraying aircraft to manoeuvre; these latter two situations seriously endanger the lives of the pilots and in some cases force them to modify program operating parameters”.

Ministry of the Environment, Housing and Regional Development Considerations with Respect to the Content of the Proposed Records.

An interdisciplinary technical review of the proposed modification to the PECIG Environmental Management Plan records leads to the conclusion that this will not alter the goal that is sought, namely prevention, mitigation, control and correction of and compensation for any possible negative environmental effects which might result from the illicit crop eradication activity, and the proposal is viewed as being a technical adjustment to the present Environmental Management Plan. The technical review by the Ministry raised the following considerations about the proposed records.

RECORD 1. SPRAYING OPERATIONS MANAGEMENT PROGRAM. This combines Record No. 1 - Spraying Operations Management - with Record No. 6 - Spraying Operations Inspection, Verification and Control Program, with certain objectives and activities in these adjusted.

The Ministry authorises the records to be altered and combined as proposed by DNE.

RECORD 3. SOLID WASTE MANAGEMENT PROGRAM. This corresponds to the present Record No. 4 - Solid Waste Management Program.

The Ministry agrees to the amendment to the record proposed by DNE.

RECORD 4. WASTE WATER MANAGEMENT PROGRAM AT PECIG BASES. This corresponds to the present Record No. 5 - Waste Water Management Program.

The Ministry agrees to the amendment to the record proposed by DNE.

RECORD 5. ENVIRONMENTAL MONITORING PROGRAM. This combines Record No. 7 - Representative and Demonstrative Plot Research Program - with No. 8 - Environmental Monitoring Program - in the present Environmental Management Plan.

The Ministry is of the opinion that it is viable to agree to the record proposed by DNE, since the objectives set forth in Record No. 7 in the plan that is to be modified, namely studying ecological regeneration and dynamics in sprayed areas and determining glyphosate residue levels in the soil and how these have affected the physical and chemical properties thereof, are contained in the proposed record for carrying out under real conditions on the ground in each PECIG operation nucleus. This evaluation will thus be carried out at the same time as the environmental monitoring that is described in the proposed record.

Meanwhile, and as a result of the considerations under Record No. 8 - Environmental Monitoring Program - in the present Environmental Management Plan with respect to the water, soil, vegetation cover, land use, and health of the population in sprayed areas components, the objective is to carry out follow-up of the effects on these components. It is thus considered that the proposed record adequately covers the activities and indicators of the two earlier records (7 and 8).

RECORD 6. SOCIAL MANAGEMENT AND COMMUNICATION PROGRAM. This combines Record No. 9 - Social Management Program - with No. 10 - Educational Communication Program - and No. 12 - Environmental Administration and Inter-Institutional Coordination Program.

The Ministry authorises the records to be altered and combined as proposed by DNE.

RECORD 7. PUBLIC HEALTH PROGRAM. This corresponds to the health care activities included in Record No. 9 - Social Management Program - in the present Environmental Management Plan. It is added to the Environmental Management Plan as a new public health program.

The Ministry authorises the activities proposed in the record since they complement the Environmental Management Plan.

RECORD 8. CONTINGENCY PLAN. This corresponds to the present Record No. 13 - Contingency Plan - in PECIG.

The Ministry agrees to the amendment to the record proposed by DNE.

The Environmental Management Plan which is modified hereby shall consist of eight (8) records, containing the “Illicit Crop Eradication Program Using Aerial Spraying with Glyphosate” (PECIG) environmental management measures.

Decree 2568 of 2003 establishes that the National Narcotics Division (DNE) has the following duties, amongst others: to direct, coordinate, supervise and control execution of the duties and programs of the National Narcotics Division and officials thereof, to establish policy and adopt general plans relating to the institution, and to direct and control the objectives of the institution and see that these are achieved, in line with established development plans and policies.

The National Police Anti-Narcotics Division - DIRAN - has a duty to reduce the drug supply by, amongst other things, the technical aerial spraying of illicit coca, poppy and marijuana crops, as established in Decree 1512 of 2000.

The entities listed below shall be responsible for executing the modified Environmental Management Plan records which will be authorised hereby:

1. National Police Anti-Narcotics Division - DIRAN - will be responsible for dealing with Records Nos. 1, 2, 3, 4 and 8.

2. With respect to Record No. 5, each of the entities stated therein shall be responsible, with operational support from the National Police - Anti-Narcotics Division, based on the activities stated below.

2.1. VEGETATION SUCCESSION ANALYSIS

This covers the following activities:

2.1.1. Taking aerial photographs and videos by the National Police - Anti-Narcotics Division as part of environmental monitoring, with the results to be sent to this Ministry;

2.1.2. Vegetation cover analysis over periods of time, produced by SIMCI (Integrated Illicit Crop Monitoring System), a project that is the responsibility of the Ministry of Justice, which will send results to this Ministry.

2.2. GLYPHOSATE AND AMPA RESIDUE ANALYSIS

This covers the following activities:

2.2.1. Monitoring will be planned in conjunction with the National Police - Anti-Narcotics Division, the National Health Institute, and the Agustín Codazzi Geographical Institute.

2.2.2. The taking of water and soil samples and the packing of these will be done by IGAC technicians in the case of soil samples and INS or technicians trained by INS in the case of water samples.

2.2.3. Samples will be sent to laboratories by the technicians who took them.

2.2.4. IGAC and INS, respectively, will carry out soil and water laboratory analyses and publish results.

2.2.5. The National Narcotics Division (DNE) will compile results for the nuclei and with the frequencies stated in the record and despatch these to this Ministry.

3. National Narcotics Division (DNE) - Record Number 6.

4. The Ministry of Social Protection (National Health Institute at national level and Regional Health Divisions in Provinces, Districts and Towns) will be responsible for Record No. 7.

Technical Opinion No. 1059 dated 24 September 2003 concludes that it is technically and environmentally viable to modify the Environmental Management Plan for the Illicit Crop Eradication Program with the Herbicide Glyphosate (PECIG) in the manner proposed by the National Narcotics Division (DNE) and in accordance with the aforementioned considerations, with the obligations which will be established in the resolution part of this ruling.

By virtue of the foregoing, this Office hereby reassumes the competence which was delegated in Resolution 307 of 2003, and in the resolution part of this ruling will proceed to modify the Environmental Management Plan which was imposed for the activity referred to as “Illicit Crop Eradication Program Using Aerial Spraying with Glyphosate” (PECIG) in Colombia.

By virtue of the foregoing, it is hereby

ARTICLE TWO. The entities listed below shall be responsible for complying with the Environmental Management Plan records which are modified by means of this administrative act:

1. The National Police Anti-Narcotics Division - DIRAN - shall be responsible for dealing with Records Nos. 1, 2, 3, 4 and 8.

2. The Ministry of Health - National Health Institute, The Ministry of Justice, the National Police Anti-Narcotics Division - DIRAN, the National Narcotics Division - DNE, and the Agustín Codazzi Geographical Institute - IGAC shall be responsible for Record No. 5, based on the activities established therein and in accordance with the first part of this ruling.

3. The National Narcotics Division (DNE) shall be responsible for Record Number 6.

4. The Ministry of Social Protection (National Health Institute at national level and Regional Health Divisions in Provinces, Districts and Towns) will be responsible for Record No. 7.

ARTICLE THREE. The entities detailed under the preceding Article should do the following:
1. submit half-yearly reports containing details of activities carried out in furtherance of the modification to the Environmental Management Plan records, including training programs undertaken during the said period, with specific details of activities carried out for complying with the safety strips for environmental elements;

2. submit a Schedule and General Budget for the modified Environmental Management Plan for execution of PECIG within a period of sixty (60) days; and

3. inform contractors, and all personnel in general who are involved in the activity, in writing of the obligations, control measures and prohibitions established in this ruling and in the Environmental Management Plan modification document submitted, and demand that they comply strictly therewith.

ARTICLE FOUR. The Environmental Management Plan which is hereby modified covers only those works or activities which are described in the Environmental Management Plan modification document and in this Resolution.

Each of the entities listed in Article Two hereinabove should inform the Ministry of the Environment, Housing and Regional Development in writing of any modification to Environmental Management Plan conditions, so that these may be evaluated and approved.

ARTICLE FIVE. The Ministry of the Environment, Housing and Regional Development shall supervise execution of the activity and may at any time check that the guidelines and obligations established in this ruling and in the Environmental Management Plan are being adhered to.

ARTICLE SIX. The entities which are referred to in Article Two hereinabove shall be responsible for any environmental deterioration and/or damage which might be attributable to them and has been caused in furtherance of the “Illicit Crop Eradication Program Using Aerial Spraying with Glyphosate”, within the scope and extent of their competence and the responsibilities which are assigned to them herein.

ARTICLE SEVEN. The National Narcotics Division (DNE) should publish this administrative act and the eight (8) records which make up the Environmental Management Plan within ten (10) days of the date on which it is notified thereof, and should submit a copy of the same to this Ministry.

ARTICLE EIGHT. The Delegate Attorney’s Office for Environmental and Agricultural Affairs, the Colombian Farming Institute (ICA), the National Narcotics Council, the Regional Autonomous Corporations and the Sustainable Development Corporation are to be notified of the present ruling through the Legal Secretariat of this Ministry.

ARTICLE NINE. Motion to set aside applies with respect to this Resolution, and may be filed with this Ministry within five (5) days of notice being served hereof subject to all legal requirements being met, as stipulated in Articles 50, 51 and 52 in the Administrative Code.