Mexico Summary

Go directly to a section:
Overview
Private Concessions and Ownership
Coastal Lands Ownership and Possession
Concessions
ZOFEMAT
Fishing
Investigative Fishing
Aquaculture
Protected Natural Areas
Other Legal Mechanisms used for Conservation
Land and Sea Tenure Issues

Laws and Authorities
Coastal Zone Management
Marine Flora and Fauna
Water Quality
Coastal Parks
Shoreline Development
Intertidal and Underwater Lands
Aquaculture Management

An initial assessment of options for private conservation of the oceans and coasts in Mexico was completed for this toolkit by The Nature Conservancy in 2007. While additional information is available and relevant field projects are underway, the majority of the information within this summary comes from the 2007 assessment. Future iterations of the toolkit will include information on field projects.

Overview        Return to top

Coastal beaches (including 20 meters above the high water mark), territorial seas and related resources are under federal jurisdiction in Mexico. These lands and waters are considered common goods which can be traversed freely by the public. Private parties can make special use of such resources exclusively through concessions or permits issued by the appropriate governmental authority.

Beyond the Federal Maritime Land Zone (ZOFEMAT), land can be privately owned, but the Foreign Investment Law prohibits foreigners from owning land directly within the first 50 miles from the coast. Foreigners can, however, possess coastal lands through a trust which gives them full use of the land and its products. Private use of the ZOFEMAT is granted through concessions and permits. Concessions can be requested to protect land and resources, although if it were a foreign entity the request for such concession presumably would have to be through a trust. Marine flora and fauna are also under federal jurisdiction and can be exploited through a concession. For conservation purposes the most probable avenue would be through a permit for investigative fishing (pesca de fomento) which can be granted to foreign individuals and entities, but only with regard to resources not included in the National Fisheries Chart. The holder of a concession or permit can be substituted under certain circumstances with the authorization of the Ministry of Agriculture (SAGARPA), but a concession or permit cannot be sub-assigned, leased or subject to lien, and although it is not stated specifically one can presume that they therefore cannot be sold.

Much of Mexico’s coastal land is property of ejidos and comunidades which, within the framework of the national legislation, are allowed to manage their own resources. They and other private land owners can be freely contracted with to establish land conservation elements such as conservation easements or use restrictions.

Private Concessions and Ownership        Return to top

Ocean and coastal lands and resources are largely under federal jurisdiction in Mexico and only accessible to private parties by concession or permit. Concessions and permits were developed and are typically used for purposes of and give preference to the exploitation of resources (as opposed to conservation of resources).

Conservation of natural resources is generally entrusted to the Ministry of the Environment (SEMARNAT), whose primary means of land and natural resource preservation has been through the use of the Protected Natural Areas (ANPs), certain Official Mexican Standards (NOMs) that protect specific species, and other federal agencies such as SAGARPA, which are also responsible for promoting their sustainable exploitation (this can lead to conflicts of interest within the agency itself).

Private land protection is contemplated within the legal concepts of Wildlife Management and Conservation Units (UMAs) found in the General Law of Ecological Equilibrium and Environmental Protection (LGEEPA) and payments for environmental services (primarily preservation of watersheds) encompassed in the Forestry Law.

Presumably, private coastal landowners (including ejidos and comunidades) could use these beyond the ZOFEMAT. Furthermore, concessions over the ZOFEMAT can be requested for purposes to protect the concessioned area. The preferential order established in the law for granting concessions (see page 2 of summary) would have to be taken into account when there are multiple requests for the same area. Concessions or permits over marine flora and fauna contemplated in the Fisheries Law for purposes of protecting rather than exploiting such resources could be possible under the concept of investigative fishing.

Coastal Land Ownership and Possession        Return to top

Private Mexican citizens and entities can acquire fee-simple title to coastal land beyond the ZOFEMAT (20 meters above the high water mark). Land within the ZOFEMAT can be used through a concession, permit or authorization, depending on the activity. The availability of concessions, permits or authorizations to foreigners depends on the activity.

Under the Foreign Investment Law, real estate located within the so-called restricted zone, which is a strip of 100 kilometers along the borders and 50 kilometers along the beaches of Mexico, cannot be directly owned by foreigners. However, foreigners can acquire rights to use and benefit from real estate located within the restricted zone through a trust with the permission of the Ministry of Foreign Relations (SRE). In this case, it is the credit institution that, as fiduciary, acquires rights over the real estate and the foreigner, as beneficiary, has the right of use and enjoyment thereof, including any fruits or products obtained and, in general, any proceeds resulting from any profit yielding operation or exploitation, through third parties or the fiduciary institution. The duration of these types of trusts is 50 years, which may be extended with the authorization of the SRE.

Real estate located outside of the restricted zone can be directly acquired by foreigners, whether individuals or entities, provided that prior to the acquisition a writ is presented to the SRE in which the foreigner agrees to be considered a Mexican national with respect to such property and not to invoke the protection of its/his/her government (“Calvo Clause”), and the SRE grants such permission.

Concessions        Return to top

All lands and resources lying below and immediately adjacent to the high water line of the ocean fall under Federal jurisdiction. Therefore any activities related to such lands and resources would be through a concession, permit or authorization granted by SEMARNAT in the case of the ZOFEMAT or by SAGARPA in the case of marine flora and fauna.

Foreign individuals or entities seeking a concession, permit or authorization are subject to the requirements established by the Foreign Investment Law and its Regulation (RUAMAT Art. 28). Although the law is unclear in this regard, according to an officer of SEMARNAT, this means that a foreign entity would have to request a ZOFEMAT concession or permit through a trust but there is no legal grounds for requiring an individual foreigner to do so, and therefore presumably a non-Mexican individual who complies with all other requirements could be issued a concession or permit. This would have to be confirmed, however. Foreigners are prohibited from engaging in certain activities under the Fisheries Law.

Transfers of concessions and permits are allowed in regard to both the ZOFEMAT and marine flora and fauna, but in both cases the assumption is that the same use of the concession will be made unless authorization to change such use is given.

ZOFEMAT        Return to top

Concessions and permits are apparently made for conservation purposes in the ZOFEMAT under the zoning classification of Protection, which is defined in Annex A of the Concession Request Form as “To maintain the natural state of the surface and where activities for profit will not be carried out”. The Note to this Annex further explains that according to Section III and IV of Article 233 of the Federal Fees Law, if the concessioned land is to be used for scientific investigation or if it is concessioned to non-profit organizations for conservation purposes (“to carry out actions for the preservation and restoration of the environment through reforestation with native species or vegetation such as mangroves, marsh vegetation, conifer forests, tropical forests, wetland vegetation…”) such activities are exempt from the payment of the fee concession or permit fee.

Annex B of the same request form states that in the case of a Protection use of the concession, it will not be necessary to present an environmental impact ruling as established in Article 28 of the LGEEPA and Articles 5 and 6 of its Regulation regarding Environmental Impact Assessment. This classification of a concession for Protection of an area is not provided for in the law or even introduced on the SEMARNAT or PROFEPA websites, but it is apparently an administrative concept in use.

Transfers of ZOFEMAT concessions and permits are allowed with the prior authorization of SEMARNAT, provided that, among other things, the assignee meets the same requirements for granting the original concession (the provision is not clear on this, presumably it refers to the particular requirements imposed on the concessionaire of that particular concession) and the permitted use is still consistent with federal master control plan for that zone (RUAMAT, Art. 37). However, concessions and permits are subject to revocation if they are sub-assigned, leased, liened or if the rights are partially or wholly contracted out (RUAMAT, Art. 47). This would seem to rule out the possibility of contracting with a concession holder to not exploit the resource covered by the concession. A concession or permit is also subject to revocation if activities or works not mentioned in the concession or permit are engaged in without the prior authorization of SEMARNAT. (LGBN, Art. 76; RUAMAT, Art. 47)

Fishing        Return to top

Concessions or permits over marine flora and fauna for conservation purposes could be granted for Investigative Fishing (as described below), but only in the case of resources not covered by the National Fisheries Chart.

Concessions or permits granted under the Fisheries Law may be transferred (the titleholders may be substituted) with the prior authorization of SAGARPA (Fisheries Law, Art. 8). However, they cannot be sub-assigned, leased or subject to lien (Regulation of the Fisheries Law, Art. 8). Although the law does not specifically state it, based on the above it can be assumed that they cannot be sold on the open market.

Since concessions or permits for commercial fishing are granted only to Mexican nationals and to boats or fishing units, a foreign association could not be granted such a concession, nor have such a concession assigned to it in order to limit fishing. However, it may be possible to contract with the holder of the concession to limit the amount of fishing or to regulate the manner of fishing, as long as the terms of the contract do not establish conditions that would invalidate the conditions under which the concession was granted.

The use fishing cooperatives in Mexico and examples of coastal communities that have successfully organized and regulated their own fishing industry warrants further research.

Investigative Fishing        Return to top

Permits for investigative fishing (pesca de fomento)could be granted to foreign associations for conservation purposes when the targeted resources are not included in the National Fisheries Chart. Investigative fishing is defined in part as the study, scientific investigation, experimentation, exploration, prospecting, development, repopulation or conservation of the resources consisting of the aquatic flora and fauna and their habitat… (Regulation Fisheries Law, Art. 69). Foreign scientists, technicians and scientific investigation institutions may apply for a permit from the National Fisheries Commission (CONAPESCA) who will inform the Maritime Ministry (SEMAR) and the SRE (Regulation Fisheries Law, arts. 71 and 73). Such individuals or institutions must show their scientific credentials (Regulation Fisheries Law, Art. 72) and must submit a program, research or scientific investigation project (Regulation Fisheries Law, Art. 74) and meet certain other requirements.

The same rules apply to transfers of concessions for investigative fishing as apply to all concessions and permits under the Fisheries Law.

Aquaculture        Return to top

Concessions for aquaculture may be granted for commercial aquaculture in federal waters to national individuals, foreign individuals, or Mexican entities. Concessions for investigative aquaculture (acuacultura de fomento) may be granted to national scientists, foreign scientists, and scientific and educational research institutions (Regulation Fisheries Law, Art. 115).

With regard to aquaculture, there are examples of private foreign entities purchasing or leasing land from ejidos or cooperatives. Purchase of ejido land is now possible, but there are still a number of restrictions. Another option that has been used with regard to aquaculture is a type of joint venture with an ejido. The arrangement can take whatever form the parties agree to.1

The same rules apply to transfers of concessions for aquaculture as apply to all concessions and permits under the Fisheries Law.

Protected Natural Areas        Return to top

Protected Natural Areas (ANPs) are declared by the federal, state or local governments and their management is overseen by such governments. However, ANPs may remain in private hands although the activities that can be engaged in on such lands are restricted. Non-governmental Organizations (NGOs), including foreign ones, can and do participate in the management of ANPs, although foreign associations cannot act as the actual administrators.

SEMARNAT has jurisdiction over the resources in ANPs and since the purpose of the ANPs is conservation, concessions or permits for the purpose of conservation of resources within an ANP are not contemplated. The means by which non-governmental organizations can participate in conservation activities in the ANPs is through coordination agreements with the ANP administrators or donation of funds and similar activities.

Since land ownership does not change when a concession is granted or an ANP is created, essentially, the federal government is forcing private conservation on those private landowners. Mexican and international NGOs have assisted the federal government and the private owners of ANP lands as well as private owners (including ejidos and comunidades) of non-ANP lands, and they are developing a number of legal tools for those purposes.

Other Legal Mechanisms used for Conservation Purposes        Return to top

There are a growing number of NGOs working with ejidos, comunidades, and private landowners to conserve land and biodiversity using a variety of legal tools. The Mexican NGO Pronatura, a partner of The Nature Conservancy, has been a pioneer in this regard and is continuously developing conservation tools. The tools they have successfully used under current Mexican law include:

• Article 59 of the LGEEPA and the related articles 126-136 of the Regulation of the LGEEPA in relation to ANPs establish the concept of productive areas dedicated to the public interest of the preservation, protection and restoration of ecosystems whereby private lands held by indigenous peoples or public or private social organizations or other interested persons may be voluntarily dedicated to such purposes.
• Wildlife Management and Conservation Units (UMA) (arts 39-47 of the General Wildlife Law).
• Real property contracts (derechos reales) such as conservation easements, conservation liens, usufruct, leases, use restrictions, as well as personal private contracts (derechos personales) such as private regeneration gardens, private conservation reserves, civil and commercial associations, purchase of cutting rights, leases (comodatos), ventures (contratos de asociacion en participacion), and bequests.
• Tax benefits of conservation projects.

Furthermore, Pronatura is working on drafting and promoting legislation that would improve the effectiveness of land conservation efforts.

Land and Sea Tenure Issues        Return to top

Significant information was not found regarding traditional land or sea tenure rights in Mexico. Nevertheless, the ejido land tenure system is unique to Mexico and given that around 70% of Mexico’s forests are on ejido or comunidad lands and a significant portion of coastal lands are also ejidal, it may be useful to further analyze the legal regime applicable to them.

Coastal Zone Management (Federal Maritime Land Zone)        Return to top

Article 27 of the Mexican Constitution establishes that the federal government has direct dominion over all the natural resources of the continental shelf and owns the waters of the territorial seas according to their extension under international law, the internal marine waters, and the waters and estuaries that connect permanently or intermittently with the sea. Dominion over these resources cannot be passed to private parties and can only be used by private parties or Mexican companies by means of a concession granted by the appropriate federal governmental agency. The different regulatory laws of this constitutional provision discussed below divide the concept of concession into concessions, permits and authorizations, depending on the type of activity and the area where it is being carried out.

Paragraphs four, five, six and eight of Article 27 of the Constitution apply to:

• Territorial Sea,
• Internal Marine Waters,
• Continuous Zone,
• Exclusive Economic Zone,
• Continental Shelf; and
• Island Shelves (Arts. 1 and 3).

The Federal Law of the Sea (Ley Federal del Mar) specifies that federal authorities have jurisdiction over the following activities:

• Capturing of solar energy from the sun;
• Development of the coastal zone with regard to sea farming (maricultura);
• Economic exploitation of the sea;
• Establishment of fishing communities;
• Establishment of national marine parks;
• Production of electric or thermal energy derived from the sea, the currents and winds;
• Promotion of recreation and tourism;
• Protection and preservation of the marine environment and its protection from contamination;
• Scientific research activities; and
• Use of minerals dissolved in its waters, (Art. 6).

The General Law of National Assets (LGBN) specifies federal jurisdiction, defining the ZOFEMAT as follows:

• When there are beaches on the coast, the federal maritime land zone will be a strip 20 meters wide of firm and passable land contiguous to such beaches or contiguous to the banks of the rivers, from where they flow into the sea one hundred meters up the river;
• All of the area of the cays and reefs located in the territorial sea;
• In the case of lakes, lagoons, estuaries or natural deposits of marine water that directly or indirectly connect with the sea, the strip of 20 meters of federal maritime land zone will begin at the point where the greatest annual reservoir (embalse) reaches or the limit of high tide…(LGBN, Art. 119).

The LGBN establishes that the Federal Executive, through SEMARNAT, will promote the sustainable use and exploitation of the federal maritime land zone and the lands recovered from the sea, and that such agency may execute coordination agreements with the governments of the states and municipalities for the administration, conservation and oversight of these assets (LGBN, Art. 120).

The LGBN also establishes that the maritime beaches and the ZOFEMAT are common goods (LGBN, Art. 7). Article 8 provides that, All inhabitants of the Republic may use goods of common use without any restrictions other than those established in the administrative laws and regulations. For special uses of goods for common use, a concession, authorization or permit granted with the conditions and requirements established by the laws, is required. Both this law and its regulation discussed below only make reference to special uses of these areas, without defining further what constitutes a special use.

The RUAMAT specifies the rules applicable to the ZOFEMAT. It establishes that the beaches and the ZOFEMAT may be freely enjoyed by anyone, subject only to the following limitations and restrictions imposed by SEMARNAT:

• The use of vehicles and other activities on the beaches that could be dangerous to other users;
• Construction and installation of structures that impede the free transit of the beaches and the ZOFEMAT (normally prohibited unless approved in advance by SEMARNAT); and
• Activities that contaminate public areas (normally prohibited) (RUAMAT, Art. 7).

Any individual or entity wishing to use or exploit the ZOFEMAT for special purposes, must have a concession (maximum term of 50 years with possibility of extension) or a permit (for short periods of time not affecting the environment)2. The law does not state specifically the purposes for which concessions or permits can be granted.

Authorization Instruments        Return to top

The legal instruments that authorize the occupation of the ZOFEMAT include:

• Concession: Title granted by SEMARNAT for the exclusive use or exploitation of the ZOFEMAT for a specific time period (which is extendible); generally granted for tourist developments, hotels, restaurants, discothèques, aquaculture farms, tourist marinas, fishing camps and salt and rock mining.
• Authorization: Resolution by SEMARNAT to modify the terms of a concession.
• Permit: Document covering the use of the ZOFEMAT for a specific activity for one year; not extendible, but can be requested again; generally granted for beach vendors or preliminary works until a concession is granted.
• Removal of Land Recovered from the Sea (Desincorporacion de TGM): Authorizes the sale of land recovered from the sea to private parties that have requested it and complies with the requirements of the Law.3
• Use Agreement (Acuerdo de Destino): Issued by SEMARNAT for the use and exploitation of the ZOFEMAT by any federal, state or municipal public entity; does not have time limit; does not transfer ownership nor is transferable; cannot be used for any activity other than the one agreed to; generally granted for oil and gas, thermoelectric and nuclear facilities, and naval and port installations and facilities.

Prioritization        Return to top

Federal, state and local government agencies will be given priority when granting ZOFEMAT concessions (RUAMAT, Art. 23). When not a government agency and all other things being equal, preference in granting ZOFEMAT concessions will be given in the following order:

• Last owners of land that has become federal land due to maritime movements;
• Petitioners of extensions of concessions or permits;
• Petitioners who will make a significant investment and assist the urban and socio-economic development of the area,
• Bordering ejidos or comunidades;4
• Owners or legitimate holders of the lands bordering such federal zone;
• Fishing cooperatives;
• Holders of concessions or permits to exploit materials found within the ZOFEMAT; and
• The rest of the petitioners (RUAMAT, Art. 24).

In addition, any foreign individuals or entities wishing to be concession or permit holders in the ZOFEMAT are subject to the requirements established in the Foreign Investment Law (RUAMAT, Art. 28).

Assignment        Return to top

The rights and obligations of a concession may be assigned with the prior authorization of SEMARNAT provided the following requirements are complied with (RUAMAT, Art. 37):

• The assignor is up to date in the payment of the fees indicated in the concession;
• The assignor is in compliance with the obligations indicated in the concession;
• The assignee meets the same requirements taken into account for the granting of the concession; for such purpose companies belonging to the same group or affiliates thereof will be understood to meet the same requirements;
• The ZOFEMAT, land recovered from the sea or any other deposit of maritime waters that was concessioned is not subject to an administrative or judicial ruling; and
• The continuation of the use or exploitation for which the area was concessioned is consistent with the determinations of the master control program and use of the federal zone.

Expiration        Return to top

Concessions and permits will expire for the following reasons (LGBN, Art. 74 and RUAMAT, Art. 44):

• Expiration of term;
• Renunciation by the concessionaire ratified before the governmental authority;
• Fulfillment of its purpose or impossibility of doing so;
• Nullity, revocation and expiration;
• Declaration of “rescue”;
• When national security is affected; and
• Death of the concession or permit holder.

Concessions or permits granted by unauthorized governmental officials or in violation of the laws, or by error, fraud or threat will be administratively annulled by SEMARNAT (RUAMAT, Art. 46).

Revocation        Return to top

The following are causes of revocation of concessions or permits (LGBN Art. 76, RUAMAT Art. 47):

• Sub-assign, lease, lien or carry out any other act or contract by virtue of which another person partially or wholly enjoys the rights covered by the concession or permit or carry out any other legal or material act that alters its conditions.
• Engage in activities or works not mentioned in the concession or permit without obtaining authorization of SEMARNAT in advance.
• Failure to make two payments of the fees indicated in the concession or permit.
• Induce, permit, consent or engage in illegal acts within the area granted in concession or permit.
• If the concession or permit holder or his relatives or employees oppose or prevent the inspections ordered by SEMARNAT.
• If the concession or permit holder, his relatives or employees impede free access to the maritime beaches, by areas indicated for such purposes by SEMARNAT.
• Not complying with the conditions established in article 29 sections II, III, IV, V, VI of this law (Concession holders of ZOFEMAT are obligated to: initiate the exercise of the rights consigned in the concession as of the date approved by SEMARNAT (II); initiate the works that are approved within the terms established in the concession, informing SEMARNAT of their termination within 3 working days (III); repair any damages caused by defects in the construction or in repair or maintenance work (IV); cover the expenses of demarcation and establishing of boundaries of the concessioned area (V); maintain the concessioned area in optimal hygienic conditions (VI)).
• Any violation or breach by the concession or permit holder of the legal or regulatory provisions or of the conditions established in the concession or permit.
• SEMARNAT may rescue or revoke concessions granted when it determines, based on technical studies, there is a public use or interest under the Law to do so. (RUAMAT, Art. 50)

Any private party can report acts or omissions in violation of the RUAMAT to the appropriate governmental authority (RUAMAT, Art. 85). Therefore anyone can report someone who is violating his concession or permit which may result in the revocation of such concession or permit.

Individuals or entities may request a concession or permit from the General Office of the Federal Land Maritime Zone and Coastal Environment (Dirección General de ZOFEMATAC) and its Administrative Units in the States. This Office is responsible for the administration, conservation and sustainable use of the maritime beaches, the ZOFEMAT and the lands recovered from the sea. Concessions require the payment of an annual fee based on the number of square meters given in concession (Federal Fees Law, Ley Federal de Derechos, Art. 232) although concessions for conservation purposes may be exempt.

If the structures or activities on the ZOFEMAT or the lands recovered from the sea require an authorization in terms of environmental impact prior to being carried out, an environmental impact assessment must be presented to the General Office of Environmental Impact and Risk (Dirección General de Impacto y Riesgo Ambiental).

Marine Flora and Fauna        Return to top

Since 2001 the fishing industry has been the specific jurisdiction of SAGARPA through CONAPESCA, except for certain threatened species which fall under the jurisdiction of SEMARNAT.

SAGARPA, through CONAPESCA, is responsible for both promoting fishing activities and preserving fisheries resources. In this latter regard it is responsible for:

• Determining zones of capture and cultivation;
• Establishing closed seasons and zones;
• Establishing methods and measurements for conservation of fisheries resources (with SEMARNAT);
• Establishing permissible volumes of capture and regulating instruments and equipment, number of boats, their characteristics;
• Regulating refuge areas; and
• Regulating the introduction of aquatic species in federal waters.5

SAGARPA, with the help of SEMARNAT, is also responsible for maintaining a National Fisheries Chart (Carta Nacional Pesquera) which is an inventory of all fisheries resources in federal water bodies and is intended as a management tool (Fisheries Law, Art. 3).

Fisheries Law        Return to top

The Fisheries Law (Ley de Pesca) establishes that the activities of capturing, extracting and cultivating flora and fauna that live totally, partially or temporarily in water (Fisheries Law, Art. 1), require a concession, permit or authorization, except for fishing for domestic consumption by residents on the coasts, and recreational fishing from land and aquaculture in waters that are not of federal jurisdiction (Fisheries Law, Art. 4). Concessions are granted for a minimum of five years and a maximum of twenty; in the case of aquaculture they can be granted for up to 50 years and they may be extended for equal amounts of time (Fisheries Law, Art. 6)

Fisheries Regulation        Return to top

The Regulation of the Fisheries Law (Reglamento de la Ley de Pesca) classifies fishing into the following activities:

1. Capture or extraction for purposes of a) commercial fishing, b) investigative fishing, c) educational fishing, d) sport-recreational fishing and e) domestic consumption fishing; snf
2. Cultivation or aquaculture for the following purposes: a) commercial, b) investigative and c) educational (Regulation Fisheries Law, Art. 30).

Article 31 of this Regulation then establishes for what activities concessions, permits and authorizations are granted, as follows:

Concessions are granted for:

• Commercial aquaculture,
• Commercial fishing, and
• Operation of industrial ships or floating plants.

Permits are granted for:

• Commercial fishing,
• Fishing by foreigners, when an excess is declared in the exclusive economic zone,
• Fishing works necessary to justify the concession requests,
• Investigative aquaculture,
• Sport-recreational fishing,
• Investigative fishing, and
• Operation of industrial ships or floating plants.

Authorizations are granted for:

• Collection of reproductive elements from the natural environment, including larvae, post larvae, broods, eggs, seeds, young fish or any other state,
• Educational aquaculture,
• Educational fishing,
• Fishing in the high sea or in foreign waters by ships under a Mexican registry and flag,
• Installing fixed fishing equipment in federal waters,
• Introducing live species in bodies of water under federal jurisdiction,
• Substitution of rights derived from the corresponding titles,
• Unloading in foreign ports or transporting species captured by Mexican flagged fishing ships, and
• Unloading fish products in any form in Mexican ports by foreign fishing ships.

Concession holders have certain obligations which include the extraction or capture of only the authorized species and only in the zones determined by SAGARPA; reporting requirements; fishing only with authorized boats and equipment; and cooperating in the preservation of the ecology and the conservation of the species, among others (Regulation Fisheries Law, Art. 45).

Investigative Fishing        Return to top

Investigative fishing (pesca de fomento) is defined as “the study, scientific investigation, experimentation, exploration, prospecting, development, repopulation or conservation of the resources consisting of the aquatic flora and fauna and their habitat…” (Regulation Fisheries Law, Art. 69). To engage in pesca de fomento you must have a permit (Regulation Fisheries Law, Art. 31) and such permits may be granted to non-Mexicans (Regulation Fisheries Law, Art. 73), but these permits are only granted for resources not already regulated by the National Fisheries Chart.

Substitution        Return to top

Concession or permit holders may be substituted with the prior authorization of SAGARPA, provided they comply with the requisites established in the Regulation of the Fisheries Law and except as expressly prohibited (Fisheries Law, Art. 8). The Regulation of the Fisheries Law establishes that substitution of concession and permit holders for commercial fishing and aquaculture may be authorized provided:

• The concession or permit is currently valid;
• The concession or permit has been in force for at least one year;
• The substitution complies with the requirements indicated in the Fisheries Law and its Regulation for the exercise of the activity, and
• The assets used for purposes of the concession or permit are transferred to the substitution or the substitution has the necessary assets (Regulation Fisheries Law, Art. 37).

However, concessions, permits or authorizations may not be sub-assigned, leased or subject to lien (Regulation Fisheries Law, Art. 8).

Article 9 of the Fisheries Law establishes that concessions for commercial fishing may only be granted to Mexican boats or fishing units (Fisheries Law, arts. 9 and 10). However, article 14 of the Fisheries Law provides that SAGARPA may, as an exception in the case of an excess of a species, issue a permit to foreign boats to fish in the Mexican exclusive economic zone.

Permits may not exceed 4 years and can be transferred pursuant to Article 8 mentioned above, except for the case of investigative fishing (Fisheries Law, Art. 11). Investigative fishing permits will be granted to persons who show the technical and scientific capacity for such. Permits for sport-recreational fishing may be issued to Mexican or foreign individuals (Fisheries Law, Art. 13).

Non-transferable authorizations for the following activities may be granted by SAGARPA only to Mexican individuals or entities:

• Collection of reproductive elements from the natural environment, such as larvae, eggs and seeds, etc. for purposes of aquaculture production or research;
• Fishing for teaching purposes:
• Fishing on high seas or in foreign jurisdiction, with Mexican flagged ships;
• Installing fixed fishing nets or lines in waters under federal jurisdiction; and
• Introduction of live species into bodies of water under federal jurisdiction (Fisheries Law, Art. 15).

Cancellation        Return to top

Concessions or permits will be cancelled (extinguirse por caducidad) when the concession or permit holders do not initiate the resources extraction within the established time period or suspend it without justified cause for more than 30 consecutive days and, in the case of aquaculture in federal waters, when they do not comply with the established investment plan (Fisheries Law, Art. 16).

Revocation        Return to top

Concessions, permits or authorizations will be revoked when the holders thereof:

• Affect the ecosystem or put it in imminent risk;
• Do not provide information requested by SAGARPA in a timely manner or provide false information;
• Do not timely comply with the general technical conditions indicated by SAGARPA without justification;
• Transfer authorizations or without the consent of SAGARPA transfer rights derived from a concession or permit; and
• Enter into bankruptcy, liquidation or dissolution (Fisheries Law, Art. 17).

Annulment        Return to top

Concessions, permits or authorizations will be annulled if, after issuance, factors surface which affect their validity (Fisheries Law, Art. 18). Holders of cancelled or revoked concessions, permits or authorizations must wait four years to be able to renew their titles (Fisheries Law, Art. 19).

General Wildlife Law        Return to top

Endangered wildlife in general, including endangered coastal wildlife, is protected by the General Wildlife Law (Ley General de Vida Silvestre) which is under the jurisdiction of SEMARNAT.

General Law of Sustainable Forest Development        Return to top

The mangrove forests along the coasts are also subject to the General Law of Sustainable Forest Development (Ley General de Desarrollo Forestal Sustentable), also enforced by SEMARNAT through the National Forestry Commission (Comision Nacional Forestal), which law requires an authorization before deforesting (Art. 58) and an environmental impact assessment before harvesting wood (arts. 73 and 76)

Under the General Wildlife Law, owners or possessors of lands or installations that engage in activities of wildlife conservation must give notice to SEMARNAT, and they will be incorporated in to the System of Wildlife Management and Conservation Units (UMAs). If such landowners or possessors also exploit the wildlife, they must register their land as a UMA. The purpose of UMAs is to preserve natural habitat, populations and examples of wild species. UMAs may have specific purposes of restoration, protection, maintenance, recuperation, reproduction, repopulation, reintroduction, investigation, rescue, safekeeping, rehabilitation, exhibition, recreation, environmental education and sustainable use (General Wildlife Law, Art. 39). The stated purpose of this system includes the conservation of biodiversity and natural habitat of wildlife and the creation of biological corridors, among other conservation activities (General Wildlife Law, Art. 46). What is not clear from the law, however, is what incentive (economic or otherwise) a landowner would have to become part of this system.

Coastal wildlife would also be protected under tcoastal Protected Natural Areas which is discussed below.

Water Quality        Return to top

Waste Water Discharges        Return to top

Article 130 of LGEEPA states that SEMARNAT will authorize the emptying of wastewater in marine waters in accordance with the National Waters Law (Ley de Aguas Nacionales), its regulation (Reglamento de Ley de Aguas Nacionales) and the applicable NOM. The National Waters Law and its regulation are enforced by the National Water Commission (CNA) which is an independent agency of SEMARNAT.

The dumping of waste water into the sea from mobile sources or fixed platforms must be authorized by the Water Authority, in coordination with the Ministry of the Navy (Secretaria de Marina) (National Waters Law, Art. 86 VI.).

The National Waters Law requires a permit to discharge wastewater into national waters, including marine waters (National Waters Law, Art. 88). NOM-001-SEMARNAT-1996 establishes the maximum contaminant limits for wastewater discharges. Furthermore, the law, regulation and NOMs set forth requirements for sampling, monitoring and treatment.

In spite of having the inspection authority to verify compliance with wastewater discharge requirements, the actual capacity of SEMARNAT’s enforcement arm, PROFEPA, for verifying compliance is very limited.6

Water Extraction        Return to top

A concession is generally required to extract water from national waters, but it is not required to extract interior or territorial marine waters, unless the purpose is for desalinization, in which case a concession is necessary (National Waters Law, Art. 17).

Coastal Parks        Return to top

This section looks at the Mexican system of Federal Protected Natural Areas (ANP) (which are governed by LGEEPA Arts. 44-77 and its Regulation in relation to ANPs).

ANPs include:

• national parks,
• biosphere reserves,
• natural monuments,
• natural resource protected areas,
• flora and fauna protected areas,
• sanctuaries,
• state parks and reserves, and
• ecological preservation zones in urban areas (LGEEPA, Art. 46).

SEMARNAT has primary jurisdiction over these areas, except in the case of the last two. States and cities have jurisdiction over state parks, reserves, and ecological preservation zones in urban areas.

The purpose of the ANPs is to:

• Preserve the different natural environments represented in Mexico;
• Safeguard genetic diversity of wild species;
• Ensure sustainable development of ecosystems; and
• Ecological investigation and education, among other things (LGEEPA, Art. 45).

A Presidential Declaration (Declaratoria que expida el Titular del Ejecutivo Federal) creates the federal ANPs (LGEEPA, Art. 57) and every ANP must develop a Management Program (LGEEPA, Art. 65). An ANP can be declared over any type of property (LGEEPA, Art. 63) and does not necessarily change the type of property. It only limits the activities that can be carried out on that property.

The ANPs are administered according to the LGEEPA, its Regulation, any applicable NOMs and the ANP’s Declaration and Management Program (Regulation LGEEPA of ANP, Art. 4). The ANPs may be divided into Nucleus Zones (the most environmentally significant areas that merit the most protection) and Mitigation Zones; the latter of which may again be divided into various sub-zones all of which have specific rules governing activities and the use of the resources (Regulation LGEEPA of ANP, Art. 49).

Marine Protected Areas        Return to top

In the case of marine protected areas, the following types of ANPs can be created:

• Biosphere reserves,
• National parks,
• Natural monuments,
• Flora and fauna protected areas, and
• Sanctuaries.

In these areas activities or exploitation will be governed by the LGEEPA, the Fisheries Law, the Federal Law of the Sea and international conventions. The authorizations, concessions or permits for the exploitation of natural resources, the transit of boats and the construction or use of infrastructure therein will be subject to the Management Program and the corresponding Declarations. The establishment, administration and oversight of ANPs in marine zones and the preparation of the Management Program should be coordinated by SEMARNAT and the Marine Ministry (LGEEPA, Art. 51).

There are 155 ANPs covering 10% of Mexican territory, according to the PROFEPA website. Fifty-nine of those are coastal and marine which constitute 38.5% of the federal ANPs and represent 69% of the total area protected. This includes 19.5% of the surface area of its Territorial Sea, 10.4% of its continental platform and 1.3% of its Exclusive Economic Zone. Thirty-two percent of these areas are exclusively marine ecosystems and the remaining 68% are coastal ecosystems.7

All works and large scale commercial fishing activities in ANPs must submit an environmental impact assessment and be authorized by SEMARNAT (LGEEPA, Art. 28 XI and XII). In the zones identified as nucleus zones of an ANP, the exploitation and use of wild flora and fauna is prohibited (LGEEPA, Art. 49 III). An authorization from SEMARNAT is necessary for the use and exploitation of the federal land maritime zone and for the exploitation of fishery resources in an ANP (Regulation LGEEPA of ANP, Art. 88 VI).

The Regulation of LGEEPA in relation to ANPs establishes that the natural resources therein may only be exploited to the extent they generate benefits for residents, support sustainable development, and are supported by the Declaration of the ANP, its Management Program, the Ecological Zoning Programs, the NOMs and other applicable laws.

More specifically, the natural resources of the ANP may be exploited for activities and projects of sustainable management and use of wildlife, as well as agricultural, livestock, forestry, fishery, aquaculture and mining activities, provided:

• New invasive species or transgenic species are not introduced;
• Plant coverage, structure and composition of the forest mass and the biodiversity is maintained;
• Hydrologic equilibrium of the area or relevant ecosystems for the ANP are not significantly affected;
• Reproduction zones or endangered species are not affected;
• Forest, fishing and mining exploitations have the respective authorization and an authorized environmental impact assessment;
• Fishing activities do not involve the incidental capture of endangered species nor a volume of incidental capture greater than the volume of the species being exploited; and
• Corals and rock materials are not removed from the coastal ecosystems. (Regulation LGEEPA of ANP, Art. 81)

The granting or issuance of permits, licenses, concessions or authorizations for the exploitation of resources in ANPs must observe the LGEEPA, the ANP’s Declaration and its Management Program. Furthermore, SEMARNAT may request the competent authority to cancel or revoke any permit, license, concession or authorization if SEMARNAT’s studies show that it may cause damage to the environment (LGEEPA, Art. 64).

The National Fisheries Chart has a section on fishing in the ANPs which mentions the regulations applying to fishing and includes an entry for each ANP describing its characteristics and indicating the elements of the Management Program regarding fishing. For example, for the Biosphere Reserve of the Upper Gulf of California and the Colorado River Delta it specifies that fishing within the Nucleus Zone of such Reserve is prohibited (based on Art. 49 III of LGEEPA) and within the Mitigation Zone an environmental impact authorization is necessary. It also indicates more specific regulations for particular areas of the Mitigation Zone.8

Finally, the Declaration and the Management Program for each ANP, as well as any applicable Ecological Zoning Plan, must be consulted to have a full understanding of the specific restrictions on activities and use of natural resources in that area.

Shoreline Development        Return to top

Development of coastal tourism is the joint responsibility of the Ministry of Tourism (SECTUR) and SEMARNAT. Port areas and permits to construct wharfs and docks outside of port areas are under the jurisdiction of the Ministry of Communications and Transportation. Both types of developments generally require a ZOFEMAT concession and an Environmental Impact Assessment.

The LGEEPA establishes that real estate developments must submit an environment impact assessment and receive authorization from SEMARNAT when they:

• Affect coastal ecosystems;
• Are located in wetlands, mangroves, lagoons, rivers, lakes and estuaries connected to the sea, as well as on the coasts or federal zones;
• Are located in federal protected areas; and
• Are fishing, aquaculture or farming activities that can endanger the preservation of one or more species or cause damages to ecosystems (LGEEPA, Art. 28).

A new amendment to the General Wildlife Law (Ley General de Vida Silvestre) prohibits the removal, filling, transplanting, cutting or any other work or activity that affects the integrity of the hydrologic flow of the mangroves; of the ecosystem and its zone of influence; of its natural productivity; of the natural capacity of the ecosystem for tourist projects; of the zones of shelter, reproduction, refuge, feeding and stocking; or of the interactions between the mangrove, the rivers, the dunes, the adjacent maritime zone and the corals, or that provokes changes in the ecological characteristics and services (Art. 60 TER). It was also added that non-extractive works and activities carried out in mangroves will be subject to an environmental impact assessment (Art. 99, second paragraph).

In addition there has also been a specific NOM in place since 2003 which establishes certain prohibitions and limitations on development and activities in mangrove areas, although an internal SEMARNAT resolution has softened those restrictions by allowing for compensatory measures.9

There is also the Ecological Zoning Plan (Ordenamientos Ecológicos) which is a planning instrument whereby SEMARNAT signs a Coordination Agreement (Convenio de Coordinación) with a state or states in order to produce an ecological regulation program which seeks to find a balance between development and conservation. For example, SEMARNAT has signed a Marine Ecological Zoning Plan of the Gulf of California Coordination Agreement with the four states bordering on the Gulf of California. These agreements require that an environmental record (bitácora ambiental) or public registry be kept of the advances made with regard to the plan.10 The Ecological Zoning Plan is governed under arts. 19-20 bis 7 of the LGEEPA and the Regulation of the LGEEPA in relation to Ecological Zoning Plans (Reglamento de la LGEEPA en Materia de Ordenamiento Ecologico)

Furthermore, although the ZOFEMAT is federal jurisdiction, SEMARNAT can in general sign coordination agreements with coastal states and municipalities to share the management of those areas (LGBN, Art. 120).

Intertidal and Underwater Lands        Return to top

Intertidal lands are federal property over which SEMARNAT has jurisdiction. Intertidal lands are considered common property and therefore may be freely transited by anyone, except areas located within ports, or those areas used as dockyards, shipyards, naval repair docks, piers, and other installations referred to in the Law of Navigation and Maritime Commerce (Ley de Navegación y Comercio Marítimos), which is the jurisdiction of the Ministry of Communications and Transportation (Secretaría de Comunicaciones y Transportes).

Underwater lands in the ANPs are the jurisdiction of SEMARNAT, while the jurisdiction of underwater lands in non-ANP areas would depend on the activity to be engaged in.11

Aquaculture Management        Return to top

Aquaculture is defined as the cultivation of species of aquatic fauna and flora by the use of methods and techniques for its controlled development in all biological stages and aquatic environments (Regulation Fisheries Law, Art. 101). It comes under the jurisdiction of SAGARPA and is regulated in the Regulation of the Fisheries Law. Commercial aquaculture requires a concession which can be granted to Mexican nationals, foreigners, or to Mexican entities (Regulation Fisheries Law, Art. 107). The application for the concession requires a technical study, economic study, environmental impact assessment, and a preventive report or authorization from the competent authority (Regulation Fisheries Law, Art. 108). Before requesting a concession from SAGARPA, an Environmental Impact Assessment must be presented to SEMARNAT in order to obtain the respective authorization. In the case of use of ZOFEMAT land, the latter concession must also be requested from SEMARNAT (LGEEPA, Art. 28X; Regulation of LGEEPA regarding Environmental Impact Assessment, Art. 5U).

The aquaculture concession from SAGARPA is not required if the project is on private, ejidal or comunal land (Fisheries Law, Art. 4 and Regulation Fisheries Law, Art. 106)

Aquaculture facilities also require a concession from the National Water Commission (CNA), although if the aquaculture activities are carried out on floating systems that do not change the water flow or affect the water quality or navigation CNA concession is not required (National Waters Law, Art. 82). Aquaculture facilities must also obtain a discharge permit from the CNA for wastewater discharges (National Waters Law, Art. 88 and 88BIS) and meet the standards for maximum contaminant limits, as well as any specific standards established by the CNA in the permit. Furthermore, specific NOMs establish sanitary requirements for aquaculture (NOM-EM-006-PESC-2004 applicable to production and others applicable to sanitary handling of specific products).

Investigative aquaculture (acuacultura de fomento), as with investigative fishing, requires a permit which may be granted to scientists, technicians and scientific and teaching institutions, both national and foreign (Art. 115).

Much of the coastal area of Mexico is property of the ejidos and comunidades and until 1992 commercial fishing was restricted to such sectors and heavily regulated. As a result, aquaculture did not begin developing in Mexico until recently. The reforms allow transfer of common ejido lands to business associations in which the ejido or its members participate. Ejido lands may also be contracted out temporarily to third parties. 12 According to one study, 80% of shrimp farms are owned and operated by the public sector and they produce approximately 48% percent of cultivated shrimp, while the 20% of private sector farms produce 52%.13