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Res. 01923-2004 Sala Constitucional · Sala Constitucional · 25/02/2004
OutcomeResultado
The Constitutional Chamber granted the amparo action, annulled administrative acts authorizing the Linda Vista urban project on the Poás aquifer, and ordered authorities to implement groundwater protection measures.La Sala Constitucional declara con lugar el recurso de amparo, anula los actos administrativos que otorgaron viabilidad al proyecto urbanístico Linda Vista sobre el acuífero de Poás y ordena a las autoridades cumplir con medidas de protección de aguas subterráneas.
SummaryResumen
The Constitutional Chamber reviews the environmental clearance granted to the 'Linda Vista' high-density residential project, which relies on individual septic tanks and is situated on the recharge zone of the Poás aquifer. The Chamber finds the aquifer to be highly vulnerable to contamination, notes that existing hydrogeological studies are contradictory, and concludes that there is no scientific certainty regarding the project's safety. Applying the precautionary principle (in dubio pro natura), it annuls the administrative authorizations and orders relevant government bodies to implement protective measures—such as establishing protection perimeters—and remedy multiple omissions in the management and protection of groundwater resources.La Sala Constitucional analiza el otorgamiento de viabilidad ambiental a la Urbanización Linda Vista, un proyecto de alta densidad con tanques sépticos individuales ubicado sobre el área de recarga del acuífero de Poás. La Sala constata que el acuífero es altamente vulnerable a la contaminación, que los estudios hidrogeológicos existentes son contradictorios y que no hay certeza científica sobre la inocuidad del proyecto. Ante este estado dubitativo, aplica el principio precautorio o in dubio pro natura, anulando los actos administrativos que autorizaron el desarrollo y ordenando a las autoridades la adopción de medidas de protección, como el establecimiento de perímetros de protección. Además, identifica graves omisiones de diversas entidades públicas en la protección de las aguas subterráneas, condenándolas a cumplir acciones concretas para salvaguardar el recurso hídrico.
Key excerptExtracto clave
Given the lack of precise scientific and technical data on the depth of the aquifer's water table, there is also no similarly reliable data on the transit times of effluents or contaminants toward it to calculate their degradation and harmlessness. This, combined with technical findings that aquifer recharge through rainfall infiltration is practically immediate and that volcanic aquifers, due to their petrophysical characteristics, are especially vulnerable to human activities (urban, industrial, agricultural), leads this Court to a state of uncertainty regarding the impact of a high-density urban project with individual septic tanks on the quality and quantity of water in the Poás aquifer—which supplies drinking water to several local communities. This uncertainty compels the application of the precautionary principle to prevent or suspend any activity that could negatively affect the sustainable management of the region's water resources and, consequently, the right to a healthy and ecologically balanced environment. The precautionary or in dubio pro natura principle is particularly applicable here, considering that, according to hydrogeology, aquifer recovery from contamination is extraordinarily slow and sometimes irreversible due to the high cost of remedial means and instruments.Al no existir un dato técnico y científico exacto sobre la profundidad del nivel freático del manto, tampoco existe uno con las mismas características sobre los tiempos de tránsito de los efluentes o contaminantes hacia éste para calcular su degradación e inocuidad. Lo anterior aunado a los criterios técnicos que indican que la recarga en el acuífero por infiltración de las precipitaciones es prácticamente inmediata y que los mantos acuíferos de origen volcánico, por su características petrofísicas, son especialmente vulnerables a una serie de actividades de origen antrópico (urbanísticas, industriales, agropecuarias), hacen surgir en este Tribunal un estado dubitativo acerca de la incidencia de un proyecto urbanístico de alta densidad y con tanques sépticos por cada vivienda sobre la calidad y cantidad de las aguas del manto acuífero de Poás –el cual abastece de agua potable a varias comunidades del lugar- que le imponen aplicar el principio precautorio a fin de evitar o suspender cualquier actividad que pueda incidir negativamente en la gestión sostenible de los recursos hídricos de la zona y, por consiguiente, en el derecho a un ambiente sano y ecológicamente equilibrado consagrado en la norma fundamental. Finalmente, el principio precautorio o de indubio pro natura resulta de especial aplicación al sub-lite si se toma en consideración que de acuerdo con la hidrogeología ante la contaminación de un manto acuífero la regeneración es extraordinariamente lenta y, en ocasiones, irreversible por el altísimo costo de los medios e instrumentos para hacerlo.
Pull quotesCitas destacadas
"Cuando haya peligro de daño grave e irreversible, la falta de certeza científica absoluta no deberá utilizarse como razón para postergar la adopción de medidas eficaces en función de los costos para impedir la degradación del medio ambiente."
"Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation."
Considerando XV (Principio 15, Declaración de Río)
"Cuando haya peligro de daño grave e irreversible, la falta de certeza científica absoluta no deberá utilizarse como razón para postergar la adopción de medidas eficaces en función de los costos para impedir la degradación del medio ambiente."
Considerando XV (Principio 15, Declaración de Río)
"Bien entendido el principio precautorio, el mismo se refiere a la adopción de medidas no ante el desconocimiento de hechos generadores de riesgo, sino ante la carencia de certeza respecto de que tales hechos efectivamente producirán efectos nocivos en el ambiente."
"Properly understood, the precautionary principle refers to the adoption of measures not in the absence of knowledge of risk-generating facts, but in the absence of certainty that such facts will actually produce harmful effects on the environment."
Considerando XV
"Bien entendido el principio precautorio, el mismo se refiere a la adopción de medidas no ante el desconocimiento de hechos generadores de riesgo, sino ante la carencia de certeza respecto de que tales hechos efectivamente producirán efectos nocivos en el ambiente."
Considerando XV
"La prevención pretende anticiparse a los efectos negativos, y asegurar la protección, conservación y adecuada gestión de los recursos."
"Prevention aims to anticipate negative effects and ensure the protection, conservation, and proper management of resources."
Considerando XV
"La prevención pretende anticiparse a los efectos negativos, y asegurar la protección, conservación y adecuada gestión de los recursos."
Considerando XV
"El agua es de dominio público, su conservación y uso sostenible son de interés social."
"Water is in the public domain; its conservation and sustainable use are a matter of social interest."
Considerando VII, citando Artículo 50 de la Ley Orgánica del Ambiente
"El agua es de dominio público, su conservación y uso sostenible son de interés social."
Considerando VII, citando Artículo 50 de la Ley Orgánica del Ambiente
Full documentDocumento completo
Deeming relevant for the resolution of this amparo proceeding, the following list is taken as proven:
Of importance for resolving this proceeding, the following list is taken as unproven:
In contrast to waters termed surface waters, insofar as they flow over the earth's crust and can be subject to common or special uses, there are groundwaters. Groundwater is that which is found beneath the earth's surface occupying the empty spaces in the soil or rocks; its most important source is the rainfall that infiltrates the soil. The soil, for its part, is composed of two levels, which are the following: a) Upper level or zone of aeration, in which the empty spaces are occupied by air and the infiltrated water that descends by gravity, and b) another below this one called the zone of saturation, in which the empty spaces are full of water that moves slowly, and whose upper level is called the water table, hydrostatic level, or water table (nivel freático). The waters included in the porous spaces of the zone of saturation, in geological formations, are called aquifers or groundwater bodies.
The hydraulic gradient is the difference in altitude between two points of the same water table—water table (nivel freático)—in relation to their horizontal distance; the movement velocity of groundwater depends, in essence, on the hydraulic gradient. Groundwater is an essential part of the hydrological cycle: of the total water of the hydrosphere, 2.4% is fresh water; of this, 78.1% is frozen, 21.5% corresponds to groundwater, and 0.4% is surface water found in rivers and lakes. In the Central American region, the main source of public supply is groundwater, compared to surface waters, which are notably exposed to contamination and degradation from the harmful practices of land use and uncontrolled urban expansion. In the particular case of our country, it has been estimated that the potential annual recharge of groundwater is approximately 47,000 million cubic meters per year, which means 20% of the precipitation; likewise, it has been calculated that of the 750,000 cubic meters of water used daily for human consumption, 70% (500,000 cubic meters per day) comes from groundwater catchments.
The consumption and use of groundwater, with respect to surface waters, presents evident and clear qualitative and quantitative advantages, such as the following: a) The investment for the extraction and exploitation of potable groundwater is made gradually depending on the increase in demand for the service, and the catchment areas can be located near the place where the demand arises, all of which reduces conduction, treatment, and storage costs; b) the natural physical-chemical quality of groundwater is more constant than that of surface waters and is potable with little or no treatment; c) because there is soil or rocks above the groundwater, it is more protected from contamination of natural or human origin; d) the variations in quantity and availability in dry seasons or during rainfall are minimal compared to those of surface waters; e) they constitute a strategic reserve to face states of emergency due to public calamity, internal commotion (e.g., earthquakes, hurricanes, volcanic eruptions, etc.), or war.
The subject of groundwater is intimately linked to various fundamental rights contained in the constitutional text and in international human rights instruments.
Our Constitution, in article 50, sets forth the right to a healthy and ecologically balanced environment, which is achieved, among other factors, through the protection and conservation of the quality and quantity of water for human consumption and use and to maintain the ecological balance in the habitats of flora and fauna (e.g., wetlands) and, in general, of the biosphere as the common heritage of humanity. Similarly, access to potable water ensures the rights to life –“without water there is no possible life” states the Water Charter approved by the Council of Europe in Strasbourg on May 6, 1968–, to the health of individuals –indispensable for their food, drink, and hygiene– (article 21 of the Constitution) and, of course, is associated with the socio-economic development and growth of peoples to ensure each individual a dignified well-being and quality of life (article 33 of the Constitution and 11 of the Additional Protocol to the American Convention on Human Rights).
The scarcity, lack of access or availability, and contamination of this precious liquid causes the impoverishment of peoples and limits social development on a large scale. Consequently, the protection and exploitation of underground water reservoirs is a strategic obligation to preserve the life and health of human beings and, of course, for the proper development of any people. In 1995, it was estimated that 1 billion inhabitants did not have access to potable water, and it is calculated that by the year 2025, approximately 5.5 billion people will experience water scarcity, with 5 to 10 million people dying annually from the use of untreated water. On another note, currently, the duty to preserve, for future generations, conditions of existence at least equal to those inherited (sustainable development) has been recognized, so that the needs of the present must be satisfied without compromising the ability of future generations to meet their own (Principle 2 of the Declaration of the United Nations Conference on the Human Environment, Stockholm, 1972).
In essence, water, from an economic and ecological point of view, is a precious good, since it is indispensable for any human activity (industrial, agricultural, domestic, commercial, services, etc.), as a source of energy, raw material, transportation route, support for recreational activities, and a constitutive element for the maintenance of natural ecosystems –non-polluting or environmentally compatible use of water–.
PUBLIC DOMAIN GOODS. In our legal system, there is no single, systematic, and coherent normative body that comprehensively regulates the protection, extraction, use, management, and efficient administration of water resources. Additionally, the little existing legislation focuses, predominantly, on surface water, ignoring groundwater. As is typical and inherent to Administrative Law, one can observe in this matter a normative dispersion and a fragmented, chaotic, and ambiguous set of sectoral norms that regulate specific aspects, leaving serious gaps and antinomies, all of which also seriously hinders environmental management by the public entities in charge of the matter. Obviously, the scant regulation of groundwater is no exception to the rule noted above. In Water Law, various theses have been held regarding its legal nature –the variation of which depends on historical evolution–. Thus, groundwater has been reputed as (a) private goods, making it a res nullius appropriable by the one who brings it to light (alumbrador), that is, by the owner of the land where it emerges, following the maxim of Roman Law according to which ownership extends from the sky to hell.
Nineteenth-century regulations on water resources (e.g., the Spanish Water Law of 1879, which inspired many Latin American legislations, including our Water Law of 1942) would give groundwater the character of (b) mixed goods, so that those brought to light by the owner of a private piece of land would be private, and those emerging on public domain land or the former after their owner has used them would be public. Finally, starting in the 20th century, many legislations would classify all groundwater as (c) public domain goods, based on the unquestionable unity of the hydrological cycle, thus becoming part of what has been called the "public hydraulic domain" as part of the natural and not artificial domain; this position conceives water as a unitary resource subordinated to the general interest, so no distinction should be made between surface and groundwater, since they are intimately linked to maintain their quality and quantity.
According to this last thesis, groundwater is not appropriable by any private individual, and its classification as public domain goods constitutes sufficient title to subject it to a very strong and intense administrative intervention regime in order to guarantee its integrity and quality and to separate it from the modes of acquisition and enjoyment typical of Private Law. In our legal system, from a series of dispersed norms, the legal nature of groundwater can be determined, with evident variations, according to the historical-legislative evolution. The Water Law No. 276 of August 27, 1942, and its amendments, in its article 1, subsections IV, VIII, and IX, classifies, respectively, as public domain waters "Those from (...) springs (...)", "Those from springs that gush forth on beaches, maritime zones, channels, beds, or banks of national property and, in general, all those that emerge on public domain lands," and "Those underground waters not brought to light by means of wells," since section 4, subsection III, of that legal text deems as private domain –and, therefore, belonging to the landowner– "The groundwater that the owner obtains from their own land by means of wells," with the surplus –from wells concessioned to obtain water for non-domestic purposes and ordinary needs– that leaves the land becoming public domain waters.
Evidently, the Water Law of 1942 follows a mixed thesis regarding the legal nature of groundwater, since it combines the res nullius character, and therefore appropriable, of these waters if brought to light on private lands, with the public domain character if they emerge on land owned by a public entity. It would be two later laws, enacted during the last quarter of the past century, that tacitly reformed or modified what was established in articles 1, subsections IV, VIII, and IX, and 4, subsection III, of the Water Law. In reality, these two new normative instruments fall within the contemporary trend of conceiving groundwater as public domain goods by virtue of the unity of the hydrological cycle, thus serving as sufficient enabling title to admit a strong administrative intervention regime to conserve the quantity, quality, and ensure a rational and sustained exploitation of water resources.
Thus, the Mining Code, Law No. 6797 of October 4, 1982, and its amendments, in its numeral 4, provided the following: "(...) mineral springs and waters and ground and surface waters are reserved for the State and may only be exploited by it, by private parties in accordance with the law, or through a special concession granted for a limited time and subject to the conditions and stipulations established by the Legislative Assembly (...)," thus producing a publicization and nationalization of all the country's groundwater, including that brought to light by means of a well located on private land for domestic use or ordinary needs. Subsequently, the Organic Environmental Law, No. 7554 of October 13, 1995, and its amendments, in numeral 50 –whose heading is "Public Domain of Water"– reinforced that declaration of public domain status (demanialidad) and prescribed that "Water is of public domain; its conservation and sustainable use are of social interest." This legislative instrument implies an express allocation of continental waters (surface water and groundwater –by not distinguishing between them–) to the public domain of the State and qualifies their protection, preservation, or conservation and sustained or rational use as of social interest, thereby clearing the path for potential expropriations or limitations for reasons of social interest (article 45 of the Constitution).
An aquifer (acuífero) is a geological stratum or formation (unconsolidated deposits of loose materials such as sands, gravels, mixtures of both, sedimentary rocks like limestone, volcanic rocks, etc.) that allows the circulation of water through its pores or fissures, so that humans can utilize it in economically appreciable quantities to meet their needs. In a very broad sense, aquifers (mantos acuíferos) are geological formations that contain water, have contained it, and through which water flows or circulates. Two of the hydrogeological parameters to define the functioning of an aquifer (manto acuífero) –the relationship between recharge (recarga) and the extraction of water or discharge (descarga)– are porosity or permeability –hydraulic conductivity– and the storage coefficient. There are a series of geological formations that should not be confused with aquifers (mantos acuíferos).
Thus, (a) aquicludes (acuícludos) are geological formations that contain water inside but do not transmit it, preventing its exploitation; regarding the non-renewable, fossil, dead, stagnant, or non-flowing groundwater contained in these, there is no doubt that it is also of public domain, given that articles 4 of the Mining Code and 50 of the Organic Environmental Law do not distinguish between ground and surface water, much less between renewable and non-renewable groundwater, so they cannot be conceived as res nullius susceptible to appropriation by the private individual who brings it to light (alumbrador). The (b) aquitard (acuitardo), for its part, comprises a set of geological formations that contain appreciable quantities of water but transmit it very slowly. Finally, the (c) aquifuge (acuifugo) is that geological formation that neither contains nor can transmit water. Regarding the typology of aquifers (acuíferos), hydrogeology classifies them, according to the hydrostatic pressure of the water enclosed within them, as follows: a) unconfined, non-confined, or phreatic aquifers (acuíferos libres), in which there is a free surface of the water enclosed in them in direct contact with the air; their water table is at atmospheric pressure and is not limited by an impermeable layer; and b) confined, or artesian aquifers (acuíferos cautivos, confinados), in which the water is subjected to a pressure greater than atmospheric.
There is also the subcategory of perched aquifers (acuíferos colgados), which are unconfined aquifers (libres) with limited spatial distribution and temporary existence. The natural recharge (recarga) of aquifers (mantos acuíferos) is produced by the volume of water that penetrates them over a period of time due to the infiltration of rainfall or a watercourse (e.g., influent rivers). Recharge areas (áreas de recarga), therefore, are all the zones of the soil surface where rainfall infiltrates the ground until reaching the saturated zone, joining the aquifer (acuífero). The Forestry Law (Ley Forestal) No. 7575 of February 13, 1996, in its article 3, subsection l), defines aquifer recharge areas (áreas de recarga acuífera) as "The surfaces on which the infiltration that feeds the aquifers (acuíferos) and river channels occurs (...)." Natural discharge (descarga) is the volume of water that, over a period of time, naturally leaves the aquifer (acuífero) through surface, subfluvial, or submarine springs, by evapotranspiration, or by vertical percolation to lower aquifers (acuíferos).
Artificial discharge (descarga) occurs through the extraction of water by means of wells, ditches, trenches, or tunnels. The discharge areas (áreas de descarga) of groundwater comprise all those points at which the water table or phreatic level intersects the soil surface –springs, sources, seepages– the course of a river, or marine or lacustrine beds.
In our country, two types of aquifer (acuífero) families are recognized: a) Volcanic or fissured, formed in igneous rocks (volcanic and intrusive), representing those of greatest dimensions and best quality, and b) Sedimentary or granular in surface formations. Regarding the first type, it should be noted that igneous rocks naturally have no permeability; they possess secondary porosity caused by the presence of fractures or fissures originated by cooling or tectonic events (areas linked to geological faults), thereby acquiring hydrogeological aptitude. This type of aquifer (acuífero) appears in high-altitude areas where precipitation is high and volcanic rocks particularly exist. Known and studied examples of these are the aquifers (acuíferos) of the Central Valley (e.g., Upper and Lower Colima and Barva). From the perspective of hydrogeology, our country presents ideal and exceptional conditions for the rational and measured exploitation of groundwater, since the Central Volcanic Mountain Range is constituted by volcanic soils with a high natural infiltration capacity, provided they have not been compacted or eroded by human activities, thus fulfilling an essential function in regulating surface water runoff and the recharge (recarga) of aquifers (acuíferos).
The high permeability of the fractured and brecciated lava layers and the high rainfall conditions favor the formation of high-potential aquifers (acuíferos). The existing tuffs, in turn, behave as rocks of low permeability that allow the constitution of aquitards (acuitardos) that are the base of the aquifers (acuíferos) and allow the vertical transfer of water between them. The location and geomorphology of the Central Volcanic Mountain Range, with all its aquifers (acuíferos), is a first-order source of water to meet the needs of at least half of the country's population, including the Greater Metropolitan Area and surrounding populations. The use of groundwater in this zone is carried out through wells or the capture of springs for domestic, industrial, and agricultural uses. In the Central Volcanic Mountain Range, as of 1996, SENARA had registered 3,460 wells of varied use and 353 springs for public supply used by the ICAA, municipal corporations, rural aqueduct administrative associations, and other entities.
This type of aquifer (acuífero) has also been located in the formations of Liberia and Bagaces (Province of Guanacaste). It is fully established that this type of aquifer (acuífero), due to its petrophysical characteristics, is more vulnerable to contamination in its recharge areas (áreas de recarga) when they are not in protected or reserved zones and are exposed to anthropic activities such as deforestation, uncontrolled urbanization, and intensive and extensive agricultural activities involving the use of pesticides and agrochemicals, thus being exposed to a dangerous and slow degradation in their environmental quality. Surface aquifers (acuíferos superficiales) are composed of layers of unconsolidated rocks of recent and diverse origin; they are alluvial fillings of some valleys that can reach thicknesses from a few meters to one hundred meters, are separated from the surface by a thin and permeable soil layer, and are therefore highly vulnerable to contamination, especially when located underneath zones of anthropic occupation (urban, industrial development, or agricultural crops).
This type of aquifer (acuífero) is exploited in the Central Pacific region, such as, for example, the alluvial filling of the Barranca River Valley, which contains two coastal aquifers (acuíferos costeros), namely the Barranca and El Roble.
Unlike the contamination of surface water, which is usually obvious and visible, allowing environmental actions aimed at mitigating or eradicating it, contamination of groundwater, by its very nature, usually goes unnoticed and becomes evident when it has reached large proportions. Aquifers (mantos acuíferos), due to the slow circulation of water, the absorption capacity of the land, and other factors, can take a long time to show contamination. Additionally, the large volume of water contained means that extensive contamination takes a prolonged period to manifest itself, or, in the case of localized contamination, it is detected when it flows to some exploitation site. Certainly, this type of water has a resistance to contamination; however, when it occurs, its regeneration can be extraordinarily slow and, on occasions, is irreversible due to the high cost of the means to achieve it. It has been demonstrated that attempts to repair the damage caused by contamination to an aquifer (acuífero) to achieve potable water levels again have not been successful; the technologies for its cleaning have contributed little to reducing the damage, and the methods are very expensive economically.
To the above must be added the lack of organizational infrastructure, material, financial, and human resources, in this last case, duly trained to evaluate, measure, and, in general, monitor the quality of this water and the exact dimension of its contamination. The degradation and contamination of aquifers (mantos acuíferos) impose on the legislator and public administrations the urgent and non-deferrable task of protecting them. Contamination of groundwater can be direct or indirect. It is of the first type when contaminating substances are introduced directly into the aquifer (acuífero), as in the case of cesspools or injection wells. It is of the second type when it occurs through dilution via contamination of the natural recharge (recarga). Contaminating agents can be of very diverse natures, that is, mineral, degradable organic (excreta and purines), slightly or non-degradable organic (pesticides, detergents, hydrocarbons), biological (bacteria, viruses, algae), radioactive, and gaseous.
The contamination of aquifers (acuíferos) depends on the geological, hydraulic, and chemical conditioning factors of each location or site, so it is a function of local factors, which is why knowledge of each zone and the study of similar cases is required. The origins of aquifer (acuífero) contamination can be of very diverse natures, such as the following: a) contamination by domestic activity, which is organic and biological and arises from septic tanks, sewage system leaks, and discharge of blackwater, to which must be added the increase in chemical products for domestic use such as detergents; b) contamination by agricultural activities, here we have the use of artificial fertilizers based on nitrates, phosphates, and potash or natural ones -based on manure-, irrigation with residual and high-salinity waters, and the use of pesticides (insecticides, herbicides, and pesticides); c) contamination by livestock farming, which is essentially organic and biological, similar to domestic contamination but more intense in the case of intensive farms; d) contamination by surface water, when they recharge and are, in turn, contaminated; e) contamination by saline intrusion, occurring when marine and salt waters enter coastal regions due to the overexploitation, through wells, of coastal aquifers (acuíferos costeros); f) contamination by mining activities –mineral–, related to evacuations of mine water and mineral washing sites; g) contamination by industrial activities, this type is as varied as the type of industry that originates it, with those caused by heavy metals from the metallurgical industry being especially harmful, as well as from the chemical, petrochemical, food (organic substances), and beverage (detergents) industries; h) contamination by nuclear activities, although exceptional in our environment, it can come from plants treating irradiated fuels and radioactive minerals, and from medical activity; i) contamination through poorly constructed wells, wells can interconnect several aquifers (mantos acuíferos), and when they have broken or corroded casings at levels of poor quality water or that allow the entry of surface water, they can cause it; j) contamination through the discharge of residual waters via cesspools, septic tanks, sewage network leaks, or indiscriminate dumping into hydrographic basins; k) contamination by solid waste dumping, occurring when a sanitary landfill is built on permeable or non-waterproofed land through leachates; l) contamination by poorly designed, constructed, or used injection wells –a form of utilizing the subsoil as a waste storage facility–.
The main threat of contamination to aquifers (mantos acuíferos) in Costa Rica and, consequently, to groundwater, consists of two factors: a) population growth and uncontrolled urban expansion over recharge areas (áreas de recarga), phenomena that generate leachates from solid and liquid waste of domestic and industrial origin, the inability of soils to infiltrate, the waterproofing of recharge zones (zonas de recarga), and the overexploitation of aquifers (acuíferos); b) the use of agrochemicals in intensive agriculture of coffee, banana, cotton, ornamental plants; and c) waterproofing of recharge areas (áreas de recarga) due to land-use changes (cambios en el uso del suelo), deforestation, and extensive livestock farming. In the case of the aquifers (acuíferos) that supply the Greater Metropolitan Area (Upper and Lower Colima, La Libertad, and Barva), evidence has been observed of some impact from bacteriological and industrial contamination and an increase in nitrates, due to urban expansion and intensive agriculture in the recharge areas (áreas de recarga).
Regarding nitrates, despite the good physico-chemical and bacteriological quality of the water, an increasing trend in nitrate concentrations has been detected down the hydraulic gradient, which denotes that groundwater is being affected, directly or indirectly, by the discharge from septic tanks and the use of nitrogenated fertilizers used in vegetable crops and coffee plantations. Similarly, overexploitation of groundwater due to concentrated extractions has been detected, which has caused a decline in water levels and in the flow of springs and an eventual waterproofing of the recharge areas (áreas de recarga) since the aquifers (acuíferos) are located in the zones of greatest urban growth with accelerated housing development through subdivisions (urbanizaciones), the effects of which, it is estimated, would be significant if an area greater than 20% of the recharge area (área de recarga) is waterproofed.
Due to the characteristics of contamination of aquifers (mantos acuíferos) destined for public supply and their difficult regeneration, measures to avoid contamination must be preventive and protective, through the prohibition of certain human activities in specific zones or by ordering security measures on certain potentially contaminating activities. Our legal-administrative system (legislation, regulations, and decrees) unfortunately lacks precise, clear, and complete regulation for the protection of aquifers (mantos acuíferos), recharge zones (zonas de recarga), and groundwater catchment areas. In foreign legislation (e.g., Spanish Water Law 29/1985 of August 2), some extraordinary powers of administrative intervention in the water economy are foreseen that directly concern the protection of aquifers (mantos acuíferos), in order to achieve a sustained use of water resources, that is, to guarantee a water availability in sufficient quantity and required quality to meet present and future human and ecological needs.
These extraordinary administrative powers, which must be admitted in our legal system –despite the lack of regulation– as implicit in the express and general competence for the protection and conservation of groundwater attributed to the State and the decentralized entities of the water sector, are based on the need to achieve rational and balanced use of water. The scarcity and degradation of the natural conditions of the water resource impose the administrative possibility of adopting such measures to prevent its exhaustion or irreversible deterioration and to temporarily overcome the harmful effects that a water crisis may generate. This type of administrative measure supposes various drastic restrictions and controls on the multiple uses or exploitations of water –especially general or special private ones– and on pre-existing activities that may affect the resource, insofar as they are justified by a public interest, and therefore do not affect property rights or the integrity of patrimony.
In essence, such measures must be deemed as limitations of social interest that do not empty the content of the right to property or expand the public domain over groundwater without prior compensation but rather mold its essential content, so they must be borne, as a general sacrifice or burden, by all users, who, ultimately, are the beneficiaries of these measures, as they are aimed at correcting a temporary situation of scarcity or imminent contamination affecting the economy of the water resource in a specific zone. Such administrative intervention measures, virtually contained in articles 32 of the Water Law of 1942 and 10 of the Regulation for Drilling and Exploitation of Groundwater (Reglamento de Perforación y Explotación de Aguas Subterráneas, Decreto Ejecutivo No. 30387 of April 29, 2002), may be the following:
Evidently, the definition of perimeters by national authorities –MINAE and ICAA– must be respected by local governments (Municipalities) and INVU (given its residual competence in urban planning matters in the absence of local regulatory plans) to compatibilize, develop, and effectively reflect the conditions established in the definition of the protection perimeters in the regulations contained in the respective Regulatory Plans on land uses or territorial planning (e.g., zoning regulations, construction regulations, etc.). Obviously, to the above must be added the protection around catchment areas (wells –WPP: wellhead protection perimeters (PPP: perímetros de protección de los pozos)–, springs, sources, etc.), through the definition of an area around them in which certain human activities are prohibited or limited, regulating or controlling land use. The determination of the perimeter depends on the capture zone or zone of contribution of the well (ZOC) and its extension depends on the characteristics and properties of the catchment area and the recharge (recarga) land, since the norms cannot be the same for permeable or fissured terrains as for those with impermeable formations.
The definition of perimeters must be combined with the cartography of vulnerability or natural susceptibility of the supply aquifers (mantos acuíferos) to anthropic contamination loads, based on their hydrogeological and geochemical characteristics, in the face of anthropogenic contamination problems, which is achieved through the creation of maps.
Such measures, protection perimeters, and vulnerability mapping are suitable for relocating a specific type of activity, the supply source, or, ultimately, introducing technical methods and instruments for the treatment and disposal of pollutants in a timely manner. The measures to be taken based on the protection perimeters and vulnerability mapping vary depending on whether it concerns (a) an area without territorial occupation, being useful for defining activities that may or may not be installed in the future; (b) areas already occupied, in which case a mapping of the natural vulnerability and the areas with greater susceptibility to contamination is carried out, allowing, in the face of the threat of a high contamination index, the relocation of activities, supply sources, and the introduction of technology for the treatment and disposal of pollutants; (c) areas already contaminated, for which alternative sources may be sought, the spread of contamination plumes may be prevented, and, if possible, given its high cost, the aquifer waters may be treated after extraction; (d) areas for new water intakes, a scenario in which potentially contaminating activities and the impact area of each of these must be inventoried.
In the hypothesis of overexploitation of the aquifer, the competent administrative authority may declare that state in order to reverse the state of affairs through an ordering, restriction, and allocation of pre-existing extractions or uses to achieve rational exploitation and the immediate suspension of new applications or modifications of concessions pending at that time. Of course, measures for saving and good use of resources may also be implemented, such as the treatment and purification of wastewater to be reused in the irrigation of certain crops, drip or nighttime irrigation systems to mitigate the effects of evapotranspiration, artificial recharge, etc.
Article 31 of the Water Law No. 246 of August 27, 1942, declares as a “reservation of ownership in favor of the Nation” the following: “a) The lands that surround the sites of water intake or potable water supply sources, within a perimeter of no less than two hundred meters in radius; b) The forest zone that protects or must protect the set of lands in which the infiltration of potable waters occurs (...)”. This declaration is of utmost importance, since, based on it, the obligation arises for the State, through its competent bodies, to fix and determine the perimeter protection areas of wells or water intake areas—of 200 meters—and, of course, of the recharge areas of the aquifer layers—the zone where “the infiltration of potable waters occurs”—that have or must have a forest cover (cobertura boscosa) for their protection, which are so sensitive for their conservation and protection. Likewise, based on such an express encumbrance, the State may exercise vindicatory and possessory actions to guarantee the integrity of those zones and remove them from all types of contamination by subjecting them to a strict land-use control regime, an attribution that, very probably, it has omitted to exercise in a timely and exact manner.
Numeral 32 of the 1942 Water Law establishes that “When in an area larger than the one previously indicated there exists a danger of contamination of surface or groundwater, the Executive Branch, through the Potable Water Section—currently ICAA—(...) shall order in said area the measures it deems appropriate to avoid the danger of contamination”; this norm imposes an inescapable duty of collaboration and cooperation upon the Executive Branch with the ICAA to adopt all appropriate and convenient administrative acts and measures to avert the danger of contamination in an area larger than the protection perimeters of the recharge areas of the aquifers and water intake zones. The content of the norm is extremely significant and rich, since it enables the State to adopt any appropriate measure to avoid irreversible damages and losses that a state of emergency due to a water crisis could cause.
Evidently, this is also a competence that has not been exercised responsibly or has been underutilized. The General Potable Water Law, No. 1634 of September 18, 1953, in its Article 2, establishes that “Those lands that both the Ministry of Public Works and the Ministry of Public Health—bodies of the Executive Branch that were replaced by the Costa Rican Institute of Aqueducts and Sewers (Instituto Costarricense de Acueductos y Alcantarillados) by virtue of its Creation Law No. 2726 of April 14, 1961, and its reforms, and, more specifically, Article 2, subsection h), which entrusted it with enforcing the General Potable Water Law—consider indispensable for constructing or situating any part or parts of potable water supply systems, as well as for ensuring the sanitary and physical protection, and the necessary flow thereof (...), are of public domain”. Evidently, this norm has enormous significance, since the water intake areas that may include springs (nacientes)—a form of natural discharge of groundwater—are declared to be of public domain, and, what is more important, it grants the condition of public domain property to all those lands necessary to ensure sanitary and physical protection and their flow, which necessarily includes the recharge areas of the aquifer layers clearly delimited through the perimeter-defining activity already indicated, since the lack of protection of these zones necessarily affects the quality—due to contamination—and flow—due to impermeabilization or overexploitation—of the waters for human consumption and use that emerge from a spring (naciente).
Forestry Law No. 7575 of February 13, 1996, in its Article 33, subsections a) and d), respectively, provides that protection areas are “(...) those bordering permanent springs (nacientes), defined within a radius of one hundred meters measured horizontally” and “The recharge areas and aquifers of springs (manantiales), the limits of which shall be determined by the competent bodies established in the Regulations of this law”. Evidently, these norms provide support for the administrative activity or intervention to define the protection perimeters of aquifers and water intake zones. The Organic Environmental Law No. 7554 of October 13, 1995, in its Article 51, indicates that for the conservation and sustainable use of water, the following criteria must be applied, among others: “a) Protect, conserve, and to the extent possible, recover aquatic ecosystems and the elements that intervene in the hydrological cycle”; “b) Protect the ecosystems that allow the regulation of the water regime”; and “c) Maintain the equilibrium of the water system, protecting each of the components of hydrographic basins”.
The need to protect and conserve the integrity and unity of the hydrological cycle is thus established, without making distinctions, which especially includes groundwater. Finally, Articles 5, subsection e), final paragraph of the ICAA Creation Law (No. 2726 of April 14, 1961, and its reforms) and 15 of the SENARA Creation Law (No. 6877 of July 18, 1983, and its reforms) crown the normative framework for the institutional protection of groundwater by indicating, respectively: “Those lands necessary for the conservation and protection of water resources, as well as for the constructions that become necessary in the water intake (...), are declared of public utility and social interest, and may be expropriated”; “The actions promoted by the State, with the purpose of ensuring the protection and rational use of waters (...), are declared of public interest.” In the legal-administrative water system, we will also find a series of obligations and burdens imposed on private parties and public law subjects—public entities and bodies—for the adequate protection of the public water domain, both groundwater and surface water.
Thus, the 1942 Water Law and other legislative bodies establish a series of prohibitions and obligations for owners and users of springs (manantiales)—which are a component of the discharge area of an aquifer layer—such as the following: a) users or concessionaires must comply with police and health regulations regarding surplus waters that are returned to a spring (manantial) to avoid contamination or stench—failing to do so, they may lose their special use and suffer a fine (Articles 57 and 166, subsection III, ibid.), and concordantly, the Wildlife Conservation Law No. 7317 of October 21, 1992, in its Article 132, paragraph 1, prohibits “(...) dumping wastewater, black water, waste, or any contaminating substance in springs (manantiales), rivers, creeks, permanent or non-permanent streams (...) lakes (...)” and imposes a fine of 50,000 to 100,000 colones convertible into a prison term of one to two years on whoever violates the norm. b) The construction of ponds for fish hatcheries in springs (manantiales) destined for the supply of populations is prohibited (Article 63, ibid.). c) The owners of lands in which there are springs (manantiales) whose surrounding forests that provided them shelter have been destroyed are obliged to plant trees on the margins at a distance of no more than 5 meters (Article 148, ibid.). d) The destruction, both in national and private forests, of trees located less than 60 meters from springs (manantiales) that arise in hills or less than 50 meters from those that emerge on flat lands is prohibited (Article 149, ibid.); the Forestry Law, No. 7575 of February 13, 1996, provides, in its Article 34, coincidentally, that “The cutting or elimination of trees in the protection areas bordering permanent springs (nacientes) and recharge areas and the aquifers of springs (manantiales) is prohibited.” e) Every application for the use of living waters, currents, and springs (manantiales) must be directed to the Ministry of Environment and Energy with the presentation of a series of requirements (Article 178, ibid.).
Regarding the public entities and bodies that have competence and responsibilities in matters of groundwater protection, a series of obligations and prohibitions are established, such as the following: a) Municipalities are prohibited from alienating, mortgaging, or otherwise encumbering, leasing, granting for exploitation, lending, or exploiting on their own account—especially if it involves deforestation—the lands they possess or acquire on the banks of rivers, streams, or springs (manantiales) or in basins or hydrographic watersheds in which springs (manantiales) arise or have their origins (Articles 154 and 155, ibid.). b) Municipalities are obliged to reforest such lands (Article 156, ibid.). c) Every Municipality, Education Board, Social Protection Board, and, in general, every “public body” is obliged to consult the Ministry of Agriculture to obtain the respective permit to alienate, mortgage, lease, grant for exploitation, or exploit on their own account lands they possess or acquire in which there are usable public domain waters (Article 157, ibid.).
The General Health Law, No. 5395 of October 30, 1973, and its reforms, for its part, contains specific norms for the effective protection and conservation of groundwater; thus, Article 275 stipulates that “Every natural or legal person is prohibited from contaminating surface water, groundwater (...) directly or indirectly, through drainage or the discharge or storage, voluntary or negligent, of liquid, solid, or gaseous residues or wastes, radioactive or non-radioactive, black water, or substances of any nature, which, by altering the physical, chemical, and biological characteristics of the water, make it dangerous for the health of persons, terrestrial and aquatic fauna, or unusable for domestic, agricultural, industrial, or recreational uses.” In turn, numeral 276 establishes that only with permission from the Ministry may drainage be carried out or the discharge of solid or liquid residues or wastes or others that may contaminate surface, ground, or maritime water be proceeded with, “(...) adhering to the regulatory safety norms and conditions and the special procedures that the Ministry imposes in the particular case to render them harmless.” Articles 285 and 291 of that regulatory body, respectively, oblige every person to eliminate excreta and black water in an adequate and sanitary manner to avoid “contamination of the soil and natural sources of water for human use and consumption” and prohibit the discharge of industrial waste or waste from health establishments into the sewer system to “avoid the contamination of sources or courses of water.” Finally, Article 309 of that law establishes that the Ministry of Health will approve a development project for developers if, among other things, “(...) it has adequate sanitary systems (...) for the disposal of excreta, black water, and wastewater.”
DELIMITATION OF COMPETENCES. The management of groundwater resources encompasses various aspects such as the investigation of their potential, identification, categorization, planning of their uses, protection, rational exploitation, prevention and sanction of ecological damage or contamination, environmental control and monitoring of their use, etc. Consequently, the ideal would be for there to be a single regulatory and governing administrative entity in the matter; however, competences for the integrated management of groundwater resources are dispersed and fragmented, such that they are occasionally exclusive or excluding of a single entity and, most of the time, concurrent, shared, or parallel, which requires a particular administrative coordination effort to ensure their sustainable utilization. In the heterogeneous and dispersed set of administrative entities and bodies that make up the Costa Rican public administration, a sector of these can be identified that have assigned, by law or regulation, a series of non-renounceable, non-transferable, and imprescriptible competences in matters of groundwater conservation and protection that they cannot decline and must exercise effectively in the interests of the right to a healthy and ecologically balanced environment for all the country's inhabitants.
In that sector of the public apparatus or service organizations for satisfying the needs of the entire community, a group can be identified that belongs to the central administration or primary public entity—the State—which are, predominantly, some Ministries or bodies thereof—and another made up of functionally decentralized entities or by services—of a technical nature—and territorially—Municipalities.
Article 3, subsection l), of the Forestry Law, No. 7575 of February 13, 1996, imposes upon the Ministry of Environment and Energy (MINAE) the non-declinable competence to delimit aquifer recharge areas—on its own initiative or that of interested organizations, and after consulting the ICAA, the SENARA, or any other technically competent entity in water matters.
Article 17, paragraph 1, of the Wildlife Conservation Law empowers and enables the Ministry of Environment and Energy (MINAE) to “(...) coordinate actions with centralized (sic.) or decentralized entities that execute agricultural and livestock programs for the conservation of soils, waters, and forests, in order to achieve the 'sustainable' use of wildlife.” This Ministry plays a fundamentally important role in one of the aspects of water resource management, namely the control or oversight of the use and exploitation of groundwater to ensure its rational extraction. The Regulation for the Drilling and Exploitation of Groundwater (Reglamento de Perforación y Explotación de Aguas Subterráneas, Executive Decree No. 30387 of April 29, 2002), provides in its ordinal 1 that “Every drilling company must register (...) with the Water Department (Departamento de Aguas), in order to be issued the license that allows it to carry out drilling and exploration activities for groundwater.” These functions are shared with the SENARA and the ICAA, since the Water Department (Departamento de Aguas) of MINAE must refer the matter to them so that, respectively, they may issue a technical opinion, assign the well number, register it in the National Well Registry (Registro Nacional de Pozos)—SENARA—and issue an opinion on whether or not it harms the water supply sources destined for human consumption—ICAA—(Article 7).
This regulation establishes that the drilling permit shall be denied in zones that do not allow rational exploitation of the water resource, such as those declared by the State or another competent institution as a protection area and aquifer reserve, those suffering overexploitation, those under conditions of vulnerability of the maximum exploitation capacity of the aquifer, those susceptible to saline intrusion, contamination, and other reasons that in the judgment of MINAE and SENARA affect the aquifer and prevent its exploitation, and those involving interference with other wells or springs (nacientes) (Article 10).
Special mention deserves the Water Department (Departamento de Aguas), attached to the National Meteorological Institute (Instituto Meteorológico Nacional)—a body of MINAE—whose functions of interest, among others, according to Article 3 of Executive Decree No. 26635-MINAE of December 18, 1997, are the following: “a) Define national policies regarding the water resource. b) Exercise ownership, surveillance, control, and administration of national waters. c) Process applications for concessions for the development of hydraulic forces for electricity generation. d) Process and authorize permits for the drilling of wells for water extraction. (...) j) Register well drilling companies and user associations, as well as changes made to their statutes and representatives (...) n) Apply the sanctions established in the Water Law, after compliance with due process (...)” The Chief of this Department also has important competences in the matter (Article 4), such as the following: a) issue recommendation reports on concessions, transfers, flow increases, expansions of use, or any other procedure referring to the use of the water resource; b) approve well drilling permits, etc. In ordinal 5 of the aforementioned decree, the “Water Advisory Body (Órgano Asesor de Aguas)” is created, made up of representatives of various entities involved in the water sector (ICAA, SENARA, ICE, Public Universities, UNGL, etc.), whose functions include the following (Article 7, ibid.): a) Advise and recommend policy guidelines in matters of water resources, considering national and sectorial development plans, water availability, and existing legal regulations; b) Review and issue an opinion on the Water Balance proposed by the Water Department (Departamento de Aguas) and its administration for each region of the country; and c) Advise the Water Department (Departamento de Aguas) in the setting of water allotments by the latter, for the use of water according to the productive activity and the region in which it is carried out.
The competences of this ministry are circumscribed to enforcing the prohibitions established in ordinals 275, 276, 285, and 291 of the General Health Law—direct and indirect contamination of surface and groundwater and discharge of industrial or health waste into the sewer system—and sanctioning their transgression. Likewise, it is responsible for approving urban development projects when they have adequate sanitary systems for the disposal of excreta, black water, and wastewater (Article 309, ibid.).
The MAG has, really, a secondary or residual competence in the matter, since the Law on the Use, Management, and Conservation of Soils No. 7779 of April 30, 1998, in its Article 21, imposes upon it, in water matters, the duty to coordinate with the SENARA and any other competent institution “(...) the promotion of hydrological, hydrogeological, and agrological research in the country's hydrographic basins, as well as in the practices of improvement, conservation, and protection of soils in the hydrographic basins (...).”
Finally, Article 22 of its creation law establishes that “It is the obligation of the Costa Rican Institute of Aqueducts and Sewers (ICAA) to cover the expenses demanded by the conservation, expansion, and security of the forests that serve to maintain water sources, on the properties of those Municipalities where it assumes the water and sewer services.” In accordance with Article 2, subsection h), of the Creation Law of this decentralized entity (No. 2726 of April 14, 1961, and its reforms), part of its competences is to enforce the Potable Water Law, No. 1634 of September 18, 1953, it being that Article 16 of this latter regulatory body prohibits installations, buildings, or works within the “zones near supply sources (...) that in any way harm (...) the physical, chemical, or bacteriological conditions of the water; these zones shall be fixed by the Ministry of Public Works and Public Health”—bodies that, as already indicated, were substituted, for all legal effects, by the ICAA.
Consequently, the ICAA is also responsible for defining the protection areas of supply sources such as springs (manantiales) or springs (nacientes), which are a natural form of discharge of groundwater. Article 34, final paragraph, of the Forestry Law imposes the performance of the alignments of the protection areas upon the INVU. This is, in reality, a competence that is not exclusive or excluding of the ICAA or the INVU, but rather concurrent or shared, so both public entities have the duty to exercise it.
Article 3 of the General Potable Water Law, No. 1634 of September 18, 1953, imposes upon the ICAA the obligation to “(...) select and locate the waters destined for pipe service (...),” whereby it is the responsibility of this entity to carry out a detailed inventory of springs (nacientes) that may be used to provide water for human consumption to populations, the foregoing regardless of whether the supply and distribution is in the hands of a Municipality in a given canton.
Despite having its competence apparently limited to irrigation districts, drainage, and flood control—technical-administrative physical units of an agricultural and livestock character for the achievement of their socioeconomic development defined by Executive Decree at the request of this entity (Articles 17 and 18 of its Creation Law No. 6877 of July 18, 1983, and its reforms)—, the truth is that its constitutive law assigns it important competences in groundwater matters, which evidently have a national vocation and, consequently, are not circumscribed to mere irrigation districts. The foregoing is corroborated by the background of this public entity, since Law No. 5438 of December 17, 1973—which ratified and substituted Executive Decree No. 1878-P of July 22, 1972—, currently repealed, created the National Groundwater Service (Servicio Nacional de Aguas Subterráneas, SENAS) with a clearly national vocation for the planning, research, and advisory on everything related to the matter.
Thus, among other objectives, SENARA has that of pursuing the optimal and fair use of (...) water resources –both surface and groundwater– in agricultural activities (...) in the irrigation districts (distritos de riego)” (article 2°). Among its functions is that of “Investigating, protecting and promoting the use of the country’s water resources, both surface and groundwater” and “Carrying out, coordinating, promoting and keeping updated hydrological and hydrogeological investigations (...)” (article 3°, subsections d and e). Article 4° establishes that SENARA is responsible for promoting and directing coordination and collaboration with other institutions and entities competent in matters such as “Prevention, correction and elimination of all types of water pollution in the irrigation districts”, “Preparation and updating of an inventory of national waters, as well as the evaluation of their potential use for purposes of utilization in the irrigation districts” and “Construction and maintenance of the works necessary for the conservation and renewal of the aquifers (manos acuíferos) usable for agricultural activities in the irrigation districts” (subsections c, ch and f).
Among the powers of the Board of Directors is that of issuing the agreements for the request of recovery, expropriation or purchase of the “(...) lands on which water resources are situated or underlie (...)” (articles 6° and 7°).
Municipal corporations have a leading role in the protection and conservation of groundwater through a series of indirect instruments. Thus, the Urban Planning Law (No. 4240 of November 15, 1968), more than 35 years ago, based on section 169 of the Political Constitution –insofar as they are responsible for “The administration of local interests and services in each Canton”– imposed on them the duty to enact a regulatory plan to plan and control urban development and the related urban development regulations (articles 15 and following). Within that regulatory plan and the zoning regulation, the Municipalities must identify, for the purpose of regulating, controlling and restricting human activities (industrial, urban development, agricultural, etc.), the areas or zones reserved because an aquifer or its recharge or discharge area is located therein. By application of the fundamental rights to a healthy and ecologically balanced environment (article 50 of the Political Constitution), to human life and health (article 21 ibid.) and in pursuit of sustainable development, the cantons that, due to their geomorphological characteristics, have within their jurisdiction lands that host aquifers, recharge and discharge areas of these, and springs (manantiales y nacientes) are especially called upon and obliged to regulate and govern, responsibly, efficiently and effectively, such matters, given that, on occasion, groundwater not only supplies the consumption and use of the populations of the canton but also of various cantons, which demonstrates a clear supra-local or national interest.
The inhabitants of those localities, for their part, must bear the general burden or the limitations and restrictions on the use and exploitation of the land and waters derived from the determination and establishment of such protected areas, since it is for the benefit of them, of the inhabitants of the other cantons that are supplied with the waters that flow through the aquifer and that emerge or discharge in other cantons and, of course, of future generations.
One of the guiding principles of Environmental Law is the precautionary principle or prudential avoidance. This principle is set forth in the United Nations Conference on Environment and Development or Rio Declaration, which literally states “Principle 15.- In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”. In the domestic legal system, the Biodiversity Law (No. 7788 of April 30, 1998), in its article 11, sets forth the following principles as hermeneutical parameters: “1.- Preventive criterion: It is recognized that it is of vital importance to anticipate, prevent and attack the causes of biodiversity loss or its threats. 2.- Precautionary criterion or in dubio pro natura: When there is danger or threat of serious or imminent damage to the elements of biodiversity and the knowledge associated with them, the absence of scientific certainty shall not be used as a reason to postpone the adoption of effective protection measures”.
In Vote of this Chamber No. 1250-99 of 11:24 hours on February 19, 1999 (reiterated in Votes Nos. 9773-00 of 9:44 hours on November 3, 2000, 1711-01 of 16:32 hours on February 27, 2001 and 6322-03 of 14:14 hours on July 3, 2003) this Court held the following: “(...) Prevention seeks to anticipate negative effects, and ensure the protection, conservation and adequate management of resources. Consequently, the guiding principle of prevention is based on the need to take and assume all precautionary measures to avoid or contain the possible impact on the environment or people’s health. In this way, in the event that there is a risk of serious or irreversible damage –or a doubt in this regard–, a precautionary measure must be adopted and even postpone the activity in question. The foregoing because in environmental matters, a posteriori coercion is ineffective, since if the socially harmful biological consequences have already occurred, repression may have moral significance, but it will hardly compensate for the damage caused to the environment”.
Subsequently, in Vote No. 3480-03 of 14:02 hours on May 2, 2003, this Court indicated that “Properly understood, the precautionary principle refers to the adoption of measures not in the face of ignorance of risk-generating facts, but in the face of the lack of certainty that such facts will effectively produce harmful effects on the environment”. In the case of groundwater contained in aquifers and recharge and discharge areas, the precautionary principle (principio precautorio) or in dubio pro natura implies that when there are no studies or reports carried out in accordance with the unequivocal rules and exact application of science and technology that allow reaching a state of absolute certainty regarding the harmlessness of the activity intended to be carried out on the environment, or these are contradictory among themselves, the entities and bodies of the central and decentralized administration must refrain from authorizing, approving or permitting any new or modification request, suspend those in progress until the doubtful state is cleared, and, in parallel, adopt all measures tending to their protection and preservation in order to guarantee the right to a healthy and ecologically balanced environment. In essence, safe environmental management of groundwater involves protecting the resource before its contamination or degradation.
VULNERABILITY OF THE POÁS AQUIFER, LOCATION OF THE URBAN DEVELOPMENT PROJECT ON ITS RECHARGE AREA AND CHAIN OF AUTHORIZING ADMINISTRATIVE ACTIONS. In the present matter, it has been fully proven that in the Canton of Poás is located the volcanic or fractured aquifer of the same name, it being the case that the depth of its water table (nivel freático) or static level has not been established scientifically or technically in an unequivocal and exact manner, and also that, practically, the entirety of the Canton of Poás is a recharge-discharge area, mainly of the aforementioned aquifer. Likewise, it has been demonstrated that 90% of the Canton of Poás is a zone of high vulnerability to aquifer contamination, with the exception of a small area located in the southwest of the Canton, it being the case that the recharge area of the Poás aquifer has a high vulnerability to contamination by the construction of developments (urbanizaciones) with septic tanks, given that, due to the geomorphological characteristics of the terrain, recharge is almost immediate from precipitation or from the vertical flow of semi-permeable tuffs saturated with water.
For its part, the company Constructora Vega & Vega S.A. intends to develop a high-density urban development project with septic tanks for each dwelling called Urbanización Linda Vista in San Juan Sur de San Pedro de Poás, specifically, on a property registered under the folio real system, registration numbers 2169371-001 and 002, it being the case that this property is located exactly on the recharge and discharge area of the Poás aquifer, according to the cartographic determinations that the entities and bodies competent in the matter have made of it, a development that could negatively impact the aquifer not only through nitrate and bacteriological contamination, but also through its eventual impermeabilization. Notwithstanding the foregoing, this Court has been able to verify, based on the elements of conviction that appear in the record, that an administrative chain of authorizations and approvals was produced by the competent administrative bodies and organs without heeding the circumstances outlined above, that is, the location of the urban development project on an aquifer, its recharge and discharge areas and its high level of vulnerability to urban development activities.
Thus, in 2001 the Municipal Mayor and the Municipal Engineering Department of Poás authorized the developer to carry out earthworks (movimientos de tierra) on the property, on January 14, 2002 the Urbanism Directorate of INVU considered that the land use on the site was compliant for development, on February 7, 2002 the Municipal Council of Poás granted water availability to the Urban Development Project, on March 21, 2002 the governing body of that municipal corporation approved the preliminary project of the development, lifted the impediments to continue with clearing and earthworks (movimientos de tierra) and granted permission to continue with the preliminary works, on April 2, 2002 the Municipality issued construction permit No. 0014 to the company’s representatives to carry out complementary works in the development to install stormwater and potable water pipes, on May 16 the Ministry of Health approved the Project, on May 22, 2002 the Instituto Costarricense de Acueductos y Alcantarillados approved the development and, finally, SETENA on June 4, 2002 granted environmental viability (viabilidad ambiental) to the project, it being the case that by resolution of January 13, 2003 the Minister of Environment and Energy rejected the appeal timely filed by the Comité Pro-No construcción Urbanización Linda Vista.
Evidently, this concatenation of administrative actions reveals a total inter-administrative lack of coordination and inertia in the exercise of the competencies assigned by the Political Constitution and the law for the protection and conservation of aquifers and their recharge-discharge areas at the time of granting Constructora Vega & Vega S.A. the various permits, authorizations and approvals. Despite dealing with a potentially harmful activity for the aquifer and its recharge area (nitrate and bacteriological contamination and impermeabilization), these bodies and entities have authorized its execution contrary to what is established in sections 21 and 50 of the Political Constitution. It should be added that, nothing prevents, in the interest of the principles of legitimate expectation (confianza legítima), good faith and the intangibility of private property, the construction company from appearing before the Contentious-Administrative Jurisdiction (article 49 of the Political Constitution) to claim, based on such irregular public actions, administrative liability for the damages caused to that company by the frustration of its expectations and the commitments or indebtedness possibly incurred to begin the first phases of the project.
The company Constructora Vega & Vega legitimately relied on the aforementioned irregular actions and in good faith incurred a series of expenses and disbursements that, if merited, may be compensated through that ordinary channel.
XVII.CONTRADICTION OF TECHNICAL STUDIES REGARDING THE HARMLESSNESS OF THE URBAN DEVELOPMENT PROJECT, DOUBTFUL STATE AND APPLICATION OF THE PRECAUTIONARY PRINCIPLE (PRINCIPIO PRECAUTORIO) OR IN DUBIO PRO NATURA. It is necessary to highlight that the hydrogeological studies carried out in the zone of the Poás aquifer do not yield a precise and unequivocal technical-scientific datum regarding the depth of its water table (nivel freático), thus, for example, it has been affirmed that it may oscillate between 30 and 40 m.b.n.s (Análisis de la condiciones hidrogeológicas de San Pedro de Poás ... Hidrog. José W. Pérez, SENARA, June 2003, folios 247-258 of the judicial file), 20 or 50 m.b.n.s (Hidrogeología del Área del Oeste del Valle Central ...José W. Pérez, SENARA, February 2001, p. 18 visible at folios 379-407 of the administrative file), at 60 meters it being the case that in two wells existing in the zone (BA-659 and BA-664) it was identified at a level of 36 meters depth (official communication of October 9, 2002 from Hydrogeologist Sigifredo Morera Guillén of the Groundwater Area of SENARA) or 40 meters (Hidro Consultores S.A. Aragonés & Cía, Estudio Hidrogeológico para ..., visible at folios 49-57 of the administrative file).
Reliable proof of such a state of uncertainty or doubt is constituted by the official communication that Hydrogeologist Sigifredo Morera Guillén of the Groundwater Area of SENARA sent to the Head of the Water Department of MINAE on October 9, 2002, in which he recommended “Carry out three infiltration tests in the study area at different depths; on the surface, in the middle part of the property and in the part of lower elevation; in addition, porosities should be calculated, to determine Transit Times with data obtained in the field, and thus know if the bacteria produced by the effluents deposited in the subsoil (blackwater and soapy water) have sufficient time to biodegrade” (visible at folios 409-410 administrative file). Since there is no exact technical and scientific datum on the depth of the water table (nivel freático) of the aquifer, there is also none with the same characteristics on the transit times of the effluents or contaminants towards it to calculate their degradation and harmlessness.
The foregoing, coupled with the technical criteria that indicate that recharge in the aquifer by infiltration of precipitation is practically immediate and that aquifers of volcanic origin, due to their petrophysical characteristics, are especially vulnerable to a series of activities of anthropic origin (urban development, industrial, agricultural), gives rise in this Court to a doubtful state about the impact of a high-density urban development project with septic tanks for each dwelling on the quality and quantity of the waters of the Poás aquifer –which supplies potable water to several communities in the area– that requires applying the precautionary principle (principio precautorio) in order to avoid or suspend any activity that could negatively affect the sustainable management of the water resources of the zone and, consequently, the right to a healthy and ecologically balanced environment enshrined in the fundamental norm.
Finally, the precautionary principle (principio precautorio) or in dubio pro natura is of special application to the sub-lite case if it is taken into consideration that, according to hydrogeology, in the event of contamination of an aquifer, regeneration is extraordinarily slow and, on occasion, irreversible due to the extremely high cost of the means and instruments to do so.
Regarding the inertia or omission in the exercise of the competencies assigned by the legal system to the entities and bodies involved in the authorization procedure for the Linda Vista urban development project, a specific detail must be made according to each responsible entity or body. 1) The Ministry of Environment and Energy has incurred the following material and formal omissions: a) Pursuant to articles 31 of the Water Law (Ley de Aguas) and 33, subsections a) and d), of the Forest Law (Ley Forestal), it has not proceeded to establish the protection perimeters of the recharge and capture areas of the Poás aquifer, which are classified, respectively, by each of those normative instruments as “public domain reserve (reserva de dominio) in favor of the Nation” or “Protection Areas”; b) Despite the provisions of the Potable Water Law (article 2°) which classifies as public domain “(...) all those lands (...) to ensure the sanitary and physical protection, and necessary flow thereof (...)”, the Law Creating ICAA (article 5°, subsection e, final paragraph) in declaring “(...) of public utility and social interest, and may be expropriated, the lands necessary for the conservation and protection of water resources (...)” and the Law Creating SENARA (article 15) in considering “(...) of public interest the actions promoted by the State, with the aim of ensuring the protection and rational use of waters (...)”, MINAE has not initiated recovery actions (procesos reivindicatorios) of the public domain to recover those lands or, where appropriate, the expropriation procedures and proceedings to incorporate them into the public domain; c) reforestation programs have not been implemented in the recharge and discharge areas of the Poás aquifers, given that the protection perimeters have not been drawn; d) the zones where the cutting or elimination of trees is prohibited have not been established, as the protection perimeters of the springs (manantiales, nacientes) and recharge areas of the aquifers have not been drawn and defined; e) a strategic plan for the sustained and rational protection and exploitation of water resources in the Canton of Poás has not been designed; f) with the advice of SENARA and ICAA, the regulations on the inventory, management and categorization of aquifers –according to vulnerability criteria of their recharge areas, quality and strategic value, type of groundwater–, springs (manantiales) –according to flow and quality– and wells –according to their production– existing in the Canton of Poás have not been prepared and enacted.
By virtue of the foregoing considerations, it is necessary to declare the amparo appeal filed to be with merit, with the consequences of law, to annul, for violating the rights to life, to health and to a healthy and ecologically balanced environment, the following administrative acts: a) Official Communication No. PU-C-D-23-2003 of January 14, 2002 from the Urbanism Directorate of INVU; b) Article 9° of Ordinary Session No. 204 of the Municipal Council of Poás of March 21, 2002 insofar as it approved the Linda Vista urban development preliminary project, lifted the impediment to continue clearing and earthworks (movimientos de tierra) and granted permission to continue with the preliminary works of the development; c) construction permit No. 0014 granted by the Municipality of Poás to Constructora Vega & Vega to carry out complementary works in the project; d) the approval of the Instituto Costarricense de Acueductos y Alcantarillados of May 22, 2002 of the Linda Vista urban development project; e) Official Communication of SETENA SG-870-2002 of June 4, 2002 that granted environmental viability (viabilidad ambiental) to the Linda Vista urban development project and f) Resolution No. R-019-2003 of 8:30 hours on January 13, 2003 of the Minister of Environment and Energy.
Likewise, by virtue of the various administrative omissions verified in this matter, MINAE, ICAA, SENARA, INVU and the Municipality of Poás must be ordered to execute the orders indicated in the operative part of this ruling. (...)
SG-780-2002 of June 4, 2002, SETENA granted environmental viability (viabilidad ambiental) to the project. It adds that, in response to the actions filed by the appellants, a series of technical bodies and entities were consulted (the Department of Water of that Ministry and SENARA), which did not find that the project would impact the ecosystem and water resources of the area, it being SETENA's competence to define the environmental assessment instrument applicable to each particular case. For these reasons, it denied the appeal that had been filed against official communication SG-780-2002-SETENA.
WHEREFORE:
The appellant challenges the resolution issued by the Minister of Environment and Energy No. R-019-2003 of 8:30 a.m. on January 13, 2003, by which the appeal filed by the Committee Pro-No Construction of the Urbanización Linda Vista and others was rejected against SETENA's official communication No. SG-870-2002 of June 4, 2002, through which environmental viability was granted to the aforementioned urban development project. In their view, that administrative act violates articles 1, 11, 21, 27, 33, 41, 45, and 50 of the Political Constitution, since it authorizes the construction, in small lots, of a high-concentration and high-density urban development or housing project, equipped with a system of individual septic tanks (tanques sépticos), situated on the recharge-discharge zones of the Poás aquifer (manto acuífero) that supplies several communities in the area and, allegedly, some areas of the western sector of the Valle Central, thereby putting it at serious risk of contamination, due to its special vulnerability.
All of the foregoing, in the appellant's opinion, is aggravated if one takes into consideration the relatively shallow depth of the water table (nivel freático) of the aquifer and the permeability of the soils. Additionally, they consider that the Ministry of Environment and Energy did not take into consideration a series of technical or scientific reports and opinions that reveal a series of contradictions with those provided by the construction company to justify its project.
The case file contains various requests for active coadjuvancy (coadyuvancia activa): thus, at folios 50-56, 57-66, 72-77, and 177-184, the request of several residents of the Cantón de Poás appears to be admitted as interested parties or active coadjuvants. Similarly, the Community Development Associations of Carrillos, San Juan Sur, Santa Rosa, San Juan Norte, Barrio San Francisco, La Unión Cantonal, Calle Liles, Carrillos Alto, San Rafael, Chilamate, Guatuza, Barrio Santa Cecilia, Calle San José, Barrio Guadalupe requested to intervene supportively or as active coadjuvants in the proceeding (visible at folios 162-176). For its part, the legal representative of Constructora Vega & Vega, by memorial visible at folios 78-92, appeared in the proceedings to be admitted as a passive coadjuvant. In accordance with article 34, paragraph 3, of the Law of Constitutional Jurisdiction, the requests made are admitted, and the parties are recognized as active and passive coadjuvants, respectively. The opposition filed by the representative of the company Constructora Vega & Vega, which appears at folios 210-215, to the coadjuvancy sought by the Community Development Associations is not admissible, since the record contains certification from the DINADECO official of May 9, 2003, to the effect that the presidents of those corporations were, at that time, in office.
Of relevance for resolving this amparo proceeding, the following list is held to be accredited:
Of importance for resolving this proceeding, the following list is held to be unproven:
As opposed to so-called surface waters, which flow over the earth's crust and may be subject to common or special uses, there are underground waters. Groundwater is that which is found beneath the earth's surface occupying the void spaces in the soil or rocks; its most important source is rainwater that infiltrates the soil. The soil, in turn, is composed of two levels, which are the following: a) Upper zone or aeration zone, in which the void spaces are occupied by air and infiltrated water descending by gravity, and b) another below it called the saturation zone, in which the void spaces are filled with water that moves slowly and whose upper level is called the water table, hydrostatic level, or water table. The waters contained in the porous spaces of the saturation zone, in geological formations, are called aquifers or groundwater bodies. The hydraulic gradient is the difference in altitude between two points on the same water table, in relation to their horizontal distance; the velocity of groundwater movement depends, essentially, on the hydraulic gradient.
Groundwater is an essential part of the hydrological cycle; thus, of the total water of the hydrosphere, 2.4% is freshwater; of this, 78.1% is frozen, 21.5% corresponds to groundwater, and 0.4% is surface water found in rivers and lakes. In the Central American region, the main source of public supply is groundwater, as opposed to surface water, which is notably exposed to contamination and degradation due to harmful land-use practices and uncontrolled urban expansion. In the particular case of our country, it has been estimated that the potential annual aquifer recharge is approximately 47,000 million cubic meters per year, which represents 20% of precipitation; it has also been calculated that of the 750,000 cubic meters of water per day used for human consumption, 70% (500,000 cubic meters per day) comes from groundwater intakes.
The consumption and use of groundwater, compared to surface water, presents evident and clear qualitative and quantitative advantages such as the following: a) The investment for the extraction and exploitation of potable groundwater is made gradually depending on the increase in demand for the service, and the catchment areas can be located near the place where the demand arises, all of which reduces conduction, treatment, and storage costs; b) the natural physical-chemical quality of groundwater is more constant than that of surface water and is potable with little or no treatment; c) since soil or rocks exist above the groundwater, it is more protected from contamination of natural or human origin; d) variations in quantity and availability during dry or rainy seasons are minimal compared to those of surface water; e) it constitutes a strategic reserve to face states of emergency due to public calamity, internal unrest (e.g., earthquakes, hurricanes, volcanic eruptions, etc.), or war.
The issue of groundwater is intimately linked to several fundamental rights enshrined in the constitutional text and international human rights instruments. Our Political Constitution, in its article 50, enunciates the right to a healthy and ecologically balanced environment, which is achieved, among other factors, through the protection and conservation of the quality and quantity of water for human consumption and use and to maintain the ecological balance in the habitats of flora and fauna (e.g., wetlands) and, in general, of the biosphere as the common heritage of humanity. Likewise, access to potable water ensures the rights to life—"without water, no life is possible" states the Water Charter approved by the Council of Europe in Strasbourg on May 6, 1968—, to people's health—indispensable for their food, drink, and hygiene— (article 21 of the Political Constitution), and, of course, is associated with the socio-economic development and growth of peoples to ensure each individual a dignified well-being and quality of life (article 33 of the Political Constitution and 11 of the Additional Protocol to the American Convention on Human Rights).
The scarcity, lack of access or availability, and contamination of this precious liquid cause the impoverishment of peoples and severely limit social development. Consequently, the protection and exploitation of groundwater reservoirs is a strategic obligation to preserve the life and health of human beings and, of course, for the proper development of any people. In 1995, it was estimated that 1 billion inhabitants lacked access to potable water, and it is calculated that by the year 2025, nearly 5.5 billion people will suffer from water scarcity, with 5 to 10 million people dying annually from the use of untreated water. In another vein, the duty to preserve, for future generations, conditions of existence at least equal to those inherited (sustainable development) has currently been recognized, so the needs of the present must be satisfied without compromising the ability of future generations to meet their own (Principle 2 of the Declaration of the United Nations Conference on the Human Environment, Stockholm, 1972).
In essence, water, from an economic and ecological point of view, is a precious good, since it is indispensable for any human activity (industrial, agricultural, domestic, commercial, services, etc.), as a source of energy, raw material, transportation route, support for recreational activities, and a constitutive element for the maintenance of natural ecosystems—non-polluting or environmentally compatible water use—.
PUBLIC DOMAIN ASSETS. In our legal system, there is no single, systematic, and coherent regulatory body that comprehensively regulates the protection, extraction, use, management, and efficient administration of water resources. Additionally, the limited existing legislation focuses predominantly on surface water, ignoring groundwater. As is typical and inherent to Administrative Law, one can observe in this matter a regulatory dispersion and a fragmented, chaotic, and ambiguous set of sectoral rules that regulate specific aspects, leaving serious gaps and antinomies, all of which also seriously hinders environmental management by the public entities responsible for the matter. Obviously, the scarce regulation of groundwater does not constitute an exception to the aforementioned rule. In Water Law, various theses have been held regarding its legal nature—the variation of which depends on historical evolution—.
Thus, groundwater has been reputed as (a) private assets, making it a res nullius appropriable by its discoverer, that is, by the owner of the land on which it emerges, following the maxim of Roman Law according to which property extends from the sky to the depths. The nineteenth-century regulations on water resources (e.g., the Spanish Water Law of 1879, which inspired many Latin American legislations, including our Water Law of 1942) will give groundwater a character of (b) mixed asset, so that those discovered by the owner of a private plot will be private, and those that originate on public domain land, or the former after their owner has used them, will be public. Finally, starting in the 20th century, many legislations will classify all groundwater as (c) public domain assets, based on the undoubted unity of the hydrological cycle, thereby becoming part of what has been called the "public hydraulic domain" as part of the natural and not artificial domain; this position conceives water as a unitary resource subordinated to the general interest, so no distinction should be made between surface and groundwater, since they are intimately linked to maintain their quality and quantity.
According to this last thesis, groundwater is not appropriable by any private individual, and its classification as a public domain asset constitutes sufficient grounds to subject it to a very strong and intense administrative intervention regime in order to guarantee its integrity and quality and to remove it from the modes of acquisition and enjoyment characteristic of Private Law. In our legal system, based on a series of dispersed rules, the legal nature of groundwater can be determined, with evident variations, according to the historical-legislative evolution. Law No. 276, the Water Law, of August 27, 1942, and its amendments, in its article 1, subsections IV, VIII, and IX, respectively classifies as public domain waters "Those from (...) springs (manantiales) (...)", "Those from springs (manantiales) that flow on beaches, maritime zones, channels, basins, or riverbanks of national property and, in general, all those that originate on public domain lands," and "Subterranean waters whose discovery is not made by means of wells," since section 4, subsection III, of that legal text deems as private domain—and, therefore, belonging to the owner of the property— "Subterranean waters that the owner obtains from his own land by means of wells," with the surplus—from wells concessionally obtained for non-domestic purposes and ordinary needs—that leaves the land becoming public domain waters.
Evidently, the Water Law of 1942 follows a mixed thesis regarding the legal nature of groundwater, since it combines the res nullius and, therefore, appropriable character of these if discovered on private lands with the public domain character if they originate on land owned by a public entity. It was two subsequent laws, enacted during the last quarter of the last century, that tacitly reformed or modified the provisions established in articles 1, subsections IV, VIII, and IX, and 4, subsection III, of the Water Law. In reality, these two new regulatory instruments are inscribed within the contemporary current of conceiving groundwater as public domain assets by virtue of the unity of the hydrological cycle, thus constituting sufficient enabling grounds to admit a strong administrative intervention regime to conserve the quantity, quality, and ensure the rational and sustained exploitation of water resources.
Thus, the Mining Code, Law No. 6797 of October 4, 1982, and its amendments, in its section 4, established the following: "(...) mineral sources and waters, and subterranean and surface waters, are reserved for the State and may only be exploited by it, by private parties in accordance with the law, or through a special concession granted for a limited time and in accordance with the conditions and stipulations established by the Legislative Assembly (...)." In this way, a publicization and nationalization of all the country's groundwater occurred, including that which is discovered by means of a well located on a private property for domestic uses or ordinary needs. Subsequently, the Organic Environmental Law, No. 7554 of October 13, 1995, and its amendments, in section 50—whose heading is "Public domain of water"—reinforced that declaration of public domain status and prescribed that "Water is of public domain; its conservation and sustainable use are of social interest." This legislative instrument implies an express allocation of continental waters (surface and groundwater—since it does not distinguish them—) to the public domain of the State and qualifies it as of social interest, thereby clearing the path for potential expropriations or limitations by reason of social interest (article 45 of the Political Constitution), its protection, preservation, or conservation, and sustained or rational use.
An aquifer (acuífero) is a stratum or geological formation (unconsolidated deposits of loose materials such as sands, gravels, mixtures of both, sedimentary rocks like limestone, volcanic rocks, etc.) that allows the circulation of water through its pores or cracks, so that humans can use it in economically appreciable quantities to meet their needs. In a very broad sense, aquifers are the geological formations that contain water, have contained it, and through which water flows or circulates. Two of the hydrogeological parameters for defining the functioning of an aquifer—the relationship between recharge and water extraction or discharge—are porosity or permeability—hydraulic conductivity—and the storage coefficient. There are a series of geological formations that should not be confused with aquifers, such as (a) aquicludes, which are geological formations that contain water inside but do not transmit it, preventing its exploitation; regarding the non-renewable, fossil, dead, stagnant, or non-flowing groundwater contained in these, there is no doubt whatsoever that it is also of public domain, given that articles 4 of the Mining Code and 50 of the Organic Environmental Law do not distinguish between groundwater and surface water and, much less, between renewable and non-renewable groundwater, so they cannot be conceived as a res nullius susceptible to appropriation by the private discoverer.
The (b) aquitard, for its part, comprises a set of geological formations that contain appreciable amounts of water but transmit it very slowly. Finally, the (c) aquifuge is that geological formation that contains no water and cannot transmit it. Regarding the typology of aquifers, hydrogeology classifies them, according to the hydrostatic pressure of the water enclosed within them, as follows: a) unconfined, non-confined, or phreatic aquifers in which there is a free surface of the water enclosed in them in direct contact with the air; their water table is at atmospheric pressure and is not bounded by an impermeable layer; and b) confined, captive, or pressure aquifers in which the water is subjected to pressure greater than atmospheric pressure. There also exists the subcategory of perched aquifers, which are unconfined aquifers with limited spatial distribution and temporary existence.
The natural recharge of aquifers occurs through the volume of water that penetrates them during a period of time due to the infiltration of rainfall or a watercourse (e.g., influent rivers). Recharge areas, therefore, are all the zones of the soil surface where rainfall infiltrates the ground until it reaches the saturated zone, joining the aquifer. The Forest Law (Ley Forestal) No. 7575 of February 13, 1996, in its article 3, subsection l), defines aquifer recharge areas as "The surfaces on which the infiltration that feeds the aquifers and river channels occurs (...)." Natural discharge is the volume of water that, during a period of time, naturally leaves the aquifer through surface, subfluvial, or submarine springs (manantiales), by evapotranspiration, or by vertical percolation towards lower aquifers. Artificial discharge occurs through the extraction of water by means of wells, ditches, trenches, or tunnels.
Groundwater discharge areas comprise all those points where the water table or phreatic level intersects the soil surface—springs (manantiales), rises (nacientes), seepages—the course of a river, or the marine or lake beds.
In our country, two types of aquifer families are recognized: a) Volcanic or fissured, formed in igneous rocks (volcanic and intrusive); they represent those of larger dimensions and better quality; and b) Sedimentary or granular in superficial formations. Regarding the first type, it should be noted that igneous rocks naturally have no permeability; they possess a secondary porosity originating from the presence of fractures or fissures caused by cooling or tectonic events (areas linked to geological faults), thereby acquiring hydrogeological aptitude. This type of aquifer arises in high areas where precipitation is elevated and volcanic rocks particularly exist; known and studied examples of these are the aquifers of the Central Valley (e.g., Upper and Lower Colima and Barva). From the perspective of hydrogeology, our country presents ideal and exceptional conditions for the rational and measured exploitation of groundwater, since the Central Volcanic Range is constituted by volcanic soils with a high natural infiltration capacity, provided they have not been compacted or eroded by human activities, thereby fulfilling an essential function in regulating surface water runoff and aquifer recharge.
The high permeability of the fractured and brecciated lava layers and the conditions of high rainfall favor the formation of high-potential aquifers. The existing tuffs, in turn, behave as rocks of low permeability that allow the constitution of aquitards that are the base of the aquifers and allow the vertical transfer of water between them. The location and geomorphology of the Central Volcanic Range, with all its aquifers, is a primary source of water to satisfy the needs of, at least, half of the country's population, including the Greater Metropolitan Area and surrounding populations. The use of groundwater in this area is carried out through wells or the catchment of springs (manantiales) for domestic, industrial, and agricultural uses. In the Central Volcanic Range, as of 1996, SENARA had registered 3,460 wells for various uses and 353 springs (manantiales) for public supply used by the ICAA, municipal corporations, rural aqueduct administration associations, and other entities.
This type of aquifer has also been located in the Liberia and Bagaces formations (Province of Guanacaste). It is fully established that this type of aquifer, due to its petrophysical characteristics, is more vulnerable to contamination in its recharge areas when these are not located in protected or reserved zones and are exposed to anthropic activities such as deforestation, uncontrolled urbanization, and intensive and extensive agricultural activities involving the use of pesticides and agrochemicals, thus being exposed to a dangerous and slow degradation in their environmental quality. Superficial aquifers are formed by layers of unconsolidated rocks of recent and diverse origin; they are alluvial fills of some valleys that can reach thicknesses from a few meters to one hundred meters, are separated from the surface by a thin and permeable soil layer, and are therefore highly vulnerable to contamination, especially when located under zones of anthropic occupation (urban, industrial development, or agricultural crops).
This type of aquifer is exploited in the Central Pacific region, such as, for example, the alluvial fill of the Barranca River Valley, which contains two coastal aquifers, those of Barranca and El Roble.
Unlike the contamination of surface water, which is usually patent and visible, allowing for environmental actions aimed at mitigating or eradicating it, groundwater contamination, by its very nature, often goes unnoticed and becomes evident when it has reached large proportions. Aquifers, due to the slow circulation of water, the absorption capacity of the terrain, and other factors, can take a long time to show contamination. Additionally, the large volume of water contained means that extensive contaminations take a prolonged period to manifest, or, in the case of localized contaminations, they are detected when they flow at some exploitation site. Certainly, this type of water has a resistance to becoming contaminated; however, when this occurs, its regeneration can be extraordinarily slow and sometimes irreversible due to the high cost of the means to do so. It has been demonstrated that attempts to repair the damage caused by contamination to an aquifer to once again achieve potability levels for the water have not been successful; cleaning technologies have contributed little to reducing the damage, and the methods are economically very expensive.
To the above must be added the lack of organizational infrastructure, material, financial, and human resources—in the latter case, duly trained personnel—to evaluate, measure, and, in general, monitor the quality of this water and the exact extent of its contamination. The degradation and contamination of aquifers imposes on the legislator and public administrations the urgent and non-deferrable task of protecting them. Groundwater contamination can be direct or indirect; it is of the first type when contaminating substances are introduced directly into the aquifer, as in the case of cesspools or injection wells; it is of the second type when it occurs through dilution due to contamination of the natural recharge. The contaminating agents can be of very diverse nature, that is, mineral, degradable organic (excreta and purines), slightly or non-degradable organic (pesticides, detergents, hydrocarbons), biological (bacteria, viruses, algae), radioactive, and gaseous.
Aquifer contamination depends on the geological, hydraulic, and chemical conditions of each location or site, so it is a function of local factors, which is why knowledge of each area and the study of similar cases are required. The origins of aquifer contamination can be of very diverse nature, such as the following: a) contamination by domestic activity, which is organic and biological and originates from septic tanks, sewer system leaks, discharge of sewage, to which must be added the increase in chemical products for domestic use such as detergents; b) contamination by agricultural activities, here we have the use of artificial fertilizers based on nitrates, phosphates, and potash, or natural ones—based on manure—, irrigation with residual and high-salinity water, and the use of pesticides (insecticides, herbicides, and plaguicides); c) contamination by livestock farming, essentially organic and biological, similar to domestic but more intense in the case of intensive farms; d) contamination by surface water, when it recharges and is, in turn, contaminated; e) contamination by saline intrusion, which occurs when marine and salt waters enter coastal regions due to the over-exploitation, through wells, of coastal aquifers; f) contamination by mining activities—mineral—, related to evacuations of mine water and mineral washing plants; g) contamination by industrial activities, this type is as varied as the type of industry that originates it, being especially harmful those caused by heavy metals from the metallurgical industry, as well as from the chemical, petrochemical, food (organic substances), and beverage (detergents) industries; h) contamination by nuclear activities, although exceptional in our context, can come from plants for treating irradiated fuels and radioactive minerals, and from medical activity; i) contamination through poorly constructed wells, wells can interconnect several aquifers, and when they have broken or corroded casings at levels of poor quality water or that allow the entry of surface water, they can cause it; j) contamination through the discharge of wastewater through cesspools, septic tanks, sewer network leaks, or indiscriminate discharge into watersheds; k) contamination by solid waste disposal, which occurs when a sanitary landfill is built on permeable or non-waterproofed terrains through leachates; l) contamination by poorly designed, constructed, or used injection wells—a form of utilizing the subsoil as a waste storage site—.
The main threat of contamination to aquifers in Costa Rica and, consequently, to groundwater consists of two factors: a) population growth and uncontrolled urban expansion over recharge areas, phenomena that generate leachates from solid and liquid waste of domestic and industrial origin, the inability of soils to infiltrate, the waterproofing of recharge zones, and the over-exploitation of aquifers; b) the use of agrochemicals in the intensive agriculture of coffee, bananas, cotton, ornamental plants; and c) waterproofing of recharge areas due to changes in land use (cambio de uso del suelo), deforestation, and extensive livestock farming. In the case of the aquifers that supply the Greater Metropolitan Area (Upper and Lower Colima, La Libertad, and Barva), evidence of some impact from bacteriological and industrial contamination and an increase in nitrates has been observed, due to urban expansion and intensive agriculture in the recharge areas.
Regarding nitrates, despite the good physical-chemical and bacteriological quality of the water, a tendency towards increasing nitrate concentrations has been detected, hydraulically downstream, which indicates that the groundwater is being affected, directly or indirectly, by the discharge from septic tanks and the use of nitrogenous fertilizers used in vegetable crops and coffee plantations. Likewise, an over-exploitation of groundwater has been detected due to concentrated extractions, which has caused a decline in water levels and in the flow of springs (manantiales), and a potential waterproofing of the recharge areas, as the aquifers are located in the zones of greatest urban growth with accelerated housing development through subdivisions (urbanizaciones), the effects of which, it is estimated, would be significant if an area greater than 20% of the recharge area is waterproofed.
Due to the characteristics of contamination of aquifers intended for public supply and their difficult regeneration, measures to avoid contamination must be preventive and protective, through the prohibition of certain human activities in specific zones or by ordering safety measures on certain potentially contaminating activities. Our legal-administrative system (legislation, regulations, and decrees) unfortunately lacks precise, clear, and complete regulation for the protection of aquifers, recharge zones, and groundwater catchment areas. In foreign legislation (e.g., the Spanish Water Law 29/1985 of August 2), some extraordinary powers of administrative intervention in the water economy are foreseen that directly concern the protection of aquifers, in order to achieve sustained use of water resources, that is, to guarantee the availability of water in sufficient quantity and required quality to meet present and future human and ecological needs.
These extraordinary administrative powers, which must be admitted in our legal system—despite their lack of regulation—as implicit in the express and general competence for the protection and conservation of groundwater attributed to the State and the decentralized entities of the water sector, are based on the need to achieve rational and balanced use of water. The scarcity and degradation of the natural conditions of the water resource impose the administrative possibility of adopting such measures to avoid its exhaustion or irreversible deterioration and to temporarily overcome the harmful effects that a water crisis may generate. These types of administrative measures involve various drastic restrictions and controls over the multiple uses or exploitations of water—especially the general or special ones of a private nature—and over pre-existing activities that may affect the resource, insofar as they are justified by a public interest and therefore do not affect the right of property or the integrity of the patrimony.
In essence, such measures must be deemed as limitations of social interest that do not empty the right of property of its content or expand the public domain over groundwater without prior compensation, but rather shape its essential content, and must therefore be borne, as a sacrifice or a general burden, by all users, who, ultimately, are the beneficiaries of these measures, as long as they are aimed at correcting a conjunctural situation of scarcity or imminent contamination affecting the economy of the water resource in a specific area. Such administrative intervention measures, virtually contained in articles 32 of the Water Law of 1942 and 10 of the Regulation for the Drilling and Exploitation of Groundwater (Reglamento de Perforación y Explotación de Aguas Subterráneas, Decreto Ejecutivo No. 30387 of April 29, 2002), may be the following:
Evidently, the definition of perimeters by the national authorities –MINAE and ICAA– must be respected by local governments (Municipalities) and INVU (given its residual competence in urban planning in the absence of local regulatory plans) in order to harmonize, develop, and effectively reflect the conditions established in the definition of protection perimeters within the regulations contained in the respective Regulatory Plans on land uses or territorial planning (e.g., zoning regulations, building regulations, etc.). Obviously, to the above must be added the protection around catchment areas (wells -PPP: wellhead protection perimeters-, springs, springs (nacientes), etc.), through the definition of a surrounding zone in which certain human activities are prohibited or limited, regulating or controlling land use. The determination of the perimeter depends on the well's capture or contributing zone (zona de captura o de carga del pozo, ZOC) and its extent depends on the characteristics and properties of the catchment area and the recharge terrain, since the rules cannot be the same for permeable or fissured terrains as for those with impermeable formations.
The definition of perimeters must be combined with the vulnerability mapping or natural susceptibility of the supplying aquifer mantles to anthropogenic contamination loads, based on their hydrogeological and geochemical characteristics, in the face of anthropogenic contamination problems, which is achieved through map surveying. Both measures, protection perimeters and vulnerability mapping, are suitable for timely relocating a particular type of activity, the supply source, or, ultimately, introducing technical methods and instruments for the treatment and disposal of contaminating agents. The measures to be taken based on the perimeters and vulnerability mapping vary depending on whether it is (a) an area without territorial occupation, being useful for defining which activities may or may not be installed in the future; (b) already occupied areas, in which case a mapping of natural vulnerability and areas with greater susceptibility to contamination is carried out, allowing, in the face of the threat of a high contamination index, the relocation of activities, supply sources, and the introduction of technology for contaminant treatment and disposal; (c) already contaminated areas, for which alternative sources can be sought, the spread of contamination plumes can be prevented, and, if possible due to its high cost, the aquifer waters can be treated after extraction; (d) areas for new catchment points (captaciones), a scenario in which potentially contaminating activities and the impact area of each must be inventoried. b) Declaration of an overexploited aquifer: Overexploitation of an aquifer occurs when the withdrawals or uses are so intensive –discharge– and heavy that they exceed the recharge volumes, such that the aquifer's water reserves progressively diminish and degrade.
Overexploitation causes disastrous economic and natural effects; among the former, users may experience increased extraction costs –more energy to flow the same amounts of water or expenses to deepen a well to reach the water level–, depletion of wells located in the peripheral zones of the aquifer and in those with the highest concentration of perforations; among the natural effects is the decrease in water flows in springs, rivers, streams, creeks (quebradas), lagoons, lakes, and wetlands, endangering the existence of these and affecting the capacity of geological formations –aquifers– to store water by diminishing the interstitial space in the rocks due to the lack of internal pressure provided by the water, land subsidence due to compaction, with alteration of the aquifer, the appearance of cracks, and slope creep. In the hypothesis of aquifer overexploitation, the competent administrative authority can declare that state to reverse the situation through the regulation, restriction, and allocation of pre-existing withdrawals or uses to achieve rational exploitation and the immediate suspension of new applications or modifications to concessions pending at that time.
Of course, savings and proper resource utilization measures can also be implemented, such as the treatment and purification of wastewater for reuse in the irrigation of certain crops, drip or nighttime irrigation systems to alleviate the effects of evapotranspiration, artificial recharge, etc. c) Declaration of an aquifer undergoing saline intrusion: An aquifer is considered to be in a salinization process when, as a direct consequence of withdrawals, generalized and progressive increases in the saline concentration of the captured waters are recorded, creating the danger of them becoming unusable. Salinization involves a reduction in the thickness of the freshwater layer beneath which seawater rises, such that the water from wells ceases to be potable and even becomes unusable for domestic or irrigation purposes, with the recovery of the aquifer being very difficult or almost impossible.
This problem can occur in our country, especially in overexploited coastal aquifers –intrusion of maritime origin– in a gradual or generalized manner, although continental-origin intrusion in other locations cannot be ruled out. The cause of saline intrusion lies in irrational exploitation or overexploitation, which is why measures similar to those prescribed when that problem occurs must be implemented, such as the regulation, restriction, and allocation of pre-existing uses or exploitations and the suspension of new applications or modifications to concessions. d) States of necessity and water crisis: In anomalous, exceptional, and temporary circumstances that cause a public calamity or internal disturbance (e.g., extraordinary droughts, severe aquifer overexploitation, or generalized saline intrusion thereof), the State –through the Executive Branch– and, based on the principle of necessity, can adopt the necessary and suitable measures regarding the use of the public hydraulic domain to overcome that situation or prevent it from worsening.
When the state of necessity ceases and normalcy is restored, other types of measures can be adopted, such as those previously described (protection perimeters, declaration of overexploited aquifers or those undergoing salinization).
Article 31 of the Water Law No. 246 of August 27, 1942, declares as “reserve of ownership in favor of the Nation” the following: “a) The lands surrounding water catchment sites or potable water supply intakes, within a perimeter of no less than two hundred meters in radius; b) The forest zone that protects or should protect the set of lands where the infiltration of potable waters occurs (...)”. This declaration is of utmost importance, since from it arises the obligation of the State, through its competent bodies, to fix and determine the perimeter protection areas of wells or catchment areas –of 200 meters– and, of course, of the recharge areas of the aquifer mantles –zone in which “the infiltration of potable waters occurs”– that have or must have a forest cover for their protection, which are so sensitive for their conservation and protection. Likewise, based on such an express affectation, the State can exercise replevin and possessory actions to guarantee the integrity of those zones and remove them from all types of contamination by subjecting them to a strict land-use control regime, an attribution that, very probably, it has omitted to exercise in a timely and exact manner.
Numeral 32 of the Water Law of 1942 establishes that “When in an area larger than the one previously indicated there exists a danger of contamination in surface waters or groundwater, the Executive Branch, through the Potable Water Section –currently ICAA– (...) shall order in said area the measures it deems appropriate to avoid the danger of contamination”; this provision imposes an unavoidable duty of collaboration and cooperation upon the Executive Branch with ICAA to adopt all opportune and convenient administrative acts and measures to avert the danger of contamination in an area larger than the protection perimeters of the aquifer recharge areas and catchment areas (zonas de captación). The content of the provision is extremely significant and rich, since it enables the State to adopt any opportune measure to avoid the irreversible damages and losses that a state of emergency due to water crisis could cause.
Evidently, this is also a competence that has not been exercised responsibly or has been underutilized. The General Potable Water Law, No. 1634 of September 18, 1953, in its article 2, establishes that “All those lands that both the Ministry of Public Works and the Ministry of Public Health –Executive Branch bodies that were replaced by the Costa Rican Institute of Aqueducts and Sewers by virtue of its Creation Law No. 2726 of April 14, 1961, and its reforms and, more specifically, article 2, subsection h), which entrusted it with enforcing the General Potable Water Law– consider indispensable for constructing or situating any part or parts of the potable water supply systems, as well as to ensure their necessary sanitary and physical protection and flow (...), are public domain”; evidently, this provision has enormous significance, since the catchment areas that may include springs or springs (nacientes) –a natural form of groundwater discharge– are declared public domain, and, more importantly, it grants the status of demanial property to all those lands necessary to ensure sanitary and physical protection and their flow, which necessarily includes the recharge areas of the aquifer mantles clearly delimited through the perimeter-defining activity already indicated, since the lack of protection of these zones necessarily affects the quality –due to contamination– and flow –due to sealing or overexploitation– of the waters for human consumption and use that emerge from a spring.
Forest Law No. 7575 of February 13, 1996, in its article 33, subsections a) and d), respectively, provides that protection areas are those “(...) bordering permanent springs, defined within a radius of one hundred meters measured horizontally” and “The recharge areas and aquifers of the springs, whose limits shall be determined by the competent bodies established in the Regulation of this law”; evidently these provisions support the administrative activity or intervention to define the protection perimeters of aquifers and catchment areas. Organic Environmental Law No. 7554 of October 13, 1995, in its article 51, indicates that for the conservation and sustainable use of water, the following criteria, among others, must be applied: “a) Protect, conserve, and where possible, recover aquatic ecosystems and the elements that intervene in the hydrological cycle”, “b) Protect the ecosystems that allow the regulation of the water regime”, and “c) Maintain the balance of the water system, protecting each one of the components of the hydrographic basins”.
Thus, the need to protect and conserve the integrity and unity of the hydrological cycle without making distinctions is established, which especially includes groundwater. Finally, articles 5, subsection e), final paragraph of the Law Creating ICAA (No. 2726 of April 14, 1961, and its reforms) and 15 of the Law Creating SENARA (No. 6877 of July 18, 1983, and its reforms) crown the normative framework for the institutional protection of groundwater by indicating, respectively, “The lands necessary for the conservation and protection of water resources, as well as for the constructions needed in catchment (...), are declared of public utility and social interest, and may be expropriated” “The actions promoted by the State, for the purpose of ensuring the protection and rational use of waters (...), are declared of public interest”. In the legal-administrative ordering of waters, we will also find a series of obligations and burdens imposed on private individuals and public law subjects –public entities and bodies– for the adequate protection of the underground and surface public hydraulic domain.
Thus, the Water Law of 1942 and other legislative bodies establish a series of prohibitions and obligations for the owners and users of springs –which are a component of the discharge area of an aquifer mantle–, such as the following: a) users or concessionaires must adhere to police and health regulations regarding surplus waters that are returned to a spring to avoid contamination or stench –failure to do so may result in losing the special use and suffering a penalty of a fine– (articles 57 and 166, subsection III, ibidem); concordantly, the Wildlife Conservation Law No. 7317 of October 21, 1992, in its article 132, paragraph 1, prohibits “(...) discharging wastewater, black water, waste, or any contaminating substance into springs, rivers, creeks, permanent or non-permanent streams (...) lakes (...)” and imposes on anyone who violates the provision a fine of 50,000 to 100,000 colones convertible into a prison sentence of one to two years. b) The construction of ponds for fish farms in springs destined for the supply of populations is prohibited (article 63 ibidem). c) The owners of lands where there are springs whose surrounding forests that provided them shelter have been destroyed are obligated to plant trees on the banks at a distance of no more than 5 meters (article 148 ibidem). d) It is prohibited to destroy, in both national and private forests, the trees located less than 60 meters from springs that originate in the hills or less than 50 meters from those that emerge on flat terrain (article 149 ibidem); the Forest Law, No. 7575 of February 13, 1996, provides, in its article 34, coincidentally, that “The cutting or elimination of trees in the protection areas bordering permanent springs and recharge areas and the aquifers of the springs is prohibited”. e) Any application for the use of live waters, running waters, and springs must be addressed to the Ministry of Environment and Energy with the submission of a series of requirements (article 178 ibidem).
Regarding the entities and public bodies that have competence and responsibilities in the area of groundwater protection, a series of obligations and prohibitions are established, such as the following: a) Municipalities are prohibited from alienating, mortgaging, or otherwise encumbering, leasing, sharecropping, lending, or exploiting on their own account –especially if it involves deforestation– the lands they possess or acquire on the banks of rivers, streams, or springs or in hydrographic basins or hollows where springs emerge or have their origins (articles 154 and 155 ibidem). b) Municipalities are obligated to reforest such lands (article 156 ibidem). c) Every Municipality, Education Board, Social Protection Board, and, in general, any “public body” is obligated to consult and obtain the respective permit from the Ministry of Agriculture to alienate, mortgage, lease, sharecrop, or exploit on their own account lands they possess or acquire where there exist usable public domain waters (article 157 ibidem).
The General Health Law, No. 5395 of October 30, 1973, and its reforms, for its part, contains specific provisions for the effective protection and conservation of groundwater; thus, article 275 stipulates that “Any natural or juridical person is prohibited from contaminating surface waters, groundwater (...) directly or indirectly, through drainage or the discharge or storage, voluntary or negligent, of liquid, solid, or gaseous residues or waste, radioactive or non-radioactive, black water or substances of any nature, which, by altering the physical, chemical, and biological characteristics of the water, make it dangerous for the health of persons, terrestrial and aquatic fauna, or unusable for domestic, agricultural, industrial, or recreational uses.”; for its part, numeral 276 establishes that only with permission from the Ministry may drainage be carried out or proceeds to the discharge of solid or liquid residues or waste or others that could contaminate surface, ground, or maritime water, “(...) adhering to the regulatory safety norms and conditions and the special procedures that the Ministry imposes in the particular case to render them innocuous”.
Articles 285 and 291 of that normative body, respectively, obligate every person to eliminate excreta and black water in an adequate and sanitary manner to avoid “contamination of the soil and natural sources of water for human use and consumption” and prohibit the discharge of industrial residues or health establishment residues into the sewer system to “avoid the contamination of water sources or courses”. Finally, article 309 of that law establishes that the Ministry of Health will approve the project for urban developers, among other things, if it “(...) has adequate sanitary systems (...) for the disposal of excreta, black water, and grey water”.
DELIMITATION OF COMPETENCES. The management of underground water resources comprises various aspects such as the investigation of their potential, identification, categorization, planning of their uses, protection, rational use, prevention and punishment of ecological damage or contamination, environmental control and monitoring of their use, etc. Consequently, it would be ideal for there to be a single regulatory and governing administrative entity in the matter; however, the competences for the integrated management of underground water resources are dispersed and fragmented, so that they are occasionally exclusive or excluding to a single entity and, most of the time, concurrent, shared, or parallel, which requires a particular administrative coordination effort to ensure their sustainable use. Within the heterogeneous and dispersed set of administrative entities and bodies that make up the Costa Rican public administration, a sector of them can be identified that have been assigned, by law or regulation, a series of inalienable, non-transferable, and imprescriptible competences in the area of groundwater conservation and protection, which they cannot decline and must exercise effectively for the sake of a right to a healthy and ecologically balanced environment for all the country's inhabitants.
Within that sector of the public apparatus or service organizations for the satisfaction of the needs of the entire community, a group can be identified that belongs to the central administration or the larger public entity –the State– which are, predominantly, some Ministries or their bodies – and another composed of functionally decentralized entities or bodies –of a technical nature– and territorially decentralized ones –Municipalities–.
The Regulation for the Drilling and Exploitation of Groundwater (Executive Decree No. 30387 of April 29, 2002), provides in its section 1 that “Every drilling company must register (...) before the Water Department, in order to be issued the license allowing it to carry out groundwater drilling and exploration activities”. These functions are shared with SENARA and ICAA, since the Water Department of MINAE must refer the matter to them so that, respectively, they issue a technical opinion, assign the well number, register it in the National Well Registry –SENARA– and rule on whether or not there is harm to the supply sources of water destined for human consumption –ICAA– (article 7). This regulation establishes that a drilling permit shall be denied in zones that do not allow rational exploitation of the water resource, such as those declared by the State or another competent institution as an aquifer protection and reserve area, those suffering from overexploitation, under conditions of vulnerability to the maximum exploitation capacity of the aquifer, those susceptible to saline intrusion, contamination, and other reasons that in the judgment of MINAE and SENARA affect the aquifer and prevent its exploitation, and those causing interference with other wells or water springs (article 10).
Special mention deserves the Water Department, attached to the National Meteorological Institute –a body of MINAE–, whose functions of interest, among others, as per article 3 of Executive Decree No. 26635-MINAE of December 18, 1997, are the following: “ a) Define national policies regarding the water resource. b) Exercise domain, vigilance, control, and administration of national waters. c) Process concession applications for the development of hydraulic forces for electricity generation. d) Process and authorize permits for the drilling of wells for water extraction. (...) J) Register well-drilling companies and user associations, as well as any changes made to their statutes and representatives (...) n) Apply the sanctions established in the Water Law, after due process is observed (...)” The Head of this Department has, in turn, important competences in the matter (article 4), such as the following: a) issue recommendation reports on concessions, transfers, flow increases, use expansions, or any other procedure referring to the use of the water resource; b) approve well-drilling permits, etc. In section 5 of the referenced decree, the “Water Advisory Body” is created, composed of representatives from various entities involved in the water sector (ICAA, SENARA, ICE, Public Universities, UNGL, etc.), whose functions include the following (article 7 ibidem): a) Advise on and recommend policy guidelines on water resources, considering national and sectoral development plans, water availability, and the existing legal regulations); b) Review and issue an opinion on the Water Balance proposed by the Water Department and its administration for each region of the country; and c) Advise the Water Department on the setting of allowances by it for water use according to the productive activity and the region in which it is developed.
For its part, article 5 of that law enables ICAA to “c) Acquire ownership of movable and immovable property” and “e) Process the expropriations necessary for the fulfillment of its purposes, with this same subsection in its paragraph 2 declaring of public utility and social interest, and subject to expropriation, “(...) the lands necessary for the conservation and protection of water resources, as well as for the constructions needed in catchment (...). Numeral 21 of the Creation Law confers upon ICAA the power to approve or reject any project for the construction, expansion, or modification of grey water and rainwater disposal systems, public or private, which approval is mandatory, under penalty of nullity, in the case of the construction of subdivisions (fraccionamientos), urbanizations, or lotifications. Finally, article 22 of its creation law establishes that “It is the obligation of the Costa Rican Institute of Aqueducts and Sewers to defray the expenses demanded by the conservation, expansion, and security of the forests that serve to maintain water sources, on the properties of those Municipalities where it assumes the water and sewer services”.
In accordance with article 2, subsection h), of the Creation Law of this decentralized entity (No. 2726 of April 14, 1961, and its reforms), part of its competences is to enforce the Potable Water Law, No. 1634 of September 18, 1953, with article 16 of this latter normative body prohibiting installations, edificaciones, or works included in the “zones close to supply sources (...) that harm in any way (...) the physical, chemical, or bacteriological conditions of the water; these zones shall be fixed by the Ministry of Public Works and Public Health” –bodies that, as already indicated, were replaced, for all legal purposes, by ICAA–. Consequently, ICAA is also responsible for defining the protection areas of supply sources such as springs or springs (nacientes), which are a natural form of groundwater discharge. Article 34, final paragraph, of the Forest Law imposes the task of carrying out the alignments of the protection areas on INVU.
This is, in reality, a competence that is not exclusive or excluding to ICAA or INVU, but rather concurrent or shared, so that both public entities have the duty to exercise it. Article 3 of the General Potable Water Law, No.
1634 of September 18, 1953, imposes the obligation on the ICAA to "(...) select and locate the waters destined for the piped water service (...)," whereby it is the responsibility of this entity to carry out a detailed inventory of the springs (nacientes) that may be used to provide water for human consumption to the populations, the foregoing being independent of whether the supply and distribution are in the hands of a Municipality in a given canton.
Thus, among other objectives, SENARA has that of pursuing the optimal and fair use of "(...) water resources—both surface and underground—in agricultural activities (...) in the irrigation districts" (Article 2). Among its functions is that of "Investigating, protecting, and promoting the use of the country's water resources, both surface and underground" and "Carrying out, coordinating, promoting, and keeping updated hydrological, hydrogeological research (...)" (Article 3, subsections d and e). Article 4 establishes that SENARA is responsible for promoting and directing coordination and collaboration with other institutions and entities competent in matters such as "Prevention, correction, and elimination of all types of water contamination in the irrigation districts," "Preparation and updating of an inventory of national waters, as well as the evaluation of their potential use for purposes of utilization in the irrigation districts," and "Construction and maintenance of the works necessary for the conservation and renewal of the aquifers (manos acuíferos) usable for agricultural activities in the irrigation districts" (subsections c, ch, and f).
Among the powers of the Board of Directors is that of issuing recovery, expropriation, or purchase request agreements for the "(...) lands on which water resources sit or underlie (...)" (Articles 6 and 7).
Municipal corporations have a primary role in the protection and conservation of groundwater through a series of indirect instruments. Thus, the Urban Planning Law (Ley de Planificación Urbana, No. 4240 of November 15, 1968), more than 35 years ago, based on Article 169 of the Political Constitution—insofar as they are responsible for "The administration of local interests and services in each Canton"—imposed on them the duty to enact a regulatory plan (plan regulador) to plan and control urban development and the related urban development regulations (articles 15 and following). Within that regulatory plan and the zoning regulation, the Municipalities must identify, for the purpose of regulating, controlling, and restricting human activities (industrial, urban, agricultural, etc.), the areas or zones reserved because an aquifer or its recharge or discharge area is located there. By application of the fundamental rights to a healthy and ecologically balanced environment (Article 50 of the Political Constitution), to human life and health (Article 21 ibid.), and in the interest of sustainable development, the cantons that, due to their geomorphological characteristics, have lands within their circumscription that harbor aquifers and their recharge and discharge areas, springs (manantiales), and springs (nacientes) are especially called upon and obliged to regulate and norm, responsibly, efficiently, and effectively, such matters, since, on occasion, groundwater not only provides for the consumption and use of the populations of the canton but of several cantons, which demonstrates a clear supra-local or national interest.
The inhabitants of those localities, for their part, must bear the general burden or the limitations and restrictions on the use and exploitation of the land and waters derived from the determination and establishment of such protected areas, since it is for the benefit of them, of the inhabitants of the other cantons that are supplied with the waters that flow through the aquifer and that emerge or discharge in other cantons, and, of course, of future generations.
One of the guiding principles of Environmental Law is the precautionary principle or principle of prudent avoidance. This principle is set forth in the United Nations Conference on Environment and Development or Rio Declaration, which literally states, "Principle 15.- In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation." In the domestic legal system, the Biodiversity Law (Ley de Biodiversidad, No. 7788 of April 30, 1998), in its Article 11, sets forth the following principles as hermeneutical parameters: "1.- Preventive criterion: It is recognized that it is of vital importance to anticipate, prevent, and attack the causes of biodiversity loss or its threats. 2.- Precautionary criterion or in dubio pro natura: When there is danger or threat of serious or imminent damage to the elements of biodiversity and the knowledge associated with them, the absence of scientific certainty shall not be used as a reason to postpone the adoption of effective protection measures." In Ruling No. 1250-99 of this Chamber of 11:24 a.m. on February 19, 1999 (reiterated in Rulings Nos. 9773-00 of 9:44 a.m. on November 3, 2000, 1711-01 of 4:32 p.m. on February 27, 2001, and 6322-03 of 2:14 p.m. on July 3, 2003), this Court held the following: "(...) Prevention seeks to anticipate negative effects and ensure the protection, conservation, and adequate management of resources.
Consequently, the guiding principle of prevention is based on the need to take and assume all precautionary measures to avoid or contain the possible impact on the environment or the health of persons. Thus, in the event that there is a risk of serious or irreversible damage—or any doubt regarding it—a precautionary measure must be adopted and even the activity in question postponed. The foregoing is because in environmental matters, a posteriori coercion is ineffective, since if the biologically and socially harmful consequences have already occurred, repression may have moral significance but will hardly compensate for the damage caused to the environment." Subsequently, in Ruling No. 3480-03 of 2:02 p.m. on May 2, 2003, this Court indicated that "Properly understood, the precautionary principle (principio precautorio) refers to the adoption of measures not in the face of ignorance of risk-generating facts, but in the face of a lack of certainty that such facts will indeed produce harmful effects on the environment." In the case of groundwater contained in aquifers and recharge and discharge areas, the precautionary principle or principle of in dubio pro natura implies that when there are no studies or reports carried out according to the unequivocal and precisely applicable rules of science and technology that allow one to reach a state of absolute certainty about the harmlessness of the activity intended to be developed on the environment, or these are contradictory among themselves, the entities and bodies of the central and decentralized administration must refrain from authorizing, approving, or permitting any new or modification application, suspend those in progress until the state of doubt is resolved, and, in parallel, adopt all measures tending to their protection and preservation in order to guarantee the right to a healthy and ecologically balanced environment. In essence, safe environmental management of groundwater requires protecting the resource before its contamination or degradation.
VULNERABILITY OF THE POÁS AQUIFER, LOCATION OF THE URBAN DEVELOPMENT PROJECT ON ITS RECHARGE AREA, AND CHAIN OF AUTHORIZING ADMINISTRATIVE ACTIONS. In the present matter, it has been fully proven that the volcanic or fractured aquifer of the same name is located in the Canton of Poás, and that the depth of its water table (nivel freático) or static level has not been unequivocally and exactly established scientifically or technically; likewise, practically the entirety of the Canton of Poás is a recharge-discharge area, primarily of the aforementioned aquifer. Likewise, it has been demonstrated that 90% of the Canton of Poás is a zone of high vulnerability to aquifer contamination, with the exception of a small area located to the southwest of the Canton, and that the recharge area of the Poás aquifer has a high vulnerability to contamination from the construction of residential developments (urbanizaciones) with septic tanks (tanques sépticos), given that, due to the geomorphological characteristics of the terrain, recharge is almost immediate from precipitation or from the vertical flow of semi-permeable tuffs saturated with water.
For its part, the company Constructora Vega & Vega S.A. intends to develop a high-density urban development project with septic tanks (tanques sépticos) for each dwelling called Urbanización Linda Vista in San Juan Sur of San Pedro de Poás, specifically, on a property registered under the real estate folio system, title number 2169371-001 and 002, and this property is exactly located on the recharge and discharge area of the Poás aquifer, according to the cartographic details provided by the competent entities and bodies on the matter, a development that could negatively impact the aquifer not only through nitrate and bacteriological contamination, but also through its eventual impermeabilization. Notwithstanding the foregoing, this Court has been able to verify, from the elements of conviction that appear in the record, that an administrative chain of authorizations and approvals was produced by the competent administrative bodies without taking into account the circumstances outlined above, that is, the location of the urban development project on an aquifer, its recharge and discharge areas, and its high level of vulnerability to urban activities.
Thus, in 2001 the Municipal Mayor and the Municipal Engineering Department of Poás authorized the developer to carry out earthworks (movimientos de tierra) on the property; on January 14, 2002, the Urban Planning Directorate of the INVU considered that the land use (uso del suelo) at the site was suitable for development; on February 7, 2002, the Municipal Council of Poás granted water availability to the Urban Development Project; on March 21, 2002, the governing body of that municipal corporation approved the preliminary project (anteproyecto) of the development, lifted the impediments to continue with clearing and earthworks (movimientos de tierra), and granted permission to continue with the preliminary works; on April 2, 2002, the Municipality issued Construction Permit No. 0014 to the representatives of the construction company to carry out complementary works in the development to install stormwater and potable water piping.
On May 16, the Ministry of Health approved the Project; on May 22, 2002, the Instituto Costarricense de Acueductos y Alcantarillados approved the development; and, finally, SETENA, on June 4, 2002, granted environmental viability (viabilidad ambiental) to the project, and by resolution of January 13, 2003, the Minister of Environment and Energy rejected the appeal timely filed by the Comité Pro-No construcción Urbanización Linda Vista. Evidently, this concatenation of administrative actions reveals a total inter-administrative lack of coordination and inertia in the exercise of the competences assigned by the Political Constitution and the law for the protection and conservation of aquifers and their recharge-discharge areas at the time of granting the various permits, authorizations, and approvals to Constructora Vega & Vega S.A. Despite being a potentially harmful activity for the aquifer and its recharge area (nitrate and bacteriological contamination, and impermeabilization), these bodies and entities have authorized its execution contrary to the provisions of Articles 21 and 50 of the Political Constitution.
It should be added that, in the interest of the principles of legitimate expectations (confianza legítima), good faith (buena fe), and the inviolability of assets, nothing prevents the construction company from resorting to the Contentious-Administrative Jurisdiction (Article 49 of the Political Constitution) to claim, based on these irregular public actions, administrative liability for the damages caused to that company by the frustration of its expectations and the commitments or indebtedness eventually incurred to begin the first phases of the project. The company Constructora Vega & Vega legitimately relied on the irregular actions noted and, in good faith, incurred a series of expenses and disbursements that, if merit exists, may be compensated through that ordinary channel.
XVII.CONTRADICTION OF THE TECHNICAL STUDIES REGARDING THE HARMLESSNESS OF THE URBAN DEVELOPMENT PROJECT, STATE OF DOUBT, AND APPLICATION OF THE PRECAUTIONARY PRINCIPLE OR IN DUBIO PRO NATURA. It is necessary to highlight that the hydrogeological studies carried out in the area of the Poás aquifer do not yield a precise and unequivocal scientific technical data point regarding the depth of its water table (nivel freático); thus, for example, it has been stated that it can range between 30 and 40 m.b.g.s. (Analysis of the hydrogeological conditions of San Pedro de Poás ... Hydrog. José W. Pérez, SENARA, June 2003, folios 247-258 of the judicial file), 20 or 50 m.b.g.s. (Hydrogeology of the Area of the West of the Central Valley ... José W. Pérez, SENARA, February 2001, p. 18, visible at folios 379-407 of the administrative file), at 60 meters, given that in two existing wells in the area (BA-659 and BA-664) it was identified at a level of 36 meters deep (official communication of October 9, 2002, from Hydrogeologist Sigifredo Morera Guillén of the Groundwater Area of SENARA), or at 40 meters (Hidro Consultores S.A. Aragonés & Cía, Hydrogeological Study for ..., visible at folios 49-57 of the administrative file).
Reliable proof of such a state of uncertainty or doubt is the official communication that Hydrogeologist Sigifredo Morera Guillén of the Groundwater Area of SENARA sent to the Head of the Water Department of MINAE on October 9, 2002, in which he recommended "Carrying out three infiltration tests in the study area at different depths; on the surface, in the middle part of the property, and in the lowest part; in addition, the porosities must be calculated to determine the transit times with data obtained in the field, and thus know if the bacteria produced by the effluents deposited in the subsoil (sewage and soapy waters) have sufficient time to biodegrade" (visible at folios 409-410 of the administrative file). Since there is no exact technical and scientific data on the depth of the water table (nivel freático), neither is there one with the same characteristics on the transit times of the effluents or contaminants towards it in order to calculate their degradation and harmlessness.
The foregoing, combined with the technical criteria indicating that recharge in the aquifer by infiltration from precipitation is practically immediate and that aquifers of volcanic origin, due to their petrophysical characteristics, are especially vulnerable to a series of anthropogenic activities (urban, industrial, agricultural), gives rise in this Court to a state of doubt regarding the impact of a high-density urban development project with septic tanks (tanques sépticos) for each dwelling on the quality and quantity of the waters of the Poás aquifer—which supplies potable water to several communities in the area—which compels it to apply the precautionary principle in order to avoid or suspend any activity that could negatively affect the sustainable management of the water resources of the zone and, consequently, the right to a healthy and ecologically balanced environment enshrined in the fundamental norm.
Finally, the precautionary principle (principio precautorio) or in dubio pro natura is of special application to the sub-lite case if one takes into consideration that, according to hydrogeology, when an aquifer is contaminated, regeneration is extraordinarily slow and, on occasion, irreversible due to the very high cost of the means and instruments to do so.
Regarding the inertia or omission in the exercise of the competences assigned by the legal system to the entities and bodies involved in the authorization procedure for the Linda Vista urban development project, a specific detail must be made for each responsible entity or body. 1) The Ministry of Environment and Energy has incurred the following material and formal omissions: a) Pursuant to Articles 31 of the Water Law (Ley de Aguas) and 33, subsections a) and d), of the Ley Forestal, it has not proceeded to establish the protection perimeters of the recharge and catchment areas of the Poás aquifer, which, respectively, are classified by each of those normative instruments as "reserva de dominio a favor de la Nación" or "Áreas de Protección"; b) Despite the provisions of the Potable Water Law (Ley de Agua Potable, Article 2) which classifies as public domain (dominio público) "(...) all those lands (...) to ensure the sanitary and physical protection, and necessary flow thereof (...)", the Law Creating the ICAA (Article 5, subsection e, final paragraph) by declaring "(...) of public utility and social interest, and subject to expropriation, the lands necessary for the conservation and protection of water resources (...)", and the Law Creating SENARA (Article 15) by deeming "(...) of public interest the actions promoted by the State, with the aim of ensuring the protection and rational use of the waters (...)", MINAE has not initiated public domain recovery proceedings to recover those lands or, where appropriate, the expropriation procedures and proceedings to incorporate them into the public domain; c) reforestation programs have not been implemented in the recharge and discharge areas of the Poás aquifers, since the protection perimeters have not been delineated; d) the zones where the cutting or elimination of trees is prohibited have not been established, as the protection perimeters of the springs (manantiales), springs (nacientes), and recharge areas of the aquifers have not been delineated and defined; e) a strategic plan for the sustained and rational protection and exploitation of water resources in the Canton of Poás has not been designed; f) the regulations on the inventory, management, and categorization of aquifers—according to criteria of vulnerability of their recharge areas, quality and strategic value, type of groundwater—, springs (manantiales)—according to flow and quality—, and wells—according to their production—existing in the Canton of Poás have not been prepared and enacted, with the advice of SENARA and the ICAA.
By merit of the foregoing considerations, it is appropriate to grant the amparo action filed, with all consequent legal effects, and to annul, for violating the rights to life, to health, and to a healthy and ecologically balanced environment, the following administrative acts: a) Official communication No. PU-C-D-23-2003 of January 14, 2002, from the Urban Planning Directorate of the INVU; b) Article 9 of Ordinary Session No. 204 of the Municipal Council of Poás of March 21, 2002, insofar as it approved the Urbanización Linda Vista preliminary project, lifted the impediment to continue clearing works and earthworks (movimientos de tierra), and granted permission to continue with the preliminary works of the development; c) Construction Permit No. 0014 granted by the Municipality of Poás to Constructora Vega & Vega to carry out complementary works on the project; d) the approval by the Instituto Costarricense de Acueductos y Alcantarillados of May 22, 2002, of the Urbanización Linda Vista project; e) Official communication from SETENA SG-870-2002 of June 4, 2002, which granted environmental viability to the Urbanización Linda Vista project; and f) Resolution No. R-019-2003 of 8:30 a.m. on January 13, 2003, of the Minister of Environment and Energy.
Likewise, by virtue of the diverse administrative omissions verified in the present matter, MINAE, the ICAA, SENARA, the INVU, and the Municipality of Poás must be ordered to execute the orders indicated in the operative part of this ruling. POR TANTO: The amparo action is granted. The following administrative acts are annulled: a) Official communication No. PU-C-D-23-2003 of January 14, 2002, from the Urban Planning Directorate of the INVU; b) Article 9 of Ordinary Session No. 204 of the Municipal Council of Poás of March 21, 2002, insofar as it approved the Urbanización Linda Vista preliminary project, lifted the impediment to continue clearing works and earthworks (movimientos de tierra), and granted permission to continue with the preliminary works of the development; c) Construction Permit No. 0014 granted by the Municipality of Poás to Constructora Vega & Vega to carry out complementary works on the project; d) the approval by the Instituto Costarricense de Acueductos y Alcantarillados of May 22, 2002, of the Urbanización Linda Vista project; e) Official communication from SETENA SG-870-2002 of June 4, 2002, which granted environmental viability to the Urbanización Linda Vista project; and f) Resolution No.
R-019-2003 of 8:30 a.m. on January 13, 2003, of the Minister of Environment and Energy. The incumbent or acting heads of the following bodies and entities are ordered as follows:
Luis Fernando Solano C. President Adrián Vargas B. Gilbert Armijo S. Ernesto Jinesta L. José Miguel Alfaro R. Fernando Cruz C. Teresita Rodríguez A.
Classification prepared by the CONSTITUTIONAL CHAMBER of the Judicial Branch. Reproduction and/or distribution for profit is prohibited.
It is a faithful copy of the original - Taken from Nexus.PJ on: 02-23-2026 15:50:39.
Indicadores de Relevancia Sentencia relevante Sentencia clave Sentencia estructural Sentencias Relacionadas Sentencia con datos protegidos, de conformidad con la normativa vigente Contenido de Interés:
Temas Estrategicos: Ambiental,Der Económicos sociales culturales y ambientales Tipo de contenido: Voto de mayoría Rama del Derecho: 4. ASUNTOS DE GARANTÍA Tema: AMBIENTE Subtemas:
ESTUDIOS AMBIENTALES.
01923-04. AMBIENTE. AGUAS SUBTERRÁNEAS Y MANTOS ACUÍFEROS. CASO DEL ACUÍFERO DE POÁS. CON LUGAR. Sobre el otorgamiento de viabilidad ambiental a un proyecto urbanístico que afectará el acuífero de Poás. Aguas Subterráneas: concepto, derechos fundamentales, naturaleza, régimen jurídico, mantos acuíferos y áreas de recarga y descarga, bien de dominio público, tipología de los mantos acuíferos en Costa Rica, contaminación de las aguas subterráneas, contaminación de las aguas subterráneas en el Valle Central de Costa Rica, protección de las aguas subterráneas, protección jurídica de las aguas subterráneas en Costa Rica, entes y órganos administrativos responsables de la protección de las aguas subterráneas y, en especial, de los mantos acuíferos, delimitación de competencias, principio precautorio del derecho ambiental y protección de las aguas subterráneas. VCG05/2020
"(...) I.- OBJETO DEL RECURSO. El recurrente impugna la resolución vertida por el Ministro de Ambiente y Energía No. R-019-2003 de las 8:30 horas del 13 de enero del 2003, por la cual se rechazó el recurso de apelación interpuesto por el Comité Pro-No Construcción de la Urbanización Linda Vista y otros contra el oficio de la SETENA No. SG-870-2002 del 4 de junio del 2002, a través del cual se le otorgó viabilidad ambiental al proyecto urbanístico referido. En su criterio, ese acto administrativo quebranta los ordinales 1, 11, 21, 27, 33, 41, 45 y 50 de la Constitución Política, puesto que, se autoriza la construcción, en pequeños lotes, de un proyecto urbanístico o habitacional de alta concentración y densidad, dotado de un sistema de tanques sépticos individuales, emplazado sobre las zonas de recarga-descarga del manto acuífero de Póas que abastece a varias comunidades de la zona y, presuntamente, algunas áreas del sector oeste del Valle Central, con lo cual se le pone en grave riesgo de contaminación, por su especial vulnerabilidad. Todo lo anterior, en opinión del recurrente, se agrava si se toma en consideración la relativa baja profundidad del nivel freático del acuífero y la permeabilidad de los suelos. Adicionalmente, estima que el Ministerio de Ambiente y Energía no tomó en consideración una serie de informes y dictámenes técnicos o científicos que ponen en evidencia una serie de contradicciones con los aportados por la empresa constructora para justificar su proyecto.
En los autos obran diversas solicitudes de coadyuvancia activa, así a folios 50-56, 57-66, 72-77 y 177-184 consta la solicitud de varios vecinos del Cantón de Poás para que se les tenga como parte interesadas o coadyuvantes activos. De la misma forma, las Asociaciones de Desarrollo Comunal de Carrillos, San Juan Sur, Santa Rosa, San Juan Norte, Barrio San Francisco, La Unión Cantonal, Calle Liles, Carrillos Alto, San Rafael, Chilamate, Guatuza, Barrio Santa Cecilia, Calle San José, Barrio Guadalupe, solicitaron intervenir de forma adhesiva o como coadyuvantes activas en el proceso (visibles a folios 162-176). De su parte, el representante legal de Constructora Vega & Vega en memorial visible a folios 78-92, se apersonó a los autos para que se le tuviera como coadyuvante pasiva. De conformidad con el ordinal 34, párrafo 3°, de la Ley de la Jurisdicción Constitucional, se admiten los pedimentos formulados y se les tienen a los gestionantes como coadyuvantes, respectivamente, activos y pasivo.
No resulta de recibo la oposición formulada por el personero de la empresa Constructora Vega & Vega que consta a folios 210-215, a la codyuvancia planteada por las Asociaciones de Desarrollo Comunal, puesto que, obra en autos la constancia del funcionario de la DINADECO del 9 de mayo del 2003 en el sentido que los presidentes de esas corporaciones se encontraban, a ese momento, en funciones. III.- HECHOS PROBADOS. De relevancia para dirimir el presente proceso de amparo se tiene por acreditado el siguiente elenco:
Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 050- Ambiente Subtemas:
NO APLICA.
Artículo 50 de la Constitución Política “(…) En esencia, el agua, desde un punto de vista económico y ecológico, es un bien preciado, puesto que, es indispensable para cualquier actividad humana (industrial, agrícola, doméstica, comercial, servicios etc.), como fuente de energía, materia prima, vía de transporte, soporte de actividades recreativas y elemento constitutivo para el mantenimiento de los ecosistemas naturales –uso del agua no contaminante o compatible con el ambiente. (…)” VCG05/2020 ... Ver más Res: 2004-01923 SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA. San José, a las catorce horas con cincuenta y cinco minutos del veinticinco de febrero del dos mil cuatro.- Recurso de amparo interpuesto el Comité Pro-No Construcción de la Urbanización Linda Vista, San Juan Sur de Poás, contra el Ministerio de Ambiente y Energía, el Instituto Costarricense de Acueductos, el Instituto Nacional de Vivienda y Urbanismo, el Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento y la Municipalidad de Poás.
Interviene como apoderado especial del referido Comité Juan José Sobrado Chaves. RESULTANDO: 1.- Mediante memorial presentado el 21 de enero del 2003 (visible a folios 1-10), el apoderado especial, del Comité pro-no construcción de la Urbanización Linda Vista, San Juan Sur de Poás de Alajuela, Juan José Sobrado Chaves, interpuso recurso de amparo contra lo dispuesto por el Ministro de Ambiente y Energía en la Resolución No. R-019-2003 de las 8:30 hrs. del 13 de enero del 2003, por la cual se rechazó el recurso de apelación interpuesto por el Comité Pro-No Construcción de la Urbanización Linda Vista y otros contra el oficio de la SETENA No. SG-870-2002 del 4 de junio del 2002, que le otorgara viabilidad ambiental al proyecto urbanístico referido. En su criterio, ese acto administrativo quebranta los ordinales 1, 11, 21, 27, 33, 41, 45 y 50 de la Constitución Política, puesto que, se autoriza la construcción, en pequeños lotes, de un proyecto urbanístico o habitacional de alta concentración y densidad, dotado de un sistema de tanques sépticos individuales, emplazado sobre las zonas de recarga-descarga del manto acuífero de Póas que abastece a varias comunidades de la zona y, presuntamente, algunas áreas del sector oeste del Valle Central, con lo cual se le pone en grave riesgo de contaminación, por su especial vulnerabilidad.
Todo lo anterior, en opinión del recurrente, se agrava si se toma en consideración la relativa baja profundidad del nivel freático del acuífero y la permeabilidad de los suelos. Adicionalmente, estima que el Ministerio de Ambiente y Energía no tomó en consideración una serie de informes y dictámenes técnicos o científicos que ponen en evidencia una serie de contradicciones con los aportados por la empresa constructora para justificar su proyecto. 2.- Por resolución de la Presidencia de la Sala de las 15:39 hrs. del 24 de enero del 2003, se le dio curso al amparo contra el MINAE (visible a folios 33-36). 3.- Mediante libelo presentado el 4 de febrero del 2003 (visible a folios 37-41), el Ministro de Ambiente y Energía rechazó los cargos. Estima que la SETENA por resolución No. 296-2002 le solicitó a los desarrolladores de la urbanización un Plan de Gestión Ambiental del proyecto, una declaración jurada de compromisos ambientales, nombramiento de un responsable ambiental y el depósito de una garantía por un millón quinientos mil colones.
Por lo que al haber cumplido los requisitos, en Oficio No. SG-780-2002 del 4 de junio del 2002, la SETENA le otorgó viabilidad ambiental al proyecto. Agrega que, ante las gestiones interpuestas por los recurrentes, se consultó a una serie de órganos y entes técnicos (Departamento de Aguas de ese Ministerio y el SENARA) los que no encontraron que el proyecto impactara el ecosistema y los recursos hídricos del lugar, siendo competencia de la SETENA definir el instrumento de evaluación ambiental que aplica para cada caso particular. Por tales razones, denegó el recurso de apelación que fuera interpuesto contra el oficio SG-780-2002-SETENA. 4.- Por escritos presentados el 13, 18 de febrero y 13 de marzo, todos del 2003 (visibles, respectivamente, a folios 50-56, 57-66, 72-77), varios vecinos del Cantón de Poás solicitaron que se les tuviera como coadyuvantes activos. 5.- Mediante libelo presentado el 18 de marzo del 2003 (visible a folios 78-93), Rafael Vega Durán, en su condición de apoderado generalísimo sin límite de suma de Constructora Vega & Vega S.A., solicitó que se le tuviera a esa empresa como coadyuvante pasiva. 6.- Por escritos presentados el 13 de mayo del 2003 (visibles a folios 162-175), las Asociaciones de Desarrollo Comunal de Carrillos, San Juan Sur, Santa Rosa, San Juan Norte, Barrio San Francisco, La Unión Cantonal, Calle Liles, Carrillos Alto, San Rafael, Chilamate, Guatuza, Barrio Santa Cecilia, Calle San José, Barrio Guadalupe y un conjunto de vecinos del Cantón de Poás, solicitaron intervenir de forma adhesiva en el proceso. 7.- Por resolución de las 8:00 hrs. del 3 de julio del 2003, el Magistrado instructor amplió el curso y le otorgó audiencia al SENARA, el INVU, el Instituto Costarricense de Acueductos y Alcantarillados y la Municipalidad de Poás. 8.- Por escritos presentados el 9 de julio del 2003 (visibles, respectivamente, a folios 239-242, 259-260 y 274-277), el Gerente General del SENARA, el Presidente Ejecutivo del INVU y el Gerente General del Instituto Costarricense de Acueductos y Alcantarillados, rindieron informe. 9.- Mediante memorial presentado el 21 de julio del 2003 (visible a folios 309-314), el Alcalde Municipal de Poás rindió informe. 10.- Con el carácter de prueba para mejor resolver, el Magistrado instructor, por resolución de las 11:15 hrs. del 29 de julio del 2003 (visible a folio 322), señaló las 10:30 hrs. del 5 de agosto para realizar un reconocimiento en el lugar donde está emplazado el Proyecto Urbanístico Linda Vista, San Juan Sur de San Pedro de Poás.
La Diligencia fue efectuada en la fecha señalada y de la misma se levantó el acta visible a folio 350. 11.- En la substanciación del proceso se ha observado las prescripciones de ley.Redacta el Magistrado Jinesta Lobo; y, CONSIDERANDO: I.- OBJETO DEL RECURSO. El recurrente impugna la resolución vertida por el Ministro de Ambiente y Energía No. R-019-2003 de las 8:30 horas del 13 de enero del 2003, por la cual se rechazó el recurso de apelación interpuesto por el Comité Pro-No Construcción de la Urbanización Linda Vista y otros contra el oficio de la SETENA No. SG-870-2002 del 4 de junio del 2002, a través del cual se le otorgó viabilidad ambiental al proyecto urbanístico referido. En su criterio, ese acto administrativo quebranta los ordinales 1, 11, 21, 27, 33, 41, 45 y 50 de la Constitución Política, puesto que, se autoriza la construcción, en pequeños lotes, de un proyecto urbanístico o habitacional de alta concentración y densidad, dotado de un sistema de tanques sépticos individuales, emplazado sobre las zonas de recarga-descarga del manto acuífero de Póas que abastece a varias comunidades de la zona y, presuntamente, algunas áreas del sector oeste del Valle Central, con lo cual se le pone en grave riesgo de contaminación, por su especial vulnerabilidad.
Todo lo anterior, en opinión del recurrente, se agrava si se toma en consideración la relativa baja profundidad del nivel freático del acuífero y la permeabilidad de los suelos. Adicionalmente, estima que el Ministerio de Ambiente y Energía no tomó en consideración una serie de informes y dictámenes técnicos o científicos que ponen en evidencia una serie de contradicciones con los aportados por la empresa constructora para justificar su proyecto. II.- COADYUVANCIAS. En los autos obran diversas solicitudes de coadyuvancia activa, así a folios 50-56, 57-66, 72-77 y 177-184 consta la solicitud de varios vecinos del Cantón de Poás para que se les tenga como parte interesadas o coadyuvantes activos. De la misma forma, las Asociaciones de Desarrollo Comunal de Carrillos, San Juan Sur, Santa Rosa, San Juan Norte, Barrio San Francisco, La Unión Cantonal, Calle Liles, Carrillos Alto, San Rafael, Chilamate, Guatuza, Barrio Santa Cecilia, Calle San José, Barrio Guadalupe, solicitaron intervenir de forma adhesiva o como coadyuvantes activas en el proceso (visibles a folios 162-176).
De su parte, el representante legal de Constructora Vega & Vega en memorial visible a folios 78-92, se apersonó a los autos para que se le tuviera como coadyuvante pasiva. De conformidad con el ordinal 34, párrafo 3°, de la Ley de la Jurisdicción Constitucional, se admiten los pedimentos formulados y se les tienen a los gestionantes como coadyuvantes, respectivamente, activos y pasivo. No resulta de recibo la oposición formulada por el personero de la empresa Constructora Vega & Vega que consta a folios 210-215, a la codyuvancia planteada por las Asociaciones de Desarrollo Comunal, puesto que, obra en autos la constancia del funcionario de la DINADECO del 9 de mayo del 2003 en el sentido que los presidentes de esas corporaciones se encontraban, a ese momento, en funciones. III.- HECHOS PROBADOS. De relevancia para dirimir el presente proceso de amparo se tiene por acreditado el siguiente elenco:
Luis Fernando Solano C.
Adrián Vargas B. Gilbert Armijo S. Ernesto Jinesta L. José Miguel Alfaro R. Fernando Cruz C. Teresita Rodríguez A.
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