MEXICO Law and Practice Contributed by: Bernardo Cortés and Fernando Quesada, Cortés Quesada Abogados, S.C.
a generation permit, while the operation of the project depends on securing the relevant social impact authorisation. • Change of Forestry Land Use: if the project affects protected flora, an authorisation must be obtained from SEMARNAT for the reloca- tion of such species. • Archaeological clearance: in specific regions, developers must secure archaeological clear- ance before commencing construction. • Water concession: the use of national waters may require permits or concessions from the National Waters Commission (however, hydroelectric plants of 30 MW capacity may be exempted from water permitting require- ments). • Local authorisations: construction permits, land use approvals and civil protection authorisations, governed by local regulations, must also be secured prior to construction and operation. In addition, if the project site is located on lands inhabited or claimed by indigenous communi- ties, SENER is obliged to conduct a prior con- sultation process to ensure the protection of indigenous rights. 3.3 Approvals to Construct and Operate Generation Facilities Government-issued authorisations for the con- struction and operation of generation facilities typically include strict deadlines for meeting key project milestones, such as the start of construc- tion, provisional acceptance (ready for testing) and the commencement of commercial opera- tions. Failure to meet these milestones may trig- ger administrative procedures to amend relevant permits; otherwise, the effectiveness of the per- mit may be at risk.
Material changes to projects (such as changes to nameplate capacity, generation technology or site conditions) generally require a formal amendment to the main permits in order to properly reflect the project scope. The amend- ment process often mirrors the original permit- ting procedure in both substance and timing, although for minor changes the administrative process only requires an “update” rather than a full permit amendment. Interconnection agreements also impose firm deadlines for the works covered thereunder, coupled with the posting of financial guarantees to ensure their timely completion. They are also subject to hard deadlines and the posting of col- lateral to guarantee their completion in time. In contrast, environmental and social authorisa- tions focus on terms and conditions to monitor the commitments assumed by the generation company. 3.4 Eminent Domain, Condemnation and Expropriation Rights to Construct and Operate Generation Facilities The LESE recognises the power sector as a mat- ter of public interest and national policy. Howev- er, eminent domain for land use and occupation is limited to only hydroelectric and geothermal power plants. Land use and occupation for hydroelectric and geothermal power plants follow a predetermined process established in the LESE for both private and agrarian land. This process includes manda- tory filings and requirements for compensation and payments based on the value of the land. The LESE also identifies types of real estate rights available for generation projects, includ-
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