Res. 16705-2020 Sala Constitucional — Order to Complete Golfito Wastewater Treatment Plant Within 24 Months

OutcomeResultado

Partially grantedParcialmente con lugar

The Golfito WWTP must be completed within 24 months and biannual reports submitted; costs, damages, and losses are awarded. The claim for refund of sewer charges is dismissed.Se ordena finalizar la PTAR de Golfito en 24 meses e informar semestralmente; se condena al pago de costas, daños y perjuicios. Se rechaza la devolución de tarifas de alcantarillado.

SummaryResumen

The Constitutional Chamber partially grants an amparo filed by a resident of Pueblo Civil in Golfito due to the ongoing lack of wastewater treatment, despite a prior 2009 order. The Chamber finds that after more than ten years, the Golfito Wastewater Treatment Plant project is only 77% through the design phase, with completion projected for October 2024—a timeline it deems excessive. It reaffirms the concurrent duties of the Costa Rican Institute of Aqueducts and Sewers, the Ministry of Health, and municipalities regarding collection, treatment, and final disposal of wastewater. It orders the respondent authorities to immediately take necessary measures to complete construction and commissioning within a non-extendable 24-month period, and to submit biannual progress reports. It condemns the State and AyA to pay costs, damages, and losses. The claim for tariff reimbursement is dismissed as a matter of ordinary legality.La Sala Constitucional declara parcialmente con lugar un recurso de amparo interpuesto por una vecina de Pueblo Civil de Golfito por la persistente falta de tratamiento de aguas residuales en la comunidad, pese a una orden previa de 2009. La Sala constata que, tras más de diez años, el proyecto de la Planta de Tratamiento de Aguas Residuales (PTAR) de Golfito apenas alcanza un 77% de avance en la etapa de diseño, con una estimación de finalización en octubre de 2024, lo cual considera un plazo excesivo. Reafirma las obligaciones concurrentes del Instituto Costarricense de Acueductos y Alcantarillados, el Ministerio de Salud y las municipalidades en la recolección, tratamiento y disposición final de aguas residuales. Ordena a las autoridades recurridas adoptar de inmediato las medidas necesarias para finalizar la construcción y puesta en funcionamiento de la PTAR en un término improrrogable de 24 meses, y presentar informes semestrales de avance. Condena al Estado y al AyA al pago de costas, daños y perjuicios. Rechaza la pretensión de devolución de tarifas por considerarla un asunto de legalidad ordinaria.

Key excerptExtracto clave

IV.-ON THE SPECIFIC CASE. (...) Thus, this Tribunal finds that 10 years after the issuance of ruling 2009-009880, the problem persists, confirming the ongoing violation of the complainant's fundamental rights. Although the respondents have undertaken some actions to address the issue, they have been insufficient to resolve it. The respondent states that the works would be completed by October 2024; however, this Chamber considers that the 4-year wait that the Golfito community would endure while the project is finished is excessive. Based on the foregoing, it is appropriate to grant the appeal with the consequences set forth in the operative part.IV.-SOBRE EL CASO EN CONCRETO. (...) Así las cosas, este Tribunal advierte que tras 10 años de haberse emitido la sentencia 2009-009880, el problema persiste, con lo que se verifica que subsiste la infracción a los derechos fundamentales de la recurrente. Si bien los recurridos han realizado algunas acciones tendientes a resolver la problemática de cita, lo cierto es que las mismas han sido insuficientes para poner un fin a la situación. Nótese que el recurrido afirma que las obras quedarían concluidas en octubre de 2024; empero, estima esta Sala que el plazo de 4 años que la comunidad de golfito se vería sometida a esperar mientras se concluye el proyecto deviene excesivo. En mérito de las consideraciones expuestas, lo procedente es declarar con lugar el recurso con las consecuencias que se indicaran en la parte dispositiva.

Pull quotesCitas destacadas

"Así las cosas, este Tribunal advierte que tras 10 años de haberse emitido la sentencia 2009-009880, el problema persiste, con lo que se verifica que subsiste la infracción a los derechos fundamentales de la recurrente."

"Thus, this Tribunal finds that 10 years after the issuance of ruling 2009-009880, the problem persists, confirming the ongoing violation of the complainant's fundamental rights."

Considerando IV

"Así las cosas, este Tribunal advierte que tras 10 años de haberse emitido la sentencia 2009-009880, el problema persiste, con lo que se verifica que subsiste la infracción a los derechos fundamentales de la recurrente."

Considerando IV

"Nótese que el recurrido afirma que las obras quedarían concluidas en octubre de 2024; empero, estima esta Sala que el plazo de 4 años que la comunidad de golfito se vería sometida a esperar mientras se concluye el proyecto deviene excesivo."

"Note that the respondent claims the works would be completed by October 2024; however, this Chamber considers that the 4-year wait that the Golfito community would endure while the project is finished is excessive."

Considerando IV

"Nótese que el recurrido afirma que las obras quedarían concluidas en octubre de 2024; empero, estima esta Sala que el plazo de 4 años que la comunidad de golfito se vería sometida a esperar mientras se concluye el proyecto deviene excesivo."

Considerando IV

"Se ordena a (...) adoptar en forma inmediata y coordinada las medidas y acciones necesarias, (...) para que se finalice la construcción de las obras del proyecto de la Planta de Tratamiento de Aguas Residuales de la ciudad de Golfito y la misma sea puesta en funcionamiento en el término improrrogable de veinticuatro meses contado a partir de la notificación de esta resolución."

"It is ordered that (...) immediately and in a coordinated manner adopt the necessary measures and actions (...) to complete the construction of the works of the Wastewater Treatment Plant project for the city of Golfito and to put it into operation within a non-extendable period of twenty-four months from notification of this ruling."

Por tanto

"Se ordena a (...) adoptar en forma inmediata y coordinada las medidas y acciones necesarias, (...) para que se finalice la construcción de las obras del proyecto de la Planta de Tratamiento de Aguas Residuales de la ciudad de Golfito y la misma sea puesta en funcionamiento en el término improrrogable de veinticuatro meses contado a partir de la notificación de esta resolución."

Por tanto

Full documentDocumento completo

Constitutional Chamber Case File: 20-013725-0007-CO Type of Matter: Amparo Appeal Constitutional Control: Granting Judgment Judgment with Separate Opinion Content of Interest:

Type of Content: Majority Vote Branch of Law: 4. GUARANTEE MATTERS Topic: ENVIRONMENT Subtopics:

WATER.

016705-20. SEVERAL PUBLIC AUTHORITIES ARE ORDERED TO, WITHIN 24 MONTHS, COMPLETE THE CONSTRUCTION OF THE WASTEWATER TREATMENT PLANT PROJECT FOR THE CITY OF GOLFITO. LIKEWISE, THEY MUST SUBMIT A SEMI-ANNUAL PROGRESS REPORT ON THE PROJECT TO THIS COURT.

LBH09/20 ... See more Content of Interest:

Type of Content: Majority Vote Branch of Law: 4. GUARANTEE MATTERS Topic: ENVIRONMENT Subtopics:

SEWERAGE.

LBH09/20 ... See more Content of Interest:

Type of Content: Majority Vote Branch of Law: 4. GUARANTEE MATTERS Topic: EXECUTIVE BRANCH Subtopics:

COMPLAINT.

LBH09/20 ... See more Content of Interest:

Type of Content: Majority Vote Branch of Law: 4. GUARANTEE MATTERS Topic: PUBLIC SERVICES Subtopics:

SEWERAGE.

LBH09/20 ... See more Content of Interest:

Type of Content: Majority Vote Branch of Law: 4. GUARANTEE MATTERS Topic: PUBLIC SERVICES Subtopics:

BASIC SERVICES.

LBH09/20 ... See more Content of Interest:

Type of Content: Separate Opinion Branch of Law: 4. GUARANTEE MATTERS Topic: ENVIRONMENT Subtopics:

SEWERAGE.

NOTE FROM JUSTICE SALAZAR ALVARADO. In environmental matters, it is the undersigned's criterion that if the Public Administration has already intervened, its knowledge and resolution corresponds to the contentious-administrative jurisdiction. However, I do proceed to hear the merits of the matter when other rights of persons affected by the lack of treatment of the black waters of the Canton of Golfito are at stake, among them, health, quality of life, and the right to enjoy a healthy and pollution-free environment (article 50 of the Political Constitution), as is the case here, where the omission of the respondent authorities to begin the construction or repair of the sewerage network destined for the treatment of black and wastewater is alleged. In this sense, this omission affects the health of the local residents, in violation of the right to enjoy a healthy and ecologically balanced environment and a dignified standard of living.

LBH09/20 ... See more *200137250007CO* CONSTITUTIONAL CHAMBER OF THE SUPREME COURT OF JUSTICE. San José, at nine hours and fifteen minutes on September fourth, two thousand twenty.

Amparo appeal filed by CARMEN MARÍA ESPINOZA TORRES, identity card 0600660230, against the COSTA RICAN INSTITUTE OF AQUEDUCTS AND SEWERS.

Whereas:

1By means of a brief filed with the Secretariat of the Chamber at 11:00 a.m. on August 3, 2020, the appellant files an amparo appeal against the Costa Rican Institute of Aqueducts and Sewers. She states that she is an older adult, a resident of Pueblo Civil de Golfito. She alleges that by judgment of the Constitutional Chamber No. 2009-09880, issued within case file No. 09-002156-0007-CO, the amparo appeal was partially granted due to the non-treatment of the black waters of the Canton of Golfito and that to date there is no black water treatment plant, despite being charged for the sewerage service she does not receive. She claims that the Costa Rican Institute of Aqueducts and Sewers has not started the construction or repair of the sewerage system in her community. The foregoing, despite approval by ARESEP a long time ago. She alleges that the respondent authority has not invested the money collected for the sewerage service, maintenance is not provided to the sewer pipes they have from the banana company, and all the black waters flow into the sea at Golfito. She reiterates that she is being charged for a service that is not being provided. She requests that this amparo appeal be granted.
2By resolution at 3:31 p.m. on August 4, 2020, the proceeding was granted leave.
3By means of a brief added to the digital file at 12:29 p.m. on August 12, 2020, Irving Zelaya Palacios, in his capacity as Acting Director of the Brunca Region of the Costa Rican Institute of Aqueducts and Sewers, reports under oath that he has no responsibility for the facts he is accused of, given that his competence covers the systems operated and administered directly by AyA and for which the rates authorized by ARESEP are charged. He mentions that the surveying of infrastructure and development plans in the country are carried out by the different Strategic Business Units located in the AyA Headquarters Building, as well as the executing units of the different projects currently underway. He states that on June 19, 2009, this Court partially granted the appeal through resolution No. 2009-009880, and ordered the following: "immediately adopt the pertinent measures within the scope of their competencies, to accelerate the start of construction and commissioning of the Wastewater Treatment Plant (PTAR) for the city of Golfito." He notes that since that amparo appeal, they began to carry out all the necessary procedures to develop the project, thus initiating the procurement of "Engineering Services for the preparation of feasibility studies and final designs of the sanitary sewerage system for the city of Golfito Puntarenas" through tender 2014LA-000005-PRI, whose main result was the final construction plans that allow for the implementation of a totally new, modern-technology wastewater collection and treatment system.He adds that the project has approved financing from the German Bank KfW and a counterpart contribution from the Costa Rican Institute of Aqueducts and Sewers. He states that the project is intended to benefit 7,137 inhabitants of the area and its objectives are: "a) Construction of the sanitary sewerage network in the city of Golfito. b) Construction of a Wastewater Treatment Plant that allows compliance with the Discharge Regulation, reducing effluent contamination. c) Sanitary sewerage coverage of 90% of the population served by the drinking water system by the year 2046. d) Elimination of untreated wastewater discharges directly into rivers and into the sea." He reports that currently the project is in the design stage and is 77% complete, with the completion of the construction works estimated for October 2024. He notes that this is on the occasion of this amparo and to improve the environmental and sanitary conditions of the coastal community.He adds that the project "Construction of the Sanitary Sewerage System for the city of Golfito, Puntarenas" was included within the Sanitation Program in Priority Zones, which consists of the following stages: Stage I: Diagnosis and Evaluation of works, Stage II: Feasibility and Prioritization of works, Stage III: Final Design (both of the wastewater collection system and the Wastewater Treatment Plant "PTAR") and Stage IV: Construction (both of the wastewater collection system and the Wastewater Treatment Plant "PTAR"). He explains that the first two stages of the project have been fully assigned to the Sanitation Design Directorate of the UEN of Programming and Control of AyA. Furthermore, for the third stage, the design of the sanitary sewerage network components was assigned to AyA, while the design of the PTAR will be carried out by a company, based on the Terms of Reference (TdR) developed by AyA.He states that these companies will execute the fourth stage (Construction) in its entirety. He declares that the procurement for this last stage will be carried out through an International Public Tender process. He maintains that an agreement with the COSTA RICAN RAILWAY INSTITUTE and AYA is close to being finalized, for the purpose of granting approval for the placement of the transmission and distribution line that will run along the railway right-of-way from near the duty-free depot to the outskirts of the center of Golfito, an approximate distance of 3 kilometers, which will connect to the Treatment Plant to be built. He details that the majority of the surrounding land is part of a state natural reserve, so it was decided to route the project through the site considered most suitable and feasible. He requests that the Chamber grant the appeal.
4By means of a brief added to the digital file at 3:03 p.m. on August 12, 2020, Noilyn Gutiérrez Arias, in her capacity as Head of the Cantonal Office of Golfito of the Costa Rican Institute of Aqueducts and Sewers, reports under oath that she has had no participation whatsoever in the situation raised by the appellant regarding the treatment and discharge of wastewater into the Gulf, as said works are beyond my competence and responsibility. She mentions that there has been no communication or administrative act whatsoever regarding this situation that has harmed the appellant. She affirms that the solution is beyond her reach, as it is a project of great cost to the country and the solution lies in the hands of the High Authorities of AyA, based at its central offices located in Pavas, San José. She maintains that her responsibility is to administer and operate the current systems. Mrs.Carmen Espinoza Torres has five drinking water services identified under NIS (service identification number) numbers 542-0141 / 528-7154 / 528-7155 which are up to date, and services Nis 528-9122 and 542-6965 have a pending balance; all are located in the Pueblo Civil Golfito sector. She explains that all services are connected to the 300mm wastewater collection network that has existed for a long time in Golfito; on the part of the cantonal office, preventive maintenance service is provided to avoid obstructions in the network and to attend to breakdowns, with three officials assigned to provide the attention and maintenance in question. She stresses that the collection service provided by AyA in Golfito does not have a wastewater treatment plant, which causes the discharge of raw sewage into the Gulf; as a compensatory measure, AyA must deposit in the national treasury, in a special MINAE account, the amount for the concept of Environmental Canon for Discharges.She notes that they provide the wastewater collection service, which implies expenses and investments for operation, maintenance, and administration of the system, which by law cannot be free of charge. She adds that they comply with the compensatory measures existing in national legislation regarding the discharge of wastewater outside the maximum permissible range. She maintains that through its Directorates and UENS located in its headquarters building, the project for the Construction of the Sanitary Sewerage System for the city of Golfito, Puntarenas is being developed. She requests that the Chamber dismiss the appeal.
5By resolution of the Instructing Justice at 8:21 a.m. on August 14, 2020, the course of the proceedings was expanded, and the Director of the Governing Health Area of Golfito of the Ministry of Health was granted a hearing.
6By means of a brief added to the digital file at 8:24 p.m. on August 25, 2020, Fernando Mata Castro, in his capacity as Director of the Governing Health Area of the Ministry of Health, reports under oath that the city of Golfito lacks an adequate wastewater treatment system and for years inter-institutional efforts and coordination have been made to provide (design, financing, construction, and operation) this system. He states that through judgment No. 2009-009880, this Chamber ordered: "The appeal is partially granted. Consequently, Julián Villegas Pérez, in his capacity as President of the Board of Directors of the Asociación Administradora del Acueducto de Golfito, Noilyn Gutiérrez Arias, in her capacity as Head of the Cantonal Office of Golfito of the Costa Rican Institute of Aqueducts and Sewers, and Randall Bejarano Campos, in his capacity as Director of the Governing Health Area of Golfito of the Ministry of Health, or whoever holds those positions, are ordered to adopt, IMMEDIATELY, the pertinent measures within the scope of their competencies to accelerate the start of construction and commissioning of black water treatment plants in the city of Golfito, seeking to mitigate -in the medium term- the problem of marine water contamination, as well as any other measure to immediately alleviate the discharge of black waters into the sea." He comments that 3 entities converge in the responsibility to provide Golfito with a wastewater treatment system, namely the Asociación Administradora del Acueducto de Golfito, the Costa Rican Institute of Aqueducts and Sewers, and the Ministry of Health.He reports that the aqueduct and wastewater treatment plant project is in the design phase. He adds that in August 2020, ICAA informed them that the project was registered, updated, and with approved financing in the public investment project bank of MIDEPLAN, as a priority project of the entity, so the formalization of the necessary land and the construction of the pipeline easement (servidumbre de paso de tuberías) are in process. He states that they have not neglected the actions and have made the necessary coordination and efforts in accordance with the law. He reports that in 2011, the project was taken up again, materializing in 2014, with design, feasibility studies, and timeline. Subsequently, in 2019, after study and verification of the case, the Ministry of Health issued the approval of the project location, for which ICAA formalized the project. He requests that the Chamber dismiss the appeal.
7In the substantiation of the process, the legal prescriptions have been observed.

Justice Salazar Murillo drafts; and,

Considering:

I. OBJECT OF THE APPEAL

II. PROVEN FACTS

Of importance for the decision in this matter, the following facts are considered duly demonstrated:

a)On June 19, 2009, this Court partially granted the appeal through resolution No. 2009-009880, and ordered the following: "immediately adopt the pertinent measures within the scope of their competencies, to accelerate the start of construction and commissioning of the Wastewater Treatment Plant (PTAR) for the city of Golfito" (see report rendered under oath).
b)On the occasion of judgment No. 2009-009880, the procurement of "Engineering Services for the preparation of feasibility studies and final designs of the sanitary sewerage system for the city of Golfito Puntarenas" was initiated through tender 2014LA-000005-PRI, whose main result was the final construction plans that allow for the implementation of a totally new, modern-technology wastewater collection and treatment system, a project that has approved financing from the German Bank KfW and a counterpart contribution from the Costa Rican Institute of Aqueducts and Sewers. With this project, it is intended to benefit 7,137 inhabitants of the area, and its objectives are: "a) Construction of the sanitary sewerage network in the city of Golfito. b) Construction of a Wastewater Treatment Plant that allows compliance with the Reglamento de Vertidos, reducing effluent contamination. c) Sanitary sewerage coverage of 90% of the population served by the drinking water system by the year 2046. d) Elimination of untreated wastewater discharges directly into rivers and into the sea." (see report rendered under oath).
c)Currently the project is in the design stage and is 77% complete, with the completion of the construction works estimated for October 2024 (see report rendered under oath).
d)On the occasion of the filing of this amparo, the respondent included the project "Construction of the Sanitary Sewerage System for the city of Golfito, Puntarenas" within the Sanitation Program in Priority Zones, which consists of the following stages: Stage I: Diagnosis and Evaluation of works, Stage II: Feasibility and Prioritization of works, Stage III: Final Design (both of the wastewater collection system and the Wastewater Treatment Plant "PTAR") and Stage IV: Construction (both of the wastewater collection system and the Wastewater Treatment Plant "PTAR") (see report rendered under oath).
e)An agreement with the COSTA RICAN RAILWAY INSTITUTE and AYA is close to being finalized, for the purpose of granting the approval for the placement of the transmission and distribution line that will run along the railway right-of-way from near the duty-free depot to the outskirts of the center of Golfito, an approximate distance of 3 kilometers, which will connect to the Treatment Plant to be built (see report rendered under oath).
f)The appellant has five drinking water services identified under NIS numbers 542-0141 / 528-7154 / 528-7155 which are up to date, and services Nis 528-9122 and 542-6965 have a pending balance; all are located in the Pueblo Civil Golfito sector (see report rendered under oath).
g)The petitioner's services are connected to the 300mm wastewater collection network, which is provided with preventive maintenance service to avoid obstructions in the network and to attend to breakdowns, with three officials assigned to provide the attention and maintenance in question (see report rendered under oath).

III. ON THE COLLECTION, TREATMENT, AND FINAL DISPOSAL OF BLACK WATERS

To effectively fulfill the protection of a healthy and ecologically balanced environment, the State, understood in a broad sense, has the duty to arrange the necessary measures so that in the country's communities, timely and effective treatment is provided to black waters. In that regard, this Constitutional Court has held the criterion that both the Costa Rican Institute of Aqueducts and Sewers, as well as the Municipalities and the Ministry of Health, are responsible -within their respective areas of competence- for ensuring the proper collection, treatment, and final disposal of such waters. Thus, in the specific case of the Costa Rican Institute of Aqueducts and Sewers, its own Constitutive Law -Law No. 2726 of April 14, 1961, and its amendments- provides the following:

"Article 1.- With the purpose of directing, setting policies, establishing and applying norms, carrying out and promoting the planning, financing, and development, and of resolving everything related to the supply of drinking water and the collection and evacuation of black waters and liquid industrial waste, as well as the normative aspect of storm sewerage systems in urban areas, for the entire national territory, the Costa Rican Institute of Aqueducts and Sewers is created as an autonomous institution of the State." Therefore, said institution is responsible, according to the provisions of article 2 of that same regulatory body "(…) To direct and supervise everything concerning the provision to the inhabitants of the republic of a service of drinking water, collection and evacuation of black waters and liquid industrial waste and of storm waters in urban areas (…)". Regarding the Municipalities, it must be noted that article 169 of the Political Constitution grants them the competence to plan and oversee the urban development of their locality, as a derivation of their duty to administer the local interests and services in each canton.

By reason of the foregoing, it is the responsibility of each municipality to establish a comprehensive urban planning policy that guarantees development congruent with the efficient functioning of a system for supplying drinking water and for the collection, treatment, and final disposal of black waters. Similarly, the General Health Law -Law No. 5395 of October 30, 1973-, provides, in its article 2, that the Executive Branch, through the Ministry of Health, is responsible for defining the national health policy, the regulation, planning, and coordination of all public and private activities related to health, as well as the execution of those activities that fall to it according to the law. Likewise, article 341 of the aforementioned law establishes, within the powers of the Ministry of Health, that of ordering and taking the special measures that this regulation enables to prevent risk or harm to people's health or to prevent them from spreading or worsening, and to inhibit the continuation or recurrence of the infraction by private parties.

Regarding the specific topic, the General Health Law, in its Book 1, Title 3, Chapter 3, "On the obligations and restrictions for the sanitary evacuation of excreta and wastewater," provides -as relevant- the following:

"Article 285.- Excreta, black waters, wastewater, and storm waters must be eliminated adequately and sanitarily in order to avoid contamination of the soil and of natural water sources for human use and consumption, the formation of breeding sites for vectors and diseases, and air contamination through conditions that threaten its purity or quality." (The emphasis is not part of the original).

"Article 287.- Every person, natural or legal, owner of dwellings or establishments or buildings in which persons carry out their activities, shall be responsible for ensuring that such properties have a system for the disposal of excreta and black and wastewater approved by the Ministry, and the users of dwellings, establishments, or buildings shall be obliged to maintain said system in good working order." "Article 288.- Every owner is obliged to connect their excreta and black and wastewater elimination system to the sanitary sewerage system in places where the latter is in operation, except in cases of exception that the pertinent regulations recognize as appropriate." Likewise, from said regulation, the obligation of the Ministry of Health authorities to ensure the application and control of compliance with the provisions of that law and its regulations is inferred, without prejudice to the powers and obligations that special laws grant and impose on other public bodies or entities within their respective fields of action (article 337).

This corroborates the different functions and obligations that the legal system imposes on the Costa Rican Institute of Aqueducts and Sewers, the Ministry of Health, and the municipalities, in matters of collection, treatment, and final disposal of black waters. Functions and obligations that, furthermore -and as already mentioned in the preceding recital-, must be exercised in a coordinated manner, thus to ensure administrative efficacy and efficiency.

IV. ON THE CASE AT HAND

The appellant considers her fundamental rights violated, given that by judgment No. 2009-09880, the appeal was partially granted for the non-treatment of the black waters of the Canton of Golfito; however, to date there is no black water treatment plant. She claims that the respondent has not started the construction or repair of the sewerage system in her community, despite the money collected for the sewerage service. In this regard, it is verified that on June 19, 2009, this Court partially granted the appeal through resolution No. 2009-009880, and ordered the following: "immediately adopt the pertinent measures within the scope of their competencies, to accelerate the start of construction and commissioning of the Wastewater Treatment Plant (PTAR) for the city of Golfito." Now, on the occasion of that judgment No. 2009-009880, the procurement of "Engineering Services for the preparation of feasibility studies and final designs of the sanitary sewerage system for the city of Golfito Puntarenas" was initiated through tender 2014LA-000005-PRI, whose main result was the final construction plans that allow for the implementation of a totally new, modern-technology wastewater collection and treatment system, a project that has approved financing from the German Bank KfW and a counterpart contribution from the Costa Rican Institute of Aqueducts and Sewers.

With this project, it is intended to benefit 7,137 inhabitants of the area, and its objectives are: "a) Construction of the sanitary sewerage network in the city of Golfito. b) Construction of a Wastewater Treatment Plant that allows compliance with the Reglamento de Vertidos, reducing effluent contamination. c) Sanitary sewerage coverage of 90% of the population served by the drinking water system by the year 2046. d) Elimination of untreated wastewater discharges directly into rivers and into the sea." Likewise, it is verified that currently the project is in the design stage and is 77% complete, with the completion of the construction works estimated for October 2024. However, on the occasion of the filing of this amparo, the respondent included the project "Construction of the Sanitary Sewerage System for the city of Golfito, Puntarenas" within the Sanitation Program in Priority Zones, which consists of the following stages: Stage I: Diagnosis and Evaluation of works, Stage II: Feasibility and Prioritization of works, Stage III: Final Design (both of the wastewater collection system and the Wastewater Treatment Plant "PTAR") and Stage IV: Construction (both of the wastewater collection system and the Wastewater Treatment Plant "PTAR").

The respondent reported that an agreement with the COSTA RICAN RAILWAY INSTITUTE and AYA is close to being finalized, for the purpose of granting the approval for the placement of the transmission and distribution line that will run along the railway right-of-way from near the duty-free depot to the outskirts of the center of Golfito, an approximate distance of 3 kilometers, which will connect to the Treatment Plant to be built.

The petitioner has five potable water services identified under numbers NIS 542-0141 / 528-7154 / 528-7155, which are current, and services Nis 528-9122 and 542-6965 have an outstanding balance; all are located in the Pueblo Civil Golfito sector. The protected party's services are connected to the 300mm wastewater collection network, which receives preventive maintenance service to avoid blockages in the network and breakdown response, with three officials assigned to provide the service and maintenance in question. Thus, this Tribunal warns that 10 years after judgment 2009-009880 was issued, the problem persists, thereby verifying that the infringement of the petitioner's fundamental rights continues. Although the respondents have undertaken some actions aimed at resolving the cited problem, the truth is that these have been insufficient to put an end to the situation. Note that the respondent states that the works would be completed in October 2024; however, this Chamber considers that the 4-year period that the community of Golfito would be subjected to waiting while the project is completed becomes excessive. By virtue of the considerations set forth, the appropriate course is to grant the appeal with the consequences that will be indicated in the operative part.

V.Finally, the petitioner alleges that despite being charged for the sewerage (alcantarillado) service she does not receive, she therefore believes the money for that concept should be refunded. However, it is noted that what the claimant raises is nothing more than a conflict of ordinary legality, which does not involve, at least directly, any fundamental right, which is why it exceeds the scope of jurisdiction of this Chamber. Indeed, this Tribunal is not a comptroller of legality nor an additional instance of the administration, so it is not for it to determine whether or not the collection of receipts for the sewerage (alcantarillado) service is appropriate. Therefore, those claims constitute matters of ordinary legality that must be resolved by the Administration or, where appropriate, by the ordinary jurisdiction. Consequently, the injury to the protected party's rights in relation to this point is dismissed.

IV. NOTE BY MAGISTRATE SALAZAR ALVARADO

In environmental matters, it is the undersigned's criterion that if the Public Administration has already intervened, its knowledge and resolution corresponds to the contentious-administrative jurisdiction. However, I do proceed to hear the merits of the matter when other rights of the persons affected by the lack of treatment of the blackwater (aguas negras) of the Canton of Golfito are at stake, among them, health, quality of life, and the right to enjoy a healthy environment free of contamination (Article 50, of the Political Constitution), as occurs in this case, in which the omission of the respondent authorities to begin construction or repair of the sewerage (alcantarillado) network intended for the treatment of blackwater and wastewater (aguas negras y servidas) is alleged. In this sense, this omission affects the health of the local residents, violating the right to enjoy a healthy and ecologically balanced environment and a decent level of quality of life.

V. DOCUMENTATION PROVIDED TO THE FILE

The petitioner is warned that if any document in paper form has been provided, as well as objects or evidence contained in any additional electronic, computer, magnetic, optical, telematic device or one produced by new technologies, they must withdraw them from the office within a maximum period of 30 working days counted from the notification of this judgment. Otherwise, all material not withdrawn within this period will be destroyed, in accordance with the provisions of the "Reglamento sobre Expediente Electrónico ante el Poder Judicial", approved by the Corte Plena in session No. 27-11 of August 22, 2011, article XXVI and published in the Boletín Judicial No. 19 of January 26, 2012, as well as the agreement approved by the Consejo Superior del Poder Judicial, in session No. 43-12 held on May 3, 2012, article LXXXI.

Por tanto:

The appeal is partially granted, solely for the lack of a blackwater (aguas negras) treatment system for the community of Golfito. Irving Zelaya Palacios, in his capacity as Acting Director of the Brunca Region, Noilyn Gutiérrez Arias, in her capacity as Head of the Cantonal Office of Golfito, both of the Instituto Costarricense de Acueductos y Alcantarillados, and Fernando Mata Castro, in his capacity as Director of the Governing Health Area of the Ministry of Health, or whoever holds those positions, are ordered to immediately and in coordination adopt the necessary measures and actions, within the scope of their competencies, so that the construction of the works of the Wastewater Treatment Plant (Planta de Tratamiento de Aguas Residuales) project for the city of Golfito is completed and put into operation within the non-extendable term of twenty-four months counted from the notification of this resolution.

Likewise, they must submit a semi-annual progress report on the project to this Tribunal. The respondent authorities are warned that, in accordance with the provisions of Article 71, of the Ley de la Jurisdicción Constitucional, a prison term of three months to two years or a fine of twenty to sixty days shall be imposed on anyone who receives an order that must be complied with or enforced, issued within an amparo appeal, and does not comply with it or does not enforce it, provided the crime is not more severely punished. The State and the Instituto Costarricense de Acueductos y Alcantarillados are ordered to pay the costs, damages, and losses caused by the acts that serve as the basis for this declaration, which shall be liquidated in the execution of judgment of the contentious-administrative jurisdiction. In all other respects, the appeal is dismissed. Notify. Magistrate Salazar Alvarado records a note.

\t Fernando Castillo V.

\t Paul Rueda L.

\t \t Luis Fdo. Salazar A.

Jorge Araya G.

\t \t Anamari Garro V.

Alicia Salas T.

\t \t Ronald Salazar Murillo *PRCEJFYOB8M61* Clasificación elaborada por SALA CONSTITUCIONAL del Poder Judicial. Prohibida su reproducción y/o distribución en forma onerosa.

Control constitucional: Sentencia estimatoria Sentencia con nota separada Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 4. ASUNTOS DE GARANTÍA Tema: AMBIENTE Subtemas:

AGUAS.

016705-20. SE ORDENA A VARIAS AUTORIDADES PÚBLICAS, QUE, EN EL PLAZO DE 24 MESES, FINALICEN LA CONSTRUCCIÓN DE LAS OBRAS DEL PROYECTO DE LA PLANTA DE TRATAMIENTO DE AGUAS RESIDUALES DE LA CIUDAD DE GOLFITO. ASIMISMO, DEBERÁN PRESENTAR A ESTE TRIBUNAL UN INFORME SEMESTRAL DEL AVANCE DEL PROYECTO.