By: Maximiliano Bazán
(Read news in Ciper)
Through a request for information via the Transparency Law to the Undersecretary of Fisheries and Aquaculture (Subpesca), Fundación Terram gained access to the list of the nine concessions that are part of the agreement reached between the government and the salmon farming companies Cooke Aquaculture and AquaChile to relocate their farming centers outside three national parks located in the Chilean Patagonia [see previous column in CIPER Opinion: "Legitimate suspicions about the agreement between government and salmon farming companies: the effects of the lobby?] This, after the document signed and made public last December 19 did not detail such information, nor the legal situation of each of the parties.
In the following investigation, we include details of cases of circumvention of the Environmental Impact Assessment System (SEIA) and concessions with grounds for expiration that have not expired [see MAP 1], and that turn the aforementioned agreement into flagrant evidence of irregularities for the regulations in force. In each of the following points we have made, during the last three weeks, consultations with the companies and competent authorities mentioned, thus welcoming their eventual defense arguments for these complaints.
MAP 1:
1. ELUSIONS TO THE SEIA
Over several production cycles, two AquaChile farms (codes 110205 and 110234) have harvested more than 22,000 tons of salmon since 2002 [see GRAPHS 1 and 2] inside Magdalena Island National Park (Aysén Region), without an Environmental Qualification Resolution (RCA). This is because their technical projects, approved by Subpesca, began to be processed before April 3, 1997, when the Environmental Impact Assessment System (SEIA) came into effect, and therefore they had to produce according to what was established in their technical project (if they had made any modifications to it, they would have had to undergo an environmental assessment, which in both cases has not occurred to date).
The technical projects for the cultivation centers 110205 and 110234 were approved in July 1998 and August 1999, respectively. In those years, salmon farming centers in Chile did not reach the current production levels, being still a developing industry, so the technical projects that regulated the activity were designed to achieve harvests of 200, 400 or 600 tons. Thus, this exponential increase of fish has also brought with it a greater introduction of nutrients to the seabed, as a result of feces and food not digested by them, which can generate a decrease in available oxygen, putting at risk all the species that live there.
When asked about these cases of possible circumvention of the SEIA and whether the background justifies the opening of a sanctioning procedure by the SMA, the agency headed by Marie Claude Plumer responded that "the lines of investigation initiated or to be initiated are confidential so as not to alter or compromise their results", adding that, for this reason, the SMA "cannot advance strategies of control and/or sanctions".
2. OPACITY OF TECHNICAL PROJECTS
The exact amount of the maximum production authorized by the technical projects of these and other salmon farming centers was requested by Fundación Terram via the Transparency Law to Subpesca, which denied access to the information arguing that it is not systematized and that doing so would require too much time, diverting officials from their work. After appealing to the Council for Transparency (CPLT) and then to the Court of Appeals of Santiago, the case is awaiting a ruling from the Supreme Court. In any case, it is striking that Subpesca does not have systematized information on the technical projects, because when the centers operate without an RCA, as happens in many cases, the amount of fish to be planted at the beginning of each production cycle must be authorized based on what is established in the technical project. Otherwise, the planting request submitted by the companies does not have a counterpart, leaving room for an increase in production in an unregulated manner and without environmental evaluation.
Regarding these possible cases of circumvention of the SEIA, Subpesca did not want to refer specifically, but it did indicate to us in a global manner regarding the agreement that "the technical projects that will accompany the analysis and relevance of potential relocations must meet environmental protection standards and ensure unrestricted compliance with current regulations", adding that except for the two relocations already decreed, corresponding to Huillines 1 and Exploradores, "the other processes are under study".
3. CIRCUMVENTION OF THE SEIA WITH ONGOING SANCTIONING PROCEDURE
Like the two AquaChile cases, the Huillines 2 (110228) and Huillines 3 (110259) centers of the Canadian company Cooke Aquaculture, located within the Laguna San Rafael National Park and Biosphere Reserve in the Aysén region and also part of the relocation agreement, have operated for years without environmental evaluation, and well above the production limits established in their technical projects, harvesting up to more than 5,200 and 6,600 tons during a single production cycle, despite the fact that they only authorize 375 and 125 tons of salmon [see CHART 3 ].200 and 6,600 tons during a single production cycle, despite the fact that these only authorize 375 and 125 tons of salmon [see CHART 3 and 4].
But in this case, unlike AquaChile's facilities, the SMA did open a sanctioning procedure for circumvention of the SEIA in April 2021, which was prosecuted by the company through two appeals for protection that, after being accepted by the Court of Appeals of Coyhaique, were subsequently rejected by the Supreme Court, in favor of the SMA, whose practical effect has been the suspension of the sanctioning procedure on different occasions.
With all this, Cooke Aquaculture has been able to continue producing above the levels authorized in its technical project within the national park. According to the final report of the provisional measure, submitted by the company to the SMA as part of the sanction procedure, three months into the last production cycle (January 2023), the Huillines 3 center contained a total of 427,462 fish, equivalent to 478 tons, a figure that could reach 1,923 tons of salmon at the end of the production cycle, according to the fish harvest weight of 4.5 kg. that Subpesca indicates for this center. In other words, despite the provisional measure to limit planting to avoid environmental damage, the center would once again produce 1,798 tons more than authorized in its technical project, in the midst of the ongoing sanctioning procedure.
It should be noted that, in this sanctioning procedure, Terram Foundation and other environmental organizations took part in September 2023, providing the same productive information provided in this investigation, coming from the National Service of Fisheries and Aquaculture (Sernapesca) obtained through the Transparency Law, since until then it had not been provided by the public agency.
Regarding the relocation requests for the Huillines 2 and Huillines 3 farms, Cooke Aquaculture states that "we are currently conducting field studies -which take months and even years and have a cost of over two million dollars-, in order to have each of the necessary background information required by the various standards and guidelines, so as to build robust projects to be submitted for environmental assessment through the SEIA at the appropriate stage of the procedure".
4. CONCESSIONS IN CAUSE OF CADUCIDAD
Of the nine concessions that seek to relocate outside national parks, two of them have incurred in grounds for caducidad for suspending operations for more than two consecutive years, in accordance with the provisions of Article 142 letter e) of the General Law of Fisheries and Aquaculture (LGPA). Cooke Aquaculture's Huillines 1 (110225) and Exploradores (110295) centers suspended activity for six years between January 2012 and December 2017. Despite this, the Undersecretariat for the Armed Forces (SSFFAA) has not expired these concessions, nor has it done so with several cases nationwide, both inside and outside protected areas.
With respect to these centers, their productive behavior is striking, as both register large quantities of fish planted at the beginning of the productive cycles, but these do not align with the harvest figures. In the case of Huillines 1, it records plantings in 2006, 2007, 2008, 2018 and 2021 for a total of 10,540,894 fish which, at an estimated weight of 3 kg. at the time of harvest -which is what the center records on average-, reaches a projected 31,623 tons of production, while its effective harvests recorded in Sernapesca throughout the entire period only reached 37,941 units for 112 tons, equivalent to less than 1% of the total planted.
For its part, the Exploradores center registers a total of 7,472,167 fish planted between 2005 and 2021, equivalent to 33,625 projected tons of harvest at an estimated weight of 4.5 kg. per fish, according to Subpesca, while its actual harvest registered with Sernapesca only reached 18,716 units for 64 tons, also equivalent to less than 1% of the total planted.
This raises the question of where all these fish ended up: did they simply rot in the sea, was their harvest not notified, or were they transferred to other farming centers? If so, on what basis did Sernapesca authorize these transfers if the technical projects of the centers are not systematized as described above?
On the other hand, Huillines 1 and Exploradores are the only sites in the agreement that have an RCA approved for relocation. The problem is that this RCA was resolved in 2014, based on information that could be outdated. In this regard, Cooke Aquaculture points out that the validity of the RCA was validated by the SMA through a resolution issued in 2021: "Thus, our concession meets all the requirements to start operations, once the material delivery is made in the coming months".
But the Environmental Prosecutor's Office (FIMA) does not think so. According to Marcos Emilfork, a lawyer for the NGO, "even when the validity of the RCA has been resolved after the start of project execution has been accredited, we are talking about a project that is going to be carried out under different conditions because the baseline on which the evaluation was based is not the same, which poses a problem for the legality of that RCA".
In accordance with Law 19,300 of General Bases of the Environment, the other seven centers that are part of the agreement must enter the SEIA to evaluate their impacts on the ecosystem where they will move their activities, a destination area that has not been made public until today, except for the two cases mentioned above, which will be located in the Estero Cupquelan, 23 and 26 km from the current location, a fjord located in the municipality of Aysén.
MAP 2:
Regarding the environmental assessment of the relocations of the salmon farms, the Ministry of the Environment (MMA) responded that "the technical projects to be presented in the relocation process will have to be evaluated at the appropriate time under the respective regulations". Regarding the validity of the RCA of Huillines 1 and Exploradores approved in 2014 in view of the time elapsed, there was no response from the MMA.
Another center that is part of the agreement between the government and the salmon companies and that would have incurred in grounds for forfeiture is Islas Bajas (110842), whose owner is Exportadora Los Fiordos (a subsidiary of AquaChile), which operates in the Magdalena Island National Park. According to Sernapesca's productive information obtained via the Transparency Law, Islas Bajas suspended operations between February 2015 and December 2019, for almost five years, in breach of Article 142 letter e) of the LGPA, which only authorizes suspending operations for up to two consecutive years.
In addition to the above cause, once it resumed operations, the center may not have complied with the stipulations of the Regulation that sets the minimum levels of operation, since the volume of fish planted, corresponding to 18,034 specimens in 2019 and the same figure in 2020, but discontinued without corresponding to the same production cycle, would not reach 5% of the total authorized in the RCA, which establishes a maximum of 1,578 tons at a harvest weight of 3.5 kg. This calculation of the minimum 5% to be planted is required for the operation to be valid and, therefore, not to be subject to forfeiture. In addition, after both sowings, the center only recorded harvests in 2022 for a total of two tons.
According to the same productive information from Sernapesca, centers 110849 and 120149, also belonging to AquaChile, did not start operations during the first year since the concession was granted, as established in Article 142 letter e) of the LGPA. On the one hand, center 110849, located within the Magdalena Island National Park, is located in a portion of sea concessioned in July 2010, but registers its first operation only nine years later, in December 2019, which was extended for only three months and consisted of the planting of 12,569 fish, equivalent to 251 kg, and without any associated harvest. The concession of the 120149 center, located on the border of the Bernardo O'Higgins National Park and the Kawésqar National Reserve in the Magallanes region, was granted by the SSFFAA in April 2014, but recorded its first operation after four years, in February 2018, thanks to the omission of the SSFFAA, which at the time did not expire it, reaching harvests of over 6,300 and 10,300 tons in the two productive cycles developed to date.
Regarding these five concessions that would have incurred in grounds for expiration and that are part of the agreement, from the SSFFAA, currently headed by Galo Eidelstein, only referred to the two that already have approval from the agency, corresponding to Huillines 1 (110225) and Exploradores (110295), noting that "the relocated centers according to the recent announcement made by the government of Chile [...] have not been reported by Sernapesca as possibly incurring in grounds for expiration. On the other hand, to resolve the relocation request, this Undersecretariat for the Armed Forces verified their operational situation with the information made available by Sernapesca in its reporting system, which in both cases shows the existence of management plans and effective operations, from which the company in March 2022 requested an extension of time to not operate, which was granted by the accompanying resolutions".
When the SSFFAA says that the existence of sanitary management plans agreed by the owners allows them to avoid the cause of expiration, it is relying on Ordinary No. 1,939 of 2013 of Subpesca, in which the agency made several interpretations of the provisions of the General Law of Fisheries and Aquaculture in favor of salmon farming companies. One of these assumed that when the law, in its article 69 bis, says that "the period corresponding to a period of rest or stoppage by resolution of authority", would be understood as operation, so it would not be counted to constitute the cause of expiration, it would be extensible not only to the mandatory rests defined by the authority, but also to the voluntary rests defined by the holders. Thus, dozens of concessions could continue to form part of the assets of the companies, even though they were not in operation, and could even be leased, mortgaged or sold even if they had suspended operations for two, three or even six years, as occurred with the Huillines 1 and Exploradores centers of Cooke Aquaculture, which can be relocated today.
This interpretation of the law was declared illegal by the Comptroller General of the Republic through opinion No. 25,006 of 2018, only after several years of its application for the benefit of companies.
Despite the insistence to consult under what legal argument the other three concessions of AquaChile that are part of the agreement (110842, 110849 and 120149) remain in force without being expired, there was no response from the SSFFAA.
Within the framework of this investigation, AquaChile was also contacted, but until the publication of this article there was no response from the largest salmon producer in the country, whose general manager, Sady Delgado, and president, José Guzmán, participated in the meeting held at the home of lobbyist Pablo Zalaquett prior to the signing of the agreement, along with other salmon businessmen and the Minister of Economy, Nicolás Grau (who is in charge of Subpesca and Sernapesca), and the head of Environment, Maisa Rojas. As a result of this cheese and wine that was not registered in the lobbying hearings platform, both authorities remain in the tightrope of their portfolios[see report in CIPER 29.12.2023].
The Ministry of Economy was also consulted for this investigation, to whom the information was sent to find out if it had been identified and evaluated prior to the signing of the agreement, as well as if the meeting held with salmon businessmen in the house of Pablo Zalaquett served to seal the signature, but they did not want to participate in this publication.
5. CONCESSIONS OUTSIDE THE AGREEMENT
The government's agreement with these two salmon farming companies responds to the announcement made by President Boric on his first trip to Magallanes after taking office: "Although it may sound harsh to say it, industries such as salmon farming must leave protected areas", said the president at the time. But these nine concessions that make up the agreement are only a portion of those found within protected areas. In national parks alone there are 28 concessions in force, 19 of which are outside the agreement, all granted to the company Nova Austral in the Alberto De Agostini National Park in the Magallanes region [see MAP 3], which has a long history of environmental non-compliance that has brought it to the brink of bankruptcy, including twenty-four cases of overproduction that were never sanctioned by the authorities, and which are now statute-barred.
In addition to these, there are 312 concessions in force in the Las Guaitecas Forest Reserve and another sixty-six concessions in the Kawésqar National Reserve, as well as eleven concessions located within the Fiordo Comau - San Ignacio de Huinay and Pitipalena Añihue Multiple Use Coastal Marine Protected Areas.
Another aspect that is not clear in the "Manifestation of interest public-private commitment for the effective protection and conservation of national parks and their adjacent areas" is precisely this last point, since the agreement contemplates the relocation of only one of the 49 concessions granted that are located in the adjacent area of these three national parks [see MAP 4], considering the distance of 1.5 nautical miles from the boundary of parks and marine reserves referred to in Article 67 of the General Law of Fisheries and Aquaculture. When the authorities were consulted about the criteria behind this decision, there were no answers either.
MAP 3:
MAP 4:
