Considerations regarding the Reform Initiative to the law that cuts the ZOFEMAT from 20 to 10 meters
By: Juan Carlos Campos Becerril
The Federal Maritime-Terrestrial Zone (ZOFEMAT) and the Land Reclaimed from the Sea (TGM) are assets of the public domain, that is, property of the Nation. These assets may be concessioned to individuals for their use, enjoyment and exploitation, in the terms provided for in the General Law of National Assets and the Regulations for the use and exploitation of the territorial sea, navigable waterways, beaches, federal maritime land zone and land reclaimed from the sea.
One of the largest concessionaires of ZOFEMAT is the tourism sector. According to INEGI, tourism represents close to 9% of GDP (2019) and employs approximately 3 million 931 thousand people (June 2021), 8.1% of national employment, therefore, public policies and modifications to the law must take into consideration the effects on this important sector.
Now, the nature of the ZOFEMAT is not set in stone, as it varies as different natural and anthropological phenomena occur. Consequently, the idea that it is “20 meters from the last wave” is inaccurate and insufficiently clear to define it.
On the one hand, the General Law of National Assets (current) establishes in its article 119, section I, the legal definition of the ZOFEMAT. On the other hand, the last paragraph of the same article determines that the Secretariat of Environment and Natural Resources (SEMARNAT) is responsible for delimiting and delimiting it.
ARTICLE 119.- Both in the continental massif and in the islands that make up the national territory, the federal maritime terrestrial zone will be determined:
I.- When the coast has beaches, the federal maritime-terrestrial zone will be constituted by the twenty-meter-wide strip of solid land, passable and contiguous to said beaches or, where appropriate, to the banks of the rivers, from the mouth of these in the sea, up to one hundred meters upstream;
The Ministry of the Environment and Natural Resources will be responsible for the demarcation and delimitation of the federal maritime-terrestrial zone.
The above is totally transcendent, since the act of delimitation is through which the exact location and limit of the ZOFEMAT and the TGM can be spatially and legally marked.
As previously stated, the ZOFEMAT varies due to different circumstances and in many cases, it even overlaps with private property, which generates property and administrative conflicts derived from the works and facilities found on the site (restaurants, swimming pools, etc.). , walkers and, even, hotel rooms). Well, national assets prevail over private property.
In this sense, B + F has extensive experience in this matter, since it has very successfully defended the interests of different hotel chains, in order to respect the rights established in their concession titles, such as the concessioned area, or well, to defend them from attempts to revoke or annul existing concessions.
On the other hand, and in reference to the title of this article, there is an initiative to reform the General Law of National Assets, presented by Senator José Luis Pech Várguez, which has as its central proposal:
- The modification of the definition of Maritime Beaches, which will consist of a strip of ten meters measured from the high tide inland, in order to guarantee the public use of this space as a priority, above other interests; and,
- The modification of the definition of the ZOFEMAT zone, so that instead of having an extension of twenty meters wide of tradable land adjacent to the maritime beaches, it is reduced to ten meters, based on the new limits of the Maritime Beach.
The figure shown below graphically illustrates the new definition of the ZOFEMAT, once a ten-meter strip was added to the Maritime Beach, in accordance with the Reform Initiative to the General Law of National Assets presented in the Senate of the Republic.
(Source: Reform Initiative to the General Law of National Assets)
The justification for this initiative is based on people being able to effectively claim their constitutional right to have public beaches and, for their part, those who acquire a concession will be able to make their commercial activity profitable without entering into legal contradictions. However, this is a fallacy, since, today, concessionaires have the obligation to allow the free movement of people (even over the concessioned surface), as well as guarantee the care and cleanliness of the beaches.
It is worth mentioning that the coastal morphology, in many cases, is different from what the example images refer to, since in reality, national assets (ZOFEMAT and TGM) overlap with private property. Which shows the clear conflict that the application of said reform initiative would generate.
However, if this reform is approved, it is estimated that it will negatively affect the national tourism sector, according to the following considerations:
- The initiative is considered unconstitutional, since its application would affect the rights of concessionaires of national goods, such as ZOFEMAT and TGM. The above, given that the law should not be applied retroactively to the detriment of any person.
- In this sense, the areas concessioned in the current concession titles must remain without any modification until the end of their validity, including their respective extension. Contrary to what is established in the third transitional article of the opinion approved by the Senate:
- We point out that, regarding the legislative process, the opinion has already been approved by the Chamber of Senators and its discussion and approval by the Chamber of Deputies is pending for its subsequent publication in the Official Gazette of the Federation.
To conclude, we emphasize addressing these considerations, in order to make it clear that our position focuses on ensuring that the process does not affect or, where appropriate, affects as little as possible the rights of all parties.