THE ERI’s Legal Action
October 19, 2015 – Ecuadorian government water authority rejects the Jondachi Legal Defense without consideration of arguments
After nearly two years of deliberation, the Judicial Coordinator of the Ecuadorian government water authority SENAGUA has emitted a final ruling which officially rejects the ERI’s legal demand to cancel and revoke the water concession permit granted for the proposed “La Merced de Jondachi” hydroelectric project without any stated analysis of our arguments regarding the numerous cited errors, omissions, and irregularities in the water concession process, including the lack of any consideration of existing traditional and recreational uses of the Jondachi River in the determination of the instream environmental flow for the project as required by Ecuadorian laws and regulations.
The ruling simply concludes that the state-owned company CELEC EP – Termopichincha completed a process to acquire the water concession permit for the development of the proposed “La Merced de Jondachi” hydroelectric project, and that WE, as recreational river users, are using the water without any water concession permit. The ruling finishes by manifesting that “all river users must have a water concession to use the water”.
The ruling also ignores the conclusions and recommendations from the government-appointed water resource expert who reviewed the water concession process and validated nearly all of the ERI’s legal arguments, and advised that the hydroelectric project had detrimental flaws in its conceptual design and needed to be completely re-conceived.
The precedent established by the ruling is that all recreational river users must have water concession permits to use the water in the river. This implies that anyone who swims, bathes, fishes, paddles, or floats in Ecuador’s rivers must have a water rights permit and pay costly annual fees using the water resource.
Meanwhile, Ecuador has a constitution which declares that rivers are public resources and that everyone has the right to recreate freely on their public lands and waters as fundamental rights. In addition, the Ecuadorian constitution mandates the consideration of “instream environmental flow” above any productive use of water, including the generation of hydroelectricity. Ecuadorian regulations also specifically require recreational uses to be considered as part of the determination of instream environmental flows in the adjudication of water for hydroelectric projects.
The ruling of our case to defend recreational river use on the Jondachi River lacks sufficient analysis, legal merit and objective criteria to be accepted, and has affected the credibility and standing of the Ecuadorian government water agency as a competent water management authority.
The ERI is committed to preserving the Jondachi River as a free-flowing, Andean Amazon ecological corridor and will appeal the questionable ruling to a new judicial jurisdiction where we expect to receive a more objective and impartial analysis of our case.
The Jondachi legal defense represents a very important moment for water rights in Ecuador. As we move forward with the appeal of this case to another judicial level, we are calling for your continued support to ensure the consideration of recreational river use and paddle sports tourism in planning and development in Ecuador.
A chronological summary of the Jondachi Legal Defense process is presented below:
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June 24, 2015 |
The Judicial Coordinator of the Ecuadorian government water authority SENAGUA completes its extraordinary review of the water concession process for the “La Merced de Jondachi” hydroelectric project by emitting a final sentence and ruling which officially rejects the ERI’s demand to cancel and revoke the water concession granted to CELEC EP – Termopichincha for the “La Merced de Jondachi” hydro project without any stated comments or analysis of our arguments regarding the numerous cited errors, omissions, and irregularities in the water concession process, including the lack of any consideration of existing traditional and recreational uses of the Jondachi River in the determination of the instream environmental flow for the project as required by Ecuadorian laws and regulations.
The ruling from the Judicial Coordinator of SENAGUA also ignored the conclusions and recommendations from their own government-appointed expert who reviewed and validated nearly all of the ERI’s legal arguments and advised that the project needed to be completely re-conceived.
The sentence also states that the ERI is using the waters of the Jondachi River without permit or concession, and that all water users must have a water concession to be able to use the resource.
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| October 24, 2014 | The ERI formally submits copies of all photos, videos, and other evidence presented during the legal hearing and solicits certified copies to support specific claims and statements made by CELEC EP – Termopichincha and the regional coordinator for the Napo watershed of the Ecuadorian government water authority SENAGUA during the hearing without presenting any evidence or supporting documents.
(Note: To date, no documents have been received which support specific claims and statements made by CELEC EP – Termopichincha and the regional coordinator for the Napo watershed of the Ecuadorian government water authority SENAGUA).
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| October 15, 2014 | The legal hearing is held before the judicial committee of the Ecuadorian government water authority SENAGUA as part of the extraordinary review of the water concession process for the “La Merced de Jondachi” hydroelectric project. The ERI, the regional coordinator for the Napo watershed of the Ecuadorian government water authority SENAGUA, and CELEC EP – Termopichincha are allowed to present verbal arguments and additional evidence to the judicial committee. |
| October 9, 2015 | The Judicial Coordinator of the Ecuadorian government water authority SENAGUA formally incorporates the ERI’s response and observations regarding the report presented by the appointed expert water resource analyst, and announces the date for a legal hearing before the judicial committee of the Ecuadorian government water authority SENAGUA as part of the extraordinary review of the water concession process for the “La Merced de Jondachi” hydroelectric project. |
| August 11, 2014 | The ERI presents a response and observations regarding the report presented by the appointed expert water resource analyst, and reiterates a request for a formal legal hearing before the Ecuadorian government water authority SENAGUA as part of the extraordinary review of the water concession process for the “La Merced de Jondachi” hydroelectric project. |
| July 28, 2014 | The appointed expert water resource analyst presents an official report which validates nearly all of the ERI’s legal arguments, determines that the proposed project scheme has detrimental flaws in its conceptual design, and recommends that the “La Merced de Jondachi” hydroelectric project needs to be completely re-conceived. |
| May 16, 2014 | The Judicial Coordinator of the Ecuadorian government water authority SENAGUA formally incorporates a certified copy of the documentation of the water concession process from the office of the regional coordinator for the Napo watershed to the offices of the national water authority in Quito and grants the appointed expert water resource analyst a period of up to 60 days to complete the review of the information and verify the arguments presented in the ERI’s demand to cancel and revoke the water concession process for the “La Merced de Jondachi” hydroelectric project. |
| April 21, 2014 | The Judicial Coordinator of the Ecuadorian government water authority SENAGUA formally incorporates the additional arguments and clarifications presented by the ERI into the extraordinary review of the water concession process. |
| April 9, 2014 | During the allotted time frame, the ERI presents additional arguments and clarifications to justify the demand to cancel and revoke the water concession permit granted to CELEC EP – Termopichincha for the “La Merced de Jondachi” hydro project; responds to the comments and information submitted by the regional coordinator for the Napo watershed of the Ecuadorian government water authority SENAGUA; and formally protests the unprecedented incorporation of new information provided by CELEC EP – Termopichincha which was not originally included in the process. |
| March 25, 2014 | The Judicial Coordinator of the Ecuadorian government water authority SENAGUA accepts the incorporation of new information provided by CELEC EP –Termopichincha into the process, and designates an expert water resources analyst to review the information and verify the arguments presented in the ERI’s demand to cancel and revoke the water concession process for the “La Merced de Jondachi” hydroelectric project. |
| March 17, 2014 | The regional coordinator for the Napo watershed of the Ecuadorian government water authority SENAGUA submits a response and formal defense to the arguments and demands presented by the ERI, and justifications for granting the water concession for the “La Merced de Jondachi” hydroelectric project. |
| January 23, 2014 | The Judicial Coordinator of the Ecuadorian government water authority SENAGUA officially accepts to carry out an extraordinary review of the water concession process for the “La Merced de Jondachi” hydroelectric project and requests a response and formal defense from the regional coordinator for the Napo watershed of the Ecuadorian government water authority SENAGUA regarding the presented arguments and demands. |
| October 17, 2013 | The ERI presents a legal demand to the Ecuadorian government water authority SENAGUA to carry out an extraordinary review of the water concession process for the “La Merced de Jondachi” hydroelectric project, and requests the cancellation and revocation of the water concession granted to CELEC EP – Termopichincha for the “La Merced de Jondachi” hydro project due to the numerous cited errors, omissions, and irregularities in the water concession process, including the lack of any consideration for the needs of existing traditional and recreational uses of the Jondachi River for the determination of the instream environmental flow as required by Ecuadorian regulations. See https://ecuadorianrivers.org/opposition-to-the-hydroproject/ for a summary of our arguments. |
| July 26, 2011 | The regional coordinator for the Napo watershed of the Ecuadorian government water authority SENAGUA, grants a water concession of 16,00 m3/s (562 cfs) of flow from the Jondachi River to the state-owned thermal-electric generating company CELEC EP – Termopichincha for the development of the proposed “La Merced de Jondachi” run-of-river hydroelectric project with up to 20 MW of installed capacity. The water concession specifies exact locations for the diversion dam and restitution, and that a minimum flow of 1.6 m3/s (56 cfs) should be maintained as instream environmental flow in the affected river channel. |
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