Dams on Santa Cruz River
Impacts and Violated Rights
Dams on Santa Cruz River: impacts and violated rights1
Document prepared by Fundación Ambiente y Recursos Naturales (Environment and Natural
Resources Foundation)2
EXECUTIVE SUMMARY
In a scenario with the global need to reduce the emission of greenhouse gases and the domestic
need to meet the growing demand for electric power, the energy issue is currently one of the
most complex unresolved challenges from the economic, environmental and social standpoint
and also from the perspective of public policies and medium and long-term strategic planning.
Although Argentina needs to consolidate its power sources, the various existing options –among
which we may find hydroelectric power stations– must be carefully evaluated, assessing in
a comprehensive and informed manner the number of impacts they cause. This document
elaborates on the analysis of the information gathered with respect to the project for the
construction of dams Kirchner and Cepernic on the Santa Cruz River.
The various defects and irregularities in the environmental impact assessment process
conducted on dams Kirchner and Cepernic prove that it must be reviewed, extended and
completed through a wide, informed and strategic discussion on the country’s energy-related
decisions that authorizes, rejects or modifies its approval. Until that happens, all kinds of works
associated with this hydroelectric project must be brought to a halt.
1
This paper is a summarized version of “Dams over the Santa Cruz river: a decision calling for a participative, informed and strategic discussion”. The
full version of the document is available in Spanish at http://farn.org.ar/archives/20398
2
This document was prepared by Andrés Nápoli (Executive Director of FARN), Ana Di Pangracio (Deputy Director of FARN), María Marta Di Paola
(Economy and Environment Researcher at FARN) and Pía Marchegiani (Participation Director of FARN).
3
In May, 2011, the Legislature of the province of Santa Cruz renamed, through Provincial Law No. 3206 and Provincial Law No. 3207, Cóndor Cliff and
La Barrancosa dams as Dr. Néstor Kirchner dam and Gobernador Jorge Cepernic dam, respectively.
02
1. Introduction
The Kirchner–Cepernic3 complex –formerly, the Cóndor Cliff-La Barrancosa complex– is a venture
devoted to the hydroelectric use of the Santa Cruz River in the province of the same name. The
President Dr. Néstor Kirchner dam (hereinafter, “Kirchner”) is intended to be located in the transition
between the middle and the upper valley, at km 250 of the Santa Cruz River and about 170 km east,
by road, of El Calafate town, the main populated center closest to the site. Gobernador Jorge Cepernic
dam (hereinafter, Cepernic), for its part, is expected to be built in the middle valley portion at km 185
of the current riverbed, some 135 km west, by road, of the Comandante Luis Piedra Buena town, the
main populated center closest to the site.
Since the agreement signed in July 2007 by the National Government and the province of Santa
Cruz to execute the then called “Cóndor Cliff” and “La Barrancosa” projects, the bidding process
was characterized by several twists and turns, including awards that were later rendered ineffective
without an explanation of the reasons4. Only in August 2012 was a new call for bids made –the third
one–, and it was informed that the overall amount for the works would the equivalent to USD 4,100
million, that there would be a five-year construction term, and that the business consortium would be
required to comply with a minimum participation of 30% by the national government.
In January 2013, the envelopes containing the bids were opened, and in August of the same year, the
works were awarded to the consortium formed by Electroingeniería S.A., China Gezhouba Group Company
Limited and Hidrocuyo S.A. The consortium’s bid amounted to USD 4,715,347,111 and envisaged the
construction in five and a half years5. The loan agreement6 was signed between the Ministry of Economy
of Argentina (MEN, for its Spanish acronym) and the following financial institutions: China Development
Bank Corporation (CDB), Industrial and Commercial Bank of China Limited, and Bank of China Limited.
The first payment was made on the last business of January, 2015 and consisted of USD 287,723,536
(6% of the total loan), for initial roadworks, prefabricated workshops and bridges in Santa Cruz, and the
advance payment for the fabrication of generation equipment in China. On February 15, 2015, the parties
signed the “Work Commencement Minutes” in El Calafate and the effective term began.
It is worth mentioning that in May, 2015, the World Bank Group announced the suspension of
abovementioned company Gezhouba and its subsidiaries for 18 months due to the improper conduct
of these entities in three projects financed by the Bank of China concerning water preservation, postearthquake relief and flood management.
4
In August, 2012, FARN submitted a request for access to public information to the Subdivision of Water Resources (SSRH, for its Spanish acronym) of the Division of Public Works (SOP)
of the Ministry of Federal Planning, Public Investment and Services of Argentina (MINPLAN, for its Spanish acronym). The request asked the Subdivision to provide information –among
other matters– on the “reasons not attributable to either party” which prevented the already awarded work from being executed by the consortium formed by Industrias Metalúrgicas
Pescarmona S.A. (IMPSA), Camargo Correa Construcciones Civiles S.A., and Corporación América S.A. and its subsequent approval by the Provincial Legislature. On September 10, 2012 the
SSRH replied that the request should be submitted to the Province of Santa Cruz and, consequently, on January 23, 2013 FARN submitted a request for information to the Subdivision of
Environment (SSMA, for its Spanish acronym) of Santa Cruz. Such request was never responded.
5
Five consortiums of companies submitted bids; one of them –formed by Argentine company Pescarmona and Brazilian companies Odebrecht (local branch) and Alston Brasil
Energía y Transporte– had offered a financing proposal that included the participation of the Brazilian Bank for Economic and Social Development (BNDES, for its Portuguese acronym).
6
Decree No. 1091/2014 approved the loan to begin with the works.
03
The Kirchner–Cepernic hydroelectric complex is currently undergoing an Environmental Impact
Assessment (EIA)7 process, in compliance with the General Environment Law No. 25675 (LGA, for
its Spanish acronym) and legislation of the province of Santa Cruz (Law No. 2658 and regulatory
decrees). The Environmental Impact Study (EnIS) prepared by the Electroingeniería, Gezhouba and
Hidrocuyo Consortium was approved through Environmental Impact Statement (EIS) No. 2049/2015
for one year –which reduced the usual term of two years– with the additional obligation to submit
four-monthly progress reports. As part of this process, a public hearing was held in December 2015.
Likewise, it should be noted that to this date, two legal actions were filed against the hydroelectric project
in question before the Supreme Court of Justice of Argentina (CSJN, for its Spanish acronym). These
actions, filed in December 2014 by Asociación de Abogados Ambientalistas de la Patagonia (Patagonia
Environmentalist Lawyers’ Association)8 and in October 2015 by Fundación Banco de Bosques (Forest
Bank Foundation),9 mainly challenge the defects of the environmental impact assessment processes,
especially the fact that the appropriate environmental impact studies were not conducted.
Despite the public hearing and the progress of the different EIA process stages mentioned above, there
are serious questions regarding aspects of procedure and substance and associated with the valuation
and omission of matters the knowledge, study and analysis of which are essential for this process and
which have been omitted or not appropriately regarded. This document briefly summarizes such aspects.
Source: 2004-2019 National Energy Plan.
7
Filed under No. 902.907/JGM/2015 of the Subdivision of Environment of Santa Cruz.
8
CSJ 005258/2014-00 “Asociación Argentina de Abogados Ambientalistas de la Patagonia c/Santa Cruz provincia de y otro s/amparo
ambiental” [Argentine Patagonia Environmentalist Lawyers’ Association v. Province of Santa Cruz et al on environmental amparo action].
The opinion of the Attorney General’s Office, which considered that the case was not under the CSJN’s original jurisdiction, is available at:
http://www.mpf.gob.ar/dictamenes/2014%5CIGarcia%5Cdiciembre%5CAsoc_Abog_Amb_CSJ_5258_2014.pdf
04
9
CSJ 004390/2015-00 “Fundación Banco de Bosques para el manejo sustentable de los recursos naturales c/Santa Cruz, provincia
de y otros s/ acción declarativa de inconstitucionalidad” [Forest Bank Foundation for the sustainable management of natural
resources v. Province of Santa Cruz et al on declaration of unconstitutionality].
2. Lack of priority in the construction of the dams
The energy crisis that has affected Argentina, along with a growing electric power demand, gives rise
to a number of complex challenges that require short, medium and long term measures. The different
decisions must be, in turn, carefully studied and made based on technical, economic, environmental
and social grounds.
In this regard, a study10 conducted by the former Division of Energy of Argentina (SE, for its Spanish
acronym) and company Emprendimientos Energéticos Binacionales S.A. (EBISA) entitled “Evaluación
expeditiva de aprovechamientos hidroeléctricos” [“Expeditious assessment of hydroelectric
projects”], which assessed 30 hydroelectric projects taking into consideration economic, technical
and environmental aspects, is worthy of note. Such official study ranked the Kirchner dam in the 11th
position of preference for construction, while the Cepernic dam was ranked 21st, which proves the low
priority and technical feasibility level that Argentina’s top energy authority granted to the construction
of both dams. As for their economic qualification, the Kirchner and Cepernic dams are ranked 23rd
and 25th, respectively.
As part of its recommendations, in addition to remarking the need to update the current available
information, the study suggests conducting a strategic environmental assessment, a cumulative
impact assessment in terms of inventory and a comprehensive analysis of the river basin in accordance
with the current environmental legislation.
The referred study has raised different types of criticism, especially from sectors that defend the
project and/or promote the use of hydroelectric power. Among such criticism,11 it was argued that
the design criteria and concepts are out-of-date and that the National Government must reach an
agreement with the provinces with regard to energy planning since they are the original owners of the
natural resources in question.
Some aspects should be noted with respect to the concerns and scope and relevance of the SE and
EBISA’s study. Firstly, the study itself indicates that the information must be updated. However, the
information is outdated for every hydroelectric project assessed in the same manner and, for that
reason it would be extremely beneficial to conduct a new study –with the same characteristics–
introducing new data related to projects, and to consult public entities and experts.
10
Available at: http://www.ebisa.com.ar/sites/default/files/Evaluacion_proyectos_hidroelectricos_Resumen_Ejecutivo.pdf
11
”De Defensores y detractores en el debate sobre la construcción de las hidroeléctricas en Santa Cruz” [“Defenders and detractors in
the discussion on the construction of hydroelectric plants in Santa Cruz”] published on January 21, 2016 in digital newspaper Energía
Estratégica. Available at: http://www.energiaestrategica.com/revuelo-periodistico-cuestionamientos-y-acciones-emprendidasacerca-de-la-construccion-de-los-dos-aprovechamientos-hidroelectricos-sobre-el-rio-santa-cruz/
05
Therefore, an update of the referred study would also consider, in a more appropriate way, for instance,
the existence of protected areas such as the Los Glaciares National Park, the existence of over 170
archaeological units, and the presence of native communities. All of these aspects require greater
precision in the assessment of the project12.
Secondly, and regardless of the need to update the available information, any energy planning process
must have a multiple-approach comparison study as the one mentioned above which enables to
clearly identify priority projects from those which are not a priority, all of them being part of the same
power generation source.
As for this consideration, we must note that energy planning is a function that must be unavoidably
performed by the National Government, which must fulfill it with the consent of the provinces in their
capacity as original owners of the natural resources. The production of energy encompasses not only
generation, but also energy transmission, distribution and consumption, which undoubtedly exceed
the limits of merely local competences.
Such is the scheme envisaged in Section 75, subsection 30 of the Argentine Constitution as it refers
to national interest establishments. Moreover, the CSJN has ruled that hydroelectric dams must be
regarded as national interest establishments13, an opinion that was further sustained by the Attorney
General’s Office (PGN, for its Spanish acronym) in the case entitled “Hidroeléctrica el Chocón S.A. c/
provincia de Buenos Aires” [Hidroeléctrica el Chocón S.A. v. Province of Buenos Aires] of 1997, which
was concerned with the generation, transmission and consumption of electric power.
Energy planning thus calls for a permanent interaction between the National Government and
the Provinces, and comprehensive studies become essential since they enable to harmonize local
development needs with those affecting the country as a whole.
On the other hand, and irrespective of the special consideration that both dams would contribute
power to the Electric Power National Interconnected System14, it is worth noting that the technical
studies conducted indicate that the plants will have a capacity factor of 32% and that they will be
located in an area where high voltage power lines can only transport 43% of the energy produced.
12
See the environmental assessment method in the referred report by the SE and EBISA.
13
Decision 302: 1461.
14
The Kirchner dam will contribute 1140 megawatts of power, while the Cepernic dam will generate 600 total megawatts. Thus, the
complex will generate 1740 megawatts of electric power.
06
The Argentine Energy Institute, which describes itself as a promoter of hydroelectric power, is of
the opinion15 that the transmission system for the Kirchner and Cepernic dams entails a very high
investment that may not be disregarded, and that the construction of a power line to transport the
rest of the energy would have an approximate cost of USD 2,000 million, which would increase 45%
the value of the work –which was already too expensive in light of the projected benefit.
Therefore, in an energy crisis scenario, it is especially important to implement adequate planning
mechanisms to prevent bottlenecks or problems that might be solved conducting appropriate
analyses. To that end, it is essential to have studies that enable to define the investment priorities
according to comprehensive analyses that weigh up different criteria. And if in any event the existing
studies should require any updates, they should be made. At the same time, continuing projects which
are not well ranked, as in the case of the Kirchner and Cepernic dams, is not recommended.
3. Lack of a full and comprehensive assessment: environmental impacts
not sufficiently analyzed
The Santa Cruz River flows down from ice and perpetual snow fields to the sea. The geography is
virgin, a testimony of the last glacial period, and has been explored by Charles Darwin, Robert Fitz Roy
and Francisco P. Moreno, among others.
The Kirchner and Cepernic hydroelectric dams will alter the watercourse of the Santa Cruz River,
will turn over 50% of it into surface water bodies, and will clearly affect its volume and leave 47,000
hectares of our Patagonia under the water.
Also, the construction of two dams on the upper and middle course of the Santa Cruz River might have
a non-assessed impact on the water flow, changing the discharge of the characteristic sediments of a
glacial river, and may cause unknown impacts –yet to be analyzed– on coastal-maritime communities.
15
For further reading, refer to http://web.iae.org.ar/wp-content/uploads/2015/03/Comunicado_IAE_Hidroelectricas_mar_2015.pdf
07
We need to mention, with great concern, the opinion of a central authority in the case of the
hydroelectric complex under analysis, the Administration of National Parks (APN, for its Spanish
acronym). This entity recently prepared a study entitled “Construcción de las represas JC y NK en el
río Santa Cruz: resumen de valores del área e impactos16” [“Construction of JC and NK dams on the
Santa Cruz River: summary of area values and impacts”] which describes the different impacts that a
project of this kind and magnitude may cause to the environment.
The APN observes that one of the main flaws is the erroneous determination of the project’s area
of influence, which causes the analysis of the potential impacts in different air components to be
insufficient. Thus, the entity claims that the project causes irreversible impacts and also potential
impacts that require further study.
Among the main effects that this project may generate, the APN notes the irreversible loss of and
severe damage to the rich biodiversity, flora, limnological communities, as well as cultural
values, due to the loss of archaeological information and paleontological heritage.
Furthermore, the APN sustains that the modification of the water regime of the Santa Cruz River will lead
to variations in the accumulation, erosion, and temperature patterns, with repercussions in the aquifers
and variations in the base levels, which will affect the diverse and valuable flora and fauna of the place.
The APN continues to state that the referred changes in the water regime might affect the estuary
area –which is near the Monte León National Park (Monte León NP)– and that, therefore, the silt plume
may be affected, thus causing an impact on various species of sea and coastal birds.
The Santa Cruz River encompasses an area of ornithological wealth. In the area of influence of the ria, there
are six globally threatened species: the Darwin’s rhea (Rhea pennata), the Magellanic penguin (Spheniscus
magellanicus), the hooded grebe (Podiceps gallardoi), the southern giant petrel (Macronectes giganteus),
the Chilean flamingo (Phoenicopterus chilensis), and the Magellanic plover (Pluvianellus socialis).
In particular, the potential impact of the works and their influence on the referred sector is of
noteworthy concern since this ria is the hibernation place for the hooded grebe, a critically threatened
endemic bird17 of Argentina that has been declared Provincial Natural Monument.18
16
http://www.parquesnacionales.gob.ar/
17
The hooded grebe is a type of diving bird that lives in lakes and pools in the Patagonian plateaus above 700 m.a.s.l. during the breeding season (November
through March). During the winter months, since a large part of the water bodies the hooded grebe inhabits freeze, the bird crosses the Patagonian steppe and
moves to the Atlantic coast in the same province, in the estuaries of the Santa Cruz, Coyle and Gallegos Rivers. Although there are a few records of the species
in Chile, the species is occasional in that country, and it is thus considered an exclusive (endemic) bird of Argentina. After its discovery in 1974, the species was
estimated to have a population of about 3000/5000 individuals. At present, preliminary studies seemingly indicate that there are no more than 300-400
breeding pairs. (Source: Aves Argentinas - http://www.avesargentinas.org.ar/12/03-aves_en_peligro_maca_tobiano.php)
08
18
Law No. 2582, available at: http://www.hcdcaletaolivia.gov.ar/pdf/archivos/lp/2582.pdf
Numerous preservationist efforts are in progress by non-governmental organizations and by the
provincial and national governments. Up to 12% of the estimated population of that species lives in the
area; this bird is also a recognized eco-touristic resource and also a symbol and emblem of the Santa
Cruz environmental issue.
Hooded grebe. Photograph by Santiago Imberti.
The opinion of the APN joins that of other professionals, who warn of the possible impacts caused by
the hydroelectric complex on the Santa Cruz River. Civil engineer Gerardo Bartolomé19 has raised his
voice with respect to the negative environmental effects that the Kirchner dam might cause.
In particular, the focus is on how the Perito Moreno Glacier may be affected by the fact that
the height of the Argentino Lake will no longer depend on natural level changes but on the
country’s power demand.
Juan Pablo Milana –PhD in Geological Sciences and Main Researcher of the CONICET20– has sustained
that the adverse effects and impacts of the construction of the dams may also be irreversible with
respect to the glaciers.
19
Bartolomé, Gerardo (2014) “El Perito Moreno En Peligro” [“The Perito Moreno Glacier in jeopardy”]. Digital issue of Argentina
Ambiental No. 56, year 2 http://issuu.com/argentinambiental/docs/revargamb56
20
Argentine Council of Scientific and Technical Research.
09
Indeed, as recognized by the Kirchner-Cepernic Project’s own EnIS, one of its most worrying
environmental aspects is the possible effects on the glaciers (Perito Moreno, Spegazzini and Upsala)
depending on the greater relationship with Argentino Lake. It is clear that the construction of this
hydroelectric complex may constitute a potential risk to the preservation of glaciers in the
Argentino Lake basin –due to the alteration of its natural cycle–, which would justify the adoption
of appropriate preservation measures pursuant to Law No. 2663921 on minimum conditions for the
preservation of glaciers and the periglacial environment enacted in 2010.
Let us remember that this national rule intends to protect glaciers and the periglacial environment
to preserve them as strategic reserves of hydric resources for human consumption, for agricultural
purposes, and as water sources for the replenishment of water basins; for the protection of biodiversity;
as a source of scientific information and as a tourist attraction. The glaciers are public property (Section
1 of Law No. 26639).
For the effective protection of glaciers, an inventory of glaciers was created as a key instrument
to distinguish the glaciers and periglacial geoforms which constitute water reserves within the
national territory, and contains all the necessary information for their adequate protection, control
and monitoring (Section 3 of Law No. 26639)22. This inventory includes not only glaciers but also the
periglacial environment because, in order to protect the former, it is also essential to protect the latter
since the conditions which affect periglacial environments affect glacier behavior23.
Even though the Kirchner and Cepernic works are not located in a glacial or periglacial area,
and since the glaciers are a fundamental part of Argentina’s hydric resources, to authorize a
project of such characteristics we need to have sufficient information to prevent any kind of
damage, or else, to act preemptively.
The APN report, in addition to turning its attention to the central aspects concerning the lack of
information, refers to the uncertainty over the potential effects on the Argentino Lake level
and its consequences on the glaciers; alerts on the undefined variation range in the height
of the lakes which form the Los Glaciares NP, and their possible effects on archaeological
sites. Moreover, it states that “there is always the possibility that the modeled maximum dam
height overflows as foreseen, thus causing these areas to be flooded and also, modifications to the
Argentino Lake water level.”
21
Available at: http://www.infoleg.gov.ar/infolegInternet/anexos/170000-174999/174117/norma.htm
22
The inventory records information by water basin, location, surface and morphologic classification of glaciers and the periglacial environment. It must be
updated every five years to verify the changes on the glaciers’ surface and the periglacial environment, their advance or retreat, and other factors which are
relevant to their preservation (Section 4, Law No. 26639). The entity responsible for the preparation and monitoring of the state of glaciers and the periglacial
environment is the Argentine Institute of Nivology, Glaciology and Environmental Sciences with the coordination of the national application authority, which is the
recently created Ministry of Environment and Sustainable Development (MAyDS, for its Spanish acronym), formerly the SAyDS (Section 5, Ley N° 26639).
10
23
Canziani O. and Noseda P. (2012) “Los glaciares en Argentina. Cambio climático, vulnerabilidad y protección jurídica” [“Glaciers in Argentina. Climate
change, vulnerability and legal protection”] in FARN’s Annual Environmental Report - 2012.
In addition, the project’s EIS and its supplementary studies are mainly focused on analyzing
the work area and are not sufficiently studying the consequences of building the dams in the
abovementioned ecosystems and environmental environment. The justification that there would
be no impacts to the Los Glaciares PN included in the project’s EIS is based on two reasons: the distance
of the works and the operating criteria. Not affecting the natural system has also become a priority.
In light of the foregoing, it is essential con duct a full and comprehensive study of the entire
hydrogeological system of the Santa Cruz which also includes the particular characteristics and
dynamics of glaciers and the periglacial environment of the area. To that end, the inventory of
glaciers is of utmost importance.
According to information gathered24 by FARN through different requests for information, to this
date the national inventory of glaciers of the Santa Cruz River has not been completed and/or
published. The concern about the situation of glaciers in light of the Kirchner-Cepernic project has led
FARN to request specific information25 on the progress of the inventory in the province of Santa Cruz,
and on the participation and interaction by the SAyDS –as application authority of Law No. 26639– in the
EIA of the hydroelectric complex. Moreover, the authority in charge to protect the glaciers was requested
to provide information on the areas comprised in the alluvial plaints of the reservoirs and the possible
adverse effects on the natural cycles through the modification of the Argentino Lake water level. In
September 2015, the SAyDS replied that it did not have information on such regard since the matter
exceeded its scope of authority. However, it made reference to an exchange with the SSRH through
which information was requested on the characteristics and georeferencing of glaciers in Santa Cruz26.
To the concern about the possible effects on the glaciers, we may add the fact that the project’s
own EnIs shows the poor knowledge on the different processes that affect the dynamic of
glaciers. Moreover, the lack of consultations to institutions specialized in glaciers and periglacial
environments such as the Argentine Institute of Nivology, Glaciology and Environmental Sciences
(IANIGLA) is worthy of note.
These circumstances require, precisely, the most detailed knowledge of the dynamics of glaciers,
and the preceding paragraphs show that the information on dam impacts is both incomplete
and insufficient, since it mainly encompasses the work area without adequately considering the
environment and the different types of direct and indirect environmental impacts.
24
Available at: http://www.glaciaresargentinos.gob.ar/wp-content/uploads/legales/informe_tecnico_2013.pdf
25
The request for reports is available at: http://farn.org.ar/wp-content/uploads/2015/07/Pedido-a-SAyDS-por-Represa-KirchnerCepernic-por-Glaciares.pdf
26
The content of the reply received by FARN is available at: http://farn.org.ar/wp-content/uploads/2016/01/1-07-2015-RespuestaSAyDS-Glaciares-Santa-Cruz.pdf
11
The project’s area of influence should integrate an ecosystem-like approach so as to comprise
the entire water basin. That is, it should take into account the regional influence and the project’s
framework, and thus weigh up the impact on the entire basin and especially consider the situation
glaciers and periglacial areas.
It is worth recalling that the environmental management and protection system implemented from
the 1994 amendment to the Argentine Constitution comprises a number of principles and tools to
insure the right “to a healthy and balanced environment fit for human development in order that
productive activities shall meet present needs without endangering those of future generations”
(Section 41 of the Argentine Constitution).
The preventive principle27 is one of the key ideas of the environmental paradigm since it directly
addresses the way in which the different human activities are conducted. It proposes that man’s actions
should tend, initially, to avoid causing damage to the environment and its different components, or
failing that, to remedy and repair any damage already caused.
Thus, the preventive principle encompasses all the objectives, actions, tools and instruments which
are necessary to conduct appropriate management policies to protect the environment. Among them,
we may mention the different types of environmental assessments (SEA, EIA, among others) as
risk management instruments of utmost relevance for environmental management. They aim at
identifying the possible negative impacts of plans, programs, projects or activities in order to prevent
or minimize them.
Given the characteristics of the Kirchner-Cepernic project, a Strategic Environmental Assessment
(SEA) must be initially submitted pursuant to Law No. 26639. Such assessment was also submitted
in the SE and EBISA study. A SEA is a procedure which has the purpose of valuing the environmental
impacts or consequences in the strategic decision-making process conducted by the government.
SEAs are very much related to territorial development and planning policies in force.
Afterwards, an EIA encompassing the entire Santa Cruz River basin must be conducted. An EIA is
defined as a technical-administrative, interdisciplinary, multiple-step process which intends
to identify significant impacts that the activities, works or projects may generate on the
environment and the quality of life of people with the purpose to act in advance and prevent
them, since once such impacts occur, they are very difficult or impossible to remedy.
27
The principle provides that the causes and sources of environmental issues must be addressed as priorities and in a comprehensive
manner, aiming at preventing the negative effects that may be caused to the environment.
12
Both the SEA and the EIA are instruments used to prevent damage based on the level of information
managed and envisage the mandatory participation of any interested parties. The SEA enables to produce
the initial content and scope framework for the EIAs of the projects resulting from the analyzed strategic
decisions, and thus allow for a greater compatibility with sustainable development objectives.
For the Kirchner and Cepernic dam project, the SEA requirement was not met and the EIA
was not fully and comprehensively conducted. Furthermore, the EIA presented serious defects
which show that not enough information was submitted, discussed and assessed to guarantee
that the project would not cause serious and irreversible environmental impacts.
4. Defects in the EIA procedure
The EIA procedure, as mentioned above, is envisaged in national laws and in the legislation of the
Province of Santa Cruz. For this procedure to be deemed satisfied, each of its different steps must be
fulfilled (that is, an environmental impact study identifying the different environmental impacts in the
various environmental components; public hearing and thorough discussion of technical and nontechnical aspects; decision-making process by the authority, which may authorize, modify or reject
the work), in the established order, and ample and adequate access to public information must be
guaranteed to enable the citizens to be acquainted with the project in order to discuss it on an equal
basis and to allow any persons who may be interested in the project to get involved.
In the case under analysis, the following defects were identified:
I. Insufficient and incomplete information
Public information constitutes one of the cornerstones to conduct adequate environmental
management and is, at the same time, indispensable to assess the outcome of the implemented
policies and to evaluate those envisaged for the medium and long term. Moreover, it is an essential
requirement for society to know, understand and participate in the decisions that may affect its own
quality of life and that of future generations. Both Law No. 2583128 (specifically) and the LGA (in general)
regulate this matter as far as the environment is concerned and are applicable in all national jurisdictions.
28
System for the free access to environmental public information. Available at: http://infoleg.mecon.gov.ar/infolegInternet/
verNorma.do?id=91548
13
The EIA process for the Kirchner-Cepernic complex has not included, to this date, information on
various relevant aspects to properly assess its environmental impacts. This not only affects citizen
participation –since uninformed or poorly informed citizens will not be able to participate on an equal
basis in the decision-making processes– but also fails to ensure that the process fulfills its original
preventive purpose. That is, under such conditions, the generation of serious and irreversible impacts
may not be avoided or minimized.
Thus, throughout the bidding process for the construction of the dams there have been
problems to access information on different aspects and stages of the project. Since 2012, FARN
has been submitting a number of requests to access public information to different provincial and
national entities. Although certain aspects of the project became known thanks to the information
furnished by the then national entities, the lack of response by provincial entities such as the SSMA
–which was in charge of conducting the EIA– is worthy of note, since it never answered the request
for information made on January 23rd, 201329.
II. Inadequate delimitation of the area of influence
The EnIS, which was the main source of information of the entire EIA process, delimited the area of
influence of the project using a restrictive approach, and excluded important areas which form an
ecosystem unit.
The delimitation of the area of influence of a certain project is one of the most important
aspects when defining the terms of reference for the EnIs, since it determines the main impact
assessment area.
For the APN, the EnIS was only circumscribed to the area affected by the work and excluded the
environmental surroundings and the direct and indirect impacts of the dam operation throughout the
200 km extension that should comprise the project’s area of influence.
Thus, the main analysis unit should comprise the Santa Cruz River basin –an aspect that had, moreover,
been expressly recommended in the conclusions included in SE and EBISA’s official study.
29
The request and the acknowledgment of receipt are available at: http://www.farn.org.ar/plataformaenergia/wp-content/
uploads/2014/03/Pedido-de-informe-a-Subsecretaria-de-Ambiente-de-la-Prov.-de-Santa-Cruz-y-respuesta..pdf
14
Shot of the Santa Cruz area taken by Alberto Hemlich.
III. Key entities’ lack of involvement in the EIA process
Local legislation, in addition to designating the Santa Cruz SSMA as the competent authority to conduct
the EIA process, provides for the creation of an Assessment Commission formed by different state
entities whenever other environment-related activities already included in the environmental laws are
involved. Thus, Section 5 of Law No. 2658 on EIA enacted by the Province of Santa Cruz provides that
in the case of activities regulated by other environmental regulations –whether national or provincial–
a commission must be formed to assess technical reports. In doing so, all the authorities –regardless
of their venue– having jurisdiction on relevant environmental matters or other activities related to the
project are compelled to participate not only in the process but also, especially, in the assessment process.
For that reason, it is surprising that no opinions specialized in environmental preservation have
been heard with respect to the project’s most significant impacts. In particular, the IANIGLA –
which depends on the CONICET– and the MAyDS have not participated in the process under
Law No. 26639 to determine in a reliable manner the project’s impact on the glaciers and periglacial
environment which they are responsible to protect. Moreover, although the glacier system is part of the
Los Glaciares NP, the APN has not been involved as the law’s application authority30. The opinion of
these entities is fundamental and must be considered in this assessment process; however, the
information gathered shows that there has been no official involvement of such entities.
30
Law No. 22351.
15
IV. Fragmented EIA
The EIA procedure is a technical-administrative and multiple-step procedure which requires
that every stage be completed before moving on the next one. That is, no project aspects may be
authorized until they are fully assessed in a participative manner.
It follows from the questions of fact submitted in the complaint filed with the CSJN by Fundación Banco
de Bosques31 that the referred Santa Cruz law on EIA32 is in conflict with the LGA as it enables the stage
fragmentation of the assessment while the LGA establishes, as a minimum condition –applicable to
the entire Argentine territory– that the assessment must be submitted before the commencement of
the works, and that such works may not commence until such requirement is met.
The work proposal entitled “Environmental Management Plan” is thus worthy of note. The Plan
was submitted by the Unión Transitoria de Empresas (UTE) to the Santa Cruz SSMA on September 12, 2014,
and describes a number of administrative stages into which the “Santa Cruz River Hydroelectric
Project” was divided. Each stage has its appropriate EIS. Such stages were called “Preparation of the
Executive Project” and “Execution of the Executive Project”. The works involved in the executive project
would start a year from the signing of the work commencement minutes (February 15, 2015). The final
work plan would result from the adjustment to the different observations and deadlines established in
different environmental stages33.
The number of supplementary studies that emerge from the different observations made by the
Assessment Commission prevents us from having a general and full outlook of the project impacts.
The Assessment Commission itself considers that there are background aspects which have not
been completely addressed, and that the EnIS baseline is not sufficiently representative to make
a final decision. Following this line of thought, we do not understand why the Assessment
Commission approved the project after considering the information to be insufficient to assess
the environmental impacts.
Likewise, the analysis of the consequences and impacts resulting from the fill-up of the peripheral
lakes formed by the dams will be conducted on a later date, since such lakes will be completed within
four years. Within such term, foreseen and unforeseen environmental impacts will have occurred.
31
32
CSJ 004390/2015-00. Op. Cit.
Section 8 of Law No. 2658 establishes the following EIA stages: “a) Submission of the Environmental Impact Assessment; b)
Submission of the Technical Environmental Impact Study requested by the application authority; c) Citizen participation through
public hearings, filing of complaints, submission of opinions or comments to be received by the application authority, in accordance
with the requirements set forth in the regulations of this law; d) Technical opinion; e) Environmental Impact Statement, renewable
every two years throughout the project’s entire useful life; f) Certificate of Environmental Suitability”.
16
However, postponing or leaving the environmental impact assessment incomplete until a moment in
which it will be harder to analyze and, possibly, prevent such impacts is an unfounded action. That is,
considering an advanced project scenario with already disbursed funds, it is worth wondering:
how may a project that will certainly have significant impacts on the environment and human
health be suspended and/or substantially modified?
V. Lack of background information on the entity in charge of conducting the EnIS
Specialists in the analysis of dam impacts highlight the evident conflict of interests existing when
the party required to assess the environmental feasibility of a project is later hired to build the dam.
They sustain that even though consultants appear to be independent, on many occasions they have
an interest in minimizing environmental impacts since if their conclusions are not favorable to the
projects, they will not be hired again34.
These hindrances are not only typical of dam projects, but may also occur in other kinds of projects
(mining, hydrocarbon projects, among others). Moreover, Argentina does not currently have national
legislation (on minimum conditions, and applicable to the entire national territory) regulating the
characteristics and minimum requirements to hire consultants and professionals to prepare the EnIs.
Notwithstanding the foregoing, the background information of the professionals who conduct the
EnIs should be analyzed considering at least two aspects. On the one hand, the professional’s specific
background information on the type of projects to be analyzed, especially when it comes to extremely
complex impacts which are hard to foresee, like the ones resulting from very large hydroelectric
projects35. On the other hand, we may mention their capacity to conduct solid and independent
analyses that may be used to improve the projects’ environmental aspects.
Patrick McCully’s book entitled “Silenced Rivers”36 explains that deciding whether the environmental
damage that will be generated by a large dam will or will not be compensated by the earnings is,
ultimately, a political and subjective decision which must be adopted after having an informed debate
among the affected individuals and the general public. He further sustains that deciding whether the
cost of extinction of a species or the disappearance of an estuary is more or less important than the
benefits resulting from the generation of electric power should not be the exclusive responsibility of
a consulting company interested in developing the project.
33
A number of studies of different types are indicated (EIA-Temporary works, 1st stage; EIA-Temporary works, 2nd stage; EIA-General
works, 1st stage; EIA-General works, 2nd stage + operation and maintenance), which result in over 50 elements to be considered.
34
See quote on page 11 of “River Guardians”, International Rivers. Available at: http://www.internationalrivers.org/files/attached-files/
los_guardianes10-07.pdf
35
Ibid.
36
McCully, Patrick (2001) “Silenced Rivers: The Ecology and Politics of Large Dams”. Zed Books (London), International Rivers and The Ecologist.
17
The EnIS of the dams on the Santa Cruz River was conducted by consulting company “Serman
y Asociados” which has no background information to prove that it is independent from the
companies that were awarded the concession. Among its previous works, we may not that in 2014
it was hired by the Provincial Department of Sanitation and Hydraulic Works (DPSOH, for its Spanish
acronym) to perform a “Comprehensive Study and Work Project for the Regulation and Sanitation of the
Luján River”. The submitted project featured some defects and inconsistencies which acquired a new
meaning after the floods that lashed the city of Luján, in the province of Buenos Aires. The project did
not comprehensively deal with the problem and the proposed solution, and did not envisage alternatives
tending to preserve the water ecosystem or climate change mitigation o adaptation measures.
The EnIs conducted with respect to the Río Turbio thermal power plant gave rise to 50 observations
included in the Santa Cruz SSMA technical opinion; something unheard-of in the Province. The EnIs
submitted by the consulting firm was not an impediment for the coal-fired plant (less than 100 kilometers
from the Perito Moreno glacier) to be built without meeting the requirements of the referred authority.
The examples of the preceding paragraphs, along with others that we have not been able to quote
for the sake of brevity, are proof of the suspicious background of the consulting company hired,
which should be, instead, unquestionable, as would be expected of a company responsible for
conducting such an important and relevant study for a project of this nature.
VI. Public hearing as a mere formality
A public hearing consists of a number of acts which encompass different terms and actions, but which
aim at guaranteeing the effective and ample participation of the public interested in the process.
Fulfillment of this requirement must be guaranteed by the application authority, although in this case
such compliance raises some doubts.
The public hearing on the construction of the Kirchner and Cepernic dams was called through a
notice published in the Santa Cruz Official Gazette37 on November 25, 2015. The hearing would be
held on December 9, 2015. It should be noted that of the 14 days which elapsed between the date of
notification and the hearing date, only 6 were business days. Without a doubt, that was too short
a notice to allow organizations and interested parties to travel to the city of Comandante Luis Piedra
Buena, the place where the hearing would be held.
37
18
Official Gazette, year LX, No. 4992. Available at: http://www.santacruz.gov.ar/boletin/15/noviembre15/E.E.%204992%2025-11-15.pdf
Moreover, the term is also insufficient for the interested parties to access and analyze the information
generated by the EIA process38, which as evidenced in this case consists of very extensive and
highly technical information that even calls for consultations with professionals of different fields
of knowledge.
Such term is also completely contrary to the purpose and reasons for a public hearing, which is held
due to the magnitude of the works, the environmental impact and the socioeconomic relevance of
the project39.
Also, the fact that the public hearing was held on December 9, 2015, one day before the new authorities
took office –both at the provincial and national level– prevents, factually speaking, the free participation
of the competent authorities and of those who, in one way or another, may be interested in conducting
the project. This affects and weakens the quality and legitimacy of the entire EIA process.
Another striking aspect in this EIA process is the fact that the vast majority of the total of 60 people
who presented their arguments during the public hearing had either a relationship or an interest in
the project development. Over 50% of those individuals were direct representatives of companies or
public entities (provincial and national), from research sectors associated with the construction of the
dams, or were persons retained by the companies themselves who ratified the importance of having
been hired to work in the projects.
The critical opinions or views were scarce. Representatives of the NGOs40 that attended the
hearing had the opportunity of briefly discussing the concerns raised by the project. The answers
to their questions and challenges were shallow and generalized, and did not provide specific
responses to the matter.
As a result, the public hearing was only a mere formality fulfilled to meet the EIA process requirements
and did not serve its purpose as an actual participation mechanism in which the opinions given could
help improve the project assessment conditions.
38
Available at: http://www.santacruz.gov.ar/portal/index.php/medio-ambiente/aprovechamiento-hidroelectrico-del-rio-santa-cruz
39
See provision No. 468/15 of the Santa Cruz SSMA available at: http://www.santacruz.gov.ar/boletin/15/noviembre15/E.E.%20
4990%2023-11-15.pdf
40
Aves Argentinas and Ambiente Sur.
19
5. Are national energy policy decisions more environment-friendly?
Large dams cause a number of serious environmental impacts associated to their magnitude.
They entail, in general, the large-scale disappearance of biodiversity and ecosystems due to flooding
of large surfaces, as well as the relocation of entire human communities.
Large hydroelectric complexes are on many occasions publicly advertised as project that improve
the economic growth of countries which have fast-flowing rivers and, therefore, the possibility of
expanding the global generation and electric power supply. They intend to create a favorable scenario
for the development of these projects as a possibility for economic and social progress and as a reason
for local and even national pride41.
In this regard, there are numerous opinions sustaining the hydroelectric dams should be deemed as
sources of renewable and clean forms of energy –a similar argument is used with respect to nuclear
power– as opposed to fossil fuel energies, which are the main sources of emission of greenhouse
gases (GHG). The premise held in different sectors, including the academic sector, is that hydroelectric
power is a low-cost, clean, abundant, renewable and non-contaminant form of energy.
It is worth noting that our legal system failed to include this type of dams in the renewable energy
regime, since it expressly excludes hydroelectric power plants with a capacity exceeding 50 MW
(Section 2, Law No. 27191).
The clean/unclean binomial comprises an excessive simplification of a reality that conceals
the severe and tremendously serious impacts caused by the dams, including their own
contribution to global warming. The large dams also entail excessively high and inefficient budgets
which affect public resources. Their construction is slow, uneven, inflexible, and increasingly costly42.
Additionally, when hydroelectric projects are promoted as environment-friendly projects, their
contribution to climate change is not sufficiently analyzed, in particular the role they play in climate
vulnerability. According to the CMR, the gross emissions of dams probably represent between 1%
and 28% of the world’s total GHG emissions produced by human activities. Subsequently, Canadian
researches continued to refine the results of such study and suggested that dams are responsible for
7% of the total GHG emissions43.
41
Fundación M’Biguá – Ciudadanía y Justicia Ambiental (2010) “Impactos socio ambientales de las mega represas. El caso Garabí”
Available at: http://www.mbigua.org.ar/uploads/RepresaGarabi2010.pdf
42
International Rivers Network (2003) “Doce razones para excluir a las grandes represas hidroeléctricas de las iniciativas renovables”.
Available at: https://www.internationalrivers.org/files/attached-files/12r_span.pdf
43
20
M´Biguá (2010) Op. Cit.
Thus, what is important is not the specific description but the in-depth analysis of the different
types of impacts caused by the different energy sources, as well as of the portfolio of available
projects. Using serious and reliable information, priority projects may be selected with greater
efficiency and less significant socio-environmental impacts.
In this scenario, the need and reasonableness of the Santa Cruz dams has not been thoroughly,
strictly and interdisciplinarily assessed, that is, no evaluation has been made as to those
affected and those favored. Other alternatives should be considered (including the possibility
of giving up the project in question), including, if appropriate, a more convenient location,
design and construction. That is, the Kirchner-Cepernic project should be assessed not only
from the standpoint of the local impacts on the ecosystems as explained above, but also its their
technical, economic, environmental and social feasibility for the entire Argentine territory, as
a key element for the national energy policy in light of the different existing alternatives, with a prior
discussion of their particular impacts.
Before developing this type of projects, a long-term, ample participative discussion, with solid
energy-based grounds should take place. To this date, neither the scale nor the authority levels
enable to widely discuss energy-related decisions; instead, it is possible to propose modifications
(scale, location) to decisions that were made by different authorities.
6. Conclusions and recommendations
A number of considerations and recommendations show that the impact assessment process for the
Kirchner and Cepernic dams should be reviewed, extended and completed through a wide, informed
and strategic discussion on the energy decisions of a country which authorizes, rejects or modifies the
approval of the referred projects. Until that happens, all the works associated with the project should
be brought to a halt.
Considerations on the EIA process
Firstly, the EIA process was characterized by the absence of essential information that prevented it
from complying with the preventive and precautionary purposes of such process as a risk management
tool used for environmental management.
21
The lack of information on how the Santa Cruz River diversion will affect the biodiversity and critical and
fragile ecosystems –especially in glaciers and the periglacial environment– prevents us from making a
comprehensive assessment of the environmental impacts caused by the dams. Moreover, the main defects
of the EIA process –both in terms of design and implementation– caused such state of affairs to continue.
•
The area of influence of the project was delimited using a restrictive approach, which
exclusively referred to the area affected by the works and excluded important areas that form an ecosystem
unit. Therefore, direct and indirect impacts that the dam operation would cause to the Santa Cruz River basin
were disregarded even though such basin should have been the main unit of analysis since it encompasses
Lago Argentino and important glaciers such as Perito Moreno, Spegazzini and Upsala;
•
Although the local regulations envisage the creation of an assessment committee formed
by different state entities when other environment-related activities already included in the
environmental laws are involved, authorities such as APN, the former SAyDS, the current MAyDS or
the IANIGLA did not take part in the study. This is a matter of great concern since these institutions are
not only responsible for biodiversity protection –especially glaciers and the periglacial environment–
but they also have relevant information –and technical and professional teams with knowledge on the
matter– which was not sufficiently studied in this project;
•
The citizen participation mechanism, which intends to integrate the citizen –either collectively
or individually– to the decision-making process, presented defects that prevented an effective and
genuine participation of the public. Such requirement became, thus, a mere formality. The short
period of 6 business days which elapsed between the publication of the notice and the date of the
hearing prevented the ample participation of people willing to present their critical views to enrich
the debate. Moreover, the scarce time granted by the authorities also prevented the interested parties
from making an in-depth analysis of the complex information contained in the environmental impact
assessment and supplementary studies, thus jeopardizing the public’s actual participation capacity;
•
The fragmentation of the EIA procedural stages affected the comprehension, discussion and
analysis of the project and its environmental impacts.
Furthermore, the EIA was not preceded by a more exhaustive assessment. Prior to the EIA of the
Kirchner-Cepernic hydroelectric project, a participative SEA should have been conducted –pursuant
to the laws in force– to analyze to a more strategic and ample level a decision of this kind.
22
Considerations on the energy policy decisions:
•
Energy planning, which demands a permanent association between the Nation and the
provinces, has a preeminent role since it enables to conduct comprehensive studies that comprise
the needs and impacts resulting from energy generation, distribution and consumption in the
country, in which the need for local development may not be imposed on those which favor global
development. Such planning must be in line with the commitments undertaken by Argentina in
the Paris Agreement44 to address the climate change global issue.
•
To conduct such planning, it is worth noting in the debate on strategic decisions that restricting
the discussion to the clean/unclean energy binomial simplifies and conceals more complex
analyses on environmental impacts. Quite the contrary, the discussions must analyze in the
most ample and participative manner possible all the social and environmental impacts caused by
the different energy projects.
•
In particular, when it comes to very large hydroelectric projects such as the Kirchner and
Cepernic dams, it is worth noting that their high environmental impacts was the reason for the
legislative political decision that excluded hydroelectric projects with a capacity exceeding 50
MW from the renewable energy regime.
•
For that reason, in the current energy crisis context, it is especially important to note that
the planning should incorporate multi-approach comparative studies enabling to identify priority
projects using the same source of energy based on the best equation in terms of technical,
environmental, social and economic aspects.
•
Moreover, the existing official information shows that the Kirchner-Cepernic complex is
not one of the best ranked projects since there are at least twelve better ranked projects with a more
promising economic, social, energy and environmental feasibility perspective.
44
Available at: http://unfccc.int/resource/docs/2015/cop21/spa/l09s.pdf
23
Actual status of the works...(April 2016)
In response to the document prepared by FARN entitled “Dams on the Santa Cruz River: a decision
that requires a participatory debate, informed and strategic”, the Minister of Energy and Mining of
Argentina, Mr. Juan Jose Aranguren, announced its intention to convene the companies contracted to
build dams in order to conduct a review of the respective contracts. FARN highlighted the importance
of this decision, but also stresses that the entire Environmental Impact Assessment (EIA) process of
the hydroelectric project has been developed without considering relevant environmental impacts
and violating turn instances of consultation and public participation.
In a letter to the Minister (24th February 2016), FARN requested a comprehensive review of the project
construction authorization of the Kirchner and Cepernic dams, including a comprehensively review
process of the EIA already carried out. Morever, FARN considers that the government should develop
a Strategic Environmental Assessment (SEA) of the Kirchner and Cepernic dams and analyse them in
relation to all energy options available for Argentina.
Below, there are some media articles that reflect expected changes in the hydroelectric complex in
order to reduce their environmental impact, mainly on glaciers:
24
25
26