Factual Record

Aquanova Submission

(SEM-98-006)

Prepared in Accordance with Article 15

of the North American Agreement on

Environmental Cooperation

TABLE OF CONTENTS

1. Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . 7

2. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

3. The Environmental Law in Question . . . . . . . . . . . . . . . . 12

4. Summary of the Submission and the Response . . . . . . . . . . 21

5. Summary of Other Relevant Factual Information. . . . . . . . . 27

5.1 Process Used to Gather Information . . . . . . . . . . . . . 27

5.2 Timeline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

5.3 Environmental Impact Authorization Process and Related

Authorizations . . . . . . . . . . . . . . . . . . . . . . . . . 33

5.3.1 Phase I of the Granjas Aquanova — Boca Cegada

Project . . . . . . . . . . . . . . . . . . . . . . . . . . 35

5.3.2 Phases II and III of the Granjas Aquanova — Boca

Cegada Project . . . . . . . . . . . . . . . . . . . . . 39

5.3.3 Ocean Discharge Canal for the Granjas Aquanova

— Boca Cegada Project . . . . . . . . . . . . . . . . 40

5.4 Aquanova’s Water-Related Authorizations . . . . . . . . . 47

5.5 Aquanova’s Fisheries-Related Authorizations . . . . . . . 51

5.6 Description of the Area in which Aquanova Operates. . . 52

5.6.1 Background and Introduction . . . . . . . . . . . . 52

3
5.6.2 Description of the San Blas Estuarine and Mangrove

Zone . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

5.6.3 Status of La Cegada, Los Olotes, La Tronconuda,

La Diabla and La Atascosa Creeks . . . . . . . . . . 62

6. Facts Presented by the Secretariat in Relation to the Matters

Raised in the Submission . . . . . . . . . . . . . . . . . . . . . . 67

6.1 Environmental Impact-Related Enforcement with

Respect to Aquanova . . . . . . . . . . . . . . . . . . . . . 68

6.2 Water-Related Environmental Law Enforcement with

Respect to Aquanova . . . . . . . . . . . . . . . . . . . . . 70

6.3 Fisheries-Related Environmental Law Enforcement

with Respect to Aquanova . . . . . . . . . . . . . . . . . . 71

6.4 Enforcement of Law Governing Environmental Offenses

with Respect to Aquanova . . . . . . . . . . . . . . . . . . 73

6.5 Summary of Acts of Environmental Authority with

Respect to Aquanova and Consequences of Filing of

Submission SEM-98-006 . . . . . . . . . . . . . . . . . . . . 74

6.6 Current Factual Status of Aquanova and the Surrounding

Area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

7. Closing Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

List of Appendices

1) Council Resolution 01-09, Instruction to the Secretariat of the

Commission for Environmental Cooperation Regarding the

Assertion that Mexico is Failing to Effectively Enforce provisions

of its General Law on Ecological Balance and Environmental

Protection, the Forestry Law, Mexican Official Standards

NOM-062-ECOL-1994 and NOM-059-ECOL-1994, the Law of

National Waters and its Regulations, the Fisheries Law and its

Regulations and the Federal Criminal Code with Respect to the

Activities of Granjas Aquanova (SEM-98-006). . . . . . . . . . . 79

2) Overall Plan to Develop a Factual Record with Regard to

Submission SEM-98-006 . . . . . . . . . . . . . . . . . . . . . . . 83

4 FACTUAL RECORD: AQUANOVA SUBMISSION
3) Process for Gathering Information for the Preparation of the

Factual Record on Submission SEM-98-006 (Examples of

relevant information). . . . . . . . . . . . . . . . . . . . . . . . . 91

4) Information Requests to Mexican Authorities and List of

Recipient Authorities. . . . . . . . . . . . . . . . . . . . . . . . . 99

5) Information Requests to NGOs, JPAC and other Parties to

the NAAEC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

6) Information Gathered for the Development of the Factual

Record on Submission SEM-98-006 (Aquanova). . . . . . . . . 121

7) Information to be gathered / developed by the Secretariat

directly and through independent experts . . . . . . . . . . . . 143

8) Species Listed in NOM-059-ECOL-1994, found in the

Aquanova Area . . . . . . . . . . . . . . . . . . . . . . . . . . . 147

9) Summary of Actions by Mexican Authorities with Respect

to Granjas Aquanova . . . . . . . . . . . . . . . . . . . . . . . . 151

Attachments

Attachment 1 Council Resolution 03-06 – Instruction to the

Secretariat of the Commission for Environmental

Cooperation to make public the Factual Record

for Submission SEM 98-006 (Aquanova) . . . . . . 161

TABLE OF CONTENTS 5

1. Executive Summary

Articles 14 and 15 of the North American Agreement on Environmental Cooperation (NAAEC) establish the process regarding citizen submissions and the development of factual records relating to the effective

enforcement of environmental law. The Secretariat of the Commission

for Environmental Cooperation (CEC) of North America administers

this process.

On 20 October 1998, the Secretariat of the CEC received a submission from Grupo Ecológico “Manglar,” A.C. (Grupo Manglar) in accordance with Article 14 of the NAAEC. The Submission asserts that

Mexico is failing to effectively enforce its environmental law with

respect to a shrimp farm operated by Granjas Aquanova, S.A. de C.V.

(Aquanova) that has caused serious harm to wetlands, water quality,

fisheries, and the habitat of protected species in the state of Nayarit,

Mexico.

On 16 November 2001, the Council of the CEC voted unanimously

to instruct the Secretariat to develop a factual record on the alleged failure to effectively enforce various provisions of the General Law on Ecological Balance and Environmental Protection (Ley General del Equilibrio

Ecológico y la Protección al Ambiente—LGEEPA), the Forestry Law

(Ley Forestal—LF), Mexican Official Standards NOM-062-ECOL-19941

and NOM-059-ECOL-1994,2 the National Waters Law (Ley de Aguas

Nacionales—LAN) and its Regulations (RLAN), the Fisheries Law (Ley de

Pesca—LP) and its Regulations (RLP), and the Federal Criminal Code

(Código Penal Federal—CPF), in connection with the activities of the

shrimp farming company Granjas Aquanova, S.A. de C.V. in Boca

Cegada, San Blas, Nayarit (Aquanova) that are referred to by Submission SEM-98-006, filed by Grupo Manglar.

7

1. Establishing specifications to mitigate the adverse effects on biodiversity of land use

changes from forestry to agriculture.

2. Determining endangered, threatened, and rare species and subspecies of terrestrial

and aquatic wildlife and those subject to special protection, and establishing specifications for their protection.
Since 1995, Aquanova operates in the estuarine zone of San Blas

and produces approximately 1,500 tons of shrimp annually. The region

harbors a wealth of natural ecosystems, including mangrove forests -a

complex component of wetland ecosystems that have great ecological

and economic importance. Aquanova was built in an area of at least

1,300 ha, previously occupied mostly by lowland forest, but also by mangroves, approximately 100 hectares of which were either cleared to build

the facility or destroyed by changes to water flow caused by Aquanova.

The region has also been subject to other significant environmental

impacts in the last three decades.

In the development of this factual record, the Secretariat considered publicly available information, information provided by Mexico,

Aquanova, Grupo Manglar, and other interested parties, and technical

information developed by the Secretariat through independent experts.

In this factual record, the Secretariat presents the facts relevant to

whether Mexico is failing to effectively enforce various provisions relating to environmental impact, water, fisheries, and environmental

offenses, without aiming to reach any conclusions of law on this question.

With this focus, the information presented by the Secretariat in this

factual record reveals that, in fact, Aquanova (1) obtained prior authorization for the Aquanova-Boca Cegada shrimp farm, authorization

to introduce blue shrimp strain SPR-43, and a concession for semiintensive culture and commercial use of two shrimp species; (2) changed

forest land use without authorization, destroying 42 ha of mangrove forest, uprooting 250 coconut palms and filling wetlands, and without taking actions to salvage flora and fauna as applicable, in violation of the

environmental impact law and the conditions of the project authorization; (3) initiated wastewater discharge two years prior to applying for

the corresponding authorization from the National Water Commission

(Comisión Nacional del Agua—CNA); (4) caused severe harm to 50 ha of

mangrove forest in Los Olotes and La Diabla creeks through the (authorized) obstruction of Los Olotes creek, and built corrective hydraulic

structures and took reforestation actions as a result of an agreement with

the environmental authorities for purposes of restoration; and (5) took

part in an effort of cooperation among the various sectors of society in

San Blas, which made it possible to overcome an initially hostile situation regarding impacts of its operations. While discussed in detail, the

focus of the factual record is not the actions taken by Aquanova, but the

enforcement actions taken by Mexico in connection with these.

8 FACTUAL RECORD: AQUANOVA SUBMISSION
In 1995 and 1996, Aquanova obtained environmental impact

authorizations from the National Institute of Ecology (Instituto Nacional

de Ecología—INE) for the various phases of the shrimp-farming project.

These authorizations were subject to multiple conditions whose principal aim was to prevent the destruction of species with protected status

(including various mangrove species) and their habitat, and to preserve

water quality in the estuarine zone.

Between 19 April 1995 and 20 June 2002, the Federal Attorney for

Environmental Protection (Procuraduría Federal de Protección al

Ambiente—Profepa) conducted a total of 13 inspection visits of

Aquanova.

During the first phase of the project, in response to a citizen

complaint, Profepa detected violations of the conditions of the project

authorization, fined Aquanova P$100,000.00, and ordered corrective

measures. Following the appeal for review filed by Aquanova and the

amendments to the conditions of the environmental impact authorization approved by INE, Profepa rescinded the corrective measures order

and reduced the fine to P$29,095.00. Also during this phase of the project, Profepa found that Aquanova had failed to obtain a land use change

authorization prior to clearing 15.9 ha, and fined Aquanova P$48,800.00.

In the second phase of the project, in response to a citizen complaint, Profepa detected the death of 50 ha of mangroves due to the

obstruction (authorized by INE) of Los Olotes creek in order to build

the facility’s ocean discharge canal. Profepa and Aquanova signed an

administrative agreement that terminated the enforcement proceeding

initiated following the citizen complaint, and created a committee of

experts, which determined that Aquanova was partially responsible for

the harm suffered by the mangroves in Los Olotes and La Diabla creeks.

As a result of the experts’ report, Aquanova built hydraulic structures

and initiated a Mangrove Restoration Program in these creeks in 1999.

Aquanova takes water from La Cegada creek for the facility’s

ponds. Water use and discharge began in 1996. This water use does not

require a concession since the waters in question are marine waters. On

6 November 1998, the CNA granted Aquanova a concession to discharge a wastewater volume of 950,000,000 m3/year. Aquanova measures the volume of water extracted and discharged by readings on the

corresponding pumps, and conducts water quality analysis through an

independent laboratory and its own laboratory. It does not have a

wastewater treatment system because, according to its own water quality monitoring, it does not exceed the maximum contaminant limits set

EXECUTIVE SUMMARY 9
out in the applicable Mexican Official Standard. The CNA conducted an

inspection visit on 2 May 2001, on which it detected no irregularities.

However, the visit did not include water measurement and analysis.

In regard to fisheries, Grupo Manglar asserts that viral diseases

occur in the production of the shrimp species introduced by Aquanova.

From March 1999 to November 2001, Aquanova conducted sanitary testing on the shrimp strains imported for culture. The tests showed that

the tested shrimp were free of white spot syndrome virus (WSSV),

yellowhead virus (YHV), and Taura syndrome virus (TSV).

In response to a denunciation by Grupo Manglar, in September

1998 Mexico initiated a criminal investigation of the unauthorized

destruction of mangroves and draining of wetlands by Aquanova for the

offense defined in CPF Article 416 paragraph II. On 16 March 2000, the

Office of the Attorney General of the Republic determined that criminal

prosecution against Aquanova should not proceed because an authorization had been granted for Aquanova’s project.

In the opinion of the experts who studied the case, the restoration

actions taken by Aquanova in the area of Los Olotes and La Diabla have

had positive effects. However, the recovery of the area depends on these

efforts being maintained, and in large measure, on restoring the water

flow obstructed by the dike built on El Rey inlet prior to the establishment of Aquanova in 1974-75.

2. Introduction

Under Articles 14 and 15 of the NAAEC, the Secretariat may consider a submission from any nongovernmental organization or person

asserting that a Party to the NAAEC is failing to effectively enforce its

environmental law, if the Secretariat finds that the Submission meets the

criteria of Article 14(1). Where the Secretariat determines that these criteria are met, it shall then determine whether the Submission warrants

requesting a response from the Party named in the Submission, by considering the criteria enumerated in Article 14(2). Where, in light of the

Party’s response, the Secretariat finds that the Submission warrants the

development of a factual record, it shall so inform the Council and provide its reasons. The Council may then, by a vote of two-thirds of its

members, instruct the Secretariat to prepare a factual record in accordance with Article 15.

On 20 October 1998, the Secretariat of the CEC received a submission from Grupo Manglar in accordance with Article 14 of the NAAEC.

10 FACTUAL RECORD: AQUANOVA SUBMISSION
The Submission asserts that Mexico is failing to effectively enforce its

environmental law with respect to a shrimp farm operated by Aquanova

that has caused serious harm to wetlands, water quality, fisheries, and

the habitat of protected species in the state of Nayarit, Mexico.

On 17 March 1999, the Secretariat determined that the Submission

met the criteria of NAAEC Article 14(1) and, considering the criteria in

Article 14(2), requested a response from the Party. Mexico submitted its

response on 15 June 1999.

Having reviewed the Submission in light of the Response, the Secretariat notified Council on 4 August 2000 that some of the contentions

in the Submission warranted the development of a factual record; specifically, those relating to the enforcement of Articles 28, 117, 118, 119, 121,

123, 129, 130, 168 and 182 of the LGEEPA; Articles 12 and 19 bis 11 of the

LF; Mexican Official Standards NOM-062-ECOL-1994 Establishing specifications to mitigate the adverse effects on biodiversity of land use changes from

forestry to agriculture(NOM-062) and NOM-059-ECOL-1994 Determining

endangered, threatened, and rare species and subspecies of terrestrial and

aquatic wildlife and those subject to special protection and establishing specifications for their protection (NOM-059); Articles 4, 9, 86 paragraph III, 88, 92

and 119 paragraphs I, II, and VIII of the LAN; Articles 134, 135, 137 and

153 of the RLAN; Articles 3 paragraph VIII and 24 paragraph XXIV of the

LP; Articles 44, 48, and 50 of the RLP; and Articles 416 paragraphs I and

II, 418, and 420 paragraph V of the CPF.

On 16 November 2001, Council resolved unanimously to instruct

the Secretariat to develop a factual record in this case. Council instructed

the Secretariat “to prepare a factual record in accordance with Article 15

of the NAAEC and the Guidelines for Submissions on Enforcement Matters

under Articles 14 and 15 of the North American Agreement on Environmental

Cooperation [the Guidelines] for the assertions set forth in Submission

SEM-98-006 that Mexico is failing to effectively enforce provisions of its

General Law on Ecological Balance and Environmental Protection, the

Forestry Law, Mexican Official Standards NOM-062-ECOL-1994 and

NOM-059-ECOL-1994, the Law of National Waters and its Regulations,

the Fisheries Law and its Regulations and the Federal Criminal Code,

provided that the adequacy of the penalties imposed in accordance with

the legislation is not reviewed.”

In this regard, the Secretariat compiled information on the enforcement of the aforementioned environmental law provisions with respect

to Aquanova; in particular, information on alleged violations by

Aquanova of the provisions of the LGEEPA, NOM-062, the LF, the LAN,

INTRODUCTION 11
the RLAN, the LP, the RLP and the CPF cited in the Submission; the

enforcement of these provisions by Mexico with respect to Aquanova,

and the effectiveness of that enforcement. Pursuant to section 12.1 of the

Guidelines, this factual record includes a summary of the Submission, a

summary of the Party’s Response, the relevant factual information, and

the facts presented by the Secretariat with respect to the matters raised in

the Submission.

3. The Environmental Law in Question

This factual record relates to the assertion that Mexico is failing to

effectively enforce the LGEEPA, the LF, NOM-062, NOM-059, the LAN,

the RLAN, the LP, the RLP, and the CPF as regards the activities of

Aquanova in San Blas, Nayarit, Mexico. The provisions relevant to this

factual record are cited verbatim in this section, in the version of each

that is applicable to the matters in question, following a brief introduction of each.

The LGEEPA is the principal instrument of environmental law in

Mexico. This law establishes the jurisdiction of the different orders of

government and regulates specific environmental matters. The provisions relevant to this factual record are those that establish the environmental impact-related obligations of anyone who engages in certain

activities, as well as those defining the criteria and obligations for the

prevention and control of water pollution.3

LGEEPA Article 28 paragraph 1.-4 The execution of public or private

works or activities that may cause ecological imbalance or exceed the lim12 FACTUAL RECORD: AQUANOVA SUBMISSION

3. The Submission invokes Articles 28 paragraphs V, VII, X and XII; 117; 118; 119; 121;

123; 129; 130; 168, and 182. It was not considered relevant to include here Articles 117

par. IV; 118 par. I-IV and VI; 119; 168, or 182, since they refer to the issuance of standards, appeals for review, the establishment of prohibited zones, the organization of

hydrology work, the reporting of environmental offenses, and other matters not

applicable to the facts referred to by this factual record, such as urban wastewater

discharges or water delivery agreements with the Executive Branch (Poder Ejecutivo).

4. The provision applicable to the facts referred to by the Submission is the one in force

prior to the reform of the LGEEPA on 13 December 1996. However, the substance of

both provisions is the same. The current text of LGEEPA Article 28 provides that:

Environmental impact assessment is the procedure whereby the Ministry establishes the conditions governing the execution of those works and activities that

could cause ecological imbalance or exceed the limits and conditions established in

the applicable provisions for the protection of the environment and the preservation

and restoration of ecosystems, for the purpose of preventing or minimizing the negative effects of such works and activities on the environment. To that end, in the

cases determined by any Regulations issued for such purpose, anyone attempting

to carry out any of the following works or activities shall require prior environmental impact authorization from the Ministry:
its and conditions established in the technical environmental regulations

and standards issued by the Federation for the purpose of protecting the

environment shall be subject to the prior authorization of the Federal Government, through the Ministry or the federated entities or municipalities,

according to the jurisdictions prescribed by this Law, and to compliance

with the requirements imposed once any environmental impact that may

be caused is assessed, without prejudice to other authorizations that are

the jurisdiction of the competent authorities.

LGEEPA Article 117.- For prevention and control of water pollution, the

following criteria shall be considered:

I. The prevention and control of water pollution is fundamental to preventing its availability from being reduced and to protecting the nation’s

ecosystems;

II. The prevention of the pollution of rivers, watersheds, reservoirs and

marine waters, and that of other bodies of water and watercourses, including groundwater, is the responsibility of the State and society;

III. Anyone using water in productive activities that may cause it to

become polluted bears the responsibility for treatment of discharges so as

to restore it to a condition suitable for use in other activities and to maintain the balance of ecosystems;

... V. The participation and joint responsibility of society is an indispensable condition for the prevention of water pollution.

LGEEPA Article 118.- The criteria for water pollution prevention and control shall be considered in:

... V. Concessions, assignments, permits and, in general, authorizations

that must be obtained by concession holders, assignees, or permit holders

and, in general, the users of waters that are the property of the nation, in

order to infiltrate wastewater onto lands, or to discharge it into collecting

bodies other than the sewerage systems of population centers;...

LGEEPA Article 121.- No one may discharge wastewater containing pollutants, or allow such water to infiltrate, into any body of water or waterTHE ENVIRONMENTAL LAW IN QUESTION 13

... V. Forestry operations in tropical forests and those affecting slow-regenerating

species.

... VII. Land use changes in forested areas, as well as in tropical wet forest and arid

zones.

... X. Works and activities in wetlands, mangrove forests, lagoons, rivers, lakes and

estuaries connected to the sea, as well as on their littoral portions or federal zones;

... XII. Fishing, aquacultural or agricultural activities which could endanger the

preservation of one or more species or cause harm to ecosystems, and...
course or into the soil or subsoil without prior treatment and the

permission or authorization of the federal authority, or the local authority

in cases of discharge of water under local jurisdiction or into drainage and

sewerage systems of population centers.

LGEEPA Article 123.- All discharges into collecting systems, rivers, aquifers, watersheds, riverbeds, reservoirs, marine waters and other bodies of

water or watercourses as well as spills of wastewater on soil, or infiltration

thereof into lands, shall satisfy the requirements of any Mexican Official

Standards promulgated for such purpose and any applicable specific discharge conditions established by the Ministry or the local authorities.

Whoever generates such discharges is responsible for performance of the

prior treatment required...

LGEEPA Article 129.- Grant of assignments, authorizations, concessions,

or permits for the exploitation or use of water in economic activities that

may pollute that resource shall be conditional on performance of the necessary prior treatment of any wastewater produced.

LGEEPA Article 130.- The Ministry shall authorize the discharge of

wastewater, waste substances, and all other types of waste into marine

waters, in each case setting the environmental technical standards, conditions, and treatment requirements for the water and waste in accordance

with the corresponding regulations. Where the discharges originate from

mobile sources or from fixed platforms on the territorial sea or the exclusive economic area, the Ministry shall coordinate the issuance of the corresponding authorizations with the Ministry of the Navy.

The LF regulates and promotes the conservation, protection, restoration, use, management, cultivation and production of forest resources

in Mexico. For this factual record, the relevant provisions are those relating to the authorization to use forest resources, to afforestation, and to

reforestation.5

LF Article 12.- Applications for authorization to use timber resources, for

afforestation and for reforestation shall include:

... III.- For forestry operations in tropical forests or involving slowregenerating species, or in protected natural areas, environmental impact

authorization by the Ministry of Social Development (Secretaría de

Desarrollo Social) as prescribed by the applicable law...

14 FACTUAL RECORD: AQUANOVA SUBMISSION

5. The Submission invokes Articles 12 paragraph IV, 19 bis 11, and 51. In its recommendation of 4 August 2000, the Secretariat did not consider the development of a factual

record to be warranted in regard to Article 51 since it refers to sanctioning powers of

the authority that are not directly applicable to the matter in question.
LF Article 19 bis 11.- The Ministry may only authorize a change in forest

land use, in exceptional cases, after consultation with the relevant

Regional Council and based on technical studies demonstrating that it

does not jeopardize biodiversity nor cause soil erosion, water quality degradation, or reduced catchments.

All authorizations issued shall adhere to the provisions of any applicable

environmental land use plan, Mexican official standard, or other legal and

regulatory provision.

The LAN and the RLAN regulate the exploitation and use of Mexican national waters, their distribution and control, and the preservation

of their quantity and quality. Relevant to this factual record are the provisions establishing certain powers of the CNA, the requirement of holding a CNA permit in order to discharge wastewater, the CNA’s power to

suspend activities giving rise to wastewater discharges, other sanctions,

and the obligations of water users.6

LAN Article 86.- The “Commission” shall be responsible for:

... III. Establishing and enforcing the specific conditions of discharge that

must be met by wastewater generated on property and zones under federal jurisdiction, wastewater discharged directly into national waters or

territory, or any land where such discharges may contaminate the subsoil

or aquifers; and in the remaining cases set out in the General Law on Ecological Balance and Environmental Protection;...

LAN Article 88.- Natural or legal persons require a permit from the “Commission” to discharge wastewater on an ongoing, intermittent or occasional basis into collecting bodies, whether these be national bodies of

water or other property of the nation, including marine waters, as well as

where it infiltrates into lands that are the property of the nation or other

lands where it may contaminate the subsoil or aquifers.

The “Commission,” by means of general decrees by watershed, aquifer,

area, locality, or use may replace the wastewater discharge permit by a

mere notice.

THE ENVIRONMENTAL LAW IN QUESTION 15

6. The Submission invokes LAN Articles 4, 9 paragraphs V and XIII, 86 paragraphs III

and V, 88, 92, 119 paragraphs I, II and VIII, and 122 paragraphs I and II, and RLAN

Articles 134, 135, 137 and 153. In its recommendation of 4 August 2000, the Secretariat

did not consider the development of a factual record to be warranted in regard to

LAN Articles 88 paragraph V, and 122 paragraphs I and II. In addition, LAN Articles

4, 9, 92 and 119 paragraph II were not contemplated in this factual record, nor was

RLAN Article 153, since they establish the powers of the CNA and other matters not

directly applicable to the facts in question.
The control of wastewater discharges into drainage or sewerage

systems in population centers is the jurisdiction of the municipalities,

with the support of the States as necessary and as determined by law.

LAN Article 119.- The “Commission” shall sanction the following violations, as prescribed by this Law:

I. Ongoing, intermittent or occasional discharge of wastewater in violation

of the provisions of this law into collecting bodies that are the property of

the nation, including marine waters, as well as where such wastewater

infiltrates into land that is the property of the nation or into other land

where it could contaminate the subsoil or aquifers, without prejudice to

the sanctions established by the sanitary provisions and the provisions on

ecological balance and environmental protection;

... VIII. Exploitation or use of national waters without the relevant authorization, where required by the provisions of this law, as well as the modification or diversion of river channels, watercourses or reservoirs where

they are the property of the nation, without the permission of the “Commission,” or where hydraulic structures that are the property of the nation

are damaged or destroyed;...

RLAN Article 134.- Natural or legal persons who exploit or use water for

any purpose or activity are required, under their responsibility and as prescribed by law, to take the measures necessary to prevent it from being

polluted and, as the case may be, to restore it to adequate conditions for

subsequent utilization in other activities or uses and for maintenance of

the balance of ecosystems.

RLAN Article 135.- Natural or legal persons who discharge wastewater

into collecting bodies of water contemplated by the “Law” must:

I. Possess the wastewater discharge permit issued by the “Commission”

or, as the case may be, present the relevant notice contemplated by the

“Law” and these Regulations;

II. Treat wastewater prior to discharging it into collecting bodies of water,

where this is necessary to fulfill the obligations set out in the relevant discharge permit;

III. Pay, as applicable, the federal fees for the use or exploitation of public

property of the nation as collecting bodies of water for wastewater discharges;

IV. Install and maintain in good condition the gaging devices and access

necessary to verify the discharge volumes and the concentrations of the

parameters contemplated in the discharge permits;

16 FACTUAL RECORD: AQUANOVA SUBMISSION
V. Inform the “Commission” of any change in its processes, where this

gives rise to modifications of the characteristics or volumes of wastewater

specified in the relevant discharge permit;

VI. Inform the “Commission” of any pollutants present in the wastewater

generated by the industrial process or service being operated, that were

not specified in the original discharge conditions;

VII. Operate and maintain, by itself or third parties, the works and facilities necessary to manage and, as applicable, treat the wastewater as well as

to provide quality control for such water before discharging it into collecting bodies of water;

VIII. Submit to any inspection and enforcement procedures established by

the “Commission” for the control and prevention of water quality, as provided in the “Law” and the “Regulations”;

IX. Conduct quality monitoring of wastewater discharged or infiltrating,

as prescribed by the law and by regulatory provision;

X. Keep records of monitoring information for at least three years, as prescribed by the applicable legal provisions, standards, conditions and technical specifications, and

XI. Any other requirements prescribed by law or regulatory provision.

Domestic wastewater discharges that do not form a part of a municipal

sewerage system may be carried out subject to any applicable Mexican

Official Standards and subject to mere notice.

RLAN Article 137.-It is the responsibility of all water users and all concession holders contemplated in Chapter II, Title Six of the “Law,” including

the irrigation units and districts, to comply with the Mexican Official Standards and, as the case may be, with any other specific discharge conditions, for the prevention and control of widespread or dispersed pollution

as a result of the management and application of substances that may contaminate the quality of national waters and collecting bodies of water.

The “Commission” shall promote and carry out, as applicable, any actions

and measures necessary, and shall coordinate the issuance, with the competent authorities, of any Mexican Official Standards required to make

land use compatible with the objectives of preventing and controlling the

pollution of waters and property of the nation. In setting Mexican Official

Standards for land use that may affect national waters, the technical opinion of the “Commission” shall be obtained.

THE ENVIRONMENTAL LAW IN QUESTION 17
The purpose of the LP and the RLP is to guarantee the conservation, preservation and rational use and exploitation of the fisheries of

Mexico, and to lay the basis for their proper development and administration. The provisions relevant to this factual record regulate the introduction of aquatic wildlife species and the introduction of species that

endanger fisheries, as well as the authorization of aquaculture activities.7

LP Article 3.- The enforcement of this Law is the responsibility of the Ministry of Fisheries, without prejudice to the powers invested in other bodies

of the Federal Public Administration, which latter shall establish the necessary coordination with this Ministry, which is empowered to:

... VIII. Regulate the introduction of aquatic flora and fauna species into

bodies of water under federal jurisdiction; define sanitary technical standards to guarantee the healthy development of aquatic species and verify

the prevention and control measures in the area of aquacultural health,

either directly or through duly accredited laboratories, in coordination

with the competent bodies of the Federal Public Administration;...

LP Article 24.- The following constitute violations of this Law:

... XXIV. Introducing or managing, in waters under federal jurisdiction,

species or biological material, in any form, that cause harm or alter or

endanger the conservation of fisheries; and...

RLP Article 44.- Aquaculture is the cultivation of aquatic species of fauna

and flora using methods and techniques for their controlled development

at all biological stages and in all aquatic environments and kinds of facilities.

Only aquaculture carried out in bodies of water under federal jurisdiction

shall require a concession.

RLP Article 50.- An authorization for the introduction of aquatic flora and

fauna species into bodies of water under federal jurisdiction shall only be

granted where it is proven that the species to be introduced are free of parasites and diseases that could harm local species or cause public health

problems.

The introduction of species causing the extinction of native species is prohibited.

18 FACTUAL RECORD: AQUANOVA SUBMISSION

7. The Submission invokes LP Articles 3 paragraph VIII and 24 paragraph XXIV and

RLP Articles 44, 48, and 50. The effective enforcement of RLP Article 48 was not considered relevant to this factual record since it refers to aquaculturists who do not

require a concession.
The CPF defines those activities considered to be offenses, and prescribes the penalties, including fines and imprisonment, for persons

who commit them. The provisions relevant to this factual record are

those establishing the penalties for unauthorized performance of certain

activities that harm the environment, such as the destruction of mangroves and the draining of wetlands.

CPF Article 416.- Anyone who, without such authorization as may be

required, or in violation of the legal and regulatory provisions or Mexican

Official Standards, engages in any of the following actions is liable for a

penalty of three to six months imprisonment and a fine of one thousand to

twenty thousand times the statutory daily minimum wage in the Federal

District:

I. Discharging, dumping or allowing to infiltrate, or authorizing or ordering the discharge, dumping or infiltration of wastewater, chemical or biochemical liquids, waste or contaminants into soils, marine waters, rivers,

watersheds, reservoirs or other bodies of water and watercourses under

federal jurisdiction that cause or may cause harm to public health, natural

resources, flora, fauna, water quality in watersheds, or ecosystems...

Where the waters in question are to be delivered as bulk water to population centers, the maximum penalty is three additional years imprisonment; or...

II. Destroying, draining or filling wetlands, mangrove forests, lagoons,

estuaries or marshes.

CPF Article 418.- Anyone who, without the authorization required under

the Forestry Law, fells or destroys natural vegetation, cuts, pulls out, fells

or chops trees, engages in forest resource use or land use changes, is liable

for a penalty of three months to six years imprisonment and a fine of one

hundred to twenty thousand times the statutory daily minimum wage in

the Federal District.

The same penalty shall apply to anyone who, with criminal intent,

causes fires in woodlands, forests or natural vegetation that harm natural

resources, wild flora or fauna, or ecosystems.

CPF Article 420.- Anyone who engages in any of the following actions is

liable for a penalty of six months to six years imprisonment and a fine of

one thousand to twenty thousand times the statutory daily minimum

wage in the Federal District:

THE ENVIRONMENTAL LAW IN QUESTION 19
... IV. Engages in any activity for commercial purposes with wild flora or

fauna species considered to be endemic, threatened, endangered, rare, or

subject to special protection, as well as their products or subproducts...

V. Harms, with criminal intent, the wild flora or fauna species contemplated in the preceding paragraph.

Finally, Mexican Official Standard NOM-062, establishes the specifications to mitigate the adverse effects on biodiversity of changes from

forest to agricultural land use.8

... 4.7 In the event that species of flora or fauna listed in the relevant Mexican Official Standard as rare, threatened, endangered, or subject to special

protection are found, the only option that will be evaluated shall be that of

engaging in a type of sustainable use of land or other resources that is different from land use changes and does not entail the local disappearance

of these species and their required habitat. The evaluation shall be subject

to the interested party’s presenting an environmental impact statement in

its general form...

The Ministry of the Environment, Natural Resources, and

Fisheries (Secretaría de Medio Ambiente, Recursos Naturales, y Pesca—

Semarnap; now the Ministry of the Environment and Natural Resources

(Semarnat)) is the government body with primary responsibility for

environmental protection and sustainable natural resource use.

Semarnap included five semi-autonomous bodies, each with powers

and responsibilities for different aspects of environmental protection, as

follows:

(i) CNA, in charge of administering the use of the water resource

in Mexico, enforcing water-related legislation, and building

and operating water-related infrastructure;

(ii) INE, responsible for research and analysis on natural

resources and their use, as well as for issuing authorizations,

permits, and licenses for matters within the jurisdiction of

Semarnap;

(iii) the Mexican Institute of Water Technology (Instituto Mexicano

de Tecnología del Agua—IMTA), charged with coordinating

research, technological development, specialized consulting,

20 FACTUAL RECORD: AQUANOVA SUBMISSION

8. The effective enforcement of NOM-059 in and of itself was not considered relevant to

the development of this factual record since it does not establish obligations to which

Aquanova is subject but is merely a reference standard for NOM-062.
technical information, and high-level training programs relating to sustainable water use and management;

(iv) the National Institute of Fisheries (Instituto Nacional de la

Pesca—INP), responsible for designing, conducting, and

assessing the country’s fisheries and aquaculture research

policy, and

(v) Profepa, empowered to carry out inspection and enforcement

in relation to offenses and administrative violations committed under federal environmental provisions (except in regard

to national bodies of water, for which CNA is responsible).9

4. Summary of the Submission and the Response

The Submission asserts that Mexico is failing to effectively enforce

its environmental law with respect to the Aquanova shrimp farm

located in Boca Cegada, San Blas, Nayarit, Mexico. Grupo Manglar

asserts that Aquanova has violated environmental impact requirements, destroying wetlands and other habitat of protected species; that

it illegally discharges wastewater, causing harm to the environment and

to fisheries in the area; and that those fisheries have been affected by diseases allegedly caused by a new species of shrimp introduced by the

company. In its Response, submitted on 15 June 1999, Mexico states that

it is aware of the environmental problems existing in the area where

Aquanova operates, and that it is using the legal means at its disposal to

correct the degradation caused by the company’s violations of the

authorizations that had been issued to it.

SUMMARY OF THE SUBMISSION AND THE RESPONSE 21

9. As of the publication in the Official Gazette of the Federation (Diario Oficial de la

Federación—DOF) of the new Internal Regulation (Reglamento Interior) of the

Semarnat, this ministry no longer has responsibilities relating to fisheries promotion

in Mexico, and for this reason the INP is no longer one of its semi-autonomous bodies. The rest of these agencies still form a part of this ministry’s organizational structure; however, the IMTA has changed from a semi-autonomous to a decentralized

agency, and a National Forestry Commission (Comisión Nacional Forestal) was created

as a decentralized agency of Semarnat in charge of developing, promoting, and fostering forestry production, conservation, and restoration, as well as participating in

the formulation of plans and programs and in the application of sustainable forestry

development policy. As from this same date, the National Protected Natural Areas

Commission (Comisión Nacional de Áreas Naturales Protegidas) was incorporated into

the organizational structure of Semarnat as a semi-autonomous agency with a primary mission of overseeing the administration of the areas of the country under federal jurisdiction that hold this status. Also, INE no longer carries out Semarnat’s

regulatory functions.
The Submission asserts, and the Response of the Party also indicates, that Aquanova committed violations of environmental law or the

environmental impact authorizations issued by INE for the Boca Cegada

project. The violations may be summarized as follows:

• Non-compliance with three conditions of the environmental

impact authorization for the first phase of the project in February 1995: i) prohibition on establishing camps; ii) order to

respect the entirety of the mangrove vegetation and establish a

mangrove replanting program, and iii) order to salvage and

relocate the healthiest mangrove specimens (identifying them

prior to clearing).10

• Non-compliance with various conditions imposed by INE in

December 1996: maintenance of an environmental protection

area and a conservation area within the concession area.11

• Non-compliance with instructions issued by INE in December

1997 concerning the removal of the obstruction of Los Olotes

creek and the impact on an area of approximately 20 ha of mangrove forest in the La Diabla and Los Olotes creeks.12

• Unauthorized draining and filling of lagoons.13

• Unauthorized clearing, felling, and burning of vegetation in the

habitat of species with protected status.14

• Unauthorized forest land use changes.15

• Wastewater discharges as of 1996 without the relevant permit,

without the required monitoring of the discharges, and in violation of the applicable contaminant limits.16

• Causing mangrove mortality without authorization.17

• Unauthorized diversion of natural watercourses.18

22 FACTUAL RECORD: AQUANOVA SUBMISSION

10. Submission, pp. 6-7, and Mexico’s Response (RSP), p. 10.

11. Submission, pp. 7-8, and RSP, p. 10.

12. Ibid.

13. Submission, p. 2, and RSP, p. 4.

14. Submission, pp. 2, 4, and RSP, pp. 5-6.

15. Submission, pp. 2-3, and RSP, pp. 5, 10.

16. Submission, p. 3, and RSP, p. 11.

17. Submission, pp. 3-4, and RSP, p. 12.

18. Submission, p. 4, and RSP, p. 13.
• Accelerating the disappearance of habitat for species with protected status, without authorization.19

• Impeding fishing activities without authorization.20

Grupo Manglar asserts that Profepa, on its visits to Aquanova, did

not verify compliance with the LF in regard to environmental impact

assessment for the change in forest land use and the use of forest

resources, or verify compliance with NOM-062 and NOM-059 in regard

to the adverse effects on biodiversity and the habitat of species with protected status. The Submission states that Aquanova’s activities were carried out in the habitat of species with protected status under NOM-05921

and contends that this situation makes the filing of an environmental

impact statement mandatory under Article 4.7 of NOM-062. The

Response of the Party confirms the existence of species with protected

status in the zone in which Aquanova operates.

In its Response, Mexico asserts that INE issued an environmental

impact authorization for the first phase of the project on 7 February 1995,

establishing 43 conditions. It states that in April and May of that year,

Profepa made inspection visits and detected compliance irregularities

by Aquanova under the terms of that authorization, and sanctioned

Aquanova for those irregularities. In addition, it states that collateral

actions were taken leading to a program to correct the negative impact,

including a mangrove-planting program. The Response states that felling, clearing, and burning were suspended on 9 May 1995.22

The Response states that the second phase of the project as regards

environmental impact was authorized on 21 June and 8 July 1996, and

that the third phase was authorized on 2 March and 19 May 1997.

The Submitter asserts that although Profepa ordered the suspension of clearing, felling, and burning activities carried out by Aquanova

in violation of the INE authorization, the administrative proceeding corresponding to these violations was terminated on 12 May 1995 as a result

of a working meeting at which it was agreed that INE would reissue the

environmental impact assessment within 30 days.

SUMMARY OF THE SUBMISSION AND THE RESPONSE 23

19. Submission, p. 4, and RSP, p. 14.

20. Submission, p. 5, and RSP, pp. 15-16.

21. Submission, pp. 2, 4, and RSP, p. 7. The response indicates that Submitter erred in

its classification of the species in question with respect to their specific status under

the NOM.

22. RSP, p. 5.
According to Grupo Manglar, Profepa conducted other inspection

visits in January 1996 during which irregularities were again detected in

relation to the conditions established in the environmental impact

authorization issued by INE. The Party’s Response states that on 22 January 1996, irregularities were in fact detected in the construction of a discharge canal that caused harm, as well as forestry-related irregularities,

involving the lack of a land use authorization and the removal of 3.35

hectares of mangroves.

Finally, Grupo Manglar states that the administrative proceeding

initiated in December 1997 in relation to various violations by

Aquanova, was terminated by means of an administrative agreement

signed 30 March 1998 which the Submitter claims is contrary to law. The

Submission asserts that the proceeding should have been terminated by

a decision, not by an agreement, since “...the authority cannot negotiate

compliance and enforcement of laws designed to preserve public order

and protect the public interest, such as the General Law on Ecological

Balance and Environmental Protection and the Forestry Law.”23 It

claims that by virtue of the agreement, the authority renounces its power

to sanction the alleged violations of Aquanova. The Response states that

the authorities that entered into the administrative agreement are

empowered to do so. The Party further contends that it is not mandatory

to terminate an environmental proceeding with a decision. Mexico

alleges that the agreement is not contrary to law because its purpose is

not to negotiate compliance with the law, as the Submitter asserts, but to

further the restoration of the environment. Finally, Mexico denies that it

has renounced its power to sanction.

The Submission further asserts that Mexico is failing to effectively

enforce its environmental law with respect to water use and wastewater

discharge. Grupo Manglar asserts that although the CNA is the body

competent to enforce the LAN, the CNA only required of Aquanova that

it “regularize” its situation, and failed to effectively enforce the law and

its regulations. It asserts that the CNA failed to enforce the cited provisions given: 1) the unauthorized water use by the company; 2) the unauthorized wastewater discharges by the company; 3) the obstruction of

natural watercourses by the company without a permit, and 4) the deterioration of water quality in the area due to Aquanova’s activities.

According to the CNA, the water use permit to which the

Submitter refers is not applicable since the water is extracted from

lagoons, inlets, and creeks, which are marine waters. The Response

24 FACTUAL RECORD: AQUANOVA SUBMISSION

23. Submission, pp. 9-10.
states that the company did in fact discharge wastewater without the

relevant permit from 1996 until, apparently, 6 November 1998, when

permit 08NAY104898/13BKGE98 was issued for one of the three discharges.24 The Response further states that the permit for the other two

discharges is pending, and that a favorable technical report from 11

December 1998 exists. The Response asserts that the company diverted

natural watercourses but that this was contemplated by the environmental impact authorization. The Response further states that the

obstructions of Los Olotes and La Cegada creeks had already been

removed by the company, allegedly at the time the Response was submitted. The Submitter asserts that the lack of water quality monitoring is

a violation of the environmental law and a failure of effective enforcement by the CNA. The CNA stated that it has developed a monthly

water-quality monitoring program that allegedly covers the principal

inlets relating to Aquanova’s activities. The Response also states that

the company has a monitoring program to comply with NOM-089-

ECOL-1994.25 The CNA reported that the samples taken at 4 sites (allegedly between October 1998 and April 1999) demonstrated that the

wastewater quality complies with NOM-001-ECOL-1996.26

In regard to fisheries, Grupo Manglar asserts that Mexico is failing

to effectively enforce the LP and the RLP by introducing a shrimp

species of commercial interest (blue shrimp, Penaeus stylirostris, strain

SPR—43) in the production of which viral diseases allegedly occur.27

The Submitter asserts that more than 500 fishermen have been economically affected by the high mortality of fish species they typically catch, as

well as by the obstruction of certain creeks along which they travel in

order to carry out their fishing activities.28

Mexico’s Response asserts that the Submitter’s assertions in this

regard are false. The Response states that Aquanova holds a concession

issued by the Aquaculture Branch (Dirección General de Acuacultura) of

Semarnap, that the species in question does not produce viral diseases,

and that this was indicated in the sanitary certificates that, the Party

SUMMARY OF THE SUBMISSION AND THE RESPONSE 25

24. RSP, p. 11 and Appendices 13-14.

25. NOM-089-ECOL-1994, cited on p. 12 of the Response, establishes the maximum

contaminant limits in wastewater discharges into collecting bodies from agricultural cultivation activities. However, it is unclear that the company is involved in

such activities.

26. Establishing the maximum contaminant limits in wastewater discharges into

national bodies of water and property.

27. Submission, p. 4.

28. The Submission asserts that the volume of fish decreased by 80 percent in the locality of San Blas and by 100 percent on the left bank of the Rio Grande de Santiago

(p. 5).
alleges, were filed prior to each stocking period. Regarding the

Submitter’s assertions that fish stocks have been substantially decreased

by the company’s operations, Mexico’s Response asserts that fish production has not decreased but rather increased.29

Grupo Manglar asserts that the following specific actions and

ongoing activities of Aquanova, in addition to involving administrative

violations, constitute offenses under CPF Articles 416, 418, and 420, and

that these provisions were not enforced: draining and filling of lagoons

since 1995; unauthorized felling, clearing and burning of vegetation in

the habitat of species with protected status; unauthorized land use

changes; unauthorized removal of forest cover; wastewater discharges

since the first half of 1996 without a permit, without performing the

required monitoring, and in violation of the applicable contaminant limits; causing mangrove mortality without authorization; unauthorized

diversion of natural watercourses; unauthorized acceleration of the

destruction of the habitat of species with protected status; unauthorized

obstruction of fishing activities.30

Mexico’s Response states that the environmental authority submitted reports to the Office of the Attorney General (Ministerio Público)

that were requested in the context of preliminary investigation

DGMPE/C/I-3/039/98 concerning the alleged commission of environmental offenses, allegedly initiated in response to a criminal complaint

filed by the Submitter concerning Aquanova. The Response asserts,

however, that under Article 16 of the Federal Code of Criminal Procedure (Código Federal de Procedimientos Penales) these reports cannot be

disclosed, and no further information is provided on the status of the

preliminary investigation or on the matter to which it referred.31 Mexico

also contends that the applicable offenses are those provided by the

LGEEPA prior to the reform of 14 December 1996, rather than those set

out in the CPF and invoked by the Submitter, since according to Mexico,

the alleged offenses were committed prior to the aforementioned

reform.32

Finally, the Submission asserts that Mexico is failing to effectively

enforce the Convention between the United Mexican States and the United

States of America for the Protection of Migratory Birds and Game Animals; the

Convention on Wetlands of International Importance Especially as Waterfowl

Habitat and the Protocol which amends it, and the Trilateral Memorandum

26 FACTUAL RECORD: AQUANOVA SUBMISSION

29. RSP, p. 16.

30. Submission, pp. 5, 7, 8.

31. RSP, pp. 17, 23.

32. RSP, pp. 16-17.
of Understanding for the Conservation of Migratory Birds and their Habitats,33

allegedly by permitting the destruction of the area by Aquanova’s activities. In its Response, Mexico asserts that these instruments are not applicable to the matters raised by the Submission.

The cited international instruments call on their parties to take legislative and regulatory measures to protect certain migratory birds and

game mammals, and to designate wetlands of international importance

on their territory. The Secretariat determined that this matter did not

warrant developing in a factual record because these instruments do not

refer to the enforcement of domestic law by their parties, nor do they

establish specific obligations (hypothetically, contaminant limits, quality criteria for the resources, or other specific aquaculture standards)

that could be related to the violations asserted in the Submission.34 Consequently, the alleged failure to effectively enforce the cited international instruments is not addressed in this factual record.

5. Summary of Other Relevant Factual Information

5.1 Process Used to Gather Information

Based on the Secretariat’s recommendation of 4 August 2000, the

CEC Council instructed the Secretariat on 16 November 2001 to develop

a factual record in regard to submission SEM-98-006 (Appendix 1 of this

factual record contains the corresponding Council Resolution). In January 2002, the Secretariat initiated the factual record development process.

The focus of the information compiled for the factual record was

the effective enforcement of LGEEPA Articles 117, 118, 119, 121, 123, 129,

130, 168 and 182; LF Articles 12 and 19 bis 11; NOM-059; NOM-062; LAN

Articles 4, 9, 86 paragraph III, 88, 92 and 119 paragraphs I, II and VIII;

RLAN Articles 134, 135, 137, and 153; LP Articles 3 paragraph VIII and 24

paragraph XXIV; RLP Articles 44, 48, and 50; and CPF Articles 416 paragraphs I and II, 418, and 420 paragraph V, with respect to Aquanova. The

Secretariat attempted to gather information on the Party’s initiatives

and actions to enforce compliance by Aquanova with various environmental impact requirements; wastewater discharge monitoring and

treatment obligations; steps to ensure sustainable water use, prevention

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 27

33. Submission, p. 11.

34. SEM-98-006 (Aquanova), Article 15(1) Notification to Council that Development of

a Factual Record is Warranted (4 August 2000).
and control of water pollution, and the protection of aquatic ecosystems;

and fisheries protection measures.

The Secretariat made available to the Parties, the Submitter, and

any interested party a general plan for the development of the factual

record (Appendix 2 of this factual record) and a description of the scope

of the relevant information being gathered (Appendix 3 of this factual

record). Pursuant to NAAEC Articles 15(4) and 21(1)(a), the Secretariat

requested Mexico and 13 of its authorities to provide the relevant information in their possession for the preparation of the factual record

(Appendix 4 of this factual record contains a list of the recipients of this

request and a description of the information requested). Information

was received from the Party, including information from several Mexican authorities in response to the request. The other Mexican authorities

either did not respond, indicated that they did not possess information,

or stated that the matter is outside their jurisdiction. Likewise, the Secretariat invited the other two parties to the NAAEC and the Joint Public

Advisory Committee (JPAC) to provide relevant information. The Secretariat identified 22 persons or nongovernmental organizations that

might possess relevant information, including Grupo Manglar and

Aquanova, and invited them to provide that information. Information

was received from the Submitter, the company, and one person in

response to that request (Appendix 5 of this factual record contains a list

of the recipients of the request and Appendix 3 contains a description of

the information requested).

Appendix 6 contains a list of all the information gathered by the

Secretariat, including information produced by the Secretariat through

independent experts, which formed the basis for this factual record.

Article 15(5) of the NAAEC provides that “[t]he Secretariat shall

submit a draft factual record to the Council. Any Party may provide

comments on the accuracy of the draft within 45 days thereafter.” Pursuant to Article 15(6), “[t]he Secretariat shall incorporate, as appropriate,

any such comments in the final factual record and submit it to the Council.” The Secretariat submitted the draft factual record to the Council on

7 March 2003. The Parties did not comment on the draft factual record.

5.2 Timeline

1994

November 3 The Ministry of Fisheries (Secretaría de Pesca) authorized

Aquanova to introduce shrimp strain SPR—43 into the

Boca Cegada shrimp farming project.

28 FACTUAL RECORD: AQUANOVA SUBMISSION
November 25 Aquanova filed the environmental impact statement for

Phase I of the project.

1995

February 7 INE granted environmental impact authorization for

Phase I of the Aquanova project.

February 27 Aquanova formally commenced work on Phase I of the

project.

April 18 Aquanova applied to INE for amendments to its environmental impact authorization.

April 19-20 Profepa conducted environmental impact inspection visits. It detected the following irregularities: establishment

of prohibited camps, failure to salvage flora and fauna,

mechanical destruction of 42 ha of black mangrove

(Avicennia nitida) and 250 coconut palms. The authorities

ordered the suspension of these activities.

May 8 Aquanova requested INE approval of a new plan for the

facility.

May 17 Profepa conducted an inspection visit to institute a new

proceeding and identified the same violations on the part

of Aquanova.

May 25 Aquanova applied for INE approval to amend the plan

and conditions of its environmental impact authorization regarding camps and mangrove destruction.

June 27 INE authorized the new facility plan and the amendments to conditions 14, 16 and 17. It authorized the necessary camps and the removal of vegetation from the water

supply and discharge canals.

August 16 Profepa ordered Aquanova to remove the infrastructure

and auxiliary camps, replant mangroves, and carry out

reforestation, and it fined the company P$100,000.00.

September 6 Aquanova filed an appeal for review against the Profepa

decision of August 16.

1996

January Aquanova began discharging wastewater into the

estuarine zone.

January 22 Profepa conducted an inspection visit during which it

detected that Aquanova had effected a land use change

on 15.9 ha (including 3.25 ha of mangrove forest) in the

area for its discharge canal without prior authorization.

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 29
March 22 INE authorized construction of the wastewater canal for

Phase I involving discharge of wastewater into La

Tronconuda marsh, subject to the filing of a water quality

monitoring program and other studies of the impact on

the marsh.

May 15 Semarnap granted Aquanova a concession on 1,949 ha of

the Federal Coastal Zone (Zona Federal Marítimo

Terrestre—Zofemat).

October 7 Aquanova filed the environmental impact statement for

Phases II and III of the facility with INE.

December 20 INE granted environmental impact authorization to

carry out Phases II and III of the project, prohibiting

Aquanova from blocking or impacting the creek adjacent

to Isla del Rey, La Diabla creek, and El Rey inlet (Estero del

Rey). The environmental impact authorization also

required the salvaging and replanting of the healthiest

plant specimens and the establishment of a water quality-monitoring program.

1997

January 6 The CNA required Aquanova to regularize its situation.

April 15 INE authorized Aquanova to build and operate the

ocean discharge canal, subject to refraining from blocking or impacting the creeks outside the discharge canal,

but authorizing three obstructions, including one of Los

Olotes creek.

November 17 Profepa inspected the performance of corrective actions.

It noted the planting of 39 coconut palms and the establishment of nurseries for reforestation purposes.

December 5 Profepa issued a final decision in the proceeding initiated

with the decision of 16 August 1995. In view of the

amendments approved by INE, it rescinded the order to

dismantle the camps and to carry out reforestation, and

reduced the fine to P$29,095.00.

December

16-17

Profepa conducted an inspection visit during which it

detected the obstruction of Los Olotes creek, and mortality of mangroves and vegetation in the flood-prone area.

1998

February 18 Profepa conducted a visit and noted that Aquanova had

removed the obstruction from Los Olotes creek.

30 FACTUAL RECORD: AQUANOVA SUBMISSION
March 30 Profepa and Aquanova entered into an administrative

agreement that terminated the proceeding initiated further to the inspection of 16 December 1997. They agreed

that a committee of experts would determine the causes

of the harm to the mangrove forest in the area and that

Aquanova would remedy any harm for which it was

responsible.

September 28 Semarnap granted Aquanova a concession for semiintensive culture and commercial use of blue and white

shrimp.

October 16 Aquanova undertook to build civil engineering works to

restore the flow in Los Olotes and La Diabla creeks and to

carry out a Mangrove Restoration Program on 50 ha, as a

result of the report of the committee of experts.

October 20 Grupo Manglar filed Submission SEM-98-006 with the

CEC, pursuant to NAAEC Article 14, asserting that Mexico is failing to effectively enforce its environmental law

with respect to Aquanova.

November 6 The CNA granted Aquanova a concession to discharge

wastewater.

1999

February 24 Aquanova filed a Mangrove Restoration Program with

Semarnap.

March 17 The CEC Secretariat requested a response to the Submission from Mexico in accordance with NAAEC Article

14(2).

April 27 Aquanova completed the civil engineering works to

restore the free flow of water in Los Olotes creek (metal

bridge, electrical substation and pumping station) and

La Diabla creek (piping under ocean discharge canal).

June 15 Mexico filed its Response to the Submission pursuant to

NAAEC Article 14(3).

December 22 Aquanova entered into an agreement with representatives of the government of Nayarit, Semarnap, Profepa,

Grupo Manglar, elected members of state government,

and members of civil society, in which it undertook to

limit Phase III of the project and help fund a socioenvironmental analysis of the area, among other

commitments. The signers acknowledged the restoration

efforts carried out by Aquanova.

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 31
2000

January 4 Semarnap authorized Aquanova to carry out the Mangrove Restoration Program.

February 15 Profepa fined Aquanova P$48,800.00 for failure to obtain

a land use authorization and for removal of 3.5 ha of

mangrove forest, as detected during the inspection of 22

January 1996.

March 10 Profepa carried out an inspection visit to verify compliance with the Mangrove Restoration Program, with positive results.

August 4 The CEC Secretariat recommended to Council that a factual record be developed in regard to Submission

SEM-98-006.

2001

May 2 The CNA conducted an inspection visit on which no

irregularities were detected.

May 11 Profepa conducted a visit to verify compliance with the

Mangrove Restoration Program, observing the gradual

regrowth of mangroves.

November 16 The Council decided unanimously to instruct the Secretariat to develop a factual record in regard to Mexico’s

alleged failure to effectively enforce various provisions

of its environmental law with respect to Aquanova.

2001 -

summer

2002

Grupo Manglar produced a socio-environmental analysis of the estuarine and mangrove zone of the Municipality of San Blas, Nayarit.

2002

June 20 Profepa conducted an inspection visit and observed the

gradual restoration of the mangroves in the areas covered by the restoration program.

October 25 Hurricane Kenna severely affected the San Blas area.

32 FACTUAL RECORD: AQUANOVA SUBMISSION
5.3 Environmental Impact Authorization Process and Related

Authorizations

Environmental impact assessment is the procedure prescribed by

the LGEEPA whereby the environmental authority – Semarnat35 – establishes the conditions governing the execution of those works and activities that could cause ecological imbalance or exceed the limits and

conditions established in the applicable provisions for the protection of

the environment and the preservation and restoration of ecosystems, for

the purpose of preventing or minimizing the negative effects of such

works and activities on the environment.36

In broad outline, the procedure for obtaining an environmental

impact authorization (EIA) is as follows:

1. The interested party files an EIA application with Semarnat,

attaching an environmental impact statement (EIS).37

2. The EIS must contain, at a minimum, a description of the possible effects on the ecosystems that could be affected by the

work or activity, as well as the preventive, mitigation, and

other measures necessary to prevent and minimize the negative effects on the environment.

3. Semarnat opens a file and makes the EIS publicly available for

comment on the project by any interested party.38

4. When the assessment of the EIS (and any additional information generated by the process) is completed, Semarnat issues a

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 33

35. Since 4 June 2001, Semarnat has fulfilled this responsibility through its Environmental Impact and Risk Branch (Dirección General de Impacto and Riesgo Ambiental—

DGIRA). During the period when the Granjas Aquanova—Boca Cegada project

was initiated, and until 8 July 1996, this responsibility was met by the Environmental Standards Branch (Dirección General de Normatividad Ambiental— DGNA) of INE,

a semi-autonomous body of the former Semarnap. After that date, this responsibility came under the Environmental Impact and Land Use Planning Branch

(Dirección General de Ordenamiento Ecológico e Impacto Ambiental—DGOEIA) of INE,

until the DGIRA was created.

36. LGEEPA Art. 28.

37. The Environmental Impact Regulation in effect when Aquanova filed its EIS provided for three types of EIS (general, intermediate, and specific) depending on the

project characteristics (published in the DOF on 7 June 1988). The Regulation in

force as of 30 June 2000 (published in the DOF on 30 May 2000) contemplates other

types.

38. In the reform of the LGEEPA (DOF of 13 December 1996), public participation in the

environmental impact assessment process was expanded (Article 34). The applicable text at the time of the Aquanova process did not provide for public comment on

the project, but merely public consultation of the file (Article 33).
reasoned and justified decision: (i) authorizing the project, (ii)

denying authorization to the project, or (iii) authorizing the

project with conditions.

5. The execution of the work must adhere to the corresponding

decision.

6. The applicant must notify Semarnat of any subsequent

change in the authorized work in order for Semarnat to determine whether it is viable or whether a new environmental

impact assessment is required.39

The EIA does not include any other permits and authorizations

applicable to the work or activity, which the project proponent must

obtain separately. Thus, for example, the LF establishes the requirement

of obtaining an authorization to use timber resources and provides that

in the case of tropical forests, the environmental impact must be assessed

before such authorization may be issued (LF Article 12).40

Authorization is also required to change the land use on forested

land. The LF provides that this may only be authorized after consultation with the relevant Regional Council and based on technical studies

demonstrating that it does not jeopardize biodiversity or cause soil erosion, water quality degradation or reduced catchments (LF Article 19

bis 11).

Mexican Official Standard NOM-062 establishes specifications to

mitigate the adverse effects on biodiversity of land use changes from forestry to agriculture. The NOM provides that the only types of projects

that may be evaluated (prior filing of an EIS) are those that involve sustainable use of land or other resources and do not involve land use

changes or entail the local disappearance of species of flora or fauna

listed in the relevant Mexican Official Standard as rare, threatened,

34 FACTUAL RECORD: AQUANOVA SUBMISSION

39. The possibility of the applicant’s making changes to the project and the authority’s

requesting clarifications of the EIS was not contemplated in the LGEEPA text in

force at the time of the Aquanova process, but rather, only in the corresponding regulation. As of the 1996 reform, this provision also appears in the LGEEPA (Articles

30 and 35 bis).

40. Amendments to this law were published in the DOF on 20 May 1997 and 31 December 2001. The requirement of obtaining a land use change authorization is no longer

provided by this law. Currently, such provisions are found in the legislation of each

state. Nevertheless, the LGEEPA Environmental Impact Regulation, published in

the DOF on 30 May 2000, establishes that an environmental impact authorization is

required prior to effecting a land use change in forest areas for aquaculture, among

other provisions (Article 5-O-I).
endangered, or subject to special protection and of their habitat

(NOM-062, point 4.7).

Finally, pursuant to Article 30 of the General Law on Property of

the Nation (Ley General de Bienes Nacionales), a concession is required in

order to use land located within the Zofemat.

5.3.1 Phase I of the Granjas Aquanova — Boca Cegada Project

On 25 November 1994, Aquanova applied for an EIA for Phase I of

its project, by filing with INE an EIS (intermediate type); the EIS was produced by Biopesca Asesores en Biología Pesquera, S.A. de C.V.41 The

Secretariat requested but did not obtain a copy of this EIS, and it was

unable to determine from the information gathered whether this first

EIS included information on all three phases of the project or only the

first phase.

On 7 February 1995, INE granted an EIA to Aquanova for the first

phase of the project.42 The works authorized were: the water supply

canal and the sump (for water supply), two inlet gates per pond, one outlet gate per pond, 52 semi-intensive ponds of 10 ha each, a buildings area

in the urban zone of Ejido Isla del Conde (total area 700 m2), internal

roads between the buildings (area of 5,000 m2) and reconditioning of

access roads (5 m wide by 5 km long).

INE made the development of the project subject to 43 conditions.

Among the limits and obligations imposed were the prohibition on

establishing auxiliary camps in the project area during the preparation

and construction phases (condition 14); the requirement that the company preserve the entirety of the mangrove vegetation existing on the

premises and carry out a mangrove replanting program with species

indigenous to the region in the areas of both the water supply canal and

the discharge canal as well as in those areas sparsely populated with this

vegetation but providing a suitable habitat for it (condition 16); the obligation of Aquanova to identify and mark the healthier mangrove specimens prior to clearing the land, and to take steps to salvage and relocate

them within the facility (condition 17).

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 35

41. Information provided by Granjas Aquanova, S.A. de C.V. for the development of

the factual record in regard to Submission SEM-98-006, received 9 July 2002

(“IPA”), Appendix 1.

42. By means of document no. D.O.O.P.-0333, IPA, Appendix 2.
Aquanova began its preparation and construction work on 27 February 1995.43 Aquanova changed the land use of forest in an area of 2,000

ha in order to build its facilities and ponds, according to Grupo Manglar,

without authorization.44

On 19 April 1995, Profepa conducted its first inspection visit to

Aquanova. On this visit, irregularities relating to conditions 14, 16 and

17 of the EIA were found. The authority determined that Aquanova had

established a camp in the project area; that it had failed to salvage the

flora, for subsequent replanting, in an area of approximately 400 ha; that

in the area projected to hold 12 ponds Aquanova had felled, amassed

and burned black mangrove (Avicennia nitida) on an area of 50 ha; and

that in the southern part of Laguna del Coyote it had felled and amassed

approximately 250 coconut palms, using tractors and a chain. The

inspector recommended that Aquanova suspend its felling of the existing vegetation as well as all auxiliary work in the project area.45 On 20

April 1995, Profepa inspected Aquanova a second time to verify its compliance with these recommendations and found that it had not complied.46

As a consequence, on 25 April 1995 Profepa ordered Aquanova to

suspend all auxiliary work in the project area, any other activity related

to the amassing and burning of vegetation, as well as the felling, amassing and burning of the remaining vegetation in the authorized project

area.47 In May 1995, Aquanova provided INE with comments regarding

the conditions of its EIA, arguing among other things: that it did not

intend to install permanent camps that would result in population centers, but that it was absolutely necessary to install temporary camps to

carry out the works; that the EIS did not indicate that all of the mangrove

vegetation would be respected because that “would imply that no ponds

or very few could be built”; and that conditions 16 and 17 are contradictory in requiring that all mangrove vegetation be respected and at the

same time requiring that the healthier mangrove specimens be relocated

(regardless of the fact that the criteria should be to conserve the specimens that are “adequate for replanting”).48

36 FACTUAL RECORD: AQUANOVA SUBMISSION

43. IPA, Appendix 5.

44. Information provided by Grupo Manglar (“IPGM”), p. 3.

45. Document no. 95/010, Information provided by Mexico on 4 April 2002 (“IPM-1”),

Appendix 1.

46. Document no. 95/011, IPM-1, Appendix 2.

47. Unnumbered document, IPA, Appendix 10.

48. Information provided by Mexico on 19 December 2002 (“IPM-5”), Appendix 4,

p. 9-13.
On 15 May 1995, Profepa acknowledged that it had made procedural irregularities during the inspections of 19-20 April 1995 and issued

a decision that annulled its actions to that date, initiating a new proceeding and ordering a new inspection visit.49 This third environmental

impact-related inspection visit to Aquanova took place on 17 May 1995,

and the same irregularities were detected as on the visit of 19 April

1995.50 In consequence, on 16 August 1995, Profepa ordered Aquanova

to remove all the auxiliary infrastructure built as well as the auxiliary

camp located within the project area; to plant black mangrove (A. nitida)

in various areas; to carry out planting and reforestation programs; and

to pay a fine of P$100,000.00.51

Aquanova appealed to Profepa for review of this order on 6 September 1995.52 On 6 January 1996, the head of Profepa determined the

order was to be reissued, properly justifying the sanctions imposed on

Aquanova.53 On 5 December 1997, Profepa rescinded the order to dismantle the auxiliary structures and replant mangroves, and reduced the

fine to P$29,095.00 in light of an authorization issued to Aquanova on 27

June 1995 (described below).54

Under the 27 June 1995 authorization, INE approved the new facility plan filed by Aquanova on 25 May 1995, as well as the amendments to

several of the conditions set out in the authorization of 7 February 1995,

including conditions 14 and 16. INE authorized Aquanova to install only

those auxiliary areas that the construction company considered strictly

essential to the siting, maintenance and operation of its machinery as

well as the administration of earth moving activities, stipulating that the

area would subsequently have to be used for the construction and operation of the buildings area. Since the sparser mangrove areas (42 ha) had

already been removed in order to build “the necessary aquaculture facilities,” the authority ordered maintaining in the project area a minimum

of 14 ha of mangrove forest. INE also authorized Aquanova to remove

the vegetation on the minimum area necessary for the construction of

facilities relating to the supply and discharge canals, subject to prior

identification and marking of the healthier mangrove specimens and

measures to salvage and subsequently relocate them.55

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 37

49. Unnumbered decision, IPM-1, Appendix 3.

50. Document no. 016/95, IPM-1, Appendix 4.

51. Decision no. 003, IPM-1, Appendix 5.

52. IPM-1, Appendix 6.

53. No copy of this document was provided to the Secretariat; its existence is mentioned in IPM-1, p. 2, and Appendix 7, p. 2.

54. IPM-1, Appendix 7.

55. By means of document D.O.O. DGNA.-2587, IPA, Appendix 4.
On 22 January 1996, Profepa conducted an inspection visit during

which it found that Aquanova had not obtained a land use change

authorization prior to clearing 15.9 ha, including 3.25 ha of mangroves,

in the area of the discharge canal.56 On 15 February 2000, Profepa terminated the administrative proceeding initiated on that visit and fined

Aquanova P$48,800.00 for carrying out this land use change without

prior authorization.57 The information provided to the Secretariat does

not indicate whether this sanction was appealed or whether it was made

effective.

On 22 March 1996, INE authorized the construction of the

wastewater discharge canal for Phase I of the project. This authorization

established the following as conditions, among others: 1) the filing of a

water quality monitoring program for the discharge canal, determining

its efficiency as an instrument of water quality improvement in the

Tronconuda marsh; 2) the filing of a wildlife conservation study for the

Tronconuda marsh, including ecophysiology studies, so as to detect the

impact of wastewater dumping on mangroves and aquatic fauna; and 3)

the filing of a study on sedimentation of the particles contained in the

wastewater and their impact on the bathymetry of the Tronconuda

marsh, the discharge canal, and the creeks communicating with El Rey

inlet, including an indication of the final resting point of the sludge generated.58

On 15 May 1996, Semarnap granted Aquanova a concession on

1,949 ha of the Zofemat.59 Grupo Manglar claims that Aquanova began

work in this area one year before obtaining the concession.60

On 22 May 1996, Aquanova applied to the Semarnat state office in

Nayarit for a land use change authorization for Phase I of the project. The

Natural Resources Section (Subdelegación de Recursos Naturales—SRN) of

that office indicated on 28 May 1996 that such authorization could not be

granted since Aquanova had already effected the land use change “...

and that to issue the authorization a posteriori would be improper.61”

38 FACTUAL RECORD: AQUANOVA SUBMISSION

56. Information provided by Mexico on 29 April 2002 (“IPM-2”), Appendix 2. The Secretariat did not obtain a copy of this inspection report, but decision no. 169/2000

refers to it.

57. IPM-2, Appendix 2.

58. By means of document D.O.O.DGNA-01499, RSP, p. 12, Appendix 16.

59. The Secretariat did not receive a copy of this concession (no. DZF 226/96), but it is

referred to by document D.O.O.DGOEIA-04076; information provided by Mexico

on 7 May 2002 (“IPM-3”), Appendix 4.

60. IPGM, p. 5.

61. RSP, Appendix 5.
Grupo Manglar holds the view that the authorities issued authorizations to Aquanova that were not permitted since, under NOM-062, the

destruction of the habitat of species with protected status may not be

authorized.62 Grupo Manglar further asserts that Mexico failed to effectively enforce the environmental law by failing to revoke the company’s

authorizations or concessions despite the seriousness of the violations

detected during Profepa’s inspection visits. The Submitter refers to

LGEEPA Article 172, which provides that where the seriousness of the

violation so warrants, the authority shall request that the issuer suspend, revoke, or cancel the authorization to carry out the activities that

gave rise to the violation.63The EIAs stipulated that noncompliance with

the conditions and provisions that they contained and/or the modification of the work “will invalidate” (in the case of the EIA for Phase I) or

“could invalidate” (for the subsequent EIAs) the authorization in question.

5.3.2 Phases II and III of the Granjas Aquanova — Boca Cegada Project

On 4 and 6 June 1996, Aquanova applied for an authorization to

carry out clearing activities not involving mangroves, leveling, and

basic surveying for Phase II of the facility, filing an “Executive Summary

of the Intermediate Form of the Environmental Impact Statement: Analysis of Critical Points” with INE.64 Three weeks later, on 25 June 1996,

INE approved this application subject to 10 conditions. It strictly prohibited Aquanova from removing young or old riparian mangrove vegetation without prior filing of a detailed engineering design for the work,

for review and decision by the authority. It also prohibited Aquanova

from blocking or affecting water flow in the creek adjacent to Isla del

Rey. The authority required that clearing be restricted to land the use of

which is defined for productive activities and which the company either

owns or has rights to use, and subjected the commencement and continuation of clearing on federal lands to the filing of the land use change

authorization and the Zofemat concession granted, respectively, by

the Land Restoration and Conservation Branch (Dirección General de

Restauración y Conservación de Suelo) and the Federal Coastal Zone

Branch (Dirección General de Zona Federal Marítimo Terrestre).65

On 21 June 1996, Aquanova obtained a land use change authorization from the SRN for 316.17 ha in order to carry out Phase II of the

project. This authorization also provides for the marking, storage, transSUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 39

62. IPGM, p. 7.

63. IPGM, pp. 7-8.

64. RSP, p. 4, Appendix 2.

65. By means of document D.O.O.DGNA.-02783, RSP, p. 4, Appendix 2.
portation, and sale of timber logs produced by clearing the land.66 Once

the required land use change authorizations were filed, INE authorized,

on 20 August 1996, the clearing and leveling of 10.01 ha of young riparian mangrove forest.67

On 7 October 1996, Aquanova applied for authorization to carry

out Phases II and III of the project, filing with INE the intermediate form

of the EIS for the project titled “Shrimp Farm, Boca Cegada Unit, Phases

II and III.68” On 20 December 1996, INE granted the EIA, subjecting the

execution of Phases II and III of the facility to 49 conditions. INE prohibited Aquanova from blocking or affecting the creek adjacent to Isla del

Rey and La Diabla creek and required the company to take the necessary

steps to prevent the facility’s wastewater from mixing into these creeks

and the El Rey inlet or the alteration of their physicochemical quality. It

again established the obligation to salvage mangroves prior to beginning the work and for subsequent replanting within the project area. The

authority required Aquanova to establish a monthly water quality monitoring program at the water supply and discharge points so as to maintain the levels established in “Ecological Water Quality Criteria

for Aquaculture” and in NOM-089-ECOL-1994. INE also ordered

Aquanova to preserve 1,675 ha of riparian mangrove forest as an environmental protection area (as proposed by Aquanova in its EIS). INE did

not, at this time, authorize construction of the proposed buildings area

and discharge canal nor the modification of the existing discharge

canal.69 On 27 February 1997, Aquanova requested that INE revise these

terms and conditions of the EIA for Phases II and III.70

On 5 March and 19 May 1997, Aquanova obtained authorization

from the SRN for a land use change on a total of 1,116.20 ha in order to

execute Phase III of the facility.71

5.3.3 Ocean Discharge Canal for the Granjas Aquanova—Boca

Cegada Project

On 15 April 1997, INE authorized the “Ocean Discharge Canal

Project for Phases II and III72” as a supplemental facility, subject to 15

40 FACTUAL RECORD: AQUANOVA SUBMISSION

66. By means of document no. 261.SRN/96/1431, RSP, Appendix 6, and IPM-1, Appendix 17.

67. By means of document D.O.O.DGOEIA.-04076, RSP, p. 7, Appendix 12.

68. RSP, p. 4, Appendix 3.

69. By means of document D.O.O.DGOEIA.-08160, RSP, Appendix 3 and IPM-3,

Appendix 2.

70. Document INE-SMCO8160-025, IPM-5, Appendix 7.

71. Documents no. 261/SRN/97/0359 (RSP, Appendix 8) and 261/SRN/97/1233

(RSP, Appendix 9).

72. IPM-5, Appendix 6.
conditions. INE strictly prohibited the company from blocking or affecting the creeks outside the discharge canal area, although it did authorize

Aquanova to install 3 obstructions for construction of the discharge

canal, including one in Los Olotes creek.73 Aquanova only obtained

authorization to clear mangrove vegetation on an area of 8.83 ha corresponding to the areas to be used for expansion of the discharge canal and

the areas corresponding to the crossing of La Diabla creek on its path to

the ocean. The authority required Aquanova to ensure at all times that

project wastewater would not mix with water in the creeks that cross the

discharge canal.74

On 11 December 1997, INE approved a request by the citizens of

the neighboring communities that Aquanova remove the obstruction

from Los Olotes creek after considerable black mangrove (Avicennia

germinans) mortality was detected in the creek.75 On 16 December 1997,

Aquanova received an inspection visit to verify compliance with the

conditions established in the EIA for Phases II and III and the order to

remove the obstruction from Los Olotes creek. Profepa found an earthen

obstruction approximately 13 m long and approximately 3 m wide at the

intersection of Los Olotes creek with the facility’s discharge canal, which

it considered to be a violation, despite the fact that Aquanova had

installed 4 concrete pipes, each 1.5 m in diameter, on the bottom of the

obstruction to facilitate water flow in the discharge canal and Los Olotes

creek. Profepa also observed an affected area of approximately 207,412.5

m2 of adult black mangrove (A. nitida) and a smaller amount of white

mangrove (Laguncularia racemosa) as well as the permanent inundation

of the area.76 According to Grupo Manglar, the mangrove mortality

occurred on approximately 500 ha in Los Olotes creek and 100 ha in La

Diabla creek.77

Further to these inspection visits, Profepa instituted an administrative proceeding against Aquanova. This proceeding was terminated on

30 March 1998, by the signing of an administrative agreement between

Profepa and Aquanova.78 The agreement stipulated that a study would

be conducted to determine the environmental impact of Aquanova’s

operations on the mangrove woodland of Los Olotes and La Diabla

creeks. Dr. Francisco Flores Verdugo and Dr. Roy Lewis conducted the

environmental impact study and determined that Aquanova was parSUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 41

73. IPM-1, p. 3, Appendix 12.

74. By means of document D.O.O.DGOEIA.-02187, RSP, p. 4, Appendix 4.

75. Document no. D.O.O.DGOEIA.- 07692, IPM-1, Appendix 12.

76. Document no. IIA 000010, IPM-1, Appendix 11.

77. IPGM, p. 11.

78. IPM-1, Appendix 13.
tially responsible for the degradation of the area in question.79 The study

was completed on 24 June 1998.

In this regard, Grupo Manglar claims that:

Concerning the illegality of that administrative agreement, we reiterate

the observations we made in our citizen petition of 22 September 1998, but

we wish to emphasize that the Office of the Federal Attorney for Environmental Protection lacked the power to enter into the administrative agreement whereby it terminated the proceeding brought against Aquanova,

principally because if it was a matter, in this case, of determining the

causes of contamination of those bodies of water, the National Water

Commission should have participated in that proceeding or even instituted another proceeding on its own account, since it is the competent

authority with respect to water pollution prevention and control. Therefore, it is that body’s responsibility to verify and order measures and

actions necessary to protect water quality. However, that body’s participation in the process was quite secondary; it merely established the water

quality monitoring program and did not participate in the signing and

execution of the aforementioned administrative agreement.

To date, there is no record of a CNA report assessing the effects of the

obstruction and diversion of the aforementioned watercourses or defining

the appropriate measures to mitigate or avert the adverse effects.80

In considering this matter, the Secretariat reached no conclusion as

to whether the administrative agreement in question is legally valid. It is

not clear that the Federal Administrative Procedure Law (Ley Federal de

Procedimiento Administrativo—LFPA) could be applied in place of the

LGEEPA (Articles 168-169), which provides that the environmental

inspection and enforcement procedure terminates with a written decision by the authority indicating the corrective measures and the relevant

sanctions. The Secretariat further observed that it is not clear that the

agreement does not negotiate compliance but merely restoration of the

environment, since the agreement’s express purpose, according to its

Clause One, is to terminate the administrative proceeding relating to

alleged irregularities engaged in by the company. Finally, the Secretariat

noted that the use of compliance agreements is consistent with NAAEC

Article 5, which refers to various government enforcement actions that

the Parties may use to fulfill their obligation to effectively enforce their

42 FACTUAL RECORD: AQUANOVA SUBMISSION

79. IPA, Appendices 23-24. The purpose of this environmental impact study was to

establish responsibilities for the degradation of an area of Boca Cegada, Nayarit,

and it is unrelated to the procedure set out in LGEEPA Article 28.

80. IPGM, pp. 11-12.
environmental law.81 In this regard, the reform of the LGEEPA published 31 December 2001 expressly provides for the possibility that the

interested party and the Ministry may agree upon the actions of restoration or redress that are necessary to correct the irregularities observed,

during the proceeding and before a decision is issued (Article 168).

On 18 February 1998, Aquanova received another inspection visit

on which Profepa observed no irregularities, but did note the removal of

the obstruction that had impeded the free flow of water in Los Olotes

creek.82

As a result of the report of the committee of experts (Flores

Verdugo/Lewis), on 16 October 1998, Aquanova undertook to build

civil engineering works to restore the flow in the Los Olotes and La

Diabla creeks and to carry out a mangrove-replanting program on

50 ha.83

On 24 February 1999, Aquanova filed a Mangrove Restoration Program with Semarnap,84 for which it obtained approval on 4 January

2000.85 On 27 April 1999, Aquanova completed the civil engineering

works to restore the free flow of water in Los Olotes creek (metal bridge,

electrical substation and pumping station) and La Diabla creek (piping

under ocean discharge canal).86 In the months of March to July 1999,

Aquanova began monitoring the Mangrove Restoration Program.87 On

10 March 2000, Profepa conducted an inspection visit to verify compliance with the Mangrove Restoration Program and found that the hydrodynamics of Los Olotes creek had favored the growth and repopulation

of the mangrove plants.88 On 14 January and 26 October 2000 and 8 June

2001, Aquanova filed progress reports on this program with Profepa.89

On 11 May 2001 and 20 June 2001, Profepa conducted inspections during

which it noted the gradual reestablishment of the mangrove forest in the

program area.90

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 43

81. (SEM-98-006) Article 15(1) Notification to Council that Development of a Factual

Record is Warranted (4 August 2000), pp. 29-30.

82. Document no. IIA 0002/98, IPA, Appendix 15.

83. Document arising from the administrative agreement of 30 March 1998, IPM-1, p. 3

and Appendix 14.

84. IPM-1, p. 4, Appendix 21.

85. IPM-1, p. 4, Appendix 22.

86. IPM-1, Appendix 20, and IPA, Appendix 31.

87. IPM-1, Appendix 23.

88. Document no. VIA 003/2000, IPM-1, p. 5 and Appendix 26.

89. IPM-1, pp. 4-5, Appendices 23-25.

90. IPM-1, p. 5, Appendix 27, and IPA, Appendix 20, respectively.
On 21 May 1999, Aquanova received an inspection visit on which

Profepa recommended the suspension of dredging by Aquanova in

Boca Cegada until the company filed an environmental impact authorization to carry out this work.91 Information on the outcome of this

inspection visit was not provided.

On 22 December 1999, Aquanova signed an agreement with representatives of the competent authorities, members of civil society (including Grupo Manglar), local fishermen, and other interested parties in

which it undertook to limit Phase III of the facility and to restore to the

federal government, for use by the fishermen, 948 ha of the Zofemat covered by a prior concession. In this agreement, the environmental restoration efforts of Aquanova are acknowledged.92

Nevertheless, concerning the effective enforcement of the laws

relating to environmental impact and forest land use changes, Grupo

Manglar claims that Aquanova carried out the work for the Boca Cegada

project without holding an authorization prior to beginning its activities, since the EISs filed by the company did not contemplate all the

works the company would later carry out. The Submitter asserts “there

are serious omissions in terms of content, in relation to the impacts that

would be caused by each part of the project and its totality, as well as

false information provided in relation to ecosystems, their characteristics, and the manner in which they would be affected.93”

The Submitter asserts that Aquanova did not declare in its EISs that

the work would involve forest land use changes, and that in the EIS for

Phase 1 of the facility, Aquanova stated that “the majority of the land to

be used for ponds (1300 ha) is in the agricultural zone, and therefore it

will not be necessary to clear land, fill or drain lagoons, or modify natural systems.94”

The Submitter indicates that Aquanova stated that it would grade

and level land on the 1,300 ha to be used for the ponds, but that in fact it

drained and filled secondary and tertiary inlets as well as wetlands with

mangrove and lowland forest vegetation. Grupo Manglar claims that

the earth excavated to build the ponds was not employed in building the

levees for the ponds, as Aquanova indicated in its EISs, but in filling

wetlands, since the levees are at the same level as the ponds.95

44 FACTUAL RECORD: AQUANOVA SUBMISSION

91. Document no. IIA 0007/99, IPA, Appendix 16.

92. IPA, p. 6, Appendix 25.

93. IPGM, p. 2.

94. EIS, p. 11, cited in IPGM, p. 2. (The Secretariat requested but did not obtain a copy of

the EIS filed by Aquanova with INE for phase I of the project).

95. IPGM, p. 4.
Grupo Manglar explains:

In its response to the CEC, the SEMARNAP, as it was then called, states

that this is true [that Aquanova drained and filled wetlands] and clarifies

that “both the draining and the filling are necessary to carry out the aquacultural

activity and that those environmental alterations tend to have negative impacts on

the systems...” but that this harm can be mitigated “if the necessary environmental alterations are carried out under technical conditions that make it possible

to diminish their harmful influence.” In this specific case, according to the

Ministry, the limits and conditions within which the aquaculture activity

could be viable were indicated to the company.

We do not share SEMARNAP’s point of view because, in the first place, the

environmental impact statements do not explicitly propose the draining

and filling of lagoons and creeks, and thus the environmental authorities

did not include this aspect in their assessment, and never expressly

authorized it. On the contrary, Condition I,8 of authorization document

D.O.O.P.- 0333 of 7 February 1997 states: “All filling activities in bodies of

water near the project are prohibited.” Second, those authorizations do not

explicitly state the limitations and parameters that the company must

observe in order to mitigate the impact. The truth is, we have absolutely no

idea what they are.

In addition, in view of the provisions of Article 155 of the Regulations to

the National Waters Law, the company should have obtained the relevant

permit from the National Water Commission to carry out the draining of

wetlands affected by the national water regimes (italics in original).96

Grupo Manglar further claims that the EISs filed by Aquanova

were deficient as pertains to wildlife and habitat protection. The

Submitter states that the adverse effects on the local wildlife were not

specified, and that no measures were proposed with a view to averting

or mitigating such effects, notwithstanding the data presented by the

company itself in its EIS, which reported that the mangrove and lowland

forest ecosystems are the most important habitats for 84 species of wild

fauna with protected status under Mexican Official Standard NOM-059,

including 4 amphibian, 23 reptile, 48 bird and 9 mammal species.97 The

EISs for Phases II and III and the discharge canal98 indicate the importance of the mangroves and lowland forest as habitat of some of the species listed in NOM-059. The EIS for Phases II and III describes the

negative effects (environmental impacts identified) of clearing vegetation on wild fauna. The EIS concludes that “the components that will

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 45

96. IPGM, p. 8.

97. Ibid., p. 6. The list of species in question is given in Appendix 8 of this factual record.

98. As noted, the Secretariat did not obtain a copy of the EIS for Phase I.
suffer negative impacts area soil, fauna and vegetation and that these

will happen mostly during the construction phase of the project and

diminish during operation and maintenance of the ponds. These

impacts are minimal and will not affect at any time the ecology of the

region.99” The EIS provides as mitigation measures, a restitution and

reforestation program in the areas not destined for the ponds and a

fauna rescue program within the ponds area for Phase II of the project

(previously initiated, according to the EIS); in addition to areas of ecological protection in the area under concession (682 ha of mangroves

within the project area), the protection of the areas not destined for the

ponds and the establishment of wildlife crossings.100

Grupo Manglar further asserts that the authorities failed to effectively enforce the environmental law by allowing Aquanova to persist in

carrying out the works and activities irrespective of its violations of environmental law and the authorizations it had been issued. The Submitter

states that instead of enforcing the law, the authorities signed agreements with the company whereby the latter would “present programs

and studies to correct the irregular situation.101”

According to Grupo Manglar, the ponds were built on the former

sites of the La Culebrilla, Varaderos, El Zapato, and La Herradura

creeks, and the Los Pájaros and El Zapato lagoons.102 Aquanova, for its

part, asserts that the “the design of the facility did not affect the lagoons

mentioned in the Submission, and only those authorized by the National

Institute of Ecology were occupied by the facility.103” From the photographs and maps provided by Aquanova in support of this assertion, it

is not clear whether the aforementioned lagoons were turned into

shrimp ponds.

Grupo Manglar claims that taken together, Aquanova’s environmental impact-related violations severely impacted the forest, wetland,

and mangrove ecosystems of the Municipality of San Blas, accelerating

the disappearance of the habitat of various wildlife species with protected status and local importance, such as the following:

Red-tailed Hawk (Buteo Lizard

jamaicensis) Psittacids

46 FACTUAL RECORD: AQUANOVA SUBMISSION

99. EIS Phases II and III, p. VI-19, IPM-5, Appendix 1.

100. Ibid., p. VII-2.

101. IPGM, p. 7.

102. IPGM, p. 8, and IPA, Appendix 29.

103. IPA, p. 7 and Appendices 29-30.
Mountain Lion (Lyns rufus) Orioles (Icterus spp.)

Margay (Felis Wiedii) Guáquina

Jaguarundi (F. yagovaroundi) Kingfishers (Ceryle and

Ocelot (F. pardalis) Chloroceryle spp.)

White-tailed Deer (Odocoileus Accipiters

virginianus) Flycatchers (Pitangus sulphuratus,

Badger Myiozetetes similis and

Raccoon (Procyon lotor) Megarhynchus pitangus)

Opossum (Didelphis virginiana)

Grupo Manglar states that these ecosystems are also the habitat of

migratory birds, mentioning the following species:

Greater White-fronted Goose American Wigeon (A. americana)

(Anser albifrons) Gadwall (A. strepera)

Canada Goose (Branta canadensis) Northern Shoveler (A. clypeata)

Cinnamon Teal (Anas cyanoptera) Redhead (Aythya americana)

Blue-winged Teal (A. discors) Ruddy Duck (Oxyura

Green-winged Teal (A. crecca) jamaicensis)104

Northern Pintail (A. acuta)

The Secretariat did not receive further information regarding the

status of these species in the area. No further information was developed

by the Secretariat because the focus of the environmental law in question

here is on habitat rather than on the species themselves.

5.4 Aquanova’s Water-Related Authorizations

The LAN provides that concessions are required in order to discharge wastewater into national bodies of water and to use national

waters, with the exception of marine waters (LAN Articles 17, 20, 82 and

88; RLAN Articles 30 and 135). In addition, it is necessary to obtain a permit from the CNA in order to divert national watercourses and the federal zones contiguous to their banks (LAN Articles 100 and 119

paragraph VIII).

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 47

104. IPGM, pp. 6-7.
Aquanova’s EIA of 7 February 1995 provides that the water used to

fill the ponds would be taken from El Varadero creek, which is fed by La

Cegada creek. This authorization did not specify the site of the discharge

from the ponds but did provide that Aquanova must file with INE a map

indicating the exact location of the discharge canal, the sediment trap,

the oxidation ditch and the final point of discharge.105 On 27 June 1995,

INE required the wastewater discharge from the Aquanova ponds to be

located in the area of saltpeter deposits to the southwest of the facility,

unless there was a risk of impact on the El Rey lagoon.106 As mentioned

in the previous section, on 22 March 1996, INE authorized the construction of the discharge canal for Phase I, setting various requirements concerning its effect on La Tronconuda creek and El Rey inlet.107

On 24 April 1998, the CNA informed Aquanova that due to the

location of the water intake for the facility, as well as the concentration of

total dissolved solids and chlorides, these waters are considered marine

waters; therefore, pursuant to LAN Article 17, Aquanova does not

require a concession in order to use them.108

From 1996 until at least June of 1999, Aquanova discharged

wastewater from its ponds into Los Olotes, La Atascosa, La Diabla, El

Sauz, La Tronconuda, Zapata, Carbonera and Garceros creeks, as well as

El Varadero inlet, and into El Sauz and Pericos lagoons, without CNA

authorization.109 Currently, the facility discharges wastewater from the

ponds into the ocean by means of a canal that INE authorized as a supplemental project for Phases II and III of the facility on 15 April 1997.110

Aquanova initiated the procedure to obtain the wastewater discharge permit in February 1998.111 When it began discharging

wastewater in 1996, the company performed physicochemical water

testing through third parties and also using its own environment and

quality control division.112

48 FACTUAL RECORD: AQUANOVA SUBMISSION

105. RSP, Appendix 1, Conditions 20 and 27 of Section Four.

106. IPM-2, Appendix 1, pp. 4-5.

107. IPM-2, p. 4.

108. IPA, p. 7 and Appendix 26.

109. IPGM, p. 9, and RSP, p. 8.

110. Secretariat observation on its visit to Aquanova on 13 March 2002; RSP, p. 4 and

Appendix 4.

111. Aquanova paid the corresponding fees on 20 February 1998; IPA, p. 7 and Appendix

27.

112. IPA, p. 7, Appendix 32. It is unclear from the appendices at which points the analyzed samples were taken.
Grupo Manglar states that although the CNA found that

Aquanova was discharging wastewater without a permit:

... the CNA merely required the company to regularize its situation

“immediately” by applying for and obtaining a permit for wastewater discharge and water diversions (obstructions)...

But it is not evident from the actions and documents of this commission

that any administrative proceeding was ever instituted against Aquanova

based on these irregularities and, consequently, no sanctions were ever

applied as prescribed by Articles 95 and 119 paragraph 1 of the National

Waters Law. 113

Grupo Manglar claims that the authorities did not take any water

quality samples until the month of October 1998, even though in accordance with the EIA for Phase I of the project Aquanova was to have

established a monthly water-quality monitoring program at the project’s intake and discharge points.114 Indeed, the Secretariat has no information indicating that the authorities have taken any water quality

samples at all in the area.

According to Grupo Manglar, the Aquanova wastewater discharges:

... severely affected the water quality of the aforementioned bodies of water

[Los Olotes, La Atascosa, La Diabla, El Sauz, La Tronconuda, Zapata,

Carbonera and Garceros creeks, Varaderos inlet and El Sauz and Pericos

lagoons] and the adjacent coastal waters, to such an extent that they

caused the mortality of various forms of aquatic life (fish, crustaceans, and

mollusks) and mangroves, primarily in the “Los Olotes” and “La Diabla”

creeks, where the mangrove mortality extended over areas of 500 and 100

ha respectively (italics in original).115

On 6 November 1998, the CNA granted Aquanova a concession for

a permanent discharge of aquacultural wastewater at a rate of

2,600,000.00 m3/day or 950,000,000.00 m3/year into the estuarine

zone.116 On 29 August 2000, Aquanova applied to the CNA to amend the

concession by changing the collecting body of water indicated therein

from “estuarine zone” to “coastal zone.” This application is still pending.

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 49

113. IPGM, p. 10.

114. IPGM, Section III, Condition 36, Document D.O.O.P. -0353.

115. IPGM, pp. 9-13.

116. No. 08NAY104898/13DKGE98, IPA, Appendix 28, and Information provided by

Mexico on 22 July 2002 (IPM-4), Appendix 5-B.3.
On 22 April 1999, the CNA notified Semarnap that the quality of

the wastewater discharged by the company complied with the limits set

out in NOM-001-ECOL-1996 and that Aquanova had 3 wastewater discharges only one of which was covered by a permit, and two had permits

pending.117 According to the report of the CNA inspection visit of 2 May

2001, Aquanova has two wastewater discharges: the ocean discharge

canal and a septic tank. Aquanova was found lacking the equipment

necessary to measure its discharges, but the company showed that it calculates the volume discharged based on the time of use of each pump

and the average flow through the supply and discharge pumps.

Aquanova reminded CNA that in connection with a request made as

part of a pending appeal for review, the CNA is in the process of determining whether this flow measurement method is suitable.118

Aquanova also reminded CNA that the company’s request to amend the

ocean discharge permit and the septic tank permit was pending.119 In

view of Aquanova’s clarifications, the CNA determined that there were

no irregularities.120 In that visit, no wastewater samples were taken, nor

did the inspectors verify whether the mechanisms used to determine

contaminant concentrations in the discharges were adequate. According

to the CNA a proceeding that would look into this is pending, although

no further information about it was provided to the Secretariat.121

As discussed above, LAN Articles 100 and 119 paragraph VIII provide that it is the responsibility of the CNA to prevent the construction

and operation of a work from unfavorably altering the hydraulic conditions of a watercourse; they further establish the requirement of obtaining a CNA permit in order to divert national watercourses and the

federal zones contiguous to their banks.

In this regard, Grupo Manglar claims that Aquanova diverted the

Los Olotes, La Diabla, La Cegada, La Tronconuda and La Atascosa

creeks, not only obstructing but also substantially modifying the normal

flow of water, yet these works were not authorized in the environmental

impact assessment procedures for the project or by the CNA.122

50 FACTUAL RECORD: AQUANOVA SUBMISSION

117. RSP, Appendix 13, and IPM-4, Appendix 5-B.3.

118. The information gathered by the Secretariat indicates only that the appeal for

review was filed against the sanctions contained in document no.

B00.00R09.04.4/1277-4130.

119. IPM-4, Appendix 5-B.3.

120. Document no. 003/2001, IPM-4, Appendix 6.

121. IPM-4, Appendix 5-B, p. 2. The attachment concerning this pending proceeding

mentioned in CNA’s communication was not provided to the Secretariat.

122. IPGM, pp. 9-13.
5.5 Aquanova’s Fisheries-Related Authorizations

A concession is required to engage in marine aquaculture, and an

authorization is required to introduce species not endemic to the region

(LP Articles 4 and 15; RLP Articles 44, 50 and 53).123 In addition, persons

engaging in aquaculture must comply with NOM-010-PESC-1993.124

On 3 November 1994, Aquanova obtained authorization from

the Ministry of Fisheries125 to introduce blue shrimp strain SPR—43.126

On 28 September 1998, Semarnap granted Aquanova a concession for

semi-intensive culture and commercial use of blue shrimp (Penaeus

stylirostris) and white shrimp (P. vannamei).127

Aquanova conducted sanitary testing on the shrimp strains

imported for culture from March 1999 to November 2001.128 These tests

concluded that the strains analyzed contained the following:

• Abundant to moderate gram-negative bacteria (causing

pre-enteritic processes and hemocytic enteritis in shrimp) in 5 of

7 shrimp specimens.129

• Abundant to rare intracellular bacteria (causing bacteremia and

necrosis in shrimp) in 5 of 7 shrimp specimens.130

• Traces of infection in up to 5 of 9 shrimp specimens (such as

lymphoid organ spheroids in shrimp, which are an immune

response to infection).131

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 51

123. The Regulation applicable at that time was the one issued on 21 July 1992. It was in

force until 29 September 1999, when it was repealed by the publication of a new regulation.

124. Establishing the sanitary requirements for the importation into national territory of

live aquatic organisms in any phase of development for aquaculture or aquariums;

DOF of 16 August 1994.

125. Both the authorization and the concession were under the jurisdiction of the Ministry of Fisheries until 8 July 1996, when this responsibility was transferred to

Semarnap. Since 10 July 2001, it has been transferred to the Ministry of Livestock,

Agriculture, Rural Development, Fisheries and Food (Secretaría de Ganadería,

Agricultura, Desarrollo Rural, Pesca y Alimentación—Sagarpa).

126. By means of document 212.94/003819, IPA, Appendix 34.

127. IPA, Appendix 35.

128. IPA, Appendix 36. Aquanova provided copies of the reports of the clinical tests performed on the shrimp by the following laboratories: Molecular Pathology Laboratory of the Universidad Autónoma de Nuevo León; “Acuatecnos Asesores” Centro

de Investigación en Alimentación y Desarrollo, A.C.; and the University of Arizona.

129. Tests conducted by Acuatecnos Asesores on 19 April 1999.

130. Ibid.

131. Studies conducted by the University of Arizona on 15 April 1999.
The tests further showed that the tested shrimp were free of the

following diseases listed in Emergency Mexican Official Standard

NOM-EM-003-PESC-2000: white spot syndrome virus (WSSV),

yellowhead virus (YHV) and Taura syndrome virus (TSV).132

In the opinion of the expert that assisted the Secretariat in developing information, Aquanova incorporated some of the concepts of “environmentally friendly shrimp farming” into its management routines,

primarily in terms of a drastic reduction in the water exchange rate in the

ponds, strict sanitary control of the postlarvae, the use of native species

only, a reduction of the protein content in the balanced feed, and the use

of antiseptics and fertilizers of natural origin.133

5.6 Description of the Area in which Aquanova Operates

5.6.1 Background and Introduction

The description of the estuarine zone of San Blas and the conditions of operation of Aquanova in this section are based chiefly on a

technical report produced by independent experts for the CEC Secretariat (Technical Opinion of H. Licón),134 on the information provided

by Aquanova for the development of the factual record,135 the socioenvironmental analysis produced by Grupo Manglar (SocioEnvironmental Analysis),136 and the Secretariat’s visit to Aquanova and

vicinity on 13 March 2002.

52 FACTUAL RECORD: AQUANOVA SUBMISSION

132. Establishing the requirements for determining the presence of viral diseases in live

and dead aquatic crustaceans, their products and subproducts in any form, or brine

shrimp, for introduction into national territory and movement within it.

133. M.C. Héctor Alfonso Licón González, Technical Opinion on the Conditions of Operation, Impacts, and Remediation Actions of Aquanova, S.A. de C.V., Boca Cegada

Unit, in San Blas, Nayarit, Mexico, summer 2002 (Technical Opinion of H. Licón), pp.

26-27. This report was based on an analysis of NALC series Landsat MSS satellite

images for the years 1973, 1986 and 1992 and an ASTER EOS image from 2001; field

exploration; interviews with local persons involved in the matter; a tour of the

Aquanova facilities; and georeferencing with a Garmin GPS III plus. Appendix 7 of

this factual record contains a description of the information to be developed by the

Secretariat through independent experts, which the author used as a starting point.

134. See previous footnote.

135. Previously cited as IPA.

136. Dr. Artemisa Castro Félix, M.C. Maryló Mandujano Herrera, and Douglas Brown,

Ph.D. (cand.), Socio-Environmental Analysis of the estuarine and mangrove zone of

the Municipality of San Blas, Nayarit, 2001. The Ministry of Social Development

(Secretaría de Desarrollo Social—Sedesol), the Nayarit State Ministry of Planning

(Secretaría de Planeación), the Municipality of San Blas, and the company Granjas

Aquanova, S.A. de C.V. funded Grupo Ecológico Manglar, A.C. to carry out this

study as part of the 2001 Sedesol Social Joint Investment Program. The aim of the

analysis is to assess the importance and fragility of the estuarine and mangrove
The Boca Cegada unit of Aquanova is located in the Mexican state

of Nayarit near the port of San Blas. The volcanic ranges of Nayarit converge with the Pacific coastal plain at the Municipality of San Blas. Due

to its location, San Blas harbors a wealth of natural ecosystems, including the wetland zone, which is composed of marshes, inlets and mangrove forest.137 According to the Socio-Environmental Analysis, the San

Blas area comprises 7.1 percent of the area known as the “Marismas

Nacionales,” designated as Ramsar site 732 on 22 June 1995 (Convention

on Wetlands of International Importance Especially as Waterfowl Habitat138).

The Convention on Wetlands, signed in Ramsar, Iran, in 1971, is an intergovernmental treaty that provides the framework for national action

and international cooperation for the conservation and wise use of

wetlands and their resources. The Convention calls on each Contracting

Party to designate suitable wetlands within its territory for inclusion in a

List of Wetlands of International Importance. “Wetlands included in the

List acquire a new status at the national level and are recognized by the

international community as being of significant value not only for the

country, or the countries, in which they are located, but for humanity as

a whole.139”

Mangrove forests are a complex component of wetland ecosystems:

Mangrove forests are among the most peculiar forests in the world. They

grow along the riverine estuaries and protected littorals of the tropical and

subtropical coastal zones and are adapted to intertidal conditions. At high

tide, their crowns protrude from the water. Only at low tide are their

breathing roots visible; these take in atmospheric oxygen and transmit it to

the buried roots. This adaptation enables the plant to survive on muddy

anaerobic soils under highly saline conditions. These species are adapted

to a scarcity of fresh water and can eliminate excess salt through their

leaves.

Mangrove forests are characterized by a homogeneous structure. The

intertwining maze of trees, shrubs, and roots tends to be, in reality, an

ordered structure in which the different mangrove species grow in bands

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 53

zone of the Municipality of San Blas and to present the results of the workshops carried out in 13 communities of the area.

137. Socio-Environmental Analysis, p. 21.

138. Also known as the Ramsar Convention. Mexico signed the Convention on 23 July

1985, and it was published in the DOF on 29 August 1986.

139. There are presently 136 Contracting Parties to the Convention, with 1250 wetland

sites, totaling 107 million hectares, designated for inclusion in the Ramsar List

of Wetlands of International Importance. See <http://www.ramsar.org/profile_

index.htm>.
as a function of their differing degrees of tolerance to periodic tidal flushing, and hence to salt. Thus, red mangroves are usually found on the seaward edge of the mangrove forest, in direct contact with brackish water.

Black mangroves are usually found behind the red mangroves, whilst

white mangroves, less tolerant of salinity, are normally found further

inland on higher-lying soils. 140

Mangrove forests are of great ecological and economic importance.

According to Dr. Flores Verdugo141:

The productivity of mangrove forests is greater than that of tropical rainforests and similar to that of our most efficient tropical crops (sugarcane).

Mangrove forests originally covered three-fourths of the tropical and subtropical coastlines of the planet. Currently, less than 50 percent remains.

These important tropical coastal woodlands are among the most endangered habitats in the world; they are probably disappearing at a more

rapid rate than highland evergreen forests, and they are little known to the

general public. The mangrove ecosystem represents the tree vegetation of

the intertidal zone in tropical and subtropical regions. Mangroves are facultative halophytes that can grow in different ranges of salinity from 0 percent (freshwater) to hypersaline (40-90 percent), but brackish water (~15

percent) offers the optimum conditions for their development...

The benefits of mangrove forests include a great variety of valuable goods,

services, uses, and functions for society, wildlife, and the maintenance of

natural systems and processes. For purposes of economic valuation, the

following should be considered:

Their function in flood control, erosion control, and coastline protection

and as hurricane barriers; as a biological filter that improves water quality

by removing nutrients and toxins; their high fish productivity and function as an auxiliary habitat for fisheries; their function as a wildlife refuge

for endangered, endemic, and migratory species among others, as a zone

of refuge for juvenile crustaceans and fry, and as a gene bank; their use as

routes of travel by human beings; their aesthetic and recreational value

and their cultural and educational significance; their role in preventing the

formation of acid soils; the microclimate they provide for the maintenance

of natural systems and processes by responding to sea level changes, serving as carbon traps, and maintaining processes of accretion, sedimentation, and peat formation.142

54 FACTUAL RECORD: AQUANOVA SUBMISSION

140. Greenpeace; Biodiversity/forests and woodlands, 16 February 2001, “Manglares,

los bosques costeros” <http://www.greenpeace.org.mx/php/gp.php>.

141. Francisco J. Flores Verdugo is an expert on coastal and mangrove ecosystems from

the National Autonomous University of Mexico (UNAM-Mazatlán).

142. Dr. Francisco Flores Verdugo, Environmental Impact Report on Mangrove Ecosystems

of the Boca Cegada Region, San Blas (Nayarit), 24 June 1998, pp. 1-2.
The Socio-Environmental Analysis prepared by Grupo Manglar

highlights the pressures on these ecosystems:

Coastal ecosystems, particularly estuarine and mangrove ecosystems,

besides their ecological importance, are of great economic and social

importance in our country. They are among the earth’s most productive

ecosystems, and in our country they support a high population density,

due primarily to the wealth of natural resources they provide. The pressures being exerted on these systems are very high, since they are the sites

of a large number of simultaneously occurring economic activities, which

cause changes in their dynamics and structure.143

Four mangrove species are found in the vicinity of Aquanova.

They are distributed along a gradient from greater to lesser tidal flooding:

• Rhizophora mangle (red mangrove): characteristic of the zone

that is predominantly or continuously inundated.

• Avicennia germinans (black mangrove): occupies higher areas

than the red mangrove, inland of it, in temporarily flooded areas

with lower frequency of tidal flushing.

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 55

143. Socio-Environmental Analysis, p. 69.
• Laguncularia racemosa (white mangrove): prefers areas that are

predominantly emergent and only occasionally subject to tidal

flushing.

• Conocarpus erectus (buttonwood): grows in emergent areas on

land.144

According to Grupo Manglar, other mangrove species also occur,

including A. nítida (also known as black mangrove), Capparis indica and

Maytenus phyllantoides, as well as middle and lower elevation forest

species such as breadnut tree (Brosimum alicastrum), elephant’s ear

(Enterolobium cyclocarpum), palo mulato or gumbolimbo (Bursera spp.), fig

(Ficus), guamuchil (Pithecellobium sp.) and chalate.145

Mexican Official Standard NOM-059146 classifies the mangroves L.

racemosa (white mangrove) and C. erecta (buttonwood) as species subject

to special protection and R. mangle (red mangrove) as a rare species.

The Socio-Environmental Analysis mentions the valuations of mangrove forest produced by several environmental economists. It indicates

that the annual value of the Mexican mangrove forests may be calculated

in a range between US$6,534,000,000.00 and $12,060,840,000.00.147

Dr. Flores Verdugo estimates “the value of the ecosystem of this zone

[San Blas] at approximately US$40,000.00/ha ($4.00/m2),” including the

costs associated with fisheries, reforestation, and loss of biodiversity.148

Concerning the current extent of the mangrove forest in the area,

the Socio-Environmental Analysis indicates that there is a disparity

between the data reported in the literature and the data produced by the

fieldwork for that analysis. It concludes that this disparity could have

serious environmental consequences during the planning and execution

of development in the region. It states:

For example, with respect to the estimated total area occupied by mangrove-type vegetation, WWF, in a study conducted in the Marismas

Nacionales zone in 1996, reports a total of 10,000 ha for the estuarine zone

of San Blas; whereas Bojórquez et al. (1997) report a total 9,160 ha of mangrove forest for the study area. However, the estimate in this study, which

56 FACTUAL RECORD: AQUANOVA SUBMISSION

144. Technical Opinion of H. Licón, supra 1.

145. IPGM, p. 6.

146. This NOM was repealed on 6 March 2002, with the publication in the DOF of

NOM-059-ECOL-2001, Environmental Protection; Native Mexican Wildlife Species; Risk Categories and Specifications for the Inclusion, Exclusion and Transfer:

List of Species at Risk.

147. Ibid.

148. Flores Verdugo, supra 11, p. 16.
included field verification, indicates that the area occupied is approximately 7,214 ha (field verification of orthophotos, INEGI, 1998).149

Aquanova is located in an area locally known as Isla del Conde,

approximately 13 km due northwest of the port of San Blas. It used to be

a dry area in a coastal floodplain, although it is currently only inundated

during periods of intense rainfall or during extreme weather events.

The Socio-Environmental Analysisindicates that human activities in

the region have caused a loss of mangrove areas and low and middle elevation forest, replacement of salt marshes by freshwater marshes, erosion, altered hydrological patterns, tidal obstructions, elimination of

protected bird species, soil degradation, and water pollution. It states

that the main activities and infrastructure causing these impacts are the

Aguamilpa dam on the Rio Grande de Santiago, highways and roads,

the electric dike, felling and clearing for small farms, expansion of

croplands and extensive grazing, human settlement, and the construction of small levees in shallow-sloped areas to establish extensive

aquaculture facilities.150

Several nongovernmental organizations whose mission is to protect mangrove forests151 and the signatories of the San Blas Declaration

for the Defence of Mangroves (San Blas Declaration), concur that human

activities like those mentioned above have caused environmental problems in the area. In this declaration, small-scale fishermen of San Blas

and representatives of organizations and institutions (the identity of the

signatories is not specified in the information available to the Secretariat) put forward a 17-point proposal to solve the priority problems and

offered general comments and proposals on aquaculture regulation in

Mexico.152 The San Blas Declaration summarizes the problems of San Blas

as follows:

With deforestation and the loss of plant cover, mountain soils are subject

to erosion, the sedimentary material reaches the beds of rivers and streams

and is transported from the highlands to the coastal areas. In the case of the

San Blas area, the sediment is transported by the Rio Grande de Santiago

and the Huiscicila basin. From 1970 on, this erosion worsened due to the

intense deforestation in the higher parts of these watersheds. The most

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 57

149. Socio-Environmental Analysis, p. 92.

150. Socio-Environmental Analysis, pp. 30-32.

151. Mangrove Action Project, Greenpeace and Redmanglar. Information provided to

the Secretariat by Alfredo Quarto on 14 February 2002, and by Jesús Silva Gámez on

13 March 2002.

152. Greenpeace and Redmanglar, Buscando aliados para defender nuestras costas.
important effect was the growth of the continental shelf and the concomitant threat to the region’s wetlands.

However, the greatest threats to the San Blas wetlands are posed by

anthropogenic effects such as the obstruction of the El Rey inlet; the San

Blas-Guadalupe Victoria highway; the Aguamilpa dam; the Viejo El

Conchal bridge; the shrimp farming industry; demographic growth, and

unsuitable fishing methods.

For the residents of San Blas, the greatest threat to the wetlands in recent

years has come from the shrimp farming projects, due to their destruction

of valuable ecosystems and contamination of others that are dead or

dying. One immediate impact on the local economy has been the decline in

fish populations in the vicinity of the projects. Currently there are 4,000 ha

of shrimp ponds in this municipality.153

5.6.2 Description of the San Blas Estuarine and Mangrove Zone154

This section describes the current condition of the wetlands and

critical habitat of Aquanova’s area of influence, based on the interpretation of satellite images and on GPS georeferenced field data.

The images from the years 1973, 1986, and 1992 show the changes

to the region prior to the establishment of Aquanova, due to land use

changes, alterations in the flow pattern of the El Rey-El Pozo inlet system, and changes in the course and volume of the Rio Grande de Santiago.

The image from 2001 shows the changes to the area following the

establishment of Aquanova.

1973 Image

In the 1973 image, the following may be observed in the area:

• El Rey inlet communicates directly with the ocean; water

exchange due to tides favors the establishment of an extensive

flood-prone area.

• There is a small creek linking the El Rey and El Pozo inlets, but

this natural watercourse is not a broad, navigable channel; it is

merely an incipient connection.

58 FACTUAL RECORD: AQUANOVA SUBMISSION

153. Greenpeace, p. 41.

154. Unless otherwise indicated, the content of this section is taken from Technical Opinion of H. Licón, supra footnote 128.
• At Aquanova’s future point of discharge there is a large evaporation area without significant mangrove communities that is

under the influence of water exchange through El Rey.

1986 Image

Thirteen years later, the following changes may be observed in the

area:

• A stone dike now blocks direct communication between El Rey

inlet and the ocean, and there is communication between El Rey

and El Pozo inlets. The dike forces tidal exchange through El

Pozo via the new connection, such that the water flow itself

keeps the new channel navigable.155

• The obstruction of El Rey led to a significant reduction in the

inundated area at the site of the future facility. It is possible that

the reduction in tidal exchange volume had the effect of concentrating the water in the canals of the area, and causing Los

Olotes, La Tronconuda, La Atascosa and La Diabla creeks to

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 59

155. Apparently the purpose of this structure was to give San Blas fishermen more direct

access to El Rey through El Pozo. Without this, they had to detour via the open ocean

to gain access to the mouth of El Rey.
become more defined. These creeks apparently took on greater

importance as critical habitat with the shrinkage of the floodprone area. The area no longer subject to regular flushing began

to be colonized by more intermediate vegetation.

• A significant change can be seen in the channel of the Rio

Grande de Santiago. This is due to both natural causes and,

apparently, the damming of the river. The riparian wetlands

“moved” to the new channel and their former locations are colonized by species adapted to drier conditions.

• The course of La Cegada creek remains stable.

1992 Image

• The flood-prone area and the evaporation area have shrunk further and land predominates, tending to be colonized by

mesophytic vegetation.

• The channel of the Rio Grande de Santiago has continued to be

altered.

• La Cegada creek remains stable.

60 FACTUAL RECORD: AQUANOVA SUBMISSION
2001 Image

This image represents the conditions in the area after approximately six years of operation by Aquanova.

• The replacement of the lowland forest, wetland and mangrove

habitats by the company’s infrastructure is visible. As an estimate, approximately 85 percent of the affected area corresponded to second-growth vegetation or lowland forest

modified by agriculture, and the remaining 15 percent corresponded predominantly to wetlands. The available images do

not allow determination of the exact percentage of each type of

mangrove in retrospect, but direct observation during the field

visit by H. Licón indicated that at least 50 percent of the wetland

area corresponded to occasionally inundated areas.

• One can observe the intersection and blocking of the natural

channels of Los Olotes, La Tronconuda and La Diabla creeks by

the installation and operation of the facility’s discharge canal.

• La Cegada, or at least the trajectory of its channel, has apparently remained stable. It is possible that the mangrove species

composition and structure along this body of water has been

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 61
altered, but the field visit by H. Licón did not produce reliable

evidence to that effect.

• There is a considerable area of silting in El Rey inlet, most likely

due to the construction of the dike.

5.6.3 Status of La Cegada, Los Olotes, La Tronconuda, La Diabla and La

Atascosa Creeks156

La Cegada is the natural creek from which the facility takes water

for its operations. Los Olotes, La Tronconuda, and La Diabla creeks are

intersected by the ocean discharge canal built by Aquanova for Phases II

and III of the facility. La Atascosa creek is located by some reports as

intersecting the discharge canal, by others as being parallel to it.157

62 FACTUAL RECORD: AQUANOVA SUBMISSION

156. Unless otherwise indicated, the content of this section is taken from Technical Opinion of H. Licón, supra footnote 128.

157. H. Licón explains that the official maps available (1:50,000 topographic map, INEGI,

1995) do not show all points of interest. He indicates that these maps are derived by

photogrammetry from aerial photos taken in November 1970, and as such the information they contain is obsolete and does not represent the current physical appearance of the area; nor do they show relevant structures such as highways, dikes, etc.

Consequently, the description of the area contained in Technical Opinion of H. Licón is

based on the creek identifications made by Juan Francisco García Rodríguez of

Grupo Manglar, taking the INEGI topographic map and the display of an ASTER

image as references.
Pursuant to the 30 March 1998 agreement with Profepa, Aquanova

undertook to finance a study to determine the scope of its responsibility

for the apparent harm in the vicinity of the discharge canal, and to

remedy any existing harm found.158 This study was performed by

Dr. Francisco Flores Verdugo, a researcher at the Marine Sciences and

Limnology Institute of UNAM, who was designated by Profepa, and Dr.

Roy R. Robinson Lewis, a salt marsh specialist, who was designated by

Aquanova. These experts concluded that Aquanova’s responsibility is

partial. They identified as principal causes of the harm to the mangrove

forest the blocking of El Rey inlet in 1974-1975 and the blocking of Los

Olotes creek (Aquanova’s responsibility).159 According to Dr. Flores

Verdugo:

The total affected area of mangrove forest in the zones adjacent to Los

Olotes and La Diabla creeks was estimated at 125.6 ha... In the case of Los

Olotes creek, the southern part was strongly affected by the activities of

this company when it temporarily (19 months) blocked the tidal influence

from Asadero inlet... It is estimated that 58.6 ha of mangroves were lost

due to this action, including fringe mangrove forest on Los Olotes..., the

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 63

158. IPA, pp. 5-6, Appendix 21. Section 5.3.3 of this factual record details the circumstances surrounding this administrative agreement.

159. Flores Verdugo, pp. 10 and 13; and Dr. Roy R. Robinson Lewis, letter of 23 March

1998, concerning recent inspection at San Blas Blas, Nayarit site (in English), pp. 1-2

(IPA, Appendices 23 and 24, respectively).
tributary creeks (El Zapato), and an area of basin mangrove forest on both

[banks] of Los Olotes. The principal mangrove species affected was

fringe-type black mangrove (Avicennia germinans), which has a hydraulic

relationship with the creek as observed by examining the tree growth patterns. The type of thickets that are functionally related to the marsh were

not notably affected....160

Dr. Robinson Lewis also concluded that the visible harm to part of

Los Olotes creek and to La Diabla creek was the result of Aquanova’s

operations, in particular the obstruction of the creeks by the construction

of the ocean discharge canal.161

Aquanova undertook to restore 50 ha of affected mangroves in Los

Olotes creek, to conduct semi-annual monitoring during the first year,

and to conduct annual monitoring during the subsequent nine years.162

The Mangrove Restoration Program undertaken by Aquanova is based

on the technical recommendations of these experts.163

The status of these creeks in the summer of 2002 was as follows:

La Cegada.This creek supplies the sump of the facility’s water supply canal. The watercourse, or at least its trajectory, is apparently stable

and there are no evident signs of obstruction. The mangrove composition is similar upstream and downstream of the sump and with respect

to comparable creeks not affected by the facility.

Water supply station at La Cegada.

64 FACTUAL RECORD: AQUANOVA SUBMISSION

160. Flores Verdugo, Executive Summary.

161. Robinson Lewis, pp. 1-2.

162. IPA, p. 6, Appendices 23-24.

163. IPA, Appendices 23-24.
Los Olotes. This is the first creek crossed by the discharge canal. In

1997, Aquanova placed an obstruction on this creek, blocking water circulation and navigation on it. In early 1998 Aquanova removed the

obstruction, and in April 1999 it completed the hydraulic structures that

keep the flow of the farm’s discharge water separate from the neighboring bodies of water.164 The natural flow in Los Olotes creek was restored

by installing pipes and a pumping system, that channel the discharge

water under Los Olotes creek to the ocean. Aquanova also installed a

metal bridge over this creek for vehicles.

The following diagram illustrates the Los Olotes hydraulic structure:

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 65

164. IPA, pp. 3-4, Appendix 31.
In order to remedy the harm suffered by this creek due to the

obstruction, Aquanova is carrying out a reforestation program on a 50 ha

area along this creek.165 The program is based on restoring water flow

and either introducing new plants or promoting recolonization by the

species present in surviving areas near each remediation point.166 The

reforestation work is evident at various points of Los Olotes creek. In the

opinion of Héctor Licón, the approach taken by Aquanova is the most

appropriate one and the program has had success; however, he cautions

that efforts must be enhanced in order to fully restore the affected areas.

La Tronconuda. This is the second creek between the start of the

discharge canal and the site of the ocean outfall. It is not currently

obstructed although dead tree trunks are visible, probably due to the

combined effect of the reduction in the flood-prone area due to the dike

built on El Rey inlet and the period of time during which the creek was

obstructed by the facility’s discharge canal. There is no pumping system

on La Tronconuda, as there is on Los Olotes, to allow the facility’s

wastewater to circumvent the creek. In this creek, the surface flow is

from the facility’s discharge, and Aquanova installed pipes on the bed

(diameter greater than 32 inches) to connect the north and south sections

of the creek. In this creek, Aquanova also carried out reforestation under

the previously mentioned principles, with evidence of success. In the

opinion of Héctor Licón, the environmental quality of this creek is gradually recovering following the installation of the pipes and due to the

reforestation actions. However, he cautions that it is very important that

these pipes continue to operate free of obstruction and that they be stabilized in place, with a sufficient slope to maintain water flow by means of

gravity during both ebb and flood tides.

La Diabla. This creek is located between La Tronconuda and the

ocean, shortly before reaching the beach. Aquanova also installed a piping system here to resolve the problem caused by the intersection of the

discharge canal with the natural channel of the creek. The pipes have

helped to improve circulation in the creek by restoring the connection

that had been broken by the facility’s discharge canal, and there is active

flow in the creek under high tide conditions. However, there is no evidence that reforestation has been carried out along this creek. The deterioration of the mangrove specimens is evident; the majority are dead

trees or isolated young specimens in poor condition.

66 FACTUAL RECORD: AQUANOVA SUBMISSION

165. IPA, p. 6.

166. IPA, p. 6; IPM-1, pp. 4-5, Appendices 21-26.
La Atascosa. Opinions differ as to whether this creek runs parallel

to the facility’s discharge canal (as asserted by Francisco García R. of

Grupo Manglar) or whether it crosses it near the point where the discharge canal departs from the ponds and the sump (as asserted by

Javier Suárez T. of Aquanova). Aquanova asserts that pipes have been

installed in this creek as well, and that reforestation actions are taking

place. Flowing water and recovering mangroves were visible.

The piping system installed by Aquanova in La Tronconuda, La

Diabla and La Atascosa creeks is diagrammed in the following photograph:

6. Facts Presented by the Secretariat in Relation to the Matters

Raised in the Submission

This factual record addresses whether Mexico is failing to effectively enforce its environmental law with respect to the Granjas

Aquanova, S.A. de C.V. shrimp farming company in Boca Cegada,

Nayarit referred to by Submission SEM-98-006, filed 20 October 1998 by

Grupo Ecológico “Manglar,” A.C. In particular, the factual record refers

FACTS PRESENTED BY THE SECRETARIAT 67
to the alleged failure to effectively enforce various provisions of the

LGEEPA, the LF, and NOM-062 in relation to environmental impact; the

LGEEPA, the LAN and the RLAN in relation to water; the LP and the

RLP in relation to fisheries, and the CPF in relation to environmental

crimes.167

6.1 Environmental Impact-Related Enforcement with

Respect to Aquanova

In the Submission that gave rise to this factual record, Grupo

Manglar asserts that Mexico is failing to effectively enforce the environmental impact requirements contained in the LGEEPA, the LF,

NOM-062, and the three environmental impact authorizations applicable to Aquanova. In its Response, Mexico asserts that the environmental

authority conducted inspection visits, held working meetings, and took

collateral action, all of which represents the effective enforcement of the

environmental impact requirements with respect to Aquanova. Mexico

states in its Response that the limits and conditions established in the

environmental impact authorization are the limits within which

Aquanova’s activities “could have been viable from an environmental

standpoint.168” The Secretariat recommended the development of this

factual record in order to understand how those actions contributed to

compliance with those limits and the aforementioned environmental

law.169 The facts relevant to this matter are presented below.

As stated previously, obtaining an environmental impact authorization from Semarnat and complying with terms and conditions are

obligations of anyone who carries out works or activities that may cause

ecological imbalance or exceed the limits and conditions established in

the applicable regulations and standards (LGEEPA Article 28). Likewise, anyone who effects forest land use changes must obtain prior

authorization from Semarnat (LF Article 19 bis 11). The NOM-062 provides that the only types of projects that may be evaluated (prior filing of

an EIS) are those that involve sustainable use of land or other resources

and do not involve land use changes or entail the local disappearance of

species of flora or fauna listed in the relevant Mexican Official Standard

68 FACTUAL RECORD: AQUANOVA SUBMISSION

167. The relevant provisions are cited verbatim in section 3 of this factual record.

168. RSP, p. 4.

169. SEM-98-006, Article 15(1) Notification to Council that Development of a Factual

Record is Warranted, p. 31.
as rare, threatened, endangered, or subject to special protection and of

their habitat (NOM-062, point 4.7).

In 1995 and 1996, Aquanova obtained an EIA from INE for the various phases of the shrimp-farming project (Phases I, II, III and ocean

discharge canal). INE subjected these authorizations to multiple conditions, whose principal aim was to prevent the destruction of species with

protected status (including various mangrove species) and their habitat

and to preserve water quality in the estuarine zone. Aquanova carried

out the construction work for the first phase of the facility in violation of

some of these conditions because it considered them to be illegal, and in

April 1995 requested an amendment of the EIA. In June 1995, INE

amended and annulled certain conditions of the EIA for the first phase of

the project; principally, the prohibition on establishing camps, the prohibition on removing mangroves and other vegetation, and the obligation

to carry out a mangrove replanting program.

Also in April of 1995, prior to the INE amendments to the EIA for

the first phase of the project, Profepa detected violations of the conditions set out in the EIA; principally, the establishment of expressly prohibited camps, the unauthorized destruction of mangroves and other

vegetation, unauthorized forest land use changes, and the failure to

implement a program to salvage and replant the removed vegetation.

Initially it fined Aquanova P$100,000.00 and ordered corrective measures but, following the appeal for review brought by Aquanova and the

amendments to the EIA approved by INE, in December 1997, Profepa

rescinded the corrective measures order and reduced the fine to

P$29,095.00. Also during this phase of the project, in February 1996,

Profepa found that Aquanova had failed to obtain a land use change

authorization prior to clearing 15.9 ha, including 3.25 ha of mangroves,

in the area of the discharge canal, and fined Aquanova P$48,800.00.

In the second phase of the project, in response to a citizen complaint, Profepa detected the death of 50 ha of mangroves due to the

obstruction (authorized by INE) of Los Olotes creek in order to build

the facility’s ocean discharge canal. Profepa and Aquanova signed an

administrative agreement that terminated the enforcement proceeding

initiated following the citizen complaint, and created a committee of

experts, which determined that Aquanova was partially responsible for

the harm suffered by the mangroves in Los Olotes and La Diabla creeks.

As a result of the experts’ report, Aquanova built hydraulic structures

and initiated a Mangrove Restoration Program in these creeks in 1999.

FACTS PRESENTED BY THE SECRETARIAT 69
6.2 Water-Related Environmental Law Enforcement with

Respect to Aquanova

As discussed above, the CNA is responsible for enforcing the

LGEEPA and LAN for the prevention and control of water pollution. A

CNA permit is required to discharge wastewater into national bodies of

water and to use national waters (except marine waters). Wastewater

discharged shall not exceed the maximum contaminant limits set out in

the Mexican Official Standards or the particular conditions of discharge,

and wastewater that does exceed them shall be treated before being discharged. The users of national waters must pay the applicable fees, monitor the quality of their discharges, and report the results periodically to

the authorities (LAN Articles 17, 20, 82, and 88; RLAN Articles 30 and

135). CNA authorization is required in order to divert national watercourses and the federal zones contiguous to their banks (LAN Articles

100 and 119 paragraph VIII).

In the Submission, Grupo Manglar asserts that Mexico is failing to

effectively enforce these provisions. Mexico’s Response indicates that

according to the CNA, Aquanova met its wastewater discharge and

water use obligations, and that INE had authorized the watercourse

diversion. The Secretariat recommended the development of this factual

record in order to verify this compliance and ascertain the actions taken

by the CNA in enforcing the relevant provisions.170 The facts relevant to

this matter are presented below.

Aquanova takes water from La Cegada creek for the facility’s

ponds. Use and discharge began in approximately mid- to late 1996, and

Aquanova reports that it conducted the first water quality studies in

November of that year.171 On 24 April 1998, the CNA determined that

Aquanova’s water use did not require a concession since the waters in

question were marine waters. On the other hand, a concession was

required for discharges to the estuarine zone. On 6 November of that

year, the CNA granted Aquanova a concession to discharge a volume of

950,000,000 m3/year.

Aquanova does not have water meters at the intake or discharge

points; instead, it determines the volume of water extracted and discharged by taking readings on the corresponding pumps. Aquanova

conducts water quality analyses through an independent laboratory and

its own laboratory. It does not have a wastewater treatment system

70 FACTUAL RECORD: AQUANOVA SUBMISSION

170. Ibid.

171. IPA, p. 7, Appendix 32.
because, according to its own water quality monitoring, it does not

exceed the maximum contaminant limits set out in NOM-001. The CNA

conducted an inspection visit on 2 May 2001, on which it detected no

irregularities. However, the visit did not include water measurement

and analysis, which is allegedly the subject of a pending proceeding. As

required by the Federal Rights Law, Aquanova paid fees for the use of

national waters as a repository for wastewater discharges from the first

quarter of 1997 to the first quarter of 2001.

Aquanova discharged wastewater from its ponds into La

Tronconuda marsh starting in 1996, and into the ocean as of 1998. As

stated above, the ocean discharge canal initially obstructed Los Olotes

creek and caused the death of 50 ha of mangroves. Following a citizen

complaint and the intervention of the authorities, Aquanova removed

the obstruction and built a structure whereby the discharge is piped

under Los Olotes creek. In order to limit the impact on the creeks located

between this point and the ocean, Aquanova installed piping to direct

the water flow in La Tronconuda, La Atascosa and La Diabla creeks

underneath the discharge canal.

6.3 Fisheries-Related Environmental Law Enforcement with

Respect to Aquanova

Grupo Manglar asserts in its Submission that Mexico has failed to

effectively enforce the LP and the RLP by introducing a commercial

shrimp species (blue shrimp strain SPR—43) which allegedly harbors

viral diseases that affect shrimp.172 Grupo Manglar indicated that more

than five hundred fishermen have been economically affected by the

high mortality of the fish species they typically catch as well as the

obstruction of several creeks over which they traveled to carry out their

fishing activities.173 Mexico’s Response denies these assertions. The

Secretariat recommended the development of this factual record in

order to verify compliance by Aquanova in this matter and ascertain

whether and how the cited environmental law was enforced for the protection of the fisheries in relation to the species introduction.174

The LP and its Regulation set forth the requirement of obtaining an

authorization to introduce species and obtaining a concession to engage

FACTS PRESENTED BY THE SECRETARIAT 71

172. Submission, p. 5.

173. The Submission states that the volume of fish decreased by 80 percent in the area of

San Blas and by 100 percent on the left bank of the Río Grande de Santiago (p. 5).

174. SEM-98-006, Article 15(1) Notification to Council that Development of a Factual

Record is Warranted, p. 23.
in aquaculture activities, which are subject to certain sanitary standards

(LP Articles 3 paragraph VIII and 24 paragraph XXIV; RLP Articles 44, 48

and 50).

On 3 November 1994, Aquanova obtained authorization to introduce blue shrimp strain SPR—43,175 and on 28 September 1998, it

obtained a concession to engage in semi-intensive culture and commercial use of blue shrimp (Penaeus stylirostris) and white shrimp (P.

vannamei).176

Grupo Manglar asserts that viral diseases occur in the production

of the shrimp species introduced by Aquanova. Aquanova conducted

sanitary testing on the shrimp strains imported for culture from March

1999 to November 2001. The shrimp specimens tested were free of three

viruses that may affect shrimp, the white spot syndrome virus (WSSV),

the yellowhead virus (YHV) and the Taura syndrome virus (TSV).177

The Secretariat confirmed the perception of some local fishermen

that fish catch has decreased in the area and that the facility’s activities

negatively affected fish populations, but it was unable to obtain specific

information on the impact of the introduction of these species on local

fishing.178 According to Héctor Licón:

Fish populations in El Rey inlet declined concurrently with a generalized

decline of the system, as evidenced by accelerated silting and the gradual

loss of sizeable red mangrove areas...

Insofar as the decline in fish production is due to the silting and loss of red

mangrove in El Rey inlet, it does not appear to be a consequence of

Aquanova’s operations, but rather an effect of the dike built in the early

1980s.

In the case of the inshore fishermen working in the immediate vicinity of

Aquanova, the information they provide points toward a short-term

increase in catch size in the discharge and in the areas associated with the

water supply canal. The main species concerned are shrimp, mullet,

porgy, and crab, but in general they note a reduction in the diversity of

available species. The perception of declining catch appears to relate to the

72 FACTUAL RECORD: AQUANOVA SUBMISSION

175. By means of document 212.94/003819, IPA, Appendix 34.

176. IPA, Appendix 35.

177. IPA, Appendix 36. Aquanova provided copies of the laboratory tests performed on

shrimp by the following laboratories: Molecular Pathology Laboratory of the

Universidad Autónoma de Nuevo León; “Acuatecnos Asesores” Centro de

Investigación en Alimentación y Desarrollo, A.C.; and the University of Arizona.

178. Technical Opinion of H. Licón, pp. 39-41.
significant shrinkage in their historical fishing grounds, primarily due to

the dramatic reduction in the flood-prone area.179

As part of the cooperation efforts that followed the filing of the submission, on 22 December 1999, Aquanova reached an agreement with

representatives of the competent authorities, members of civil society

(including Grupo Manglar), local fishermen, and other interested parties. In response to the complaints of reduced access to fisheries by fishermen in the area, Aquanova agreed to “allow organized fishermen to

exploit all species found in the southeast drain of the facility’s discharge,

subject to compliance by the fishermen with the applicable law.180”

The agreement also addressed other concerns, including rights of way

through Aquanova’s property to access grazing land; the reassertion of

Aquanova’s commitment to restoring the affected mangrove areas in

Los Olotes and La Diabla; abandoning the phase III expansion of the

ponds, and committing to provide partial funding for a study of socioeconomic of the development needs of the area, among others.

6.4 Enforcement of Law Governing Environmental Offenses with

Respect to Aquanova

In its citizen complaint of 3 August 1998, Grupo Manglar stated

that Aquanova’s violations constitute offenses under LGEEPA Article

183, which provides penalties for anyone who causes (produces, authorizes, or orders) serious harm to flora, fauna, or ecosystems.181

The CPF establishes the applicable fines and prison terms for

unauthorized performance of any activity that harms the environment,

such as destruction of mangroves and draining of wetlands (CPF Article

416 paragraph II).

According to Environmental Offenses Section (Fiscalía Especializada para la Atención de los Delitos Ambientales) “C” of the Office of the

Attorney General of the Republic, an action was instituted against

Aquanova on 4 September 1998 for the offense defined in CPF Article

416 paragraph II.

FACTS PRESENTED BY THE SECRETARIAT 73

179. Technical Opinion of H. Licón, pp. 40-41.

180. IPA, Appendix 25.

181. IPGM, p. 8, and Submission, Appendix 8. The provisions of the LGEEPA that formerly characterized environmental offenses were repealed by Decree published in

the DOF on 13 December 1996 which added an environmental offenses chapter to

the CPF; that chapter took effect on 14 December 1996.
On 16 March 2000, the Attorney General’s Office “determined that

criminal prosecution was inapplicable since one element of the corpus

delicti was missing; to wit, the normative element of the absence of the relevant authorization, since such authorization was in fact issued by the

National Institute of Ecology. That decision was approved by memo

no. 99/2000 signed by Deputy Prosecutor for Criminal Proceedings

(Subprocurador de Procedimientos Penales) ‘C’ (italics in original).182” The

Secretariat has no information about whether the Attorney General’s

Office considered whether Aquanova went beyond INE’s authorization.

6.5 Summary of Acts of Environmental Authority with Respect

to Aquanova and Consequences of Filing of Submission

SEM-98-006

Between 19 April 1995 and 20 June 2002, Aquanova received a total

of 13 inspection visits (12 by Profepa and 1 by CNA). Of these visits, 5

were to verify compliance with the conditions established in its environmental impact authorizations;183 3 were to verify compliance with the

corrective measures imposed by the authorities;184 3 were to verify compliance with the actions undertaken in the administrative agreement of

March 1998,185 and 2 were to verify compliance with the conditions of

the other authorizations.186

Appendix 9 of this factual record contains a table summarizing

those acts of the environmental authorities with respect to Aquanova of

which the Secretariat is aware.

Grupo Manglar maintains that the facility was authorized in violation of the environmental law and that Mexico failed to effectively

enforce that law despite the violations committed by Aquanova in the

initial phase of the project.187 However, Grupo Manglar acknowledges

that Aquanova took significant restoration actions. The following is a

74 FACTUAL RECORD: AQUANOVA SUBMISSION

182. IPM-1, pp. 5-6.

183. Those of 19 April 1995 (IPM-1, Appendix 1), 17 May 1995 (IPM-1, Appendix 4), 16

December 1997 (IPM-1, Appendix 11), 18 February 1998 (IPA, Appendix 15), and 21

May 1999 (IPA, Appendix 16).

184. Those of 20 April 1995 (IPM-1, Appendix 2), 9 May 1995 (IPA, Appendix 9) and 17

November 1997 (IPM-1, Appendix 8).

185. Those of 10 March 2000 (IPM-1, Appendix 26), 11 May 2001 (IPM-1, Appendix 27)

and 20 June 2002 (IPA, Appendix 20). That record ensues from the administrative

agreement of 30 March 1998 and sets forth a reforestation and monitoring program

for which Aquanova is responsible (IPM-1, Appendix 14).

186. Those of 22 January 1996 (of which no copy was provided to the Secretariat) and 2

May 2001 (IPM-4, Appendix 6).

187. IPGM, p. 8.
summary of the views of Juan Francisco García Rodríguez of Grupo

Manglar about the positive consequences of his group’s filing of the Submission with the CEC on 20 October 1998. He explains:

The Submission originated when local fishermen approached Grupo

Manglar, A.C. and the two parties determined that they shared a concern

to preserve the quality and health of the inlets and creeks located within

the area of influence of the shrimp farm.

...The filing of the Submission with the CEC had positive effects, since it

gave rise to actions in response by the company, the authorities of the three

levels of government, society at large, and environmental nongovernmental organizations.

Following the initial clash of opposing positions between the facility and

the environmentalists, and subsequent to the formal submission to the

CEC, there was an extremely significant period of rapprochement

between the different stakeholders. The company’s initial attitude toward

the NGOs and the general public was clearly rectified, and in parallel, as it

began to accept its responsibility, the generalized animosity toward it has

begun to subside.

We [Grupo Manglar] acknowledge that it has taken significant steps to initiate the process of remediation of the errors committed and has adopted a

more open and cooperative stance towards the community; however, it is

necessary to establish a mechanism enabling society to become aware of

and obtain first-hand information on the problems and the goodwill of

this company...188

On its visit to San Blas on 13 March 2002, the Secretariat witnessed

the ties of communication and cooperation established among the representatives of certain sectors of society in San Blas who are interested in

the environmental situation in the estuarine zone.

6.6 Current Factual Status of Aquanova and the Surrounding Area

Aquanova operates in the estuarine zone of San Blas, primarily in

an area known as Isla del Conde and in the adjacent portion of the

Zofemat to which it holds a concession. It employs 240 persons and

produces approximately 1,500 tons of shrimp annually. The facility

currently consists of 109 ponds of 10 ha each. According to one approxiFACTS PRESENTED BY THE SECRETARIAT 75

188. Technical Opinion of H. Licón, pp. 25-26 (summary of most relevant points of the conversation held 2 June 2002 between M.C. Héctor A. Licón G. and Juan Francisco

García Rodríguez of Grupo Ecológico Manglar A.C.).
mation, the facility occupies an area of at least 1,300 ha, which was previously occupied by mangroves (15 percent) and by second-growth

vegetation or lowland forest (85 percent).189 Another approximation

indicates that Aquanova removed at least 52 ha of mangroves (42 in

Phase I without authorization as well as 10 in Phase II).190

The facility takes water for its operations from Boca La Cegada,

which is associated with Varaderos creek, and discharges wastewater

from the ponds into the ocean via a canal that is piped under Los Olotes

creek by a pumping system, and passes above the piped flow of La

Diabla, La Atascosa and La Tronconuda creeks. Aquanova built these

hydraulic structures in early 1999 to repair the harm caused to Los

Olotes and La Diabla creeks by the construction of its discharge canal.

The facility does not have a treatment system since, according to its own

water quality monitoring, its wastewater does not exceed the contaminant limits of NOM-001.

In an additional measure to repair the harm caused by the construction of its ocean discharge canal, Aquanova implemented a Mangrove Restoration Program in mid-1999. This program is based on the

recommendations of the experts who assessed the harm to the area, and

pursuant to an agreement with Profepa.

The area where Aquanova is located was subjected to other significant environmental impacts prior to the company’s arrival, including:

• The land use changes on the alluvial plain caused by agricultural and grazing activities that entailed considerable clearing

of lowland forest.

• The building of the dike that cut off direct communication

between El Rey inlet and the ocean and negatively impacted

critical habitat on the floodplain adjacent to the facility.

• The changes in the course and volume of the Rio Grande de Santiago due to the combined effects of natural changes in the river

channels and the damming activity on this important watercourse.191

76 FACTUAL RECORD: AQUANOVA SUBMISSION

189. Technical Opinion of H. Licón, p. 13.

190. IPM-1, Appendix 6 (appeal for review filed by Aquanova on 6 September 1995), and

RSP, Appendix 3 (authorization to remove mangroves, Phase II).

191. Technical Opinion of H. Licón, p. 26.
The Secretariat’s expert and authorities that visited this area in the

period from March 2000 to June 2002 reported the gradual regrowth of

the mangroves in the area of the Mangrove Restoration Program. However, Héctor Licón cautions that:

Even though the company has taken action to improve its environmental

record, this action is not sufficient in and of itself to reverse the major

impact on this area. As long as steps are not taken to gradually restore the

original flow pattern in El Rey inlet and to adopt an integrated regional

land management program, one should not expect a spectacular recovery

of the impacted environments.192

Similarly, Dr. Robinson Lewis indicates that “if such efforts [to

restore the water flow in the area] are not undertaken by the responsible

governmental agencies in Mexico, a collapse of the entire El Rey

estuarine subsystem of the San Blas estuarine ecosystem can be expected

within 10-20 years.193”

Cooperation among various sectors of society in San Blas to meet

the environmental challenges around Aquanova following the filing of

the submission augurs well for the recovery of the area. The value of this

cooperation is especially important now in that, as this factual record

was being completed, the region was confronting unexpected challenges. Specifically, on 25 October 2002, Hurricane Kenna severely

affected the San Blas area. Winds of up to 230 km/h were recorded during a 45-minute period, along with a sea level increase of approximately

8 meters. San Blas and neighboring communities suffered severe physical damage, and were subsequently beset by significant health risks

from diseases caused by the prolonged flooding of the area. The environmental impact has not been assessed in detail, but preliminary

reports mention the loss of approximately 400 m of mangrove along the

beach, severe silting of La Cegada creek, destruction of mangroves in the

creeks of the area, eutrophication of the creeks due to the obstruction of

the water flow by the accumulation of dead trees, and mortality of a

great deal of aquatic wildlife. The damage to the Aquanova facility

appears to have been severe as well, with heavy loss of product and the

destruction of its warehouses and electrical system.194

FACTS PRESENTED BY THE SECRETARIAT 77

192. Technical Opinion of H. Licón, p. 27.

193. Robinson Lewis, p. 1.

194. Telephone conversation with Nayarit State Fisheries Officer (Subdelegado de Pesca)

Julio Gómez Gurrola on 7 November 2002.
7. Closing Note

Factual records provide information on alleged failures to effectively enforce the environmental law in North America that may assist

submitters, the NAAEC Parties, and other interested members of the

public in taking any action they consider appropriate in regard to the

matters addressed. In accordance with Council Resolution 01-09, which

determined its scope, this factual record provides information on

whether Mexico is failing to effectively enforce various provisions of its

environmental law in relation to environmental impact, water, fisheries,

and environmental offenses with respect to Aquanova.

Without aiming to reach conclusions of law on this matter, the

information presented by the Secretariat in this factual record reveals

that, in fact, Aquanova obtained prior authorization for the Aquanova—

Boca Cegada shrimp farm, authorization to introduce blue shrimp strain

SPR—43, and a concession for semi-intensive culture and commercial

use of two shrimp species. The information further reveals that Aquanova changed forest land use without authorization, destroying 42 ha of

mangrove forest, uprooting 250 coconut palms and filling wetlands,

without taking actions to salvage flora and fauna as applicable, in violation of the environmental impact law and the conditions of the project

authorization, and that it initiated wastewater discharge two years prior

to applying for the corresponding authorization.

In addition, the information gathered reveals that Aquanova

caused severe harm to 50 ha of mangrove forest in Los Olotes and La

Diabla creeks by obstructing (with INE’s authorization) Los Olotes

creek; seeking to restore it by building corrective structures and initiating reforestation actions, pursuant to an agreement with the environmental authorities. Between 19 April 1995 and 20 June 2002, Aquanova

received a total of 13 inspection visits, 2 sanctions and 5 orders, principally by Profepa. Finally, this factual record reveals that Aquanova took

part in an effort of cooperation between the various sectors of society in

San Blas, including Grupo Manglar, which made it possible to overcome

an initially hostile situation, concerning the environmental impact of its

operations.

78 FACTUAL RECORD: AQUANOVA SUBMISSION
Appendix 1

Council Resolution 01-09, Instruction to the

Secretariat of the Commission for

Environmental Cooperation Regarding the

Assertion that Mexico is Failing to Effectively

Enforce provisions of its General Law on

Ecological Balance and Environmental

Protection, the Forestry Law, Mexican Official

Standards NOM-062-ECOL-1994 and

NOM-059-ECOL-1994, the Law of National

Waters and its Regulations, the Fisheries Law

and its Regulations and the Federal Criminal

Code with Respect to the Activities of Granjas

Aquanova (SEM-98-006)

Montreal, November 16, 2001

COUNCIL RESOLUTION 01-09

Instruction to the Secretariat of the Commission for Environmental

Cooperation Regarding the Assertion that Mexico is Failing to

Effectively Enforce provisions of its General Law on Ecological

Balance and Environmental Protection, the Forestry Law, Mexican

Official Standards NOM-062-ECOL-1994 and NOM-059-ECOL-1994,

the Law of National Waters and its Regulations, the Fisheries Law

and its Regulations and the Federal Criminal Code with Respect to

the Activities of Granjas Aquanova (SEM-98-006)

THE COUNCIL:

SUPPORTIVE of the process provided for in Articles 14 and 15 of

the North American Agreement on Environmental Cooperation (NAAEC)

regarding submissions on enforcement matters and the preparation of

factual records;

CONSIDERING the submission filed on the above-mentioned matter by

Grupo Ecológico Manglar, A.C. and the response provided by the Government of the United Mexican States on June 15, 1999;

HAVING REVIEWED the notification by the Secretariat of August 4,

2000 that the development of a factual record is warranted in relation to

the submission (SEM-98-006); and

NOTING that the notification to Council does not consider that a factual

record warrants preparation with respect to the assertions that Mexico is

failing to effectively enforce three international agreements for migratory species and wetland protection;

HEREBY UNANIMOUSLY DECIDES:

TO INSTRUCT the Secretariat to prepare a factual record in accordance

with Article 15 of the NAAEC and the Guidelines for Submissions on

Enforcement Matters under Articles 14 and 15 of the North American Agreement on Environmental Cooperation for the assertions set forth in Submission SEM-98-006 that Mexico is failing to effectively enforce provisions

of its General Law on Ecological Balance and Environmental Protection,

the Forestry Law, Mexican Official Standards NOM-062-ECOL-1994

and NOM-059-ECOL-1994, the Law of National Waters and its Regulations, the Fisheries Law and its Regulations and the Federal Criminal

APPENDIX 1 81
Code, provided that the adequacy of the penalties imposed in accordance with the legislation is not reviewed;

TO DIRECT the Secretariat to provide the Parties with its overall work

plan for gathering the relevant facts and to provide the Parties with the

opportunity to comment on that plan; and

TO DIRECT the Secretariat, in developing the factual record, to consider

whether the Party concerned “is failing to effectively enforce its environmental law” since the entry into force of the NAAEC on January 1, 1994.

In considering such an alleged failure to effectively enforce, relevant

facts that existed prior to January 1, 1994, may be included in the factual

record.

APPROVED BY THE COUNCIL

82 FACTUAL RECORD: AQUANOVA SUBMISSION
Appendix 2

Overall Plan to Develop a Factual Record with

Regard to Submission SEM-98-006

Secretariat of the Commission for

Environmental Cooperation

Overall Plan to Develop a Factual Record

Submission I.D.: SEM-98-006

Submitter(s): Grupo Ecológico “Manglar”, A.C.

Party: United Mexican States

Date of this plan: 14 December 2001

Background

On 20 October, 1998, Grupo Ecológico “Manglar”, A.C. presented

to the Secretariat of the Commission for Environmental Cooperation

(CEC) a submission in accordance with Article 14 of the North American

Agreement on Environmental Cooperation (NAAEC). The submission

asserts that Mexico is failing to effectively enforce its environmental law

with respect to a shrimp farm operated by Granjas Aquanova, S.A. de

C.V. (hereinafter, “Granjas Aquanova”) in the state of Nayarit, Mexico,

that allegedly has caused severe damage to wetlands, water quality,

fisheries and to the habitat of a number of protected species.

On 16 November 2001, the Council decided unanimously to

instruct the Secretariat to develop a factual record, in accordance with

Article 15 of the NAAEC and the Guidelines for Submissions on Enforcement Matters under Articles 14 and 15 of the NAAEC (Guidelines), with

respect to the assertions Mexico is failing to effectively enforce provisions of its General Law on Ecological Balance and Environmental Protection (Ley General del Equilibrio Ecológico y la Protección al Ambiente—

General Environmental Law), the Forestry Law (Ley Forestal), Mexican Official Standards NOM-062-ECOL-19941 (NOM-062) and

NOM-059-ECOL-19942 (NOM-059), the Law of National Waters (Ley de

Aguas Nacionales) and its Regulations, the Fisheries Law (Ley de Pesca)

and its Regulations, and the Federal Criminal Code (Código Penal Federal), in connection with the activities of Granjas Aquanova. The Council

APPENDIX 2 85

1. Establishing specifications to mitigate the adverse effects on biodiversity of land use changes

from forestry to agriculture.

2. Determining endangered, threatened and rare species and subspecies of terrestrial and aquatic

wildlife and those subject to special protection, and establishing specifications for their protection.
directed the Secretariat, in developing the factual record, to consider

whether the Party concerned “is failing to effectively enforce its environmental law” since the entry into force of the NAAEC on 1 January 1994.

In considering such an alleged failure to effectively enforce, relevant

facts that existed prior to 1 January 1994, may be included in the factual

record.

Under Article 15(4) of the NAAEC, in developing a factual record,

“the Secretariat shall consider any information furnished by a Party and

may consider any relevant technical, scientific or other information: (a)

that is publicly available; (b) submitted by interested non-governmental

organizations or persons; (c) submitted by the Joint Public Advisory

Committee; or (d) developed by the Secretariat or by independent

experts.”

Overall Scope of the Fact Finding:

Granjas Aquanova, S.A. de C.V. has engaged in shrimp aquaculture operations in Isla del Conde, San Blas, Nayarit, since approximately

1995. The submission filed by Grupo Ecológico “Manglar”, A.C. asserts,

and Mexico’s response also indicates, that Granjas Aquanova has committed violations of environmental law and of the environmental impact

authorizations granted by the National Institute of Ecology (INE).

The General Environmental Law, the Forestry Law, Mexican Official Standard NOM-062 and particularly the three environmental

impact authorizations granted to Granjas Aquanova, establish various

environmental impact requirements. To prevent and control water contamination and protect aquatic ecosystems, the Law of National Waters

and its Regulations establish the obligation to monitor and treat

wastewater discharges and provisions for sustainable water use. The

Fisheries Law and its Regulations regulate the introduction of new species to protect fisheries. Lastly, certain acts, like drying up wetlands

without prior authorization or discharging wastewater without treatment or control, are considered environmental crimes under the Federal

Criminal Code.

The alleged violations as to which the Submitters assert Mexico has

failed to effectively enforce its environmental law include: noncompliance with conditions established in the environmental impact

authorizations; non-compliance with orders issued by INE; unauthorized draining and filling of lagoons; unauthorized felling, clearing and

86 FACTUAL RECORD: AQUANOVA SUBMISSION
burning of vegetation in the habitat of protected species; unauthorized

land use changes and removal of forest cover; unauthorized discharges

of contaminated wastewater and failure to monitor discharges; unauthorized diversion of natural watercourses; and obstruction of fishing

activities. The principal environmental damages purportedly caused

are mangrove mortality, the accelerated destruction of habitat of protected species and the degradation of water quality.

To prepare the factual record, the Secretariat will gather and

develop information relevant to the facts concerning:

(i) the alleged violations by Granjas Aquanova of the provisions cited

in the submission of the General Law, NOM-062, the Forestry Law,

the Law of National Waters and its Regulations, the Fisheries Law

and its Regulations and the Federal Criminal Code;

(ii) Mexico’s enforcement of those provisions with respect to Granjas

Aquanova; and

(iii) the effectiveness of Mexico’s enforcement of those provisions with

respect to Granjas Aquanova.

Overall Plan:

Consistent with Council Resolution 01-09, execution of the overall

work plan will begin no sooner than 14 January 2002. All other dates are

best estimates. The overall plan is as follows:

• Through public notices or direct requests for information, the Secretariat will invite the Submitters; JPAC; community members; the regulated community; and local, provincial and federal government

officials, to submit information relevant to the scope of fact-finding

outlined above. The Secretariat will explain the scope of the fact

finding, providing sufficient information to enable interested nongovernmental organizations or persons or the JPAC to provide relevant information to the Secretariat (section 15.2 of the Guidelines).

[January 2002]

• The Secretariat will request information relevant to the factual record

from federal, state and local government authorities of Mexico, as

appropriate, and will consider any information provided by a Party

(Articles 15(4) and 21(1)(a) of the NAAEC). Information will be

requested relevant to the facts regarding:

APPENDIX 2 87
(i) the violations by Granjas Aquanova of the provisions cited in the

submission of the General Law, NOM-062, the Forestry Law, the

Law of National Waters and its Regulations, the Fisheries Law

and its Regulations and the Federal Criminal Code;

(ii) Mexico’s enforcement of those provisions with respect to

Granjas Aquanova; and

(iii) the effectiveness of Mexico’s enforcement of those provisions

with respect to Granjas Aquanova. [January 2002]

• The Secretariat will gather relevant technical, scientific or other information that is publicly available, including from existing databases,

public files, information centers, libraries, research centers and academic institutions. [January through April 2002]

• The Secretariat, as appropriate, will develop, through independent

experts, technical, scientific or other information relevant to the factual record. [January through June 2002]

• The Secretariat, as appropriate, will collect relevant technical, scientific or other information for the preparation of the factual record,

from interested non-governmental organizations or persons, the

JPAC or independent experts. [January through June 2002]

• In accordance with Article 15(4), the Secretariat will prepare the draft

factual record based on the information gathered and developed.

[June through September 2002]

• The Secretariat will submit a draft factual record to Council, and any

Party may provide comments on the accuracy of the draft within 45

days thereafter, in accordance with Article 15(5). [end of September

2002]

• As provided by Article 15(6), the Secretariat will incorporate, as

appropriate, any such comments in the final factual record and submit it to Council. [November 2002]

• The Council may, by a two-thirds vote, make the final factual record

publicly available, normally within 60 days following its submission,

according to Article 15(7).

88 FACTUAL RECORD: AQUANOVA SUBMISSION
Additional information

The submission, Mexico’s response, the Secretariat determinations, the Council Resolution, and a summary of these are available

in the Registry on Citizen Submissions in the CEC home page

www.cec.org or upon request to the Secretariat at the following address:

Secretariat of the CEC

Submissions on Enforcement Matters Unit (SEM Unit)

393 St-Jacques St. West, Suite 200

Montreal QC H2Y 1N9

Canada

APPENDIX 2 89

Appendix 3

Process for Gathering Information for the

Preparation of the Factual Record

on Submission SEM-98-006

(Examples of relevant information)

Secretariat of the Commission

for Environmental Cooperation

REQUEST FOR INFORMATION

for Preparation of a Factual Record

Submission SEM-98-006 (Aquanova)

February 2002

I. The factual record process

The Commission for Environmental Cooperation of North America (CEC) is an international organization created under the North

American Agreement on Environmental Cooperation (NAAEC) by

Canada, Mexico and the United States. The CEC operates through three

organs: a Council, made up of the highest-level environmental official in

each country; a Joint Public Advisory Committee (JPAC), composed of

five citizens from each country; and a Secretariat located in Montreal.

Article 14 of the NAAEC allows persons or nongovernmental

organizations in North America to inform the Secretariat, in a submission, that any member country (hereinafter, a Party) is failing to effectively enforce its environmental law. This initiates a process of review of

the submission, in which the Council may instruct the Secretariat to prepare a factual record in connection with the submission. A factual record

seeks to provide detailed information to allow interested persons to

assess whether a Party has effectively enforced its environmental law

with respect to the matter raised in the submission.

Under Articles 15(4) and 21(1)(a) of the NAAEC, in developing a

factual record, the Secretariat shall consider any information furnished

by a Party and may ask a Party to provide information. Additionally, the

Secretariat may consider any relevant technical, scientific or other information that is publicly available; submitted by the JPAC or by interested

nongovernmental organizations or persons; or developed by the Secretariat or independent experts.

On 16 November 2001, the Council decided unanimously to

instruct the Secretariat to develop a factual record, in accordance with

Article 15 of the NAAEC and the Guidelines for Submissions on Enforcement Matters under Articles 14 and 15 of the NAAEC (Guidelines), with

respect to the assertions that Mexico is failing to effectively enforce several provisions of the General Law of Ecological Balance and EnvironAPPENDIX 3 93
mental Protection (Ley General del Equilibrio Ecológico y la Protección al

Ambiente—LGEEPA), the Forestry Law (Ley Forestal), Mexican Official

Standards NOM-062 and NOM-059, the National Waters Law (Ley de

Aguas Nacionales—LAN) and its Regulations, the Fisheries Law (Ley de

Pesca—LP) and its Regulations, and the Federal Criminal Code (Código

Penal Federal), in connection with the activities of Granjas Aquanova. The

Council directed the Secretariat, in developing the factual record, to consider whether the Party concerned “is failing to effectively enforce its

environmental law” since the entry into force of the NAAEC on 1 January 1994. In considering such an alleged failure to effectively enforce, relevant facts that existed prior to 1 January 1994, may be included in the

factual record.

By means of this document, the Secretariat seeks information relevant to matters to be addressed in the factual record for the Aquanova

submission, SEM-98-006. The following sections provide background

on the submission and describe the kind of information requested.

II. The Aquanova Submission

On 20 October 1998, Grupo Ecológico “Manglar” filed a submission with the CEC with respect to the shrimp aquaculture activities carried on by the company Granjas Aquanova, S.A. de C.V. in Isla del

Conde, San Blas, Nayarit, since approximately 1995. The submission

asserts that Granjas Aquanova has allegedly committed violations of the

environmental law and of the environmental impact authorizations

granted by the National Institute of Ecology (Instituto Nacional de

Ecología—INE).

The LGEEPA, the LF, Mexican Official Standard NOM-062-

ECOL-19941 (NOM-062) with regard to NOM-059-ECOL-19942

(NOM-059) and, in particular, the three environmental impact authorizations granted to Granjas Aquanova, establish various environmental

impact requirements. The LAN and its Regulations set forth wastewater

monitoring and treatment obligations and provisions as to sustainable

water use for the prevention and control of water pollution and the protection of aquatic ecosystems. The LP and its Regulations govern the

introduction of new species for the protection of fishing resources.

Lastly, certain acts, such as the unauthorized drying up of wetlands

94 FACTUAL RECORD: AQUANOVA SUBMISSION

1. Establishing the specifications to mitigate the adverse effects on biodiversity of land use changes

from forestry to agriculture.

2. Determining the endangered, threatened and rare species and subspecies of terrestrial and

aquatic wildlife and those subject to special protection, and establishing specifications for the

protection thereof.
without prior authorization and the uncontrolled discharge of untreated

wastewater, are considered environmental crimes under the CPF. Specifically, the following provisions are in question: Articles 117, 118, 119,

121, 123, 129, 130, 168 and 182 of the LGEEPA; Article 51 of the LF;

NOM-059; NOM-062; Articles 4, 9, 86 paragraph III, 88, 92 and 119 paragraphs I, II and VIII of the LAN; Articles 134, 135, 137 and 153 of the LAN

Regulations; Articles 3 paragraph VIII and 24 paragraph XXIV of the LP;

Articles 44, 48 and 50 of the LP Regulations; and Articles 416 paragraphs

I and II, 418 and 420 paragraph V of the CPF.

The alleged violations with respect to which the Submitters assert

that Mexico is failing to effectively enforce its environmental law

include: noncompliance with the conditions established in the environmental impact authorizations, noncompliance with instructions issued

by INE, unauthorized drying and refilling of lagoons, unauthorized

clearing and burning of vegetation in protected species’ habitats, unauthorized land-use changes and removal of forest cover, unmonitored

discharge of wastewater without a permit, unauthorized diversion of

natural waterways, and the obstruction of fishing activities. The principal environmental damages allegedly caused have been mangrove mortality, the accelerated destruction of protected species’ habitats and the

degradation of water quality.

The response to this submission, provided by the Mexican Government on 15 June 1999, also indicates that Granjas Aquanova has committed violations of the environmental law, although Mexico asserts that it

has not failed to effectively enforce such law.

III. Request for information

The Secretariat of the CEC requests information relevant to the

facts concerning:

i) alleged violations by Granjas Aquanova against the aforesaid provisions of the LGEEPA, NOM-062, the LF, the LAN and its Regulations, the LP and its Regulations, and the CPF;

ii) Mexico’s enforcement of these provisions with respect to Granjas

Aquanova; and

iii) the effectiveness of Mexico’s enforcement of these provisions with

respect to Granjas Aquanova.

APPENDIX 3 95
IV. Examples of relevant information

1. Information on the local, state or federal policies or practices

regarding enforcement of the environmental law that apply to the

alleged violations of the environmental laws cited in the submission (as described in Section II of this document) and on the manner in which they where implemented in this case.

2. Information on Granjas Aquanova’s alleged violations of Articles

117, 118, 119, 121, 123, 129, 130, 168 and 182 of the LGEEPA; Article

51 of the LF; NOM-059; NOM-062; Articles 4, 9, 86 paragraph III,

88, 92 and 119 paragraphs I, II and VIII of the LAN; Articles 134,

135, 137 and 153 of the LAN Regulations; Articles 3 paragraph VIII

and 24 paragraph XXIV of the LP; Articles 44, 48 and 50 of the LP

Regulations; and Articles 416 paragraphs I and II, 418 and 420

paragraph V of the CPF.

3. Information on Mexico’s enforcement of the provisions cited

above with respect to Granjas Aquanova.

4. Information on the effectiveness of Mexico’s enforcement of these

provisions, with respect to Granjas Aquanova; that is, information

on the extent and manner in which the efforts to enforce the environmental law have contributed to the prevention and control of

the environmental impact of Granjas Aquanova’s activities, water

pollution in the area and the effect on mangroves and the habitats

of other protected species.

5. Information on the area where Granjas Aquanova carries on its

operations particularly with respect to water quality, wetlands

conditions and the conditions of protected species’ habitats.

6. Information on the effects of the environmental law violations

allegedly committed by Granjas Aquanova, particularly regarding

the effects on fishing resources and the fishing activities in the zone

where the company is located, due to the introduction of new species allegedly without due authorization, and the effects on water

quality and mangrove health caused by the allegedly unauthorized discharge of wastewater.

7. Information on the human, financial and technical resources used

in the enforcement of environmental law, with respect to the

alleged violations by Granjas Aquanova.

96 FACTUAL RECORD: AQUANOVA SUBMISSION
8. Any other technical, scientific or other information that could be

relevant.

V. Additional background information

The submission, Mexico’s response, the Secretariat’s determinations, the Council Resolution, the general plan to develop the factual

record and other information are available in the Registry and Public

Files in the Citizen Submissions on Enforcement Matters section of the

CEC website at <http://www.cec.org >. These documents may also be

requested from the Secretariat.

VI. Where to Send Information

Relevant information for the development of the factual record

may be sent to the Secretariat until 30 June 2002, to the following

address:

Secretariat of the CEC

Submissions on Enforcement

Matters Unit (SEM Unit)

393, rue St-Jacques Ouest,

bureau 200

Montréal QC H2Y 1N9

Canadá

Tel. (514) 350-4300

CCA / Mexico Liaison Office

Atención: Unidad sobre Peticiones

Ciudadanas (UPC)

Progreso núm. 3

Viveros de Coyoacán

México, D.F. 04110

México

Tel. (52-55) 5659-5021

For any questions, please send an e-mail to the attention of Carla

Sbert, at <info@ccemtl.org>.

APPENDIX 3 97

Appendix 4

Information Requests to Mexican Authorities

and List of Recipient Authorities

Letter to Party Requesting Information to

Develop the Factual Record on SEM-98-006

7 February 2002

Re: Development of the factual record on submission

SEM-98-006 (Aquanova)

The Secretariat hereby requests from Mexico relevant information

to develop the factual record for the Aquanova submission, SEM-98-006,

in accordance with Articles 15(4) and 21(1)(a) of the NAAEC.

As you know, on 16 November 2001, the Council decided unanimously to instruct the Secretariat to develop a factual record, in accordance with Article 15 of the NAAEC and the Guidelines for Submissions on

Enforcement Matters under Articles 14 and 15 of the NAAEC (Guidelines),

with respect to the assertions that Mexico is failing to effectively enforce

various provisions of its General Law on Ecological Balance and Environmental Protection (Ley General del Equilibrio Ecológico y la Protección al

Ambiente), the Forestry Law (Ley Forestal), Mexican Official Standards

NOM-062-ECOL-1994 and NOM-059-ECOL-1994, the Law of National

Waters (Ley de Aguas Nacionales) and its Regulations, the Fisheries Law

(Ley de Pesca) and its Regulations, and the Federal Criminal Code (Código

Penal Federal), in connection with the activities of Granjas Aquanova.

Under Article 15(4) of the NAAEC, in developing a factual record,

the Secretariat shall consider any information furnished by a Party and

may consider any relevant technical, scientific or other information: (a)

that is publicly available; (b) submitted by interested non-governmental

organizations or persons; (c) submitted by the Joint Public Advisory

Committee; or (d) developed by the Secretariat or by independent

experts.

Attached you will find the list of matters on which information is

requested of Mexico for developing this factual record. The Secretariat

has established 30 June 2002 as the deadline for receiving information.

However, please respond to this request no later than 15 April 2002 to

allow for follow up, if necessary.

APPENDIX 4 101
Thank you in advance for your attention to this matter.

Yours truly,

Legal Officer

Submission on Enforcement Matters Unit

Attachment

cc: Environment Canada

US EPA

CEC Executive Director

102 FACTUAL RECORD: AQUANOVA SUBMISSION
Secretariat of the Commission

for Environmental Cooperation

Request to Mexico of Additional Information for Preparation

of the Factual Record Submission SEM-98-006 (Aquanova)

7 February 2002

1. Provide additional information on the alleged violations by

Granjas Aquanova of Articles 117, 118, 119, 121, 123, 129, 130, 168

and 182 of the General Law on Ecological Balance and Environmental Protection (Ley General del Equilibrio Ecológico y la Protección

al Ambiente—LGEEPA); Article 51 of the Forestry Law (Ley

Forestal—LF); Mexican Official Standard NOM-062-ECOL-1994;

Mexican Official Standard NOM-059-ECOL-1994; Articles 4, 9, 86

paragraph III, 88, 92 and 119 paragraphs I, II and VIII of the (Ley de

Aguas Nacionales—LAN); Articles 134, 135, 137 and 153 of the Regulations to the Law of National Waters (Reglamento de la Ley de

Aguas Nacionales—RLAN); Articles 3 paragraph VIII and 24 paragraph XXIV of the Fisheries Law (Ley de Pesca—LP); Articles 44, 48

and 50 of the Regulations to the Fisheries Law (Reglamento de la Ley

de Pesca—RLP); and Articles 416 paragraphs I and II, 418 and 420

paragraph V of the Federal Criminal Code (Código Penal Federal—CPF).

2. Describe the local, state or federal policies or practices for enforcing the environmental laws that apply to the alleged violations of

the environmental laws by Granjas Aquanova.

3. Provide information on the area where Granjas Aquanova carries

out its operations particularly concerning its environmental situation, water quality, the state of wetlands and the state of the habitat

of any protected species.

4. Provide information on the effects of the alleged violations of the

environmental laws committed by Granjas Aquanova, particularly on the effects on fishing resources and fishing activities in the

area where the company is located, by reason of the allegedly

unauthorized introduction of new species, and on the effects on

water quality and mangrove health due to allegedly unauthorized

wastewater discharges.

APPENDIX 4 103
5. According to Mexico’s response to the submission, the project filed

by Granjas Aquanova for environmental impact assessment consisted of three phases. The National Institute of Ecology (Instituto

Nacional de Ecología—INE) granted an environmental impact

authorization for phase I of the project on 7 February 1995, establishing 43 conditions. On 16 and 17 May of that year, the Office

of the Federal Attorney General for Environmental Protection

(Procuraduría Federal de Protección al Ambiente—Profepa) performed an inspection visit and found irregularities in Granjas

Aquanova’s compliance with the terms of that authorization. The

Profepa Delegation in Nayarit also performed an inspection on 19

April 1995. Mexico asserts that it fined Granjas Aquanova for these

irregularities and that it undertook collateral actions leading to a

program to correct the negative impacts, apparently a mangrove

planting program. In the aforesaid inspection, the authority found

that the company cut, felled and burned mangroves and removed

the forest cover without the forest land-use authorization. According to Mexico’s response to the submission, the authority sanctioned this administrative offense.

5.1. With respect to the aforementioned mangrove-planting program, indicate what the program comprised, how compliance was verified and what were the results of such

program.

5.2. Provide specific information on the sanction imposed on the

company for the cutting, felling and burning of mangroves

and the removal of the forest cover without the forest

land-use authorization, described above.

6. The submission states that the activities of Granjas Aquanova were

undertaken in the habitat of species protected under NOM-059-

ECOL-1994. The Submitter argues that, pursuant to Article 4.7 of

NOM-062-ECOL-1994, this situation requires the filing of an environmental impact statement in order for the authority to assess the

possibility of carrying on any type of sustainable use of the soil or

other resources that does not imply a change in land use. In its

response to the submission, Mexico confirms the existence of protected species in the area where Granjas Aquanova operates.

6.1. Indicate how the provision mentioned in the environmental

impact authorization granted to Granjas Aquanova, and the

104 FACTUAL RECORD: AQUANOVA SUBMISSION
compliance verification procedure in relation thereto, were

undertaken with respect to the company’s activities.

6.2. Indicate the reasons why the environmental impact authorizations were granted for phases II and III, in spite of the

degree of noncompliance observed by the authority with

respect to the environmental impact authorization for phase

I (D.O.O.P.-0333, 7 February 1995).

6.3. Explain the consideration given to invalidating the first

environmental impact authorization, as provided in the

tenth whereas clause thereof.

7. On 12 May 1995, as a result of a working meeting in which it was

agreed that the INE would reconsider the environmental impact

assessment in a period of 30 days, an administrative proceeding

against Granjas Aquanova for violations to the environmental

impact authorization, detected in the April 1995 inspection visits,

was terminated. Indicate whether that new consideration was

issued and explain the follow-up given to the violations in question.

8. The LF in effect since 1992 establishes the need to obtain an authorization for the use of timber resources, and provides that in the case

of rain forests, the environmental impact assessment is a requirement for such authorization.

8.1. Explain whether the past or present activities of Granjas

Aquanova include the use of timber resources, pursuant to

the LF.

8.2. Indicate whether Granjas Aquanova has been issued an

authorization for the use of timber resources.

8.3. Explain whether the environmental impact assessment,

required for the authorization, was done, and attach the corresponding documents.

9. On 22 January 1996, irregularities were found in the construction

of a discharge drain that caused damages, as were forestry irregularities absent the required land-use authorization and because of

the removal of 3.35 hectares of mangrove. Indicate what enforcement measures were taken with respect to these irregularities.

APPENDIX 4 105
10. Mexico’s response indicates that, according to the National Water

Commission (Comisión Nacional del Agua—CNA), the activities of

Granjas Aquanova do not require an authorization to use water

because the water is extracted from lagoons, estuaries and streams,

which contain marine waters.

10.1. Indicate the basis for classifying the water bodies in question

as marine waters.

10.2. Indicate the basis for concluding that the water use authorization does not apply to marine waters.

11. Mexico’s response states that the company did in effect discharge

wastewater without a permit, from 1996 and apparently until

6 November 1998, when permit 08NAY104898/13BKGE98 was

issued for one of the three discharges. The response also mentions

that the permit for the other two discharges is being processed, and

that there is a favorable technical report dated 11 December 1998.

Provide a copy of permit 08NAY104898/13BKGE98, of the technical report from 11 December 1998, and any other documents concerning the wastewater discharge permit for each of the company’s

wastewater discharges.

12. The submission indicates that Granjas Aquanova improperly

obstructed the La Tronconuda, La Atascona, Los Olotes and La

Cegada streams, notwithstanding the prohibition against rerouting or obstructing waterways without a permit under Article 119

paragraph VIII of the LAN. Mexico’s response to the submission

asserts that the environmental impact authorization contemplated

the company’s rerouting natural waterways.

12.1. Specify which of the three authorizations allows the rerouting of waterways, indicating the relevant clause.

12.2. Explain the basis under which the INE granted permission

in an environmental impact authorization to carry on an

activity that is under CNA jurisdiction pursuant to Articles 9

paragraph VII and 119 paragraph VIII of the LAN.

12.3. Indicate what actions the authority took with respect to the

waterway obstruction by Granjas Aquanova, and the effectiveness thereof.

106 FACTUAL RECORD: AQUANOVA SUBMISSION
13. The submission asserts that the CNA has failed to effectively

enforce the environmental laws with respect to Granjas Aquanova’s lack of monitoring of water quality. Mexico’s response to

the submission is based on a CNA report.

13.1. Provide a copy of the documents relevant to the monthly

water quality monitoring program in the main marshes

relating to the activities of Granjas Aquanova, which the

CNA claims to have prepared.

13.2. Provide a copy of the monitoring program to comply with

Mexican Official Standard NOM-089-ECOL-1994, which the

company has according to Mexico’s response to the submission.

13.3. Provide a copy of the results of the sampling done at four

sites (presumably between October 1998 and April 1999)

that, as reported by the CNA, shows that the wastewater

quality meets Mexican Official Standard NOM-001-ECOL1996.

14. Provide a copy of the concession that, according to Mexico’s

response to the submission, the Aquaculture Bureau of the Secretariat of Environment, Natural Resources and Fisheries (Secretaría

de Medio Ambiente, Recursos Naturales y Pesca—Semarnap) granted

to Granjas Aquanova.

15. Mexico denies the Submitters ́ allegation that the shrimp species

introduced by Granjas Aquanova produces viral epidemics. Provide a copy of the health certificates that, according to Mexico’s

response to the submission, Granjas Aquanova presented before

each spawning period.

16. Provide a copy of the ruling in which, according to Mexico’s

response to the submission, on 26 April 1999 the Semarnap

Aquaculture Bureau reported that the fishery production did not

decrease but rather increased.

17. With regard to the allegations that Granjas Aquanova has committed environmental crimes (the filling and draining of lagoons

allegedly beginning in 1995, and allegedly criminal wastewater

discharges from the first half of 1996 to the submission date), with

respect to which Mexico has not effectively enforced its environAPPENDIX 4 107
mental laws, Mexico’s response to the submission states that the

environmental authorities provided reports in criminal investigation DGMPE/C/I-3/039/98.

17.1. Indicate the status of this proceeding.

17.2. State what matter was investigated by the Party in this proceeding.

17.3. Explain how this matter coincides with the matter raised by

the Submitter.

17.4. Indicate whether enforcement actions have been taken with

respect to the Submitter’s allegation, and the result thereof.

18. Provide factual references and explanations of how the inspection

and oversight procedures described in Mexico’s response to the

submission, which culminated in the agreement between Profepa

and the company, result in the effective enforcement of the provisions cited by the Submitter, for the protection of aquatic resources

and protected species in the area and for the prevention of water

pollution.

19. Detail the human, financial and technical resources used in the

enforcement of the environmental laws, with respect to the alleged

violations by Granjas Aquanova.

20. Provide any other technical, scientific or other information that

could be relevant.

108 FACTUAL RECORD: AQUANOVA SUBMISSION
Mexican authorities recipient of a request for

information for the development of the factual

record in regard to Submission SEM-98-006

APPENDIX 4 109

FEDERAL

International Affairs Coordination

Unit (UCAI)

Ministry of the Environment and

Natural Resources (SEMARNAT)

Nayarit State Office

SEMARNAT

Federal Coastal Zone and Coastal

Environments Branch

SEMARNAT

Environmental Impact and Risk

Branch

SEMARNAT

National Institute of Ecology (INE)

SEMARNAT

Wildlife Branch

Office of the Deputy Minister for

Environmental Protection

SEMARNAT

General Technical Division

National Water Commission

Aquaculture Research Branch

National Institute of Fisheries

Office of the Deputy Attorney for

Environmental Auditing

Office of the Federal Attorney for

Environmental Protection

Nayarit State Office of the Federal

Attorney for Environmental

Protection

Fisheries Administration

Fisheries Office in the State of

Nayarit

STATE

Nayarit Institute for Sustainable

Development (INADES)

MUNICIPAL

Municipality of San Blas

Nayarit

Municipal Development Planning

Committee (COPLADEMUN)

San Blas, Nayarit

Appendix 5

Information Requests to NGOs, JPAC

and other Parties to the NAAEC

Form Letter to NGOs

12 February 2002

Re: Request for information relevant to the factual record for the

Aquanova submission (SEM-98-006)

The Secretariat of the Commission for Environmental Cooperation

of North America recently began the process of preparing a “factual

record” regarding an assertion that Mexico is failing to effectively

enforce its environmental law with respect to a shrimp farm operated by

Granjas Aquanova, S.A. de C.V. (hereinafter “Granjas Aquanova”) in

the state of Nayarit, Mexico, that allegedly has caused severe damage to

wetlands, water quality, fisheries and to the habitat of a number of protected species. This assertion was made in a “submission” filed with the

Secretariat in October 1998 by Grupo Ecológico “Manglar”, A.C.

I am writing to invite you to submit information relevant to the factual record. The attached Request for Information explains the citizen

submissions process and factual records, gives background about the

so-called Aquanova submission (SEM-98-006), describes the scope of

the information to be included in the factual record for the Aquanova

submission, and provides examples of information that might be relevant. We will accept information for possible consideration in connection with the factual record until June 30, 2002.

We appreciate your consideration of this request and look forward

to any relevant information you are able to provide. Please feel free to

contact the Secretariat if you have questions. Contact information is

provided at the end of the Request for Information.

Sincerely,

Legal Officer

Submissions on Enforcement Matters Unit

Enclosure

APPENDIX 5 113

Memorandum to the Joint Public

Advisory Committee

Memorandum

DATE: 13 February 2002

À / PARA / TO: Chair of the Joint Public Advisory

Committee

CC: JPAC Members, CEC Executive

Director, JPAC Liaison Officer

DE / FROM: Legal Officer, Submissions on

Enforcement Matters Unit

OBJET / ASUNTO /RE: Request for information relevant to

the factual record for the Aquanova

submission (SEM-98-006).

As you know, the CEC Secretariat recently began the process of

preparing a factual record for the Aquanova submission (SEM-98-006).

This submission was filed with the Secretariat in October 1998 by Grupo

Ecológico “Manglar”. Consistent with Council Resolution 01-09, the factual record will focus on the assertion that Mexico is failing to effectively

enforce provisions of its General Law on Ecological Balance and Environmental Protection (Ley General del Equilibrio Ecológico y la Protección al

Ambiente— General Environmental Law), the Forestry Law (Ley

Forestal), Mexican Official Standards NOM-062-ECOL-19941

(NOM-062) and NOM-059-ECOL-19942 (NOM-059), the Law of

National Waters (Ley de Aguas Nacionales) and its Regulations, the Fisheries Law (Ley de Pesca) and its Regulations, and the Federal Criminal

Code (Código Penal Federal), in connection with the activities of Granjas

Aquanova.

I am writing to invite the JPAC to submit information relevant

to the factual record, consistent with Article 15(4)(c) of the NAAEC.

The attached Request for Information, which has been posted on the

CEC website, gives background about the Aquanova submission,

APPENDIX 5 115

1. Establishing specifications to mitigate the adverse effects on biodiversity of land use changes

from forestry to agriculture.

2. Determining endangered, threatened and rare species and subspecies of terrestrial and aquatic

wildlife and those subject to special protection, and establishing specifications for their protection.
(SEM-98-006), describes the scope of the information to be included in

the factual record, and provides examples of information that might be

relevant. We will accept information for possible consideration in connection with the factual record until June 30, 2002.

We appreciate your consideration of this request and look forward

to any relevant information you are able to provide. Please feel free to

contact me at (514) 350-4321 or csbert@ccemtl.org if you have questions

regarding this request or the factual record process.

116 FACTUAL RECORD: AQUANOVA SUBMISSION
Letter to the Other Parties of the NAAEC

(Canada & US)

13 February 2002

Re: Request for information relevant to the factual record for the

Aquanova submission, SEM-98-006.

As you know, the CEC Secretariat recently began the process of

preparing a factual record for the Aquanova submission (SEM-98-006),

consistent with Council Resolution 01-09. I am writing to invite the

[Canadian][the United States] Party to submit information relevant to

the factual record, in accordance with Article 15(4) of the NAAEC.

The attached Request for Information, which has been posted on

the CEC website, gives background about the Aquanova submission,

describes the scope of the information to be included in the factual

record, and provides examples of information that might be relevant.

We will accept information for consideration in connection with the factual record until June 30, 2002.

We appreciate your consideration of this request and look forward

to any relevant information you are able to provide. Please feel free to

contact me at (514) 350-4321 or csbert@ccemtl.org if you have questions

regarding this request.

Sincerely,

Legal Officer

Submissions on Enforcement Matters Unit

Enclosure

cc: Semarnat

[Environment Canada]

[US EPA]

CEC Executive Director

APPENDIX 5 117

Nongovernmental organizations and

individual recipients of requests for

information for the development of the factual

record in regard to Submission SEM-98-006

APPENDIX 5 119

Greenpeace México, A.C.

Centro Mexicano de Derecho

Ambiental (CEMDA)

Unión de Grupos Ambientalistas,

I.A.P.

Wetlands International Mexico

Pronatura Sonora

WWF (World Wildlife Federation)

IUCN - Union mondial para la

Naturaleza

Wetlands Program

IUCN - The World Conservation

Union

Conservation International

Earth Island Institute

Mangrove Action Project

Centro de Estudios del Sector

Privado para el Desarrollo

Sustentable (CESPEDES)

Coordinadora Estatal Ecologista de

Nayarit

Fondo Mexicano para la

Conservación de la Naturaleza

Universidad Autónoma de Nayarit

Faculty of Fisheries Engineering

Universidad Autónoma de Nayarit

Faculty of Law

Centro de Investigación Científica

y de Educación Superior de

Ensenada (CICESE)

Centro de Investigación en

Alimentación y Desarrollo (CIAD)

Grupo Industrias Resistol S.A.

(GIRSA)

Granjas Aquanova, S.A. de C.V.

Grupo Ecológico Manglar, A.C.

Appendix 6

Information Gathered for the

Development of the Factual Record on

Submission SEM-98-006 (Aquanova)

APPENDIX 6 123

List of Information Gathered for the Development of the

Factual Record in Regard to Submission SEM-98-006 (Aquanova)

No. ID DOCUMENT

DATEmm/dd/yy

AUTHOR DOCUMENT PROVIDED TO

SECRETARIAT BY

RECEIVEDmm/dd/yy

1 N/A 05/07/00 N/A “San Blas Declaratory for the Defense of

the Mangroves,” document signed by300 fishermen. (Original in English).

Mangrove ActionProject (Quarto, A.)

02/15/01

2 N/A N/A Article

SWARA-MAG-EDITED

Article: “The Rise and Fall of the BlueRevolution.”

Mangrove ActionProject (Quarto, A.)

02/15/01

3 N/A 03/13/97 Nature Vol. 386-

AQUACULTURE(Ehsan M.)

Article from British Journal Nature,

“Aquaculture: Part of the Problem, not aSolution.”

Mangrove ActionProject (Quarto, A.)

02/15/01

4 N/A 02/00/01 Greenpeace GREENPEACE REPORT: “Antibiotics in

industrial sea fruit production.” (Original in English).

Mangrove ActionProject (Quarto, A.)

02/15/01

5 IPGM1 03/18/00 Profepa

(EcheverríaDomínguez, A.)

Publication in Official Gazette, ThirdSection, Government of the State ofNayarit, of the decision presented byEmpresa Granjas Aquanova S.A. de C.V.

Grupo EcológicoManglar (GarcíaRodríguez, J. F.)

06/09/01

1. Information provided by Grupo Manglar, A.C.
124 FACTUAL RECORD: AQUANOVA SUBMISSION No. ID DOCUMENT DATE mm/dd/yy AUTHOR DOCUMENT PROVIDED TO SECRETARIAT BY RECEIVED mm/dd/yy 6 IPGM 06/18/01 Grupo Ecológico Manglar (García Rodríguez, J.F.) Letter from Grupo Ecológico Manglar to the Commission for Environmental Cooperation reiterating its interest in continuing with the process for the sub- mission filed on 20 October 1998. Grupo Ecológico Manglar (García Rodríguez, J. F.) 06/18/01 7 N/A 07/00/01 Greenpeace REDMANGLAR publication, “Buscando aliados para defender nuestras costas.” COPLADEMUN (Silva Gámez, J.) 03/13/02 8 IPM-12 03/19/02 Semarnat (Ojeda Cárdenas, O.) Memorandum no. UCAI/1319/02 with 29 appendices and additional informa- tion within the jurisdiction of Profepa. UCAI (Ojeda Cárdenas, O.) 04/04/02 9 IPM-1 06/22/01 Profepa (Campillo García, J.) Memorandum no. PFPA/324 issued by Profepa. UCAI (Ojeda Cárdenas, O.) 04/04/02 10 IPM-1 06/20/01 Profepa (Campillo García, J.) Information on the submission to the CEC by Grupo Ecológico Manglar, A.C. against the Granjas Aquanova shrimp farm. UCAI (Ojeda Cárdenas, O.) 04/04/02

2. Information provided by Mexico, 4 April 2002.
APPENDIX 6 125

No. ID DOCUMENT

DATEmm/dd/yy

AUTHOR DOCUMENT PROVIDED TO

SECRETARIAT BY

RECEIVEDmm/dd/yy

11 IPM-1

IPA3

04/19/95 Profepa

(Rivas Jiménez, E.and GarcíaCayeros, L.)

Appendix 1. Inspection Report no.95/010. Memorandum of Appointmentno. UAT 95/007 issued by Semarnap,Profepa, Nayarit State Office, Auditingand Technical Support Section. Profepaconducted inspection visits in relation toenvironmental impact.

UCAIGranjas Aquanova(Ojeda Cárdenas, O.Suárez Torres, J.)

04/04/02;07/09/02

12 IPM-1

IPA

04/20/02 Profepa

(Rivas Jiménez, E.and GarcíaCayeros, L.)

Appendix 2. Inspection Report no.95/011. Memorandum of Appointmentno. SVAT95/039 issued by Semarnap,Profepa, Nayarit State Office, Auditingand Technical Support Section.

UCAIGranjas Aquanova(Ojeda Cárdenas, O.Suárez Torres, J.)

04/04/02;07/09/02

13 IPM-1 05/15/95 Profepa

(Lomeli Madrigal,J.)

Appendix 3. Decision on irregularitiesdetected in Inspection Reports nos.95/010 and 95/011 and in the proceeding against Empresa Granjas Aquanova,S.A. de C.V.

UCAI (OjedaCárdenas, O.)

04/04/02

14 IPM-1

IPA

05/17/95 Profepa

(Rivas Jiménez, E.and GarcíaCayeros, L.)

Appendix 4. Inspection Report no.016/95. Memorandum of Appointmentno. UAT95/013 issued by Semarnap,Profepa, Nayarit State Office, Auditingand Technical Support Section toreinitiate the proceeding.

UCAIGranjas Aquanova(Ojeda Cárdenas, O.Suárez Torres, J.)

04/04/02;07/09/02

3. Information provided by Granjas Aquanova, S.A. de C.V.
126 FACTUAL RECORD: AQUANOVA SUBMISSION No. ID DOCUMENT DATE mm/dd/yy AUTHOR DOCUMENT PROVIDED TO SECRETARIAT BY RECEIVED mm/dd/yy 15 IPM-1 08/16/95 Profepa (Lomeli Madrigal, J.) Appendix 5. Decision no. 003. File no. 009/95 issued by Semarnap. Profepa ordered Aquanova to take various mea- sures and fined the company P $100,000.00. UCAI (Ojeda Cárdenas, O.) 04/04/02 16 IPM-1 09/06/95 Granjas Aquanova (Bacelis Esteva, R.) Appendix 6. Appeal for review filed by Granjas Aquanova S.A. de C.V. against the Profepa decision of 16 August. UCAI (Ojeda Cárdenas, O.) 04/04/02 17 IPM-1 12/05/97 Profepa (Yepez Barajas, S.) Appendix 7. Administrative Proceeding no. 009/95. Implementation of decision of 6 January 1996. Profepa issued the final decision in the proceeding initiated on 16 August 1995. UCAI (Ojeda Cárdenas, O.) 04/04/02 18 IPM-1 IPA 11/17/97 Profepa (Sánchez Rangel, A.) Appendix 8. Inspection Report no. PFPA/SRN-DGVOE-18-012-214/97. Inspection Order no. PFPA/SRN DGVOE- 979/97. Issued by Semarnap, Profepa, Nayarit State Office. UCAI Granjas Aquanova (Ojeda Cárdenas, O. Suárez Torres, J.) 04/04/02; 07/09/02 19 IPM-1 IPM-24

IPA

06/27/95 INE

(Álvarez-IcazaLongoria, P.)

Appendix 9. Memorandum no. D.O.O.DGNA -2587. Reference to Memorandum D.O.O.P.-333 of 02/07/95. INEauthorized the new facility plan andamended the conditions 14, 16 and 17.

UCAIGranjas Aquanova(Ojeda Cárdenas, O.Guzmán Sandoval,H. Suárez Torres, J.)

04/04/02;04/29/02;07/09/02

4. Information provided by Mexico, 29 April 2002.
APPENDIX 6 127

No. ID DOCUMENT

DATEmm/dd/yy

AUTHOR DOCUMENT PROVIDED TO

SECRETARIAT BY

RECEIVEDmm/dd/yy

20 IPM-1 07/27/95 Granjas

Aquanova(DomínguezMoro, F.)

Appendix 10. Application of MangroveReplanting Program by GranjasAquanova, S.A. de C.V., Boca CegadaUnit.

UCAI (OjedaCárdenas, O.)

04/04/02

21 IPM-1

IPA

12/16/97 Profepa

(Rivas Jiménez, E.and GarcíaCayeros, L.)

Appendix 11. Inspection Report no. IIA000010- Inspection Order no.DPFPA-SRN-AIA. 97/020 andSRN-AF-97/168. Issued by Semarnap,Nayarit State Office, in which it detectedobstruction of Los Olotes creek, mangrove mortality and inundation of thearea.

UCAIGranjas Aquanova(Ojeda Cárdenas, O.Suárez Torres, J.)

04/04/02;07/09/02

22 IPM-1 12/11/97 INE

(Butrón Madrigal,L.)

Appendix 12. Memorandum no. D.O.O.DGOEIA- 07692. The EnvironmentalLand Use Planning and EnvironmentalImpact Branch approved the request bycitizens to remove the obstruction on LosOlotes creek, given the high mangrovemortality in the area.

UCAI (OjedaCárdenas, O.)

04/04/02

23 IPM-1

IPA

03/30/98 Profepa

Granjas Aquanova(Yépez Barajas, S.and VillaseñorLópez, M.)

Appendix 13. Administrative agreementbetween Granjas Aquanova and Profepain the State of Nayarit which terminatedthe proceeding initiated further to theinspection of 16 December 1997.

UCAIGranjas Aquanova(Ojeda Cárdenas, O.Suárez Torres, J.)

04/04/02;07/09/02
128 FACTUAL RECORD: AQUANOVA SUBMISSION No. ID DOCUMENT DATE mm/dd/yy AUTHOR DOCUMENT PROVIDED TO SECRETARIAT BY RECEIVED mm/dd/yy 24 IPM-1 IPA 10/16/98 Profepa Granjas Aquanova (Yépez Barajas, S. and Villaseñor López, M.) Appendix 14. Detailed report further to the administrative agreement between Granjas Aquanova and the Profepa Nayarit State Office. UCAI Granjas Aquanova (Ojeda Cárdenas, O. Suárez Torres, J.) 04/04/02; 07/09/02 25 IPM-1 10/26/90 Fianzas Monterrey Aetna, S.A. (Infante Moreno, C.) Appendix 15. Memorandum no. ES 529158. Surety bond. UCAI (Ojeda Cárdenas, O.) 04/04/02 26 IPM-1 05/28/96 Semarnap Natural Resources Section (Aragón Morales, L.) Appendix 16. Memorandum no. 261. SRN/96 relating to the request for authorization of land use change for Granja Camaronícola Aquanova-Boca Cegada Phase I issued by Semarnap fed- eral office in Nayarit. UCAI (Ojeda Cárdenas, O.) 04/04/02 27 IPM-1 06/21/96 Semarnap Natural Resources Section (Aragón Morales,

L.)

Appendix 17. Memorandum no. 261.SRN/96 Technical study with supporting documents for land use change, Phases II and III at the site known as BocaCegada. Municipality of San Blas.

UCAI (OjedaCárdenas, O.)

04/04/02
APPENDIX 6 129

No. ID DOCUMENT

DATEmm/dd/yy

AUTHOR DOCUMENT PROVIDED TO

SECRETARIAT BY

RECEIVEDmm/dd/yy

28 IPM-1 03/05/97 Semarnap

Natural ResourcesSection(Aragón Morales,L.)

Appendix 18. Memorandum no.261.SRN/97 Technical study with supporting documents for land use change,Phases II and III at the site known asBoca Cegada. The Natural ResourcesSection of the Nayarit office authorizedAquanova to carry out the land usechange for phase II.

UCAI (OjedaCárdenas, O.)

04/04/02

29 IPM-1 05/19/97 Semarnap

Natural ResourcesSection(Aragón Morales,L.)

Appendix 19. Memorandum no.261/SRN/97 addendum to Memorandum issued by Semarnap Federal Officein Nayarit Natural Resources Section,authorizing the land use change forPhase III of the Aquanova Boca Cegadashrimp farming project.

UCAI (OjedaCárdenas, O.)

04/04/02

30 IPM-1

IPA

04/27/99 Granjas Aquanova

(DomínguezMoro, F.)

Appendix 20. Memorandum no.Profepa-REP-070 with aerial photos ofthe facility, produced by GranjasAquanova and delivered to the ProfepaNayarit State Office further to theadministrative agreement and the operation of the project.

UCAI (OjedaCárdenas, O.,Suárez Torres, J.)

04/04/02;07/09/02

31 IPM-1 02/24/99 Granjas Aquanova

(DomínguezMoro, F.)

Appendix 21. MemorandumDPRON-AR-071 Mangrove RestorationProgram.

UCAI (OjedaCárdenas, O.)

04/04/02
130 FACTUAL RECORD: AQUANOVA SUBMISSION No. ID DOCUMENT DATE mm/dd/yy AUTHOR DOCUMENT PROVIDED TO SECRETARIAT BY RECEIVED mm/dd/yy 32 IPM-1 01/04/00 Profepa (Valdivia López, R.) Appendix 22. Memorandum PFPA/SRN/DGVOE/003/2000 by Profepa to Granjas Aquanova in relation to the Mangrove Restoration Program. UCAI (Ojeda Cárdenas, O.) 04/04/02 33 IPM-1 01/14/00 Granjas Aquanova (Domínguez Moro, F.) Appendix 23. Memorandum PFPA/SRN/DGVOE/003/2000. Aquanova filed with Profepa the first monitoring report in the Mangrove Res- toration Program (March–July 1999). UCAI (Ojeda Cárdenas, O.) 04/04/02 34 IPM-1 10/26/00 Granjas Aquanova (Domínguez Moro, F.) Appendix 24. Technical progress report on activities relating to the detailed report arising from the administrative agreement of 30 March 1998. UCAI (Ojeda Cárdenas, O.) 04/04/02 35 IPM-1 06/08/01 Granjas Aquanova (Domínguez Moro, F.) Appendix 25. Preliminary progress report on activities relating to the detailed report arising from the adminis- trative agreement of 30 March 1998. UCAI (Ojeda Cárdenas, O.) 04/04/02 36 IPM-1

IPA

03/10/00 Profepa

(CasanovaColunga, E.)

Appendix 26. Auditing Report no. VIA003/2000. Auditing Order no.DPFPA.SRN.VIA 2000/002. Issued bythe Semarnap Nayarit State Office toaudit compliance with the MangroveRestoration Program.

UCAIGranjas Aquanova(Ojeda Cárdenas, O.Suárez Torres, J.)

04/04/02;07/09/02
APPENDIX 6 131

No. ID DOCUMENT

DATEmm/dd/yy

AUTHOR DOCUMENT PROVIDED TO

SECRETARIAT BY

RECEIVEDmm/dd/yy

37 IPM-1

IPA

05/11/01 Profepa

(Valdivia Viera,Ma. and AdameGalván, J.)

Appendix 27. Auditing Report no. VIA739/2001. Issued by the SemarnapNayarit State Office to audit compliancewith the Mangrove Restoration Program.

UCAIGranjas Aquanova(Ojeda Cárdenas, O.Suárez Torres, J.)

04/04/02;07/09/02

38 IPM-1

IPA

12/22/99 Various Appendix 28. Agreement between

Granjas Aquanova S.A. de C.V., representatives of the Nayarit state government, Semarnap, Profepa, GrupoManglar, state representatives and members of civil society.

UCAIGranjas Aquanova(Ojeda Cárdenas, O.Suárez Torres, J.)

04/04/02;07/09/02

39 IPM-1

IPGM

05/24/01 Ministry of

PlanningState of Nayarit

Appendix 29. Minutes of the workingmeeting held at the offices of the Ministry of Planning to review the stipulationsof the agreement between EmpresaAquanova S.A. de C.V. and the stategovernment.

UCAI (OjedaCárdenas, O.)Grupo EcológicoManglar

04/04/02;06/09/01

40 IPM-2 04/23/02 UCAI

(GuzmánSandoval, H.)

Memorandum UCAI/1796/02, including three appendices with additionalcomments by Profepa.

UCAI (GuzmánSandoval, H.)

04/29/02

41 IPM-2 04/17/02 Profepa

(MunguíaAldaraca, N.)

Memorandum no. OAI/176/02 issuedby Profepa.

UCAI (GuzmánSandoval, H.)

04/29/02
132 FACTUAL RECORD: AQUANOVA SUBMISSION No. ID DOCUMENT DATE mm/dd/yy AUTHOR DOCUMENT PROVIDED TO SECRETARIAT BY RECEIVED mm/dd/yy 42 IPM-2 02/15/00 Profepa (Ibarra Cerecer, J.) Appendix 2. Decision no. 169/2000. File no. 032/96. Profepa fined Aquanova P$48,800.00 for failure to obtain a land use authorization and removal of man- groves as detected during the inspection of 22 January 1996. UCAI (Guzmán Sandoval, H.) 04/29/02 43 IPM-2 IPA 01/07/02 Profepa (Gaytán Rángel, S.; Córdova Ruelas, R. and Márquez Flores, G.) Appendix 3. Concluding decision no. 020/01 I.A. 2001 by Profepa, Nayarit State Office, Legal Affairs Section. UCAI Granjas Aquanova (Guzmán Sandoval, H. Suárez Torres, J.) 04/29/02; 07/09/02 44 IPM-35 04/26/02 UCAI (García Velasco, M.) Memorandum no. UCAI/1853/02 with 5 appendices and additional comments by Semarnat Environmental Impact and Risk Branch. UCAI (García Velasco, M.) 05/07/02 45 IPM-3 04/23/02 Semarnat (Juárez Palacios, J. R.) Memorandum no. S.G.P.A.-DGIRA-001102 issued by the Office of the Deputy Minister of Man- agement for Environmental Protection,

Environmental Impact and Risk Branch.

UCAI (GarcíaVelasco, M.)

05/07/02

5. Information provided by Mexico, 7 May 2002.
APPENDIX 6 133

No. ID DOCUMENT

DATEmm/dd/yy

AUTHOR DOCUMENT PROVIDED TO

SECRETARIAT BY

RECEIVEDmm/dd/yy

46 IPM-3 IPA 02/07/95 Centro de

Estudios del SectorPrivado para elDesarrolloSustentable(Quadri de laTorre, G.)

Appendix 1. Memorandum no. D.O.O.P.0333. INE gave environmental impactauthorization to Aquanova for Phase I ofthe project.

UCAI (GarcíaVelasco, M. SuárezTorres, J.)

05/07/02;07/09/02

47 IPM-3 12/20/96 INE

(Álvarez-IcazaLongoria, P.)

Appendix 2. D.O.O. DGOEIA 08160. INEgranted an EIA for Phases II and III ofthe facility.

UCAI (GarcíaVelasco, M.)

05/07/02

48 IPM-3 06/25/96 INE

(Álvarez-IcazaLongoria, P.)

Appendix 3. D.O.O. DGNA. 02783. INEauthorization to land clearing, levelingand surveying necessary for Phase II.

UCAI (GarcíaVelasco, M.)

05/07/02

49 IPM-3 08/20/96 INE

(Álvarez-IcazaLongoria, P.)

Appendix 4. D.O.O. DGOEIA - 04076.The Environmental Land Use Planningand Environmental Impact Branchrevalidated the authorization to carryout Phase II of the Granjas Aquanovaproject.

UCAI (GarcíaVelasco, M.)

05/07/02

50 IPM-3 11/11/97 INE

(Butrón Madrigal,Ligia)

Appendix 5. Memorandum no.D.O.O.DGOEIA-07162 of INE, Environmental Land Use Planning and Environmental Impact Branch. Follow up toterms and conditions.

UCAI (GarcíaVelasco, M.)

05/07/02
134 FACTUAL RECORD: AQUANOVA SUBMISSION No. ID DOCUMENT DATE mm/dd/yy AUTHOR DOCUMENT PROVIDED TO SECRETARIAT BY RECEIVED mm/dd/yy 51 Diagnós- tico socio- ambiental6 06/24/02 Grupo Ecológico Manglar (García Rodríguez, J.F.) Socio-environmental analysis of the estuarine and mangrove zone of the municipality of San Blas, Nayarit. Grupo Ecológico Manglar (García, Juan F.) 06/28/02 52 IPGM 06/30/02 Grupo Ecológico Manglar (García Rodríguez, J.F. and Bernal, M.C.) Document: Aquanova’s environmental law violations, enforcement by the authorities and effectiveness of law enforcement. Grupo Ecológico Manglar (García, Juan F.) 07/01/02 53 IPA 06/26/02 Granjas Aquanova (Suárez Torres, J.) Response by Granjas Aquanova to the request for information for development of the factual record, including 36 appendices. Granjas Aquanova (Suárez Torres, J.) 07/09/02 54 IPA 11/25/94 Granjas Aquanova (Bacelis Esteva, R.) Appendix 1. Correspondence by Aquanova in re Environmental Impact Statement, Intermediate Form. Granjas Aquanova (Suárez Torres, J.) 07/09/02 55 IPA 04/18/95 Granjas Aquanova Appendix 3. Memorandum no. 333/95 by Aquanova to INE, in re Authorization 333/95. Granjas Aquanova (Suárez Torres, J.) 07/09/02 56 IPA 04/19/95 Profepa

(Lomeli Madrigal,J.)

Appendix 5. Inspection Order, Memorandum no. SVAT.95/039 issued bySemarnap, Profepa, Nayarit State Office,Auditing and Technical Support Section.

Granjas Aquanova(Suárez Torres, J.)

07/09/02

6. Socio-environmental analysis of the estuarine and mangrove zone of the municipality of San Blas, Nayarit, 2001.
APPENDIX 6 135

No. ID DOCUMENT

DATEmm/dd/yy

AUTHOR DOCUMENT PROVIDED TO

SECRETARIAT BY

RECEIVEDmm/dd/yy

57 IPA 05/08/95 Profepa

(Lomeli Madrigal,J.)

Appendix 9. Inspection Order, Memorandum no. UAT.95/011 issued bySemarnap, Profepa, Nayarit State Office,Auditing and Technical Support Section.

Granjas Aquanova(Suárez Torres, J.)

07/09/02

58 IPA 04/25/95 Profepa

(Lomeli Madrigal,J.)

Appendix 10. File 009/95. Results ofinspection visit and summons issued bySemarnap, Profepa, Nayarit State Office,Auditing and Technical Support Section.Profepa ordered Aquanova to suspendits amassing and burning of vegetation.

Granjas Aquanova(Suárez Torres, J.)

07/09/02

59 IPA 05/16/95 Profepa

(Lomeli Madrigal,J.)

Appendix 11. Notice of inspection visit.Memorandum no. UAT.95/013 issuedby Semarnap, Profepa, Nayarit StateOffice, Auditing and Technical SupportSection.

Granjas Aquanova(Suárez Torres, J.)

07/09/02

60 IPA 02/18/98 Profepa

(García Cayeros,L.)

Appendix 15. Inspection Order no.DPFPA.SRN.AIA. 98/002. Issued bySemarnap, Nayarit State Office. Foundthat Aquanova had removed theobstruction on Los Olotes.

Granjas Aquanova(Suárez Torres, J.)

07/09/02

61 IPA 05/16/99 Profepa

(Rivas Jiménez, E.and DelgadoRodríguez, P.)

Appendix 16. Inspection Report no. IIA007/99. Inspection Order no.DPFPA.SRN.AIA.99/010. Issued bySemarnap, Nayarit State Office.

Granjas Aquanova(Suárez Torres, J.)

07/09/02
136 FACTUAL RECORD: AQUANOVA SUBMISSION No. ID DOCUMENT DATE mm/dd/yy AUTHOR DOCUMENT PROVIDED TO SECRETARIAT BY RECEIVED mm/dd/yy 62 IPA 05/10/01 Profepa (Valdivia Viera, Ma. and Adame Galván, J.) Appendix 18. Auditing Order no. SAA.2001/022 issued by Profepa, Nayarit State Office. Granjas Aquanova (Suárez Torres, J.) 07/09/02 63 IPA 04/28/02 Profepa (Ibarra Cerecer, J.) Appendix 19. Decision 454 issued by Profepa, Legal Affairs Unit to audit areas subject to implementation of the Man- grove Restoration Program arising from the administrative agreement between Granjas Aquanova and Profepa. Granjas Aquanova (Suárez Torres, J.) 07/09/02 64 IPA 06/20/02 Profepa (Gaytán Rángel, S. and Casanova Colunga, E.) Appendix 20. Auditing Report no. SIV. 2002/405 issued by Profepa, Nayarit State Office, Inspection and Monitoring Section. Granjas Aquanova (Suárez Torres, J.) 07/09/02 65 IPA 06/24/98 UNAM (Flores Verdugo,7 F.) Appendix 23. Report of Environmental Impact on Mangrove Ecosystems of the Boca Cegada, San Blas (Nayarit) region. Granjas Aquanova (Suárez Torres, J.) 07/09/02 66 IPA 03/23/98 Lewis Environ- mental Services,

Inc.(Robinson Lewis,8

Roy)

Appendix 24. Final report of Dr. Lewison the impact of the Granjas AquanovaS.A. de C.V. project on mangroves.

Granjas Aquanova(Suárez Torres, J.)

07/09/02

7. Dr. Francisco Flores Verdugo, Environmental Impact Report on Mangrove Ecosystems of the Boca Cegada, San Blas (Nayarit) area, 24 June 1998.8. Dr. Roy R. Robinson Lewis, letter of 23 March 1998, concerning recent inspection of San Blas, Nayarit site.
APPENDIX 6 137

No. ID DOCUMENT

DATEmm/dd/yy

AUTHOR DOCUMENT PROVIDED TO

SECRETARIAT BY

RECEIVEDmm/dd/yy

67 IPA 04/24/98 National Water

Commission(Nava Salcedo, J.)

Appendix 26. Memorandum no.BOO.E.33.1.0295. Response of theNational Water Commission, NayaritState Office to Granjas Aquanova, S.A.de C.V. on the use of marine waters.

Granjas Aquanova(Suárez Torres, J.)

07/09/02

68 IPA 02/20/98 BANAMEX Appendix 27. Declaration of payment of

water fees and fees for use and enjoyment of national property.

Granjas Aquanova(Suárez Torres, J.)

07/09/02

69 IPA 11/06/98 National Water

Commission(Gangoiti Ruíz, E.)

Appendix 28. Concession Title no.08NAY104898/13BKGE98 to GranjasAquanova S.A. de C.V, registry no.08NAY101319 for wastewater discharge.

Granjas Aquanova(Suárez Torres, J.)

07/09/02

70 IPA N/A N/A Appendix 29. Aerial photograph indicating the position of the creeks and

lagoons mentioned in the Submission aswell as a photograph showing the current location of the facility.

Granjas Aquanova(Suárez Torres, J.)

07/09/02

71 IPA 05/18/95 INE

(Álvarez IcazaLongoria, P.)

Appendix 30. Plans authorized by INEfor construction of the Boca Cegadafacility.

Granjas Aquanova(Suárez Torres, J.)

07/09/02

72 IPA 11/28/96 Laboratorios

Clínicos Quezada

Appendix 32. Clinical water quality testresults by Granjas Aquanova(1996–2001)

Granjas Aquanova(Suárez Torres, J.)

07/09/02
138 FACTUAL RECORD: AQUANOVA SUBMISSION No. ID DOCUMENT DATE mm/dd/yy AUTHOR DOCUMENT PROVIDED TO SECRETARIAT BY RECEIVED mm/dd/yy 73 IPA IPM-49 05/18/01 Granjas Aquanova (Martínez Ramírez, J.) Appendix 33. Memorandum no. CNA-DER-001/01 to National Water Commission. Quarterly and annual dec- larations of fees for use or enjoyment of public property pursuant to the Federal Water Duties Law. UCAI (Suárez Torres, J. García Velasco, M.) 07/09/02; 07/22/02 76 IPA 07/10/01 Universidad Autónoma de Nuevo León (Galaviz Silva, L.) Appendix 36. Folio no. 0160/2001 Certif- icates of test results for white spot syn- drome virus (WSSV), Taura syndrome virus (TSV) and yellowhead virus (YHV) in accordance with the Emergency Mexi- can Official Standard, conducted by Universidad de Nuevo León. Granjas Aquanova (Suárez Torres, J.) 07/09/02 77 IPM-4 07/09/02 UCAI (García Velasco, M.) Memorandum no. UCAI/3139/02 with 5 appendices delivered to Semarnat UCAI with additional information by the National Water Commission. UCAI (García Velasco, M.) 07/22/02 78 IPM-4 03/30/01 AgroLab (Santiago

Hernández, E.B.)

Appendix 2. Soil analysis. UCAI (García

Velasco, M.)

07/22/02

9. Information provided by Mexico 22 July 2002.
APPENDIX 6 139

No. ID DOCUMENT

DATEmm/dd/yy

AUTHOR DOCUMENT PROVIDED TO

SECRETARIAT BY

RECEIVEDmm/dd/yy

79 IPM-4 1997-2001 N/A Appendix 3. Discharge volume analysis,

1997–2001. Analysis method. Operatingtime of metered supply pumps. Averageflow through supply pump per hour.

UCAI (GarcíaVelasco, M.)

07/22/02

80 IPM-4 1997-2001 N/A Appendix 4. Hours of operation of

pumping equipment.

UCAI (GarcíaVelasco, M.)

07/22/02

81 IPM-4 06/03/99 Several authors

(Rico Ángulo, R.and Orozco Mata,J.L.)

Appendix 5.A. Note (tests of pumps insump).

UCAI (GarcíaVelasco, M.)

07/22/02

82 IPM-4 07/04/02 National Water

Commission(Mendoza Vera, B.A.)

Appendix 5.B. Memorandum no.BOO.00.02.02.1, registry nos. 5317 and5465, file no. 02-0699 of the NationalWater Commission, Legal Affairs Unit,Civil Processes Office. Follow up to Submission SEM-98-006 and Response of theParty by the National Water Commission.

UCAI (GarcíaVelasco, M.)

07/22/02

83 IPM-4 04/30/01 National Water

Commission(García Mayén, R.)

Appendix 5.B.1. Memorandum no.BOO.OO.R.09.04.4/0298.1707, issued byNational Water Commission, SantiagoPacífico Regional Office, Water Administration Section. Inspection visit.

UCAI (GarcíaVelasco, M.)

07/22/02
140 FACTUAL RECORD: AQUANOVA SUBMISSION No. ID DOCUMENT DATE mm/dd/yy AUTHOR DOCUMENT PROVIDED TO SECRETARIAT BY RECEIVED mm/dd/yy 84 IPM-4 05/02/01 National Water Commission (Marrujo López, J.) Appendix 5.B.2. Official notice by National Water Commission of inspec- tion visit to verify compliance with the National Waters Law and its regulation. UCAI (García Velasco, M.) 07/22/02 85 IPM-4 05/02/01 Comisión Nacional del Agua (Marrujo López, J. and Villalvazo Peña, P.) Appendix 5.B.2.1. Report of inspection visit no. 003/2001, 14 pages, issued by the National Water Commission, Nayarit State Office. UCAI (García Velasco, M.) 07/22/02 86 IPM-4 05/18/01 Granjas Aquanova (Martínez Ramírez, J.) Appendix 5.B.3. Memorandum CNA-REP-003/2001 by Aquanova to National Water Commission. Report on wastewater discharge. UCAI (García Velasco, M.) 07/22/02 87 IPM-4 05/15/01 Granjas Aquanova (Sequeira, V.M.) Appendix 5.B.3.1 Aquanova memoran- dum with information on pump flow volume at sump. UCAI (García Velasco, M.) 07/22/02 88 IPM-4 04/30/01 National Water

Commission(García Mayén, R.)

Appendix 5.B.4. Memorandum no.BOO.OO.R.09.04.4/0299.1706 ofNational Water Commission, SantiagoPacífico Regional Office, Water Administration Section. Inspection visit toGranjas Aquanova, S.A. de C.V facilities.

UCAI (GarcíaVelasco, M.)

07/22/02
APPENDIX 6 141

No. ID DOCUMENT

DATEmm/dd/yy

AUTHOR DOCUMENT PROVIDED TO

SECRETARIAT BY

RECEIVEDmm/dd/yy

89 Opinión

técnica deH. Licón10

09/06/02 Licón González,

H.

Technical opinion on conditions of operation, impacts, and remediation actionsof Aquanova, S.A. de C.V., Boca CegadaUnit, San Blas, Nayarit, Mexico.

Licón González, H. 09/06/02

90 IPM-511 12/02/02 Semarnat

(García Velasco,M.)

Memorandum UCAI/5419/02 with 7appendices relating to environmentalimpact statements filed by GranjasAquanova, S.A. de C.V., provided bySemarnat.

UCAI (GarcíaVelasco, M.)

12/19/02

91 IPM-5 09/00/96 Asesores en

Biología Pesquera,S.A. de C.V.

Appendix 1. Environmental ImpactStatement, Intermediate Form, forGranjas Aquanova—Boca Cegada project, Phases II and III.

UCAI (GarcíaVelasco, M.)

12/19/02

92 IPM-5 04/00/96 Asesores en

Biología Pesquera,S.A. de C.V.

Appendix 2. Executive summary: Analysis of critical points of the EnvironmentalImpact Statement, Intermediate Form,Granjas Aquanova—Boca Cegada, Phases II and III.

UCAI (GarcíaVelasco, M.)

12/19/02

10. Technical opinion on conditions of operation, impacts and remediation actions by Aquanova, S.A. de C.V., Boca Cegada Unit, San Blas,

Nayarit, Mexico, summer 2002.

11. Information provided by Mexico, 19 December 2002.
142 FACTUAL RECORD: AQUANOVA SUBMISSION No. ID DOCUMENT DATE mm/dd/yy AUTHOR DOCUMENT PROVIDED TO SECRETARIAT BY RECEIVED mm/dd/yy 93 IPM-5 03/31/95 Asesores en Biología Pesquera, S.A. de C.V. Appendix 3. General timeline of mitiga- tion measures proposed in environmen- tal impact statement, Phase I. Empresa Aquanova, S.A. de C.V. UCAI (García Velasco, M.) 12/19/02 94 IPM-5 05/00/95 Asesores en Biología Pesquera, S.A. de C.V. Appendix 4. Comments on conditions established by INE for analysis, assess- ment and report on Environment Impact Statement, Intermediate Form, Granjas Aquanova—Boca Cegada project. UCAI (García Velasco, M.) 12/19/02 95 IPM-5 05/00/95 Asesores en Biología Pesquera, S.A. de C.V. Appendix 5. Calculation of area cleared and classification of vegetation in area of Granjas Aquanova—Boca Cegada pro- ject, Phase I. UCAI (García Velasco, M.) 12/19/02 96 IPM-5 03/00/97 Aquanova S.A. de C.V. Appendix 6. Discharge canal project, Phases II and III. UCAI (García Velasco, M.) 12/19/02 97 IPM-5 02/27/97 Aquanova S.A. de C.V. Appendix 7. Memorandum INE-SMCO8160-025 of 27 February 1997 to Pedro Álvarez-Icaza Longoria, then

Director of Environmental Land UsePlanning and Environmental Impact forINE, requesting review of the terms andconditions of the environment impactauthorization for Phases II and III.

UCAI (GarcíaVelasco, M.)

12/19/02
Appendix 7

Information to be gathered / developed by

the Secretariat directly and through

independent experts

Information to be gathered/developed

by the Secretariat directly and through

independent experts1

Factual Record for the Aquanova Submission

19 February 2002

For the development of the factual record on submission

SEM-98-006, the CEC Secretariat is compiling information pertaining to

Mexico’s alleged failure to effectively enforce its environmental laws

with respect to Granjas Aquanova, in San Blas, Nayarit, Mexico. The Secretariat is seeking to compile technical, scientific or other information on

the state of natural resources in the area where Granjas Aquanova operates, which is available in existing databases, public files, information

centers, libraries, research centers and academic institutions.2

In particular, information is required on the following points:

1. Description of the area where Granjas Aquanova’s activities are

undertaken, particularly its environmental situation, water quality, the state of wetlands and the state of protected species’ habitat.

2. Description of the effects of Granjas Aquanova’s alleged violations

of the environmental laws on the state of wetlands and the state of

the habitat of protected species in the area.

3. Description of the effects on fishing resources and on fishing activities in the area where the company is located, because of the allegedly unauthorized introduction of new species.

4. Description of the effects on water quality and mangrove health,

due to the allegedly unauthorized discharge of wastewater.

5. Indication as to whether mangroves have been planted in the area

since 1995 (an action that was claimed to have been undertaken as a

corrective measure).3

APPENDIX 7 145

1. Draft subject to change.

2. The overall work plan and the corresponding information request, issued by the Secretariat for

the development of this factual record, provide more information on the background for this

matter. These documents are available at <http://www.cec.org/citizen/guides_registry/

registryview.cfm?&varlan=espanol&submissionID=49>.

3. According to Mexico’s response, the project filed by Granjas Aquanova for environmental

impact assessment consisted of three phases. The National Institute of Ecology (Instituto Nacional

de Ecología—INE) granted an environmental impact authorization for the first phase on 7 February 1995, establishing 43 conditions. In inspections performed in 1995, irregularities were found

in Granjas Aquanova’s compliance with the terms of that authorization, but Mexico asserts that a

program to correct the negative impacts was undertaken—apparently a mangrove planting program.
6. Information indicating whether the activities carried on by Granjas

Aquanova implied a change of land use in the habitat of protected

species.4

7. Description of the state of the La Tronconuda, La Atascona, Los

Olotes and La Cegada streams, which according to the submission

were improperly obstructed by Granjas Aquanova.

8. Description of the shrimp species introduced by Granjas

Aquanova, and an indication of whether it produces viral epidemics.

9. Information on fishery production in the area where Granjas

Aquanova operates, and on whether it has decreased or increased

by reason of Granjas Aquanova’s operations.5

146 FACTUAL RECORD: AQUANOVA SUBMISSION

4. The submission and Mexico’s response agree that the activities of Granjas Aquanova were

undertaken in the habitat of species protected under NOM-059-ECOL-1994.

5. In April 1999, the Aquaculture Bureau of the Secretariat of Environment, Natural Resources and

Fisheries (Secretaría de Medio Ambiente, Recursos Naturales y Pesca—Semarnap) reported that production had increased.
Appendix 8

Species Listed in NOM-059-ECOL-1994,

found in the Aquanova Area

The following species included in Mexican Official Standard

NOM-059-ECOL-1994, were found in the Aquanova area, according to a

study prepared for Aquanova by SIAFASE in 1997. Based on this study,

Aquanova replaced the Fauna Rescue Plan by the “Wildlife Program for

Granja AquaNova, Boca Cegada Facility, Municipality of San Blas,

Nay.,” in compliance with its environmental impact authorization of 20

August 1996 (IPM-3, annex 4).

APPENDIX 8 149

CLASS SCIENTIFIC COMMON NOM-059-

NAME NAME ECOL-1994

Reptiles

Iguana iguana Iguana Pr

Cnemidophorus Many-lined whiptail R, En

lineatissimus

Boa constrictor Boa E

Lampropeltis triangulum Milk snake E

Leptodeira maculata Southwestern cat-eyed snake R, En

Leptophis diplotropis Pacific coast parrot snake E, En

Crotalus basiliscus Mexican West Coast Pr, En

rattlesnake

Kinosternon integrum Mexican mud turtle Pr

Birds

Ardea herodias Great blue heron R

Mycteria americana Wood stork E

Anas discors Blue-winged teal Pr

Aythya affinis Lesser scaup Pr

Chondrohierax Hook-billed kite R

uncinatus

Circus cyaneus Hen harrier E

Accipiter cooperii Cooper’s hawk E

Geranozpiza caerulescens Crane hawk E

Buteogallus anthracinus Common black hawk E

Buteogallus urubitinga Great black hawk E

Parabuteo unicinctus Harris hawk E

Buteo nitidus Gray hawk Pr

Falco peregrinus Peregrine falcon E

Otus guatemalae Vermiculated screech owl R
150 FACTUAL RECORD: AQUANOVA SUBMISSION

CLASS SCIENTIFIC COMMON NOM-059-

NAME NAME ECOL-1994

Birds

Glaucidium minutissimum Least pygmy owl R

Glaucidium brasilianum Ferruginous pygmy owl E

Asio flammeus Short-eared owl E

Campephilus guatemalensis Pale-billed woodpecker R

Melanotis caerulescens Blue mockingbird E, En

Seiurus noveboracensis Northern waterthrush R

Mammals

Felis yagouaroundi Jaguarundi E

E = Endangered

R = Rare

Pr = Special protection

En = Endemic
Appendix 9

Summary of Actions by Mexican Authorities

with Respect to Granjas Aquanova

APPENDIX 9 153

Act of authority Date Description of violations detected Provision of reference Sanctions or actions imposed on AquanovaConditional environmental impact authorization, first phase, by means of document no.DOOP-0333; issued by INE [Mexico’s Response, (“RSP”), p. 3 and Appen- dix 1].

7 February 1995 N/A. LGEEPA; 28, 29 and 34.

R-Impact1 5 and 20. 43 conditions, including: 14) prohibition on establishing auxiliary camps; 16) preserve the entirety of the mangrove vegetation and carry out a replanting program; 17) identify and mark the mangrove specimens that could be relocated.

Inspection visits, reports no. 95/010 and 95/011;ordered by PROFEPA [information provided by Mexico, (“IPM-1”), p. 1 and Appendices 1 and 2]. Resolution (no ref.);issued by PROFEPA [information provided by Aquanova (“IPA”) Appendix 10].

19, 20 and 25April 1995 Noncompliance with conditions 14, 16 and 17 set out in authorization D.O.O., P.-0333 of 7 February 1995, detecting the presence of camps and auxiliary facilities, the felling and burning of mangroves, and the failure to relocate mangroves where possible. R-Impact, 20, last paragraph. Conditions established in authorization no. DOOP-0333. Ordered the suspension of felling and burning of the existing vegetation in the area and the sus- pension of construction of auxiliary facilities in the project area.

Report of inspection visit (no ref.); ordered by PROFEPA (IPA Appen- dix 9). 9 May 1995 None found. N/A. Verified compliance with the order contained in the document of April 25.Decision (no ref.).Inspection visit, report no. 016/95.Decision document no.003. Issued by PROFEPA (RSP, p. 4 and IPM-1, pp. 1–2 and Appendices 3–5).

15 and 17 May and 16 August1995

Irregularities were detected in the pro- cedures of 19 and 20 April 1995, and therefore a new proceeding was insti- tuted and a new inspection visit was ordered. On that visit, in addition toconfirming the irregularities indicated in the document of April 25, the author- ities detected the failure to mark mangrove specimens for relocation.

R-Impact, 20 last paragraph. Conditions establishedin the environmentalimpact assessment of 7 February 1995.

• removal of auxiliary camp located within the

project area; • replanting of black mangrove (Avicennia nitida) in various areas of the camp; • implementation of planting and reforestation

programs; • payment of a fine of P$100,000.00.

1. LGEEPA Environmental Impact Regulation, DOF, 7 June 1988; repealed 30 May 2000.
154 FACTUAL RECORD: AQUANOVA SUBMISSION Act of authority Date Description of violations detected Provision of reference Sanctions or actions imposed on Aquanova Amendment of various conditions by means of document no. DOODGNA-2587; issued by INE (IPA, Appendix 4). 27 June 1995 N/A. Ensuing from authorization of 7 February 1995. Approval given to increase capacity of sump to 13,750 m3, and amendment of the following con- ditions of the authorization of 7 February 1995: 1, 2, 3, 5, 11, 13, 14, 16, 20, 23, 24, 28, 41 and 43. Nota- bly conditions 14, authorizing the installation of auxiliary structures, and 16, authorizing the removal of vegetation. Administrative decision (IPM-1, p. 2) (No copy of this decision was pro- vided). 6 January 1996 Annulled administrative decision no. 003 of 16 August 1995. LFPA2 91-III. Ordered that a new decision be issued justifying the sanctions imposed on Aquanova. Inspection visit report (no ref.) (RSP, p. 20) (No copy of this report was provided). 22 January 1996 Forestry-related irregularities due to the lack of an authorization for land use changes and mangrove removal. LF3 11 and 12. Suspension of work. Intervention in work; ordered by PROFEPA (IPM-2, Appendix 16, p. 1, paragraph 3). 22 February 1996 Lack of relevant authorization. (No documentary information in this regard; presumably arises from the pre- ceding inspection visit). Not indicated. Suspension of work. Authorization to build wastewater discharge canal by means of docu- ment no. DOODGNMA-01499; issued by INE (RSP, p. 12 and Appendix 16). 22 March 1996 N/A. Ensuing from authorization of 7 February 1995. Various conditions imposed on the performance of the work, including: • File a wastewater quality monitoring pro- gram. • File a study of the impact of wastewater dis- charge on the wildlife in La Tronconuda marsh. • Adhere to the maximum contaminant limits for the discharge.

2. Federal Administrative Procedure Law, DOF, 4 August 1994.3. Forestry Law, DOF, 17 December 1992.
APPENDIX 9 155

Act of authority Date Description of violations detected Provision of reference Sanctions or actions imposed on AquanovaLand use change authori- zation by means of document no.261-SRN.96/1431; issuedby Nayarit state Semarnap office (RSP, p. 5 and Appendix 6)

21 June 1996 N/A. LF 19.

RLF,419, 20, 21 and 22. Various conditions imposed, notably, to pre- serve the entirety of the riverine (mangrove)

vegetation.

Authorization to clear,level, and survey by means of document no.DOODGNA-02783;issued by INE (RSP, p. 4 and Appendix 2).

25 June 1996 N/A. LGEEPA 28, 29 and 34.

R-Impact, 5 and 20. Various conditions imposed, including: • Prohibition on removing young or old mangroves. • Prohibition on blocking water flow in the creek adjacent to Isla del Rey. • File a salvage plan for flora and fauna and a restoration and reforestation program for nonproductive areas.

Favorable preliminary evaluation on land usechange. Document no. 261-SMA. 96/107; issuedby Nayarit state Semarnap office (RSP, p. 5 and Appendix 7)

8 July 1996 N/A. LF 19. RLF, 19, 20, 21 and 22. Prohibited: • Blocking water flow in the creek adjacent to Isla del Rey. • Interrupting the unimpeded land access to Isla del Rey.

Authorization to clearand level 10 ha of mangrove forest by means of document no.DOODGEIA-04076;issued by INE (IPM-3, Appendix 4).

20 August 1996 N/A. Related to authorization of 25 June 1996. Established various conditions, including: • Prohibition on impacting old-growth riverine mangrove forest. • Prohibition on blocking water flow in the creek adjacent to Isla del Rey. • Requirement to provide additional informa- tion on fauna salvage plan. • Requirement to file the restoration and refor- estation program for nonproductive areas.

4. Regulations to the Forestry Law, DOF, 21 February 1994; repealed 25 September 1998.
156 FACTUAL RECORD: AQUANOVA SUBMISSION Act of authority Date Description of violations detected Provision of reference Sanctions or actions imposed on Aquanova Environmental impact authorization, phases II and III, by means of docu- ment no. DOODGOEIA-08160; issued by INE (RSP, p. 4 and Appendix 3). 20 December 1996 N/A. LGEEPA 28, 29 and 34. R-Impact 5 and 20. Established 49 conditions, including: • Prohibition on impacting the creek adjacent to Isla del Rey. • Maintenance of 1,675 ha of mangrove forest. • Guaranteeing free access to Isla del Rey. • Identification and marking of healthiest speci- mens for relocation. • Compliance with the applicable law on wastewater quality. Land use change authori- zation by means of docu- ments nos. 261/SRN/97-0359 and 261/SRN/97-1233; issued by the Nayarit state Semarnap office (RSP, p. 6 and Appendices 8 and 9). 5 March and 19 May 1997 N/A. LF 19. RLF 19, 20, 21 and 22. Various conditions imposed, notably, to reserve the entirety of the unauthorized vegetation. Authorization for ocean discharge canal, phases II and III by means of docu- ment no. DOODGOEIA-02187; issued by INE (RSP, p. 4 and Appendix 4). 15 April 1997 N/A. LGEEPA 28, 30 and 35. R-Impact 20. Established 15 conditions, including: • Prohibition on blocking or affecting the creeks outside the discharge canal. • Salvage of mangroves for replanting. • Performing the work necessary to mitigate the negative environmental impact. Inspection visit, report no. PFPA/SRN-DGVOE-18-0 12-214/97; ordered by PROFEPA (IPM-1, p. 2 and Appendix 8). 17 November 1997 None found. Verified compliance with the technical corrective measures ordered in the deci- sion of 16 August 1995. N/A. Two of the measures in document no. DOODGNA-2587 of 27 June 1995 were annulled (removal of auxiliary camp and replanting of the number of mangroves originally ordered).

Final decision (no ref.);issued by PROFEPA (RSP, p. 21 and IPM-1, p. 2 and Appendix 7).

5 December1997

This decision makes effective the decision of 6 January 1996. R-Impact 20, last paragraph. Conditions 14, 16 and 17

of authorization no.DOOP-0333.

Aquanova fined P$29,095.00.
APPENDIX 9 157

Act of authority Date Description of violations detected Provision of reference Sanctions or actions imposed on AquanovaDocument no.DOODGOEIA-07162;issued by INE (IPM-3, 7/05/02, Appendix 5).

11 November1997

N/A. Related to authorization

of 20 December 1996. Followed up on the conditions of the authoriza- tion of 20 December 1996. Compliance with some is noted (actions to prevent mixing of the dis- charge with the creek adjacent to Isla del Rey, La Diabla and El Rey inlet; conservation and protec- tion area; construction of weir around La

Tronconuda Marsh to use area as settling lagoon); authorized amendment of others (the area of riverine mangrove forest in the conserva- tion area is reduced from 1,675 to 1, 580 ha); and itis noted that compliance with other conditions is pending (land use change authorization; 50 ha buffer zone between ponds and agricultural zone).

Document no.DOODGOEIA-07692:issued by INE (RSP, p. 10 and IPM-1, p. 3 and Appendix 12).

11 December1997

Black mangrove (A. germinans) mortal- ity detected in Los Olotes creek. Not indicated. Aquanova was ordered to remove the obstruc- tion between its discharge canal and Los Olotes creek.

Inspection visit, report no. IIA 000010; ordered by PROFEPA (RSP, p. 10 and IPM-1, p. 3 and Appendix 11). 16 December 1997 Detection of noncompliance with the conditions set out in authorization of 20 December 1996, as well as the measures ordered in the document of 11 Decem- ber 1997. Detection of impact on 20 ha of mangrove vegetation in Los Olotes and La Diabla creeks. Not indicated. Administrative proceeding instituted by means of summons (no copy was provided).Inspection visit, report no. IIA0002/98; ordered by PROFEPA (RSP, p. 13 and IPA Appendix 15). 18 February 1998 None found. Noted compliance with document no. DOODGOEIA-07692, of 11 December 1997. N/A. No sanctions or measures applied.Administrative agreement between PROFEPA andAquanova (RSP, p. 23 and IPM-1, p. 3 and Appendix 13).

30 March 1998 N/A.

This agreement terminated the admin- istrative proceeding instituted further to the inspection visit of 16 December1997.

LFPA 57-VI. Creation of a committee of experts to determine the degree of responsibility of Aquanova for the harm suffered by the mangrove forest along the Los Olotes and La Diabla creeks.
158 FACTUAL RECORD: AQUANOVA SUBMISSION Act of authority Date Description of violations detected Provision of reference Sanctions or actions imposed on Aquanova Opening of file no. DGMPE/C/1.3/039/98; document no. 99/2000 (IPM-1, pp. 5 and 6) (No copy was provided of the file or the subsequent doc- ument indicating that criminal prosecution was inapplicable). 4 September 1998 and 16 March 2000 Criminal proceeding brought against Aquanova. CPF,5 416-II Determined that criminal prosecution was inap- plicable “since one element of the corpus delicti was missing; to wit, the normative element of the absence of the relevant authorization.” Concession to grow and harvest blue and white shrimp; issued by Semarnap (IPA, Appendix 35). 28 September 1998 N/A. LP,6 3, 24. RLP7 44, 50. The concession prohibits: – Altering natural spawning, rearing and refuge areas for any species, particularly mangrove forest. – Dumping of materials or substances that harm aquatic flora and fauna. – Culturing, extracting, or catching marine spe- cies not authorized in the concession. Detailed report ensuing from administrative agreement of 30 March 1998 (IPM-1, p. 3 and Appendix 14). 16 October 1998 The committee of experts determined that Aquanova is partially responsible for the impact on mangroves in Los Olotes and La Diabla creeks. Not indicated. The following remediation measures were agreed upon: – Restore the free flow of water in these creeks. – Carry out a restoration program and monitor recovery of the area for nine years. – Contribute P$50,000.00 for mangrove preser- vation actions. – Post a bond in an amount of P$1,000,000.00 to guarantee performance of the agreement and the recommendations contained in the report. Wastewater discharge permit no. 08NAY104898/13BGE98;

issued by CNA (IPA Appendix 28).

6 November1998

N/A. Articles establishing jurisdiction over issuance of the

document.

Established particular conditions of discharge, additional to compliance with NOM-001-ECOL-1996.

5. Federal Criminal Code; DOF, 14 August 1931.6. Fisheries Law, DOF, 25 June 1992.7. Regulations to the Fisheries Law, DOF, 27 July 1992; repealed 29 September 1999.
APPENDIX 9 159

Act of authority Date Description of violations detected Provision of reference Sanctions or actions imposed on AquanovaInspection visit, report no. IIA0007/99; ordered by PROFEPA (IPA Appendix 16). 21 May 1999 Did not exhibit authorization to carry out dredging. Not indicated. Recommended suspension of dredging until rel- evant authorization filed.Agreement between rep- resentatives of the gov- ernment of Nayarit,Aquanova, Semarnap, PROFEPA, state electedofficials, and members ofcivil society. (IPM-1, p. 5 and Appendix 28).

22 December1999

N/A. N/A. Aquanova made the following undertakings: – Limit future growth of phase III. – Allow fishing in the southeast discharge canal. – Allow grazing on Isla del Rey. – Implement material urban improvement pro- grams in neighboring communities.

Decision no. 169/2000, Ex’p. no. 032/96, forest area 1996; issued by PROFEPA (IPM-2, Appendix 2). 15 February 2000 Forestry-related irregularities due to lack of land use authorization and removal of 3.5 ha of mangrove forest, detected during inspection of 22 January 1996. LF 46 Fine of P$48,800.00 (2000 times daily minimum wage).Inspection visit, report no. VIA 003/2000 (IPM-1, p. 5 and Appendix 26); ordered by PROFEPA. 10 March 2000 None found. Verified compliance with the mangrove restoration program agreed upon in the administrative agreement of 30 March

1998.

N/A. No sanctions or measures imposed.

Inspection visit no. 003/2001; ordered by CNA (IPM-4). 2 May 2001 No discharge measurement apparatus detected, therefore assuming that there was no discharge monitoring. N/A. Following the response and the evidence pre- sented by Aquanova (analysis and measurement results), no sanctions or measures were imposed.Inspection visit, report no. VIA 739/2001 (IPM-1, p. 5 and Appendix 27); ordered by PROFEPA. Decision (no ref.); issuedby PROFEPA (IPA, Appendix 19).

11 May 2001 and7 January 2002

The slow growth of mangroves in the highly affected areas was detected; at the time of the visit, Aquanova had not filed acknowledgements of receipt of the progress reports agreed upon in the administrative agreement of 30 March1998.

Articles establishing jurisdiction over this procedure. Decided not to impose sanctions since it was ascertained that Aquanova had filed the restora- tion program reports.

Inspection visit, report no. VIA/2002/104; orderedby PROFEPA (IPA, Appendix 20).

20 June 2002 None found.

The gradual restoration of mangroves was noted, as indicated by Aquanova inits monitoring reports.

N/A. No actions or measures recommended.

Attachment 1

Council Resolution 03-06 – Instruction to

the Secretariat of the Commission for

Environmental Cooperation to make

public the Factual Record for

Submission SEM 98-006 (Aquanova)

COUNCIL RESOLUTION 03-06 163

23 June 2003 

COUNCIL RESOLUTION 03-06 

Instruction to the Secretariat of the Commission for Environmental 

Cooperation to make public the Factual Record for Submission 

SEM-98-006 (Aquanova) 

THE COUNCIL: 

SUPPORTIVE of the process provided for in Articles 14 and 15 of the North 

American Agreement on Environmental Cooperation (NAAEC) regarding 

submissions on enforcement matters and the preparation of factual records; 

NOTING that the Secretariat received no comments from the Parties on the draft 

Aquanova factual record; 

HAVING RECEIVED the final factual record for Submission SEM-98-006; 

FURTHER NOTING that pursuant to Article 15(7) of the NAAEC, the Council 

is called upon to decide whether to make the factual record publicly available; 

and 

AFFIRMING its commitment to a timely and transparent process; 

HEREBY DECIDES: 

TO MAKE PUBLIC and post on the registry the final factual record for 

Submission SEM-98-006; 

APPROVED BY THE COUNCIL: 

____________________________________ 

Judith E. Ayres 

Government of the United States of America 

____________________________________ 

Olga Ojeda Cardenas 

Government of the United Mexican States 

____________________________________ 

Norine Smith 

Government of Canada