Declassification of the Lomas de Barbudal Biological ReserveDesafectación de la Reserva Biológica Lomas de Barbudal

Constitutional Chamber Type of matter: Unconstitutionality action Constitutional control: Dismissing judgment Analyzed by: CONSTITUTIONAL CHAMBER Judgment with Dissenting Vote Judgment with separate note Relevance Indicators Relevant judgment Key judgment Related Judgments Judgments from the same case file Judgment with protected data, in accordance with current regulations Content of Interest:

Type of content: Majority vote Branch of Law: 3. CONSTITUTIONALITY CONTROL MATTERS Topic: ENVIRONMENT Subtopics:

NOT APPLICABLE.

Topic: UNCONSTITUTIONALITY ACTION Subtopics:

NOT APPLICABLE.

013836-20. ENVIRONMENT. MODIFICATION OF THE LIMITS OF THE LOMAS DE BARBUDAL BIOLOGICAL RESERVE. Unconstitutionality action against Law No. 9610. Modification of the limits of the Lomas de Barbudal Biological Reserve for the Development of the Water Supply Project for the Middle Basin of the Tempisque River and Coastal Communities. Published in Supplement No. 199 of La Gaceta of 11/23/2018. Regarding the alleged violation of Article 45 of the Political Constitution, numeral 208 bis of the Regulations of the Legislative Assembly, and the principle of legal certainty, the action is unanimously declared inadmissible because, on the one hand, no type of diffuse or collective interest is observed, and, on the other, there is no prior matter in which unconstitutionality has been invoked as a means to protect the right or interest claimed. Likewise, the action is unanimously dismissed regarding the alleged infringement of Articles 7 and 176 of the Political Constitution and the constitutional principles of budgetary balance, reasonableness and proportionality, and economy and efficiency.

Regarding the alleged injury to the right to a healthy and ecologically balanced environment, contemplated in Article 50 of the Political Constitution, the action is dismissed by majority. Magistrates Cruz Castro, Rueda Leal, and Garro Vargas dissent and declare the action admissible for violation of the precautionary, non-regression in environmental matters, lifetime tenure (irreductibilidad), and objectivization of environmental protection principles. Magistrate Garro Vargas gives different reasons and appends a note.

Magistrate Hernández López and Magistrate Salazar Alvarado append separate notes.

Let this pronouncement be notified to the plaintiff, to the Procurador General de la República, to the President of the Legislative Assembly, to the Minister of Environment and Energy, to the Minister of Agriculture and Livestock, to the General Manager of the National Groundwater, Irrigation and Drainage Service, and to the coadjuvants.

“…Consequently, the questioned law is not unconstitutional; it had prior studies and technical criteria expressed by the competent authorities throughout the legislative hearings, among these SENARA, SINAC, MINAE, SETENA, MAG, and OET and, in addition, it establishes the obligation to carry out an environmental impact assessment (estudio de impacto ambiental), which must previously contemplate all impacts and mitigation measures that are appropriate to guarantee that, effectively, the environment is not harmed, as well as determine that compensation will occur, not only in size, but of an ecological nature as far as reasonably possible in the latter case. In the opinion of this Court, it is a conditional law, whose effectiveness is subject to the pending environmental impact assessment of the PAACUME project confirming the previous results, and conforming to the principles of reasonableness and proportionality, to the demands of sustainable development, ecological balance and a healthy environment, and to the general well-being of the population, in order to justify the measure, as well as to determine that the compensation for the area contemplates both the quantitative and qualitative elements, therefore, the claimants are not correct in indicating that the precautionary principle is violated…” VII.- Conclusion. As a corollary of the foregoing, this Court considers that the action is inadmissible, regarding the alleged violation of Article 45 of the Political Constitution, numeral 208 bis of the Regulations of the Legislative Assembly, and the principle of legal certainty, because the plaintiffs lack standing. For the rest, the alleged unconstitutionalities are not observed, insofar as what is authorized in the challenged regulations is supported by the prior environmental impact assessment, which determines the impacts, the respective mitigation measures, guarantees environmental protection, and due environmental safeguarding.

CO12/20 ... See more Content of Interest:

Type of content: Majority vote Branch of Law: 1. POLITICAL CONSTITUTION WITH JURISPRUDENCE Topic: 176- National Budget Subtopics:

NOT APPLICABLE.

ARTICLE 176 OF THE POLITICAL CONSTITUTION. “…it is important to specify that the competence of this Court, in relation to the principle of Budgetary Balance derived from numeral 176 of the Political Constitution, is limited to an analysis at the macro level, and not of a particular situation such as the one under study. As indicated by the Office of the Procurador General de la República, the discussion about whether the specific budget line intended to cover the expropriations required for the compensation of the RBLB has been included in the ordinary budget is not related to the violation of this principle…

On the other hand, the alleged disagreement over the supposedly high economic cost to the country of disaffecting and compensating that area with those properties and not others, also does not constitute an argument susceptible to a constitutionality analysis, but rather one of discretion, a matter in which the legislator has a broad margin —free configuration— in this case, logically following technical criteria of convenience and opportunity for the choice of terrain when reasons of duly verified public interest so require, as occurs in the present case; in addition, the reduction of the acreage of a protected wilderness area (área silvestre protegida) and its compensation should not respond solely to an economic criterion, but also to the ecological attributes of the land, so that it meets environmental conditions equivalent to the disaffected area. This would therefore equally imply a technical analysis that is not proper to be verified in this jurisdiction…” CO12/20 ... See more Content of Interest:

Type of content: Majority vote Branch of Law: 6. CONSTITUTIONAL JURISDICTION LAW ANNOTATED WITH JURISPRUDENCE Topic: 075- Prior matter pending resolution in judicial or administrative proceedings Subtopics:

NOT APPLICABLE.

ARTICLE 75 OF THE CONSTITUTIONAL JURISDICTION LAW. “…In this regard, the Chamber rules out the existence of any type of diffuse or collective interest in those claims of the plaintiffs. All those arguments are related in one way or another to the right to private property and its eventual transgression, which would require the existence of a prior matter (asunto base) in which unconstitutionality had been invoked as a means to protect the right or interest claimed, something which is notably absent in this case. Consequently, such claims cannot be examined on their merits.

Furthermore, specifically regarding the alleged inconsistencies and errors in the proper definition or delimitation of the boundaries of the RBLB, it must also be taken into consideration that both the president of the Legislative Assembly and SENARA argue that the delimitation coordinates of the biological reserve indicated in the questioned law are correct. It is argued, in particular, that in a joint effort between MINAE and SENARA, the necessary field topographic surveys and re-surveys were carried out, which allowed for adequate geographic precision in the real location and delimitation of the reserve area of interest, through the use of precision geographic technological instruments. It is evident from the foregoing that in the sub lite a purely technical discussion is raised regarding the proper geographic location and delimitation of such boundaries. In which case, resolving such a controversy, upon prior review and weighing of the various technical parameters governing the matter and even gathering and evaluating the pertinent evidentiary material, entails a discussion that far exceeds the purpose and nature of constitutionality control, under the terms of Articles 10 of the Political Constitution and 73 and following of the Constitutional Jurisdiction Law. On the contrary, such a discussion is properly ventilated in ordinary proceedings, with the respective evidentiary breadth…” CO12/20 ... See more Content of Interest:

Type of content: Majority vote Branch of Law: 6. CONSTITUTIONAL JURISDICTION LAW ANNOTATED WITH JURISPRUDENCE Topic: 083- Coadjuvancies Subtopics:

NOT APPLICABLE.

ARTICLE 83 OF THE CONSTITUTIONAL JURISDICTION LAW. “…Article 83 of the Constitutional Jurisdiction Law establishes that within 15 days following the first publication of the edict referred to in the second paragraph of Article 81, the parties involved in matters pending at the date of the filing of the action, or those with a legitimate interest, may appear in order to coadyuvate in the allegations that might justify its appropriateness or inappropriateness, or to expand, as applicable, the grounds for unconstitutionality in relation to the matter that interests them.

In the case at hand, by resolution issued at 15:23 on March 21, 2019, the Presidency of the Chamber accepted the active coadjuvancies of… Mario Andrés Boza Loría and Jorge Arturo Lobo Segura and the passive coadjuvancy of Luis Renato Alvarado Rivera, Minister of Agriculture and Livestock; furthermore, it rejected the coadjuvancy filed by Juan Carlos Peralta, who stated he appeared as representative of the Association for the Well-being and Protection of Animals of the Canton of San José, for failing to provide the legal standing document that accredited his capacity, even though he was advised to do so.

At this act, the request for coadjuvancy filed by Henry José Picado Cerdas is rejected, since he appeared untimely. The first publication of the ruling admitting this action in the Judicial Bulletin was made on February 19, 2019; however, Mr. Picado sent his brief on November 2, 2019...” CO12/20 ... See more Content of Interest:

Type of content: Separate note Branch of Law: 3. CONSTITUTIONALITY CONTROL MATTERS Topic: ENVIRONMENT Subtopics:

NOT APPLICABLE.

Separate note of Magistrate Hernández López In the discussion of this matter, I had reserved the drafting of a separate note. However, I dispense with the same, since the observations I had on the subject are comprehensively reflected in the drafting of the judgment.

Nancy Hernández López Magistrate CO12/20 ... See more Content of Interest:

Type of content: Separate note Branch of Law: 3. CONSTITUTIONALITY CONTROL MATTERS Topic: ENVIRONMENT Subtopics:

NOT APPLICABLE.

Note of Magistrate Salazar Alvarado:

In view of the integral drafting of the Judgment rendered in this matter, I dispense with the note that, at the time, I considered timely during the discussion and voting of this unconstitutionality action.- Luis Fdo. Salazar A. Magistrate CO12/20 ... See more Content of Interest:

Type of content: Dissenting vote Branch of Law: 3. CONSTITUTIONALITY CONTROL MATTERS Topic: ENVIRONMENT Subtopics:

NOT APPLICABLE.

Dissenting vote of Magistrates Cruz Castro and Rueda Leal, with drafting by the latter.

With the customary respect, we separate ourselves from the Majority opinion and declare unconstitutional Law No. 9610 of October 17, 2018, called "Modification of the Limits of the Lomas de Barbudal Biological Reserve for the Development of the Water Supply Project for the Middle Basin of the Tempisque River and Coastal Communities," for violation of the precautionary, non-regression in environmental matters, lifetime tenure (irreductibilidad), and objectivization of environmental protection principles.

In the sub examine, the questioned law was supported to a greater extent, as observed in the statement of legislative intent of the corresponding bill, on the study by the Organization for Tropical Studies (hereinafter OET) called "Establishment of the Biodiversity Baseline for the Lomas de Barbudal Biological Reserve (RBLB) and Adjacent Farm" from June 2017. Although, in principle, it is not for the Chamber to technically evaluate the quality of the studies nor to define which professional criterion should prevail, it is no less true that this Court does intervene when faced with evident and manifest inconsistencies or shortcomings (for example, judgments No. 2012013367 of 11:33 on September 21, 2012, and 2013010540 of 15:50 on August 7, 2013). In the sub iudice, after analyzing the OET study, we found a series of problems that leap out from a simple reading thereof and that clearly demonstrate the non-compliance with the constitutional requirements that this Court has established for the disaffection (desafectación) of protected areas.

Regarding the reduction of protected areas, this Court, in judgment No. 2019000673 of 12:00 on January 16, 2019, held:

"V.- Jurisprudence on the reduction of protected areas, the sufficiency of technical reports, and due compensation.- On the reduction of protected areas, from the jurisprudence of this Chamber the following is derived:

1. Constitutional requirements for the reduction of a protected wilderness area (legal reserve and technical studies): In support of Article 38 of the Organic Environmental Law ("the surface area of protected wilderness areas, natural heritage of the State, whatever their management category, may only be reduced by Law of the Republic, after conducting the technical studies that justify this measure"), there has been a solid jurisprudential line, to the effect that for the reduction of a protected wilderness area, in any of its management categories (including national wildlife refuges), two essential requirements must be met: "by means of law and after prior sufficient technical studies that justify the measure." (Constitutional Chamber, votes numbers 13367-2012 and 010158-2013. In a similar vein, judgments numbers 7294-1998, 11155-2007, 1056-2009, 18702-2010 and 14772-2010, among others). As stated in the aforementioned ruling from 1998:

"“(…) once a certain area has been declared a protected zone by an act of the State, it cannot simply disaffect it in whole or in part, to protect other interests - public or private - to the detriment of the enjoyment of a healthy environment, in accordance with the provisions of Article 50 of the Constitution. Now, the fact that a regulation, of whatever rank, has declared a certain area a protected zone, does not imply the constitution of a petrified zone, in the sense that its acreage cannot in any way be reduced by a subsequent regulation. However, it must be borne in mind that the declaration and delimitation of a protected zone, in compliance with the provisions of Article 50 of the Constitution, implies a defense of the fundamental right to the environment and, therefore, the reduction of acreage must not imply a detriment to that right, a situation that must be established in each specific case. The fact that by means of a subsequent law the acreage of a protected zone, a forest reserve, a National Park, or any other site of environmental interest is reduced is not necessarily unconstitutional, as long as this is justified insofar as it does not imply a violation of the right to the environment. It could be that, due to various circumstances, a particular site has lost, at least in part, the environmental interest that, at the time, caused its protection, which, having conducted the relevant studies, would justify its modification or reduction, all in application of the principle of constitutional reasonableness…" (vote No. 7294-1998).

Specifically regarding the legal reserve in this matter, vote No. 14772-2010 stated:

(…) the public purpose of a public domain asset cannot be modified without a legislative act, that is, the reduction of the area of a protected zone is under the guarantee provided by the principle of legal reserve. Although, in accordance with Article 36 of the Organic Environmental Law, the Executive Branch is authorized to establish Protected Wilderness Areas upon fulfillment of the requirements established in that norm, thus, Corcovado National Park was constituted through Executive Decrees No. 5357-A of October 24, 1975, and 1148-A of February 5, 1980, its modification may only be made in accordance with the provisions of Article 38 of the Organic Environmental Law, after prior technical and scientific studies, and through a legislative act. (highlighting does not correspond to the original).

Likewise, in judgment No. 1056-2009, it was indicated that reduction is only possible via legal means:

"when it comes to the expansion of the limits of the protected zones of the State's forest heritage, it is possible to do so via regulation, but when it comes to their reduction, it can only be done via legal means, clearly, provided there is a prior criterion that justifies the measure." (Judgment of the Constitutional Chamber No. 1056-2009) Which was applied when the Chamber declared unconstitutional the regulatory norm (Executive Decree No. 32753-MINAE) through which the Executive Branch reduced the territory of the Gandoca-Manzanillo Refuge, subtracting the urban area of the Refuge from the area and protection regime.

Furthermore, regarding the studies, they must be prior, sufficient, necessary, and individualized – as indicated in the following section. This was stated in that same ruling from 1998:

"In accordance with the cited, mutatis mutandi, if for the creation of a protected wilderness area the Legislative Assembly, by means of a law, established the fulfillment of specific requirements, in order to determine if the afforestation in question is justified, the logical course is that, for its partial or total disaffection, specific requirements must also be met - such as conducting environmental technical studies - to determine that the disaffection does not transgress the content of Article 50 of the Constitution. In this sense, we can speak of levels of disaffection. Thus, not every disaffection of a protected zone is unconstitutional, insofar as it implies a detriment to the right to the environment or a threat to it. Hence, to reduce any protected wilderness area, the Legislative Assembly must do so based on sufficient and necessary technical studies to determine that no damage will be caused to the environment or that it will not be endangered, and therefore, that the content of Article 50 of the Constitution is not violated. The principle of reasonableness, in relation to the fundamental right to the environment, obliges that the norms issued regarding this matter be duly motivated by serious technical studies, even if no other legal norm expressly established it. In the judgment of this Constitutional Court, the requirement contained in Article 38 of the Organic Environmental Law No. 7554, to the effect that in order to reduce a protected wilderness area by formal law, the technical studies that justify the measure must be carried out beforehand, is none other than the objectivization of the principle of reasonableness in matters of environmental protection." (highlighting does not correspond to the original).

2. Technical study as a scientific and individualized analysis: The Chamber has referred to the sufficiency of the technical study, when through several resolutions it has established that said study must be a scientific and individualized analysis. Thus, the following was stated:

"the requirement for technical studies is not a mere formality, but rather a material requirement, that is, it must be materially demonstrated, through a scientific and individualized analysis, the degree of impact of the corresponding measure on the environment, propose recommendations aimed at lessening the negative impact on it, and demonstrate how such a measure implies a development that satisfies the needs of the present without endangering the capacity of future generations to meet their own needs." (Vote No. 13367-2012. Also see No. 10158-2013).

From which it follows that the technical study required by Article 38 of the Organic Environmental Law, and which is the objectivization of the constitutional principle of reasonableness in matters of environmental protection, requires a technical analysis that implies an individualized analysis, which must contain as a minimum the following measures:

The degree of impact of the corresponding measure on the environment; The recommendations aimed at lessening the negative impact on the environment; The demonstration of how the measure taken implies a development that satisfies the needs of the present without endangering the capacity of future generations to meet their own needs.

In summary, said prior study must demonstrate that the disaffection is in accordance with the constitutional protection of the right to the environment, for as stated in vote No. 18702-2010 "it cannot be allowed that areas of this nature are titled indiscriminately, since this would go against the very environmental conservationist policies that the State has procured by virtue of the tasks ordered by the Political Constitution and the International Agreements it has signed." 3. Compensation measures: A protected area can only be reduced if it is done by law, if there are technical and scientific studies that rule out environmental damage, and if compensation is provided for the suppressed area with another of equal size. There is no doubt that all those norms in which there is a reduction of protected areas without the backing of technical studies or any compensation whatsoever, are unconstitutional" (votes Nos. 12887-2014, 2773-2014, 2012-13367 and 2009-1056).

VI.- On the challenged regulation.- As observed, both the Law to Regulate the Creation and Development of the Las Tablillas Border Post, Law No. 8803, and its Regulations, are challenged in their entirety, basically for two reasons: for not having the technical study that supports the reduction of a protected area (in this case a national wildlife refuge), and for not establishing compensation measures. Each of these claims is examined separately. ON THE TECHNICAL STUDY: The plaintiff indicates that the challenged Law and its regulation are segregating and reducing several hectares of the National Wildlife Refuge in the border zone, without environmental studies that would justify that action. He indicates that the deputies took a simple recommendation that can never be considered a serious, deep, and comprehensive study that would allow what was done. The Office of the Procurador General de la República in its report indicates that, already in the Legal Opinion of this Office of the Attorney General No. O.J.-98-2009, issued on October 14, 2009, at the request of the Deputies during the processing of the bill that culminated in Law No. 8803, it analyzed the technical study incorporated into the legislative file at that time, considering it insufficient to justify it: "…respectfully, it must be pointed out that said technical report does not meet the necessary requirements to support the bill being consulted. Note that it makes a study of the 236 hectares initially proposed and concludes that the project is not viable from an environmental and social standpoint. However, said study does not explain in any way why that negative impact does not occur on the 13 hectares proposed, or in other words, to date, there is no technical criterion that refers to the reasons why the segregation of the 12.3 hectares established in the consulted bill is indeed viable…". The Minister of Environment and Energy indicates there is no unconstitutionality. He adds that the challenged law did not intend the disaffection from the public domain of the zone in question, but rather to authorize the use of a portion of the area for another public interest purpose, which is the installation of a border and customs post, with the understanding that these are State constructions and not private ones. Thus, on September 28, 2007, the technical report prepared by the Tablillas case commission, called "Request for reduction of the area of the Corredor Fronterizo National Refuge," was issued, which proposes an area to be disaffected of 13 ha bordering the frontier line, since the officials of the Arenal Huetar Norte Conservation Area considered the segregation of the indicated area of 236 ha unviable, concluding the report that: "13 hectares would be a more viable proposal from the point of view of impact on the ecosystems present at the site and surroundings." Said report considered biophysical, socioeconomic, and security aspects. It concludes that the cost-benefit balance of establishing posts that carry out control and regulation of migratory entry in said sector contributes to regulating entry through the public domain strip coinciding with the Protected Wilderness Area. The Ministers of the Presidency and of Foreign Trade indicate that, on folios 76 through 94 of the legislative file, there is the technical report prepared in September 2007 by MINAE. The identified site meets the conditions suitable for the development of the Border Post project since it had already been impacted by human action, a fact confirmed by the non-existence of important or fragile ecosystems, the absence of primary or secondary forest cover (cobertura boscosa), or wetlands or watercourses, but only natural pastures and land cleared for cultivation or ready for sowing. Furthermore, the area is technically strategic for the location of the Border Post due to its proximity to the boundary line and the existence of communication routes for internal movement (roads) and a national highway connected to the road on the Nicaraguan side of the border. In this regard, this Chamber concludes that, indeed, the Office of the Procurador General de la República is correct in its report; there is no technical study that refers to the viability of this project, because the one carried out referred to a larger area, concluding that it was not viable from an environmental and social standpoint. Therefore, it needed to be justified why the new proposal would not generate problems in the wetlands, in the species of the area, in the water tables, and would not produce a social problem, as was detected in the initial proposal. The technical study referred to by the Ministers is evidently insufficient, as it does not explain in any way why that negative impact does not occur on the 13 hectares proposed, the degree of impact of the corresponding measure on the environment, the recommendations aimed at lessening the negative impact on the environment, nor the demonstration of how the measure taken implies a development that satisfies the needs of the present without endangering the capacity of future generations to meet their own needs. On the other hand, while it may be true, as the Ministers state in their report, that the property is not leaving the public domain, it is indeed true that it is being disaffected, environmentally speaking. It may also be true, as the Ministers state in their report, that in addition to the environmental interest in the border zone, there may be other relevant interests such as migratory security and others. However, this is precisely what the technical report should have contained in its reasoning. Note that, as the Ministers indicate, it may be true that certain environmental measures were being taken; this does not negate the fact of the lack of a technical report that the law should have had, which leaves those environmental measures without the required technical support. Thus, the alleged unconstitutionality of the challenged law – and by connection, of its regulation – is evidenced, due to the lack of a sufficient technical report to support the reduction of the National Wildlife Refuge in the border zone. ON COMPENSATION MEASURES: The plaintiff indicates that timely compensation measures were not established in the law for the ordered segregation.

The Attorney General's Office, in its report, indicates that an unconstitutionality due to violation of this principle is not necessarily resolved by annulling the Law; if it is classified as an unconstitutionality by omission, it would suffice for the Constitutional Chamber to order in its ruling that the portion or portions compensating for the suppressed area be added to the Refuge, which could even be done via regulatory means. The Ministers of the Presidency and of Foreign Trade indicate that the intended demolition of the public infrastructure would cause the immediate lack of protection of order, peace, health, sustainable development, life, and human dignity. Furthermore, they consider that there is no obligation on the part of the State to compensate an already deforested and impacted area with another, given that there was never a reduction of forest or an impact on the environment that would justify the compensation measure. In this regard, this Chamber concludes that, in effect, the challenged norms are also silent regarding compensation measures. The segregation of approximately 13 hectares being evident, as indicated in Article 1 of the challenged law, and although these areas did not leave the public domain, they did leave an environmental management category, which required establishing legal compensation measures, which were neither adopted nor guaranteed, as can be seen from a reading of the entire law. Thus, the alleged unconstitutionality of the challenged law—and, by connection, its Regulation—is evident due to the lack of compensation measures for the reduction of the Border Zone National Wildlife Refuge.

VII.- In conclusion.- From the reiterated jurisprudence of this Chamber, it is established that any reduction of a protected wild area, in any of its management categories (including national wildlife refuges), must meet three essential requirements: legal reserve (that is, it can only be done by law), prior completion of sufficient technical studies that justify the measure, and the establishment of compensation measures. In this case, it was shown that the Law to regulate the creation and development of the Las Tablillas border post (Law No. 8803) and its Regulation proceeded with the segregation, and consequent reduction, of the Border Zone National Wildlife Refuge. However, although it was done by means of a law, no sufficient prior study was conducted that: justified the measure, established the degree of impact of the corresponding measure on the environment, provided recommendations aimed at mitigating the negative impact on the environment, nor demonstrated how the measure taken implies development that meets the needs of the present without compromising the ability of future generations to meet their own needs, or established concretely and in detail compensation measures. All of this demonstrates the unconstitutionality by omission. Proceeding in this case to declare the action with merit, with a dimensioning of this ruling, as indicated.” Based on the cited precedent, we consider that the requirements that must be met for the declassification (desafectación) of protected areas to be constitutionally viable are the following:

• 1)The declaration and delimitation of a protective zone, in compliance with the provisions of Article 50 of the Constitution, implies a defense of the fundamental right to the environment and, therefore, the reduction in area must not entail a detriment to that right (causing damage or endangering it), a situation that must be established in each specific case.
• 2)The reduction of a protected area, whatever its management category, can only be done by law, following technical and scientific studies (prior, sufficient, necessary, and individualized) that, in consideration of the principle of reasonableness, justify the measure.
• 3)The study must materially demonstrate, through a scientific and individualized analysis, the degree of impact of the corresponding measure on the environment, propose recommendations aimed at mitigating the negative impact on it, and demonstrate how such a measure implies development that meets the needs of the present without compromising the ability of future generations to meet their own needs.
• 4)The reduction of a protected area implies compensation for the suppressed area with at least another of equal size and equivalent conditions.

Now, in relation to the problems detected in the study in question, the OET itself indicated that for baseline, compensation, and impact studies, at least two years of execution should be considered. In that sense, it explicitly stated: "The recommendation is that for baseline, compensation, and impact studies, at least two years of execution be considered and that they effectively be considered an essential component of the project." The foregoing is transcendental for the purposes of this constitutional proceeding, since, without having managed to accredit any scientific or technical justification, the OET study's sampling period was only 10 months, which was calculated based on the time limit available for the project, without any technically supported criterion being observed to justify arriving at that figure.

In this regard, Mr. Mahmood Sasa Marín, coordinator of the OET study, mentioned at the hearing held in this action that, in his opinion, the major conclusions would not change with a longer timeframe and that: "the recommendation (…) was in the sense of having true support (…) obviously the more data we have the better, but I believe that the broad conclusions, let's say that proportion of roughly three to one, would hold." However, such a situation produces uncertainty and generates doubt, given that the consultant himself had previously stated: "that many of those groups (…) actually do not provide sufficient information, many of the taxonomic groups (…), many of the indicators if you will, (…) that timeframe was available, it was analyzed, that data is available and with that data we weave that conclusion." Hence, we consider that the 10-month timeframe for the execution of the study does not provide sufficient scientific certainty to ascertain the real conditions of the RBLB and the area proposed to compensate for its declassification (desafectación), which is unacceptable due to the impact on a protected area. In other words, if it is indicated that the timeframe for baseline studies must be at least two years (that is, a minimum is imposed) and there is no scientific or technical justification for reducing it, the reliability of the results is manifestly uncertain.

On the other hand, the aforementioned study initially aimed to analyze only two sites: "the Lomas Barbudal Biological Reserve (RBLB) and the potential exchange zone to compensate for the potential losses, located at the western end of the ASETREK Tres azul S.A. farm." Likewise, chapters II (Habitat Quality) and III (Community Composition) focus on comparing the conditions of the RBLB with the ASETREK Tres Azul S.A. farm. It was not until chapter IV (Considerations on Compensation) that the acquisition of a property called Brindis de Amor was proposed, based on these considerations:

"4.2. Other compensation alternatives.

Our evaluations reveal that the site selected in ASE TREK to compensate for the losses in the Lomas de Barbudal Biological Reserve possesses environments of lower biological quality. The compensation estimation method we have followed here 'penalizes' these lower-quality habitats by assigning them lower scores, which translates into a set-aside of a larger surface area to mitigate the deficit. The compensation proposal in ASETREK is that the portion of the property that has forest cover (cobertura boscosa) be segregated and annexed to the Biological Reserve.

However, this procedure in itself does not resolve the need to obtain habitat of quality comparable to the affected habitat, which is currently vulnerable and protected by the Biological Reserve. Thus, following the habitat-hectare method, our results suggest that it is possible to compensate for some of the losses in Lomas de Barbudal from a determined area of the habitat available in ASETREK; but it does not ensure the gain of all the elements or characteristics that will be affected by the reservoir. The best example is provided by the riparian forest cover that will be lost in RBLB and that has no counterpart in the environment available in ASETREK.

Another drawback is that ASETREK, despite containing the largest forested fragment adjacent to the Biological Reserve, does not have the number of hectares with forest cover necessary to cover the minimum 330 hectares requested by our analysis. Figure 46 shows the patches of deciduous and secondary forest available in the area with forest cover within ASETREK (sites 3 and 4). These forest covers correspond to 292 Ha, although to unite them, an area of approximately 444 Ha would need to be segregated. Moreover, because they are flammable and prone to the expansion of fires, the existence of pasture areas and non-forest use within the ASETREK property is considered a threat to the forest fragments that still remain on that property.

These considerations suggest that other compensation options should be analyzed as a complement to the contribution that annexing the ASETREK property to the Biological Reserve would make.

Northeast of the Lomas de Barbudal Biological Reserve, there are private properties with fragments of riparian and secondary forests. In fact, a quick examination reveals that near Quebrada Amores there are forested conditions that could be of protection interest. One of them is Brindis de Amor, a property of about 86 Ha that borders the Lomas de Barbudal Reserve and whose forest cover has been protected by its owner Carlos Jiménez for the last twenty years (Figure 47).

(…)

4.2.1. Brindis de Amor as a complement to the compensation Brindis De Amor possesses 15.87 Ha of riparian forest, 8.4 Ha of secondary forest, and 45.2 Ha of deciduous forest. The rest of the property is pastureland showing early stages of deciduous forest succession. The property is crossed by the Cabuyo River, which is permanent and is the same one that irrigates the adjacent Biological Reserve (Figure 48).

(…)

Based on these observations, the following are the arguments we consider justify the use of Brindis de Amor as part of the compensation to offset the losses in RBLB due to the project's effects.

1. The results of our study, both in habitat quality (sic) and in community composition, reveal the need to offset the loss in Lomas de Barbudal using at least 332 Ha of forested habitat. However, to achieve that number of hectares in ASETREK, it is necessary to include part of the deciduous forest on the eastern slope of the property, whose quality is inferior (due to having a steeper slope) to that of the west side. Furthermore, there is no fragment of mature-riparian forest, which undoubtedly constitutes a shortcoming in the compensation capacity of the ASETREK property evaluated in our study.

2. The Brindis de Amor property possesses 15.87 ha of mature-riparian forest. Although the analysis of the composition of this fragment was preliminary, our field observations indicate that it is constituted by evergreen species similar to those found in the same cover in RBLB and that it is comparable in basal area (Figure 49) to the fragment found at the potential flood site in Lomas de Barbudal. While it is true that the extent of riparian forest in Brindis de Amor is less than what would be lost in Lomas de Barbudal, it represents a significant fraction of what remains in the entire region. In fact, the area of riparian forest in Brindis de Amor represents 7.4% of the area covered by that type of forest within the Biological Reserve currently.

(…)

6.1. Final recommendations.

6.2. RECOMMENDATIONS ON THE COMPENSATION TO FOLLOW.

1. Compensation area in ASETREK. Both in terms of habitat quality attributes and aspects of species diversity and composition, our results demonstrate that the compensation site in ASETREK represents between 30% and 45% of the reference qualities, which translates into a compensation of 252 or 332 hectares (estimations taking into account species composition or the minimum possible habitat quality value, respectively). To unify criteria, our suggestion is that the estimate of 332 hectares be used as the measure of the area necessary to compensate for the loss due to the impact on the Biological Reserve.

2. Compensation must be carried out by additionally incorporating other properties and systems. An important consideration is that the quantity of hectares of the evaluated habitat required for our compensation estimates is not available in ASETREK. Furthermore, as mentioned in this report, said property does not have riparian forest for compensation. Thus, we recommend the incorporation of the Brindis de Amor property as part of the compensation. The proposal is summarized in Figure 51 and would contemplate the annexation of 530 Ha (444 Ha from ASETREK and 86 Ha from Brindis de Amor) to Lomas de Barbudal in compensation for the losses due to flooding in the terrestrial environment." In the above sense, the study also concluded:

"The procedure for compensation evaluation was designed to compare sites with the same type of habitat. However, in the present study, the heterogeneity found at the potential impact site in the Biological Reserve forced averaging the values assigned to each of the forest covers found for each indicator. An additional difficulty was that the riparian forest has no counterpart in ASETREK, so it was decided to assign a minimum value to this cover for each indicator." As observed, the OET recognized that the ASETREK Tres Azul S.A. property possesses environments of lower biological quality and that the compensation estimation method (habitat-hectare) did not ensure the gain of all the elements or characteristics that would be affected. In addition, it also expressly accepted that the proposal to acquire the property called Brindis de Amor (as a compensation complement) was made through a preliminary analysis.

In that sense, the coordinator of the OET study stated at the aforementioned hearing that, although, methodologically, the ASETREK property should be sufficient—since that difference in environmental quality had been "penalized"—in his own judgment, it was not. Furthermore, the mentioned professional admits that Brindis de Amor was evaluated through a series of vegetation samplings, but not of fauna. He adds that the study was preliminary, in the sense that it does not have the entire faunal component, and in that sense he asserted: "clearly it is different from what was done in ASETREK, yes." The foregoing allows us to conclude a priori that the study carried out for the compensation of the potential losses did not demonstrate the sufficiency or the ecological equivalence of the proposed area and that, without the same rigor or thoroughness, the incorporation of another property was recommended. It is sufficient to contrast the quantity of indicators (of habitat quality and diversity, including: geophysical attributes, landscape quality, vegetation structure, and ecosystem services; and of community composition, including: vascular plants, birdlife, mammals, herpetofauna, ichthyofauna, and diversity of understory insects) that were studied in the RBLB and in ASETREK, with the preliminary analysis carried out on Brindis de Amor. Note that the study itself stated that adding the Brindis de Amor property contravened the basic notions of reserve design by not contributing to the formation of a compact block, despite which it was recommended to add it to the compensation, without any additional formal recommendation or consideration.

Now, even with the above inclusion, the Technical Committee of the Arenal Tempisque Conservation Area, according to minute No. 5-2017 of the meeting held on June 30, 2017, concluded that the proposal was still insufficient: "The type of riparian forest cover is of utmost concern regarding the issue of scarce representativeness at the RBLB level. This cover is represented in only 8.0% (216.17 ha) of the total area of the RBLB. The studies determined that the riparian forest within the flood site in the reserve corresponds to 11.4% (24.64 ha) of the total area of that cover in the RBLB. The riparian forest area in the Brindis de Amor farm represents 7.40% (15.87 ha). This, added to the 2.2 ha of ASETREK, totals 18.07 ha of riparian forest as a compensation proposal. Presenting a difference of approximately 6.57 ha of riparian forest to compensate for this type of ecosystem." It even also recommended to the regional council: "1. Identify a riparian forest area that allows compensating for the missing hectares for this type of ecosystem. Since the studies determined that the riparian forest within the flood site in the Reserve corresponds to 11.4% (24.64 ha) of the total area of that cover in the RBLB, the riparian forest area in the Brindis de Amor farm represents 7.40% (15.87 ha). This, added to the 2.2 ha of ASETREK, totals 18.07 ha of riparian forest as a compensation proposal, meaning that approximately 6.57 ha of riparian forest would be missing to compensate for this type of ecosystem. According to the maps and knowledge of the site, there are other properties adjacent to the Lomas Barbudal Biological Reserve with those characteristics." In that sense, the Regional Council of the Arenal Tempisque Conservation Area (CORACAT), according to agreement No. 1 taken in the extraordinary session held on July 5, 2017, and subsequently, the National Council of Conservation Areas (CONAC), in extraordinary session No. 3 of July 11, 2017, considered that the sum of proposed areas of riparian forest was 18.07 hectares, that is, an area smaller than the fragment that would be lost at the flood site of the RBLB (24.71 hectares), for which they proposed the identification of an additional area for the compensation proposal that would include riparian forest and thus allow offsetting the missing hectares for this type of ecosystem; hence, after analyzing the proposals for possible compensation areas for the missing riparian forest and together with SINAC officials, it was considered to add a part of the Hacienda Ciruelas SP S.A. farm.

On this matter, CORACAT, in official communication No. SINAC-CORACAT-SE-041, stated: "There are some communications sent by SENARA, for example, SENARA-GG-0374-2017, SENARA-GG-0257-2017, and SENARA-INDER-172-2017, which indicate that within the ASETREK property there are 6.14 ha (sic) of riparian forest. However, this data is not mentioned in the study conducted by the OET, or supported by any study in this regard, with the same characteristics as the initial study. Regarding the Brindis de Amor farm, this Council also estimates that the studies were not conducted with the same depth of analysis as the initial study, nor in the sufficient time to technically support the quality of the components addressed from the beginning of the investigation. It is necessary to deepen the studies on this property or any other that is considered as a compensation proposal, so that this Council can issue a substantiated opinion." Furthermore, the final compensation proposal was defined in official communication No. SENARA-INDEP-441-2017 of July 17, 2017, in which it was established that to compensate for the declassified (desafectada) area and cover the missing riparian forest, 444.04 hectares of the ASETREK Tres Azul S.A. farm, the entirety of the Brindis de Amor Farm in Liberia S.A. with an area of 86.96 hectares, and an area of 40 hectares of the Hacienda Ciruelas SP S.A. farm would be included.

Thus, after analyzing official communication No. SENARA-INDEP-441-2017, it is observed that several properties were compared to propose the additional compensation area; however, a detailed analysis of the biological and geophysical characteristics of the Hacienda Ciruelas SP S.A. property was not carried out. Furthermore, although SENARA reported that in the processing of Law No. 9610, the document called “Compensation Proposal for the Lomas de Barbudal Biological Reserve” had been considered, in the section corresponding to the Hacienda Ciruelas property, it was also expressly recorded that only a “preliminary” analysis had been carried out on it.

In another order of ideas, there is no evidence in the file that any complete technical study existed to justify the decision to declassify (desafectar) the Lomas de Barbudal Biological Reserve for the purposes of issuing the questioned law. In this regard, Patricia Quirós, general manager of SENARA, was asked at the hearing: Was there any technical study that determined the need to declassify the Lomas de Barbudal Biological Reserve for the PAACUME Project, any technical study that said it is necessary to affect precisely that biological reserve so that the PAACUME project can be developed? Based on the above, she stated: “we carried out a direct contracting with ICE for the feasibility of the dam and the reservoir on the Piedras River, and according to the analysis that was carried out, it was determined that the only existing site for the construction of the reservoir is effectively on the Piedras River, because there is a depression there, a drop that allows that difference in level existing in the zone to make it possible to carry the water to the right bank of the Tempisque River. So, in the region, it is the only possible site to be able to build the reservoir and to be able to carry water to the right bank.” Then, before concluding the hearing, she was consulted on the following: "you mention that there is a technical study that justified the declassification (desafectación) of the Lomas de Barbudal Biological Reserve and determined the construction of the reservoir in that place to be necessary, specifically, which study are you referring to and can you submit it to the file? In that sense, she replied: “the technical study I am referring to is the study specifically carried out by the OET; when the query is made, I refer to the fact that the study carried out by ICE refers specifically to the engineering study, the feasibility study for the dam and the reservoir.” Similarly, she was cross-examined: “you indicate that there was a study that said that only by affecting the Lomas de Barbudal Biological Reserve could the project be carried out; is that study the ICE one then?” To which, she responded: “No, there is a feasibility study that SENARA carried out for the entire project, where that situation is established.” She also stated that she would submit a copy of such study to the file.

In relation to the above, after reviewing the OET study, it is observed that it did not properly analyze the need to declassify (desafectar) the RBLB for the construction of the reservoir, but rather it merely constitutes a study to establish the Biodiversity Baseline of the zone to be declassified and the potential compensation site. Likewise, the Feasibility Study that SENARA provided after the hearing expressly records that it is from October 2018, a time by which the bill had even already been approved in a second debate (extraordinary plenary session No. 11 of September 6, 2018), so it could not even have been the subject of discussion in the Legislative Assembly. Hence, even if this feasibility study had developed the need to declassify the RBLB, chronologically it could not have served as a basis for such purpose, for the purposes of the questioned law.

Now, it is not superfluous to clarify that the study referring to the declassification (desafectación) of protected areas is not exclusive of the Environmental Impact Assessment (Estudio de Impacto Ambiental) to which the PAACUME project must be submitted in its entirety. Precisely, before SETENA, the various direct or indirect impacts of the project on the surrounding areas can be analyzed, as well as the possible violation of the UNESCO Convention for the Protection of the World Cultural and Natural Heritage and the possible effects of the PAACUME project on the site declared as a World Heritage Site in the Guanacaste Conservation Area. In this latter case, if the Environmental Impact Assessment establishes measures for mitigation and prevention of impacts within the protected wild area or its surroundings, the corresponding provisions must be taken to meet those requirements.

In conclusion, since a study on the Lomas del Barbudal Biological Reserve and on the ASETREK Tres Azul S.A. property was carried out for a period less than that recommended by the Organization for Tropical Studies itself, there is no scientific or technical certainty regarding the results obtained. Furthermore, the study failed to demonstrate convincingly and in a substantiated manner that the ASETREK Tres Azul S.A. property, as a compensation proposal, was equivalent to the declassified (desafectada) zone from an environmental point of view, as the study specifically mentioned that the habitat was not comparable, there was no correspondence with the reserve's environment (the greatest example of this is the detected deficiency in riparian forest), and the gain of all the elements or characteristics affected by the reservoir was not ensured. The foregoing is relevant, since the OET study itself, in the conclusions on the impact site and its compensation, stated that the RBLB is one of the few state wild areas that protect natural resources in the Tropical Dry Forest life zone of our country and that, given such a significant impact with the direct effect of the project, environmental compensation became an indispensable measure. In addition, as only a preliminary analysis was carried out in the case of the Brindis de Amor property, we consider that the Chamber a priori cannot even consider it, since to declassify a biological reserve and propose the respective compensation, at least complete and sufficient studies must be conducted. The foregoing reasoning applies with even more force to the Hacienda Ciruelas property, which was not even included in the OET study and regarding which the analysis carried out was also preliminary. In this sense, we consider that a preliminary study can never be sufficient to support a decision with environmental implications of this magnitude, as is the case in the sub lite. Finally, it is not observed that the questioned law was supported by any scientific and technical study regarding the justification of the need to declassify the RBLB, since the OET report did not cover that aspect and the PAACUME feasibility study prepared by SENARA was, in any case, dated after the approval of that normative body.

Allowing the declassification (desafectación) of a biological reserve based on this OET study (clearly insufficient as stated supra), on other analyses of a preliminary nature, and on a feasibility study that could not even be discussed in the legislative process, signifies a serious setback for environmental protection, formerly widely recognized by this Constitutional Chamber. Such a setback is even more regrettable in light of the recent evolution of the jurisprudence of the Inter-American Court of Human Rights, which, in a judgment of February 6, 2020 (Indigenous Communities members of the Lhaka Honhat Association (Our Land) Vs. Argentina), fully incorporates Advisory Opinion OC-23/17 of November 15, 2017, thus turning the legal considerations of the latter into binding jurisprudence for countries subject to the jurisdiction of that international court. In that sense, the Inter-American Court highlights that "in environmental law, the principle of prevention is applicable to activities carried out in the territory or under the jurisdiction of a State that cause damage to the environment of another State, or to damage that may occur in areas that are not part of the territory of any particular State, such as the high seas." Precisely, the Inter-American Court recalls that the "International Court of Justice has indicated that the obligation of prevention arises when there is a risk of significant damage. According to said tribunal, the significant nature of a risk can be determined by taking into account the nature and magnitude of the project and the context where it will be carried out." Consistent with this perspective, the Inter-American Court highlights, as an essential element of the human right to a healthy and ecologically balanced environment, the duty of regulation, from which, given "the relationship between environmental protection and human rights (supra paras. 47 to 55) States must regulate this matter and adopt other similar measures to prevent significant damage to the environment." (Emphasis not in original).

In order to ensure the foregoing, the requirement for sufficient prior technical studies for the approval of legislative projects that impact the environment, applied by constitutional jurisprudence in the usual manner in obedience to the principle of objectivization of environmental protection (principio de objetivación de la tutela ambiental), clearly constitutes one of those adequate “similar measures,” which rises to the hierarchical level of a demand under international human rights law, thanks to the jurisprudence of the Inter-American Court of Human Rights.

For the reasons set forth, a violation of Article 50 of the Political Constitution is established, as well as of the precautionary principle (principio precautorio) (due to doubt about the real conditions of the RBLB and the compensation proposal generated by the deficiencies detected in the OET study, as well as the lack of certainty that a healthy and ecologically balanced environment will not be harmed), the principle of non-regression in environmental matters (principio de no regresión en material ambiental) (as it was not proven that the proposed compensation was at least equivalent to the removal of protection), the principle of lifetime tenure (principio de irreductibilidad) (by reducing a biological reserve without meeting the respective constitutional requirements), and the principle of objectivization of environmental protection (by using merely preliminary studies to support compensation proposals and because the challenged law is not supported by technical and scientific studies (prior, sufficient, necessary, and individualized) that justify the reduction of the protected area).

Fernando Cruz C. Paul Rueda L.

CO12/20 ... See more Content of Interest:

Content Type: Dissenting Vote Branch of Law: 3. CONSTITUTIONALITY CONTROL MATTERS Topic: ENVIRONMENT Subtopics:

NOT APPLICABLE.

Res. No. 2020-0013836 DISSENTING VOTE OF MAGISTRATE GARRO VARGAS

I. Preliminary Considerations

II. Grievances of the Plaintiffs Under Examination in This Vote

III. Jurisprudential Framework. The Technical Justification of Laws on Environmental Matters

IV. On the Removal of Protection (desafectación) from a Protected Area

A. Normative and Jurisprudential Framework on the Removal of Protection from Protected Areas B. Analysis of the Technical Justification for the Challenged Removal of Protection 1. Environmental Importance of the Lomas de Barbudal Biological Reserve 2. Examination of the Existence of Technical Studies on the Removal of Protection a. Statement of Motives for the Challenged Law b. Reports from SENARA and the Regional Council of the Conservation Area 3. The Report of the Attorney General's Office (Procuraduría General de la República) C. Conclusions on This Point

V. On the Compensation Studies

A. Grievances Raised by the Plaintiffs B. The International Obligation to Conduct Compensation Studies C. Reports from Authorities Contained in This Case File 1. Report of the Attorney General's Office 2. Report of the President of the Board of Directors of the Legislative Assembly 3. Report of the National Service for Groundwater, Irrigation, and Drainage (Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento) 4. Organization for Tropical Studies D. Conclusions on This Point

VI. Conclusions

Preliminary Considerations As a Costa Rican and as a Magistrate of this Chamber, I share the concern about the extremely serious problem of access to water resources suffered by a significant area of the province of Guanacaste. I understand that the law challenged here intends to be a means to solve it. However, to my great regret, I cannot fail to note that it contains serious constitutional defects. Therefore, based on the arguments I will explain, I have decided to dissent from the vote regarding the alleged injury to the right to a healthy environment and to declare the action admissible for violation of the precautionary (principio precautorio), non-regression in environmental matters, lifetime tenure (irreductibilidad), and objectivization of environmental protection (objetivación de la tutela ambiental) principles.

Grievances of the Plaintiffs Under Examination in This Vote For the foregoing, in this dissenting vote I will refer only to the grievances related to environmental issues. On the one hand, to the legislative decision to remove protection from 113 hectares of the Lomas Barbudal Biological Reserve (RBLB) without any removal-of-protection (desafectación) study to justify it and, on the other, to the purported justification of the reduction of that reserve through a compensation study that is incomplete and biased.

To analyze both points, it is necessary beforehand to specify what the jurisprudential line of this Chamber has been regarding the justification of legislative projects related to environmental matters. Thus, once each of the grievances has been examined, it will be possible to arrive at duly substantiated conclusions.

Jurisprudential Framework. The Technical Justification of Laws on Environmental Matters In the exercise of its legislative power, the Parliament is bound by the Constitution and by the treaties duly incorporated into our legal system. Furthermore, the legislative function – not only the administrative function of the State – has a limit: the content established in Article 16 of the General Law of Public Administration (LGAP):

"In no case may acts be issued contrary to unequivocal rules of science or technique, or to elementary principles of justice, logic, or convenience." That norm embodies the principle of the prohibition of arbitrariness (interdicción de la arbitrariedad), which is an essential statement of the Rule of Law, and which implies a prohibition on making decisions lacking a basis. When examining the origin of this principle, this Chamber stated:

"It was conceived by the German jurist Leibholz in 1928 as a criterion for weighing respect for the principle of equality by the legislator. According to this formulation, the principle of the prohibition of arbitrariness implies the prohibition of arbitrariness, that is, of any difference lacking a sufficient and just reason. The principle is taken up by Spanish doctrine, specifically, by García de Enterría at the end of the 1950s (1959) with a broader meaning – not limited to the principle of equality – than that proposed by Leibholz. Subsequently, the principle with that broader meaning was adopted by the Spanish Constitution of 1978 in its Article 9.3, at the proposal of Senator Lorenzo Martín-Retortillo, who justified his initiative on the need to have the principle of the prohibition of arbitrariness as a technique or mechanism for control or oversight of public powers inherent to the Rule of Law." (Judgment 11155-2007).

In a previous judgment, the Chamber had already clarified that, although it is located in the LGAP, its origin and ultimate foundation lie in Article 11 of the Political Constitution, which states:

"Public officials are mere depositaries of authority. They are obligated to fulfill the duties that the law imposes on them and cannot arrogate to themselves powers not granted therein" (see Judgment 2004-14421).

That is, it is a principle that, although formally expressed at the legal level, has materially constitutional content and governs the exercise of public functions in their entirety. Therefore, it is possible to conclude that this principle also applies to parliamentary work. In this sense, the Chamber in Judgment 2003-5090 expressly stated the following:

"The freedom of legislative configuration is not unrestricted, since its limit is the Law of the Constitution, that is, the block of constitutionality formed by constitutional precepts and customs, values and principles – among which proportionality, prohibition of arbitrariness, non-discrimination, due process, and defense stand out – of that nature, and the jurisprudence handed down by this Court for similar cases." (Emphasis not from the original).

Precisely, this Court has established as a jurisprudential line that the principle of the prohibition of arbitrariness requires that decisions that impact the environment be properly supported by technical and scientific criteria. From this, the principle of objectivization of environmental protection (objetivación de la tutela ambiental), or principle of linkage to science and technique, has emerged.

This principle was introduced into the jurisprudential line of this Chamber starting with Judgment 2005-14293, in which it was stated:

"[The] environmental principle 'of linkage to science and technique' that governs environmental matters, insofar as administrative decisions that may have an impact on the environment require technical support backing them, and in such condition, limit and condition the discretion of the Administration in its actions." This was expanded upon in Judgment 2006-17126, which stated that this principle translates into the need to substantiate decision-making in this matter with technical studies, in relation to both acts and provisions of a general nature – both legal and regulatory. It is understood that the requirement of “linkage to science and technique” conditions the discretion not only of the Administration but of the legislator himself.

All of the foregoing was taken up in Judgment 2012-12716, in which the following considerations were made:

"The Chamber adopts as its own the opinion that the Attorney General's Office has provided on the case, in the sense that, as a constitutional principle conditioning the State's action in environmental protection, the principle of objectivization of environmental protection (principio de la objetivación de la tutela ambiental), or principle of linkage to science and technique, is recognized:

'this translates into the need to substantiate decision-making in this matter with technical studies, both in relation to acts and provisions of a general nature – both legal and regulatory – from which the requirement of "linkage to science and technique" is derived, thereby conditioning the Administration's discretion in this matter.' (Resolution No. 17126-2006).

'environmental principle "of linkage to science and technique" that governs environmental matters, insofar as administrative decisions that may have an impact on the environment require technical support backing them, and in such condition, limit and condition the discretion of the Administration in its actions.' (Vote No. 14293-2005 reiterated by No. 11562-2006).

'It starts from the principle that environmental norms must have technical support, as their application must be based on limits that determine the conditions under which the use and exploitation of natural resources must be subject.' (Vote No. 6322-2003).

In turn, it is related to the principle of reasonability as a parameter of constitutionality:

'The principle of reasonability, in relation to the fundamental right to the environment, obligates that the norms issued regarding this matter be duly motivated by serious technical studies, even if there were no other legal norms expressly establishing this.' (Vote No. 7294-1998, emphasis ours).

"Thus, the application of this environmental principle is directly linked to a parameter of constitutionality for conduct – administrative and private – and for the norms governing the matter, such as reasonability – according to the development of our Constitutional Court's jurisprudence – insofar as its purpose is to tend toward sustainability in the use of natural resources and the elements that make up the environment, through their 'appropriate use'; and by virtue of which it is clear that environmental protection must be directed toward the adequate and intelligent use of its elements and in their natural, sociocultural, technological, and political relationships, in order to thereby safeguard the heritage to which present and future generations have a right; insofar as through the production and use of technology it must be promoted that not only economic gains (freedom of enterprise) are obtained but above all a favorable development and evolution of the environment and natural resources with the human being, that is, without causing them damage or harm, as our Constitutional Court has considered, in its extensive jurisprudence, including from its origins, thus in the aforementioned judgments number 3705-93 and number 2006-17126." (Vote No. 2410-2007).

And it also maintains a close relationship with the principle of the prohibition of arbitrariness:

'Arbitrary action is that which is contrary to justice, reason, or the laws, which obeys the mere whim or will of the public agent. The prohibition of arbitrariness condemns the lack of objective legal support or foundation for administrative conduct and, consequently, the violation of the material order of the principles and values inherent to the Rule of Law. (…) Regarding the application of the principle of the prohibition of arbitrariness in the scope of regulatory power, it must be indicated that, as this is naturally discretionary, the prohibitive principle of arbitrariness plays a role of the first order.' (Emphasis corresponds to the original judgment).

From this resolution, it is fitting to highlight the precedent it invokes:

"The principle of reasonability, in relation to the fundamental right to the environment, obligates that the norms issued regarding this matter be duly motivated by serious technical studies, even if there were no other legal norms expressly establishing this." (Emphasis corresponds to the original judgment).

It is evident that the principles of objectivization of environmental protection (objetivación de la tutela ambiental) or linkage to science and technique, as well as the prohibition of arbitrariness (interdicción de la arbitrariedad), are mandatory for the Legislative Assembly in the processing of legislative projects, because otherwise the principle of reasonability as a parameter of constitutionality would be violated.

On the Removal of Protection (desafectación) from a Protected Area The challenged law establishes a removal of protection (desafectación) from the Lomas Barbudal Biological Reserve (RBLB). This reserve has an absolute level of protection, similar to that of a national park. Through the removal of protection, it is sought to change its use in order to proceed to flood that large amount of land, to eventually carry out the water supply project called Paacume. The plaintiffs point out that there is no study regarding the removal of protection and, in subsequent statements, such as those made in the oral hearing, they insisted that the authorities involved, specifically, the National Service for Groundwater, Irrigation, and Drainage (SENARA), have a feasibility study on the construction of the dam on the Río Piedras, executed by the Costa Rican Electricity Institute (ICE). They argue that this is not the study required by environmental regulations to determine whether the removal of protection from a protected wilderness area is justified and that, furthermore, it was not presented in the legislative file.

To analyze this point, it is absolutely necessary to specify the applicable regulations and jurisprudence.

Normative and Jurisprudential Framework on the Removal of Protection (desafectación) from Protected Areas The Organic Law of the Environment, in this regard, states the following:

"Article 38.- Reduction of protected wilderness areas. The surface area of protected wilderness areas, natural heritage of the State, whatever their management category, may only be reduced by Law of the Republic, after conducting the technical studies that justify this measure." (Emphasis not from the original).

That is, it establishes that prior to the removal of protection from a protected area, technical studies must be carried out that justify that decision.

For its part, this Court has established a solid doctrine on this matter, that is, namely, the need to have technical studies that justify a decision to remove protection from an area that was previously declared a protected area. Thus, in Judgment 7294-1998, the Constitutional Chamber declared the action admissible in which the modification of the boundaries of the Tivives protected zone was questioned. That resolution considered the following:

"From the transcribed judgment, it is clear that once a certain area has been declared a protected zone by an act of the State, the latter cannot simply remove its protection, in whole or in part, to protect other interests – public or private – to the detriment of the enjoyment of a healthy environment, in accordance with the provisions of Article 50 of the Constitution. That said, the fact that a norm, of whatever rank, has declared an area a protected zone does not imply the constitution of an immutable zone, in the sense that its area can in no way be reduced by subsequent regulations. However, it must be kept in mind that the declaration and delimitation of a protected zone, in compliance with the provisions of Article 50 of the Constitution, implies a defense of the fundamental right to the environment and, therefore, the reduction of its area must not imply a detriment to that right, a situation that must be established in each specific case." "In accordance with the transcribed provisions, and taking into consideration the specific case submitted for ruling, the Legislative Assembly cannot validly approve the reduction of the surface area of a protected zone without first having a technical study that justifies its decision. Such action becomes contrary to the Political Constitution for violation of the constitutional principle in relation to Article 121, subsection 1), and 129 of the Political Charter. On this topic, there is a precedent from the Chamber that is pertinent, both due to the similarity of the invoked infraction and because it deals with a hypothesis in which the non-observance of certain requirements results in the [violation] of norms or substantial principles of constitutional rank." (Emphasis not from the original). (See, similarly, Votes 1999-02988, 2008-008075).

Subsequently, in Judgment 2012-013367, this Chamber stated:

"It is evident that these two requirements are in absolute conformity with the fundamental right to a healthy and ecologically balanced environment. Firstly, in this matter, the legal regime requires that any restriction or limitation of the right must be imposed by law; conversely, any benefit or expansion of the right's protection may be established by infra-legal norms. Secondly, the requirement for prior technical studies responds to the principle of subjection of environment-related decisions to criteria of science and technique, in order to protect the ecological balance of the system and the healthiness of the environment. In this sense, the requirement for technical studies that justify the approval of legislative projects aimed at the reduction or removal of protection from an environmentally protected area must be satisfied prior to or during the development of the legislative procedure. Furthermore, the requirement for technical studies is not a mere formality but rather a material requirement; that is, it must materially demonstrate, through individualized scientific analysis, the degree of impact of the corresponding measure on the environment, propose recommendations aimed at lessening the negative impact on it, and demonstrate how such a measure implies development that meets the needs of the present without compromising the ability of future generations to meet their own needs." In that judgment, the Chamber also developed the principle of progressivity and non-regression in matters of environmental protection. According to this Court, from the principle of progressivity of human rights and the principle of non-retroactivity of norms to the detriment of acquired rights and consolidated legal situations, enshrined in Article 34 of the Political Constitution, the principle of non-regressivity or irreversibility of achieved benefits or protection is derived. The Chamber considered that this principle stands as a substantive guarantee of rights, in this case, the right to a healthy and ecologically balanced environment, by virtue of which the State is obliged not to adopt measures, policies, or approve legal norms that worsen, without reasonable and proportionate justification, the situation of the rights achieved thus far. This principle does not imply absolute irreversibility, as all States may be subject to circumstances of an economic, political, social, or climatic nature that could force them to reconsider the obligation to maintain the achieved levels of protection. In such cases, the reduction of protection levels must be justified in light of the constitutional parameters of reasonability and proportionality. In consideration of these principles, the Chamber stated the following:

"Consequently, in application of these two principles, the Constitutional Chamber has established that it is constitutionally valid to expand the physical extension of protection areas by executive decree (principle of progressivity); however, the reduction can only be done by law and after conducting a technical study adjusted to the principles of reasonability and proportionality, to the demands of ecological balance and a healthy environment, and to the general welfare of the population, which serves to justify the measure. A right is only as strong as its guarantees, which is why a violation of these principles occurs when the technical study fails to meet the required constitutional and technical exigencies. If such a guarantee is violated, the fundamental right protected by the guarantee will also be violated, and it is to that extent that the reduction of protected areas would be unconstitutional." (Emphasis not from the original).

These constitutional principles are binding on the legislator. The Chamber so concluded by stating the following:

"Within the framework of the Constitution, the legislator has the power and competence to reduce the physical dimensions of environmentally protected areas. However, based on Article 50 of the Constitution, legislative decisions in this matter must respect the unequivocal rules of science and technique, in order to guarantee a 'healthy' and 'ecologically balanced' environment and the 'greatest well-being of all inhabitants'. The technical study required by Article 38 of the Organic Law of the Environment must respond to these purposes, for which formal compliance is not sufficient because it is a material requirement; that is, it must materially demonstrate, through a technical and individualized analysis, the degree of impact of the corresponding measure on the environment, propose recommendations aimed at lessening the negative impact on it, and demonstrate how such a measure implies development that meets the needs of the present without compromising the ability of future generations to meet their own needs." (Emphasis not from the original).

Subsequently, this Court added that for the removal of protection from protected areas, in addition to the concrete and particularized technical studies required by Article 38 of the Organic Law of the Environment, compensation measures are required in order to safeguard the fundamental right to a healthy and ecologically balanced environment. In Judgment 2019-663, the Chamber combined its jurisprudential lines and pointed out the following:

"1. Constitutional requirements for the reduction of a protected wilderness area (legal reserve and technical studies): In support of Article 38 of the Organic Law of the Environment ('the surface area of protected wilderness areas, natural heritage of the State, whatever their management category, may only be reduced by Law of the Republic, after conducting the technical studies that justify this measure'), there has been a solid jurisprudential line, in the sense that for the reduction of a protected wilderness area, in any of its management categories (including national wildlife refuges), two essential requirements must be met: 'by means of law and after conducting sufficient technical studies that justify the measure.' (Constitutional Chamber, votes numbers 13367-2012 and 010158-2013. Similarly, judgments numbers 7294-1998, 11155-2007, 1056-2009, 18702-2010 and 14772-2010, among others). As stated in the aforementioned resolution of 1998:

"'(…) once a certain area has been declared a protected zone by an act of the State, it cannot simply remove its protection, in whole or in part, to protect other interests – public or private – to the detriment of the enjoyment of a healthy environment, in accordance with the provisions of Article 50 of the Constitution. That said, the fact that a norm, of whatever rank, has declared a certain area a protected zone does not imply the constitution of an immutable zone, in the sense that its area can in no way be reduced by subsequent regulations. However, it must be kept in mind that the declaration and delimitation of a protected zone, in compliance with the provisions of Article 50 of the Constitution, implies a defense of the fundamental right to the environment and, therefore, the reduction of its area must not imply a detriment to that right, a situation that must be established in each specific case. The fact that a later law reduces the area of a protected zone, a forest reserve, a National Park, or any other site of environmental interest is not necessarily unconstitutional, provided that it is justified insofar as it does not imply a violation of the right to the environment. It could be that, due to various circumstances, a particular site has lost, at least in part, the environmental interest that once prompted its protection, which, having conducted the relevant studies, would justify its modification or reduction, all in application of the principle of constitutional reasonability…" (Vote No. 7294-1998).

Specifically on the legal reserve in this matter, Vote No. 14772-2010 stated:

(…) the public purpose of a public domain asset cannot be modified without a legislative act; that is, the area reduction of a protected zone falls under the guarantee provided by the principle of legal reserve (reserva de ley). Although, in accordance with Article 36 of the Organic Law of the Environment, the Executive Branch is authorized to establish Protected Wilderness Areas by complying with the requirements set forth in that norm, thus, Corcovado National Park was established through Executive Decrees No. 5357-A of October 24, 1975, and 1148-A of February 5, 1980, its modification may only be made in accordance with the provisions of Article 38 of the Organic Law of the Environment, after prior technical and scientific studies, and through a legislative act.'" Likewise, in Judgment No. 1056-2009, it was indicated that reduction is only possible via law:

"when it comes to the expansion of the limits of protective zones of the State's forest heritage, it is possible to do so via regulations, but when it comes to their reduction, it can only be done via law, of course, provided there is a prior criterion that justifies the measure." (Judgment of the Constitutional Chamber No. 1056-2009)" This was applied when the Chamber declared unconstitutional the regulatory norm (Executive Decree No. 32753-MINAE) through which the Executive Branch reduced the territory of the Gandoca-Manzanillo Refuge, removing the urban area of the Refuge from the area and the protection regime.

Furthermore, regarding the studies, these must be prior, sufficient, necessary, and individualized – as indicated in the following section. This was stated in that same 1998 resolution:

"In accordance with the foregoing, mutatis mutandis, if for the creation of a protected wilderness area the Legislative Assembly, by means of a law, established the fulfillment of specific requirements, in order to determine if the land-use restriction (afectación) in question is justified, it stands to reason that, for its partial or total removal of protection (desafectación), certain requirements must also be met – such as conducting environmental technical studies – to determine that the removal of protection does not violate the content of Article 50 of the Constitution. In this sense, we can speak of levels of removal of protection. Thus, not every removal of protection from a protected zone is unconstitutional, insofar as it implies a detriment to the right to the environment or a threat to it. Hence, to reduce any protected wilderness area, the Legislative Assembly must do so based on sufficient and necessary technical studies to determine that no damage will be caused to the environment or that it will not be placed in danger and, therefore, that the content of Article 50 of the Constitution is not violated. The principle of reasonability, in relation to the fundamental right to the environment, obligates that the norms issued regarding this matter be duly motivated by serious technical studies, even if there were no other legal norms expressly establishing this. In the opinion of this Constitutional Court, the requirement contained in Article 38 of the Organic Law of the Environment No. 7554, in the sense that to reduce a protected wilderness area by formal law, prior technical studies must be conducted to justify the measure, is nothing other than the objectivization of the principle of reasonability in matters of environmental protection." 2.

Technical study as a scientific and individualized analysis: The Chamber has referred to the sufficiency of the technical study, when through several rulings it has established that said study must be a scientific and individualized analysis. The following was stated:

“the requirement of technical studies is not a mere formality, but rather a material requirement, that is, it must be materially demonstrated, through a scientific and individualized analysis, the degree of impact of the corresponding measure on the environment, put forward recommendations aimed at lessening the negative impact on it, and demonstrate how such measure implies development that meets the needs of the present without endangering the ability of future generations to meet their own needs.” (Voto No. 13367-2012. See also No. 10158-2013).

From which it follows that, the technical study required by article 38 of the Organic Law of the Environment and which is the objectification of the constitutional principle of reasonableness in environmental protection matters, requires a technical analysis that entails an individualized analysis, which must contain at least the following measures:

• The degree of impact of the corresponding measure on the environment; • The recommendations aimed at lessening the negative impact on the environment; • The demonstration of how the measure being taken implies development that meets the needs of the present without endangering the ability of future generations to meet their own needs.

In summary, said prior study must demonstrate that the removal of protection (desafectación) is in accordance with the constitutional protection of the right to the environment, since as stated in ruling no. 18702-2010 “the titling of areas of this nature cannot be permitted indiscriminately, as this would go against the very conservationist environmental policies that the State has pursued by virtue of the duties mandated by the Political Constitution and the International Conventions it has signed.” 3. Compensation measures: A protected area can only be reduced if it is done by law, if there are technical and scientific studies that rule out environmental damage, and if compensation is provided for the suppressed area with another of equal size. There is no doubt that all those regulations in which there is a reduction of protected areas without the support of technical studies or any compensation are unconstitutional” (ruling Nos. 12887-2014, 2773-2014, 2012-13367 and 2009-1056).” (The highlighting is not from the original).

The foregoing was reiterated in judgment 2019-012745 in which the Chamber's position was summarized as follows:

“Based on the foregoing, a protected area can only be reduced if it is done by Law, if there are technical and scientific studies that rule out environmental damage, and if compensation is provided for the suppressed area with another of equal size or to the extent possible.” From these jurisprudential lines, the principle of lifetime tenure (irreductibilidad) of protected wild areas is evidenced, according to which, it is not legitimate to reduce these protected spaces unless, concurrently, both the provisions of article 38 of the Organic Law of the Environment and the principles consolidated in the jurisprudence of this Court are met, namely, the principle of non-regression in environmental matters, the objectification of environmental protection, and the precautionary principle.

Analysis of the technical justification for the challenged removal of protection In the following sections, an attempt will be made to calibrate the importance of the removal of protection approved by the law challenged here and to verify the omission of the technical studies that justified that measure.

1. Environmental importance of the Lomas de Barbudal Biological Reserve To contextualize the analysis of the issue, it is pertinent to explain that the area whose protection was removed belongs to the RBLB, which was created by Executive Decree No. 16849-MAG of January 23, 1986. The importance of this specific reserve stems from the fact that it is practically the only one safeguarding tropical dry forest (bosque seco tropical) environments and their biological diversity, featuring unique fauna types in the country and containing dry savannas not included in another conservation unit. This is evident from the recitals of the decree in question, which state the following:

“1°.—That it is an essential function of the State to ensure the conservation, protection, administration, and promotion of the country's natural resources.

2°.—That the Lomas Barbudal zone, in the province of Guanacaste, conserves very valuable samples of the flora and fauna of the lowland wooded dry savanna (sabana seca arbolada de bajura), the lowland riparian forest (bosque ripario de tierras bajas), and the lowland deciduous forest (bosque caducifolio de tierras bajas), which in the past covered extensive areas of that province.

3°.—That this zone contains at least 10 springs (nacientes) and part of the Cabuyo River basin, important for the agricultural and livestock production of the region, 4°.—That the soil type of Lomas Barbudal does not present conditions for sustained agricultural development but that, from the research and tourism point of view, the area is important for presenting a unique entomological fauna and for containing dry savannas that are not found protected in another conservation unit”. (The highlighting is not from the original).

The decree under analysis established that the area in question would, from that moment on, be a biological reserve, which is one of the categories of protected wild areas (áreas silvestres protegidas), specifically established in subsection d) of article 32 of the Organic Law of the Environment. Likewise, by application of numerals 13 and 14 of the current Forestry Law, it is part of the natural heritage of the State (patrimonio natural del Estado, PNE). The latter characterizes these properties as public domain assets:

“Article 14.- Unseizable and inalienable condition of the natural heritage.

The forest lands and forests that constitute the natural heritage of the State, detailed in the preceding article, shall be unseizable and inalienable; their possession by private parties shall not create any right in their favor, and the State's action to recover these lands is imprescriptible. Consequently, they cannot be registered in the Public Registry by means of possessory information, and both the invasion and occupation thereof shall be sanctioned in accordance with the provisions of this law”.

The Biodiversity Law defines protected wild areas as follows:

“Article 58. Protected wild areas Protected wild areas are delimited geographic zones, constituted by lands, wetlands, and portions of the sea. They have been declared as such for representing special significance due to their ecosystems, the existence of threatened species, their impact on reproduction and other needs, and for their historical and cultural significance. These areas shall be dedicated to conservation and protecting biodiversity, soil, water resources, cultural resources, and ecosystem services in general. The objectives, classification, requirements, and mechanisms for establishing or reducing these areas are determined in the Organic Law of the Environment, No. 7554, of October 4, 1995. The prohibitions affecting natural and legal persons within national parks and biological reserves are determined in the Law for the Creation of the National Parks Service, No. 6084, of August 24, 1977. During the process of fulfilling requirements to establish state protected wild areas, the respective technical reports must include the pertinent recommendations and justifications to determine the most appropriate management category to which the proposed area must be subjected. In any case, the establishment of areas and categories shall take into great account the rights previously acquired by indigenous or peasant populations and other natural or legal persons, underlying or adjacent to it”. (The highlighting does not correspond to the original).

The regulation to the Biodiversity Law, No. 34433 defines biological reserves and establishes the technical management category as follows:

“Article 70 (…) d). Geographic areas that possess terrestrial, marine, marine-coastal, freshwater ecosystems, or a combination of these, and species of particular interest for conservation. Their main purposes shall be the conservation and protection of biodiversity, as well as research”.

Consequently, they have a very limited management category, as only conservation, protection, and research are permitted.

It is necessary to highlight that the RBLB is not properly a wetland, but, as the authorities reported, it does form part of the Palo Verde Ramsar site, that is, it forms part of a wetland of international importance (Ramsar site).

As is known, the Convention on Wetlands of International Importance, especially as Waterfowl Habitat (known in abbreviated form as the Ramsar Convention, duly approved by Law No. 7224) states that wetlands of international importance must maintain their designation and initial extension, and only in truly exceptional circumstances should changing them be considered (articles 2 and 4 of the Convention cited infra). And, furthermore, when Ramsar sites are defined, not only are the ecosystems considered by themselves, but also the existing interrelationships that impact the wetlands.

The Palo Verde National Park was created by Executive Decree No. 11541 of May 30, 1980, whose recitals recorded the following:

“1°—That the zone comprising the Catalina ridge, the Pedregosa ridge, the Bocana hill, the El Roble hill, and the Alvarado hill, in Guanacaste, is one of the last in the entire province that conserves tropical dry forests (bosques secos tropicales), an ecological formation very scarce in the country.

2°—That the Nicaragua, El Roble, Los Aromos, and Corralillos lagoons, and the sites El Tieso, Piñuela, Cristina, and others, constitute places of particular importance for the conservation of migratory and resident birds, and are at the same time the richest areas in avifauna in the country.

3°—That the zone in general is particularly diverse in wildlife, and is one of the last refuges for animals that still exist without protection in the province of Guanacaste.

4°—That there are also several ecosystems of great diversity and richness of floristic species, such as the forests on calcareous deposits, the herbaceous lagoons, the mixed lowland forests, and the palo verde forests on vertisols”.

This was ratified by Law No. 6794 of August 25, 1982, “Law for the Creation of National Parks and Biological Reserves. Ratifies as Laws Decrees Creating National Parks and Biological Reserves”. Subsequently, by Executive Decree 27345-MINAE, “Establishes Active Management for Palo Verde National Park in its Wetlands and Pasture Areas and Creates Advisory Committee”, it was highlighted, in its recitals, the following:

“III.—That among the fundamental objectives of Palo Verde National Park is to protect, manage, conserve, and restore both wetland and tropical dry forest Ecosystems, to maintain the diversity and populations of wildlife.

IV.—That the Convention on Wetlands of International Importance, known as the Ramsar Convention, was ratified by Costa Rica by Law 7224 of April 2, 1991, and that as an international legal instrument, it has a value superior to the Law. That Costa Rica, as a contracting party, must promote the conservation of wetlands and waterfowl, creating natural wetland reserves and adequately attending to their management and care. Likewise, it commits to promote research and the exchange of data concerning wetlands in order to favor conditions to increase waterfowl populations”. (The highlighting is not from the original).

Furthermore, the General Management Plan of Palo Verde National Park, of the National System of Conservation Areas (Sistema Nacional de Áreas de Conservación), clearly establishes the inclusion of the RBLB within Palo Verde National Park (see Agreement No. 20 of Ordinary Session No. 03-2016 of March 28, 2016, issued by the National Council of Conservation Areas, available on the page of the Costa Rican Legal Information System – SCIJ).

By Executive Decree No. 39786-MINAE of April 22, 2016, the management, conservation, and rehabilitation activities of this park were declared of public and national interest:

“Article 3.- Declaration of Public Interest. The active management activities for the conservation and rehabilitation of the ecosystems of Palo Verde National Park are hereby declared of public and national interest, in order to have the support of the State and other public agencies, non-governmental organizations, and public and private international bodies for their implementation”.

Upon examining in detail the preceding regulatory framework, it is possible to notice the great importance that the zone in question has for environmental protection. Hence, the decisions made regarding the reduction of the area of these zones or the change in their purpose must be duly reasoned in technical studies that appropriately justify such determination.

Examination of the existence of technical studies on the removal of protection Based on the foregoing, it is clear that both national legislation and the examined constitutional principles and constitutional jurisprudence require, as a first element, that a law ordering the removal of protection of a protected wild area, integrated into the PNE, must be reasonably grounded in a technical study that justifies, in a concrete manner, the reason why a particular zone must have its protection removed and its nature varied. Therefore, it is now necessary to examine whether the challenged law had such a study.

Statement of motives of the challenged law As has been seen, the original purpose of safeguarding these lands is the protection of a very particular and almost unique type of forest in our country, namely, the tropical dry forest and its biological diversity, which is not included in another specific protection category. In contrast, although the challenged regulation provides environmental protection and states that it will be recognized as a wetland ecosystem administered by the National System of Conservation Areas (SINAC) (article 6 of Law No. 9610 which “Modifies boundaries of the Lomas de Barbudal Biological Reserve for the development of the water supply project for the middle basin of the Tempisque River and coastal communities”), the fact is that its nature is completely changed. This is because, precisely, the ultimate purpose of the removal of protection is to make possible the Paacume project, which entails flooding the spaces of these primary forests. In the study by the Organization for Tropical Studies (OET) itself, what was related to the change in the nature of the property was evidenced:

“Due to its geographical position and the relief of the zone, the Rio Piedras reservoir would directly affect a site within the Lomas de Barbudal Biological Reserve, a protected wild area created in 1986 for the purpose of safeguarding tropical dry forest environments and their biological diversity. The area in conflict has been estimated at almost 113 hectares under the 50 m elevation mark, which would be flooded once the reservoir is built”. (The highlighting does not correspond to the original).

Regarding the purpose of the Paacume project, the statement of motives of the bill set out in detail the following:

“The fundamental objective is the provision of water, accessible in quantity, quality, and timeliness - 20 cubic meters per second - for different potential uses. It is projected to benefit at least 204 thousand people and cover at least 17 thousand hectares under irrigation. From this flow, 2 cubic meters per second will be available for the long-term supply of communities in the cantons of Santa Cruz, Nicoya, and Carrillo, and will be administered by the Costa Rican Institute of Aqueducts and Sewers (Instituto Costarricense de Acueductos y Alcantarillados). Furthermore, the project contemplates at least 1.5 cubic meters per second of water for irrigation as support for tourism activity in the coastal zone and thereby benefit coastal communities with the release of groundwater currently used for irrigation.

This project will not only allow sustainable access to water for communities and the productive sector but also aims to harmonize and regulate the rational exploitation of the main underground resources in aquifers on the right bank of the middle basin of the Tempisque River, as it will allow the State to regulate the maximum use of wells for these activities”.

In this way, and bearing in mind what was stated by the authorities in the proceedings of this action of unconstitutionality, there is no doubt about the urgency and importance of making access to potable water service possible and of addressing other problems of drought, supply shortages, desalination of aquifers, among others (see statements from the Presidency of the Legislative Assembly, SENARA, Ministry of Environment and Energy (MINAE), Ministry of Agriculture and Livestock (MAG)). It is indicated that the provision of water in the zone will be carried out through the construction of a dam on the Río Piedras, which will require a reservoir with a water surface area of approximately 850 hectares, of which, 113 hectares are within the RBLB, according to the design carried out by SENARA.

However, after reviewing the statement of motives of the bill, the legislative file, and the file of this action of unconstitutionality, it was not possible to discern the fulfillment of this requirement of capital importance, namely, that of conducting a study that specifically justifies the need to address said severe problem through the removal of protection of a specially protected area.

The only reference in the statement of motives is the following:

“Thus, the location of the dam on the Río Piedras is due to a unique topographical condition that does not allow it to be moved to another site; therefore, this location and the difference in level between the entrance of the canal that supplies it and the exit of the canal that will allow the water to be carried to the Tempisque River determine the maximum level of the reservoir and its capacity to supply the Paacume with 20 cubic meters per second.

At some point, the possibility of building a dike to avoid the flooding of this area of the Lomas Barbudal Biological Reserve and a tunnel of more than 2 kilometers to evacuate the waters was assessed; however, it turned out that the dike site coincides with a geological fault that would make its construction impossible due to the high risk it generates to the work”. (The highlighting is not from the original).

These assessments, although they may be valuable to illustrate the situation, do not, in any way, evidence that the necessary study to concretely justify the removal of protection was carried out.

Reports from SENARA and the Regional Council of the Conservation Area In the report from the authorities of SENARA rendered after the oral hearing held in the proceedings of this action of unconstitutionality, reference was made to a Feasibility Study for the Water Supply Project for the Middle Basin of the Tempisque River and Coastal Communities. This study is from October 2018, that is, it is parallel to the date on which the legislation under analysis was approved, namely, October 17, 2018. Therefore, it could not have been evaluated by the parliamentary body. Likewise, both in the oral hearing and in the subsequent report, the General Manager of SENARA refers to the fact that the zone has the ideal conditions to carry out the work and bases her statements on a technical study carried out by the Costa Rican Institute of Electricity (ICE) – pursuant to the inter-administrative contract signed between SENARA-ICE-MINAE 201600011 and its addenda – according to which, given the topographical conditions of the area, the zone in question has the ideal conditions for the construction of a large-capacity reservoir (see report rendered before the Chamber on June 15, 2020). However, it is clear that there is no specific study that justifies the removal of protection as such.

In the legislative file, there are statements from the Regional Council of the Arenal Tempisque Conservation Area (Consejo Regional del Área de Conservación Arenal Tempisque) itself from July 2017, in which the following is concluded:

“Based on the aforementioned study (Mandatory consultation with local communities, compensation proposal for the Lomas Barbudal Biological Reserve) and the documents provided so far, this authority considers that it has not yet been demonstrated that other alternatives for the PACUUME project exist, without necessarily having to remove protection from an area of the current RBLB. If indeed these alternatives are not viable, it will be necessary to assess the third measure, which is compensation”. (Official Communication SINAC-CORACAT-SE-041, visible on folios 126 and 1492 of the copy of the legislative file).

Additionally, official communication SINAC-CORACAT-049-2018 of September 9, 2018, was submitted to the legislative process, in which the Executive Secretary of the Regional Council of the Arenal Tempisque Conservation Area emphasizes the following:

“Based on the General Law of Public Administration and the jurisprudential line of the Constitutional Chamber, it is necessary that there be sufficient environmental, legal, and financial technical studies that justify the adequate selection, both of the area whose protection is to be removed and of the areas that would serve as compensation. The existence of these studies within the file of this bill must be verified, since to date this Council does not have such information”. (Folio 2641 of the copy of the legislative file. The highlighting corresponds to the original official communication).

From these statements, it follows that for these authorities, the compensation study must be subsequent to the technical studies that justify the need to remove protection from the zones in question and radically change their purpose. That is, they would go from being a tropical dry forest to becoming – due to flooding – a wetland, thus losing the original richness of the zone. The authorities of the Conservation Area themselves emphasize that the initial determination to remove protection is not duly motivated in a study that justifies it appropriately. Indeed, the governing authority of the conservation area in question itself stated during the legislative process that “it has not yet been demonstrated that other alternatives for the PACUUME project exist, without necessarily having to remove protection from an area of the current RBLB” (folios 126 and 1494). Furthermore, it called the attention of the legislators regarding the need for sufficient environmental, legal, and financial technical studies to justify “the adequate selection (…) of the area whose protection is to be removed”.

At a later stage, after the technical determination on the need to remove protection from a specific protected wild area, the compensation studies are required, which are those that seek a kind of environmental redress for the suppressed area, with another of equal size and similar biological characteristics. On this matter, the OET representatives stated the following:

“Environmental compensation for an environmental impact is a last-resort measure, which must be carried out only in case said impact cannot be avoided or cannot be adequately mitigated. Consequently, when the impacts of a project require compensation, one is faced with a situation in which it is inevitable to compensate for a potential impact. In that circumstance, the discussion should not center on whether or not compensation is possible, but on how to achieve it in a way that yields environmental gains”. (The highlighting does not correspond to the original).

From the above, it could be concluded that even the OET itself recognizes that it must first be determined with certainty, based on technical studies, that the removal of protection is the last possible solution, and then it is appropriate to carry out the study of compensation measures.

The report of the Attorney General's Office It is of great relevance for the specific case to transcribe, as pertinent, some passages from the report rendered by the Attorney General's Office (Procuraduría General de la República, PGR) in the action of unconstitutionality. Regarding the need to conduct a prior study that justifies the removal of protection of portions of the RBLB, it stated the following:

“On the other hand, even if the sufficiency of the OET study and the final compensation proposal is verified, it must be noted that this technical study would only justify the validity of the compensation carried out, and, as such, is not a technical study that directly justifies the decision to remove protection from a part of the RBLB.

In accordance with the constitutional jurisprudence on the subject, the study required by article 38 of the Organic Law of the Environment to justify the reduction of a protected wild area would have to be a study that determines the necessity and advisability of adopting that type of measure.

In this case, a study in that sense would be one that technically substantiates the need to remove protection from part of the RBLB. That is, a study that determines that the only alternative to develop the PAACUME project and the Río Piedras reservoir is by removing protection from part of the Biological Reserve.

In this regard, the Regional Council of the Tempisque Conservation Area, when referring to the OET study, indicated that “this authority considers that it has not yet been demonstrated that other alternatives for the PAACUME project exist, without necessarily having to remove protection from an area of the current RBLB. If indeed these alternatives are not viable, it will be necessary to assess the third measure, which is compensation.” (Official Communication No. SINAC-CORACAT-SE-041 of July 7, 2017, folios 1492-1497 of the legislative file). And, that same Council, after the bill was approved in the second debate, indicated that “it is necessary that there be sufficient environmental, legal, and financial technical studies that justify the adequate selection of both the area whose protection is to be removed, and the areas that would serve as compensation. The existence of these studies within the file of this bill must be verified, since to date this Council does not have such information.” (Official Communication No. SINAC-CORACAT-049-2018 of September 9, 2018, folios 2641-2644).

In the “Profile Document of the PAACUME Project” prepared by SENARA (Folios 505-621), it starts from the premise that “one of the properties within the reservoir area belongs to the Lomas Barbudal Biological Reserve, with an approximate area of 112 ha.” And it is indicated that the “area must be compensated with an adjacent area of similar ecological characteristics, for which the preparation of a biodiversity baseline study is required that demonstrates the equivalence of the compensation areas” and it is indicated that said study was prepared by the OET. (see folio 557). Some of the officials who appeared before the sessions of the Legislative Commission that processed the project indicated that technically the PAACUME project could not be developed without removing protection from and flooding part of the RBLB, and in the document called “Mandatory Consultation of Local Communities. Compensation Proposal for the Lomas Barbudal Biological Reserve” (Folios 622-726), in response to one of the questions formulated by one of the participants, it was indicated that “if the 113 hectares of the RBLB cannot be obtained, the project changes completely, since without these 113 hectares of the RBLB the conditions of the dam, the amount of water to be impounded, the cost of the project, and the design would have to change completely.” (Folio 661).

Therefore, based on the criterion of the institutions that were granted a hearing on this action of unconstitutionality, it must be assessed whether there is sufficient technical support to justify the need to remove protection from part of the RBLB to be used in the execution of the PAACUME project.

If this foundation is not verified, Law 9610 must be declared unconstitutional for violation of the principles of lifetime tenure of protected wild areas, objectification of environmental protection, and non-regression.

In that scenario, the regulation could be contrary to the Ramsar Convention, because although it is true that it does not oblige States to previously communicate the decision to modify the area of sites of international importance, its article 4° subjects that possibility to the existence of a reason of urgent national need, which would not be duly justified in this particular case”. (The highlighting is not from the original).

It is observed that the PGR was emphatic in pointing out the need to address the allegations of the petitioners regarding this first grievance, namely, the mandatory nature of assessing whether there is a technical study that justifies the removal of protection of a particular protected area such as the RBLB.

Conclusions on the matter It is verified that the proposing authorities of the project have insistently argued that the existence of the compensation study justifies the need to remove protection. The foregoing reflects, at a minimum, a serious confusion between the respective purpose of the study for the removal of protection of a specially protected area that has been integrated into the PNE and that of the compensation study.

That confusion – or attempt to equate two categories of study that are of a different nature – renders the decision to degazette unjustified.

Furthermore, it should be added that both studies are distinct from the technical study required for the assessment of the infrastructure intended to be developed, that is, an environmental impact assessment (evaluación de impacto ambiental). This, under the terms of the Organic Environmental Law (Ley Orgánica del Ambiente), is specific to human activities that alter or destroy elements of the environment or generate hazardous waste and is an indispensable prerequisite prior to the start of activities, works, or projects:

“Article 17. Human activities that alter or destroy elements of the environment or generate waste, toxic or hazardous materials, shall require an environmental impact assessment (evaluación de impacto ambiental) by the National Environmental Technical Secretariat (Secretaría Técnica Nacional Ambiental) created in this law. Its prior approval by this body shall be an indispensable requirement to initiate the activities, works, or projects. The laws and regulations shall indicate which activities, works, or projects shall require the environmental impact assessment (evaluación de impacto ambiental).” Therefore, based on the regulatory framework and jurisprudence, it must be concluded that the technical studies justifying the degazettement and the subsequent compensation studies must be prior to the legislative decision, precisely because it is required that the decision be based on them.

Therefore, I consider that the PGR is correct in stating that the challenged law is unconstitutional because it lacks a study that technically supports the need to degazette part of the RBLB. Said omission is detrimental to the precautionary principle, the principle of non-regression in environmental matters, the principle of lifetime tenure (irreductibilidad), and the objectification of environmental protection.

Regarding the compensation studies We now proceed to examine the grievances, the regulatory framework, and reports on the obligation to conduct compensation studies.

• The grievances raised by the petitioners The petitioners challenged the attempt to justify the reduction of the RBLB area by means of an incomplete and biased study conducted by the Organization for Tropical Studies (Organización de Estudios Tropicales, OET). They allege that the intent is to compensate the degazetted area to be flooded with private lands adjacent to the biological reserve, incorporating two properties defined by SENARA. One on which no study was conducted (property belonging to the company Hacienda Ciruelas SP S.A.) and another on which a very superficial study was conducted (property belonging to the company known as Brindis de Amor).

Thus, they argue that Law No. 9610 violates Article 50 of the Political Constitution, since, in their view, it does not incorporate a serious, comprehensive, and objective study on the consequences of degazetting 113 hectares of the RBLB and the substitution or compensation with some 500 hectares of private properties intended to be incorporated into the biological reserve. They challenge, in this regard, the soundness of the study conducted by the Organization for Tropical Studies (Organización de Estudios Tropicales, OET), through which the degazettement and compensation were attempted to be justified. They refer to other studies that cast doubt on the consistency of that study and conclude that it is “insufficient to define the change of boundaries of Lomas de Barbudal, and does not demonstrate that this change will be fully compensated by additional areas in other sectors of the Reserve. The ASETREK farm, studied in more detail by the consultants, is ultimately recognized as insufficient to justify the land swap, and other nearby farms are hastily resorted to in order to balance the compensation.” They insist that the study conducted by the OET is not complete, objective, scientific, or technical, as it suffers from many omissions and weaknesses. They reiterate that such study focuses practically on a portion of one of the three private properties with which the 113 degazetted hectares are intended to be compensated by the law; but it omits to incorporate studies on the biological conditions of the other two properties, making it impossible to determine scientifically that these are properties that actually have environmental characteristics that replace the ecosystem functions of the area to be degazetted.

The international obligation to conduct compensation studies Regarding the need to adopt compensation measures when dealing with the degazettement of protected wild areas that are wetlands or are integrated into them, there is an international obligation established in the Ramsar Convention (Convención Ramsar), Law No. 7224 of April 9, 1991, which provides the following:

“Article 2.5. The Contracting Parties shall have the right to add to the “List” other wetlands situated in their territory, to extend those already included, or, for urgent reasons of national interest, to withdraw from the “List” or to reduce the wetlands already included, and they shall inform these modifications as soon as possible to the organization or government responsible for the permanent office functions specified in Article 8.” “Article 4. 1. Each Contracting Party shall promote the conservation of wetlands and waterfowl by establishing nature reserves on wetlands, whether or not they are included in the “List”, and shall provide adequately for their management and care.

2. Where a Contracting Party, for urgent reasons of national interest, withdraws or reduces a wetland included in the “List”, it should, as far as possible, compensate for any loss of wetland resources and, in particular, it should create new nature reserves for waterfowl and for the protection, in the same region or elsewhere, of an adequate portion of their former habitat. 3. The Contracting Parties shall encourage research and the exchange of data and publications regarding wetlands, their flora, and their fauna.” (Highlighting does not appear in the original).

From these norms emerges the State's obligation to carry out compensation that, as far as possible, remedies the loss of resources in the wetlands and to create new nature reserves for protection in the same region.

Reports from the authorities contained in this case file 1- Report of the Office of the Attorney General (Procuraduría General de la República).

The PGR stated in its report that if it were determined that the OET study and the final compensation proposal for the RBLB are technically insufficient, the challenged law would be unconstitutional for violating the principles of objectification of environmental protection, precautionary principle, preventive principle, and lifetime tenure (irreductibilidad) of protected wild areas. Indeed, it would not be guaranteed that the approved boundary variation does not affect the integrity of the RBLB, and the environmental impact generated by the degazettement of a part of said biological reserve would not be adequately mitigated. This would also be contrary to the obligation established in Article 3 of the Ramsar Convention (Convención Ramsar) to promote the conservation of wetlands included in the list of wetlands of international importance.

Report of the President of the Board of Directors of the Legislative Assembly The President of the Legislative Assembly states in her report that the legislative file contains the study called “Establishment of the Biodiversity Baseline for the Lomas de Barbudal Biological Reserve (RBLB) and adjacent farm” (“Establecimiento de línea Base de Biodiversidad para la Reserva Biológica Lomas de Barbudal (RBLB) y finca adyacente”) conducted by the OET, in which a comparative analysis was performed between the reserve and previously selected surrounding lands to ascertain the conditions of similarity and feasibility of being used as an ecologically equivalent replacement. She explains that the OET conducted the corresponding study based on the guidelines established by SENARA and explained that the OET was able to verify that the area of the RBLB intended to be degazetted was in better ecological condition than the areas proposed for compensation, in a ratio of 3 to 1, meaning that for each hectare degazetted, 3 should be compensated. She asserts that, upon detailed review, it was determined that one of the objects of the creation of the RBLB, precisely the conservation and protection of the riparian forest (bosque ripario), was not represented within the ASETREK farm, which was the proposal to compensate the 113 hectares to be degazetted. She justifies that it was for this reason that the need arose to seek other surrounding lands with riparian forest (bosque ripario) to compensate for the lack of that ecosystem in the compensation proposal. She notes that because what was required was solely to find the riparian forest (bosque ripario), the studies on the Brindis de Amor and Hacienda Ciruelas farms did not go into the same level of detail as the ASETREK studies; however, she states that even so, the OET did conduct a characterization study of the Brindis de Amor Farm, as a compensation supplement, which is visible on folios 209 to 215 of the study.

Report of the National Groundwater, Irrigation, and Drainage Service (Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento) These authorities explained that the study was conducted by the OET and envisages that the compensation for the area consists of incorporating 556 hectares in exchange for the degazettement of 113 hectares. They argue that the OET recommends acquiring at least 332 hectares of the ASETREK farm; however, to facilitate management and fire control, the decision was made to incorporate 444 hectares of ASETREK, thereby compensating for all the different ecosystems found within the 113 hectares of the RBLB, except for the riparian forest (bosque ripario). Consequently, they clarify that the incorporation of the Brindis de Amor and Hacienda Ciruelas farms into the compensation proposal was made upon the recommendation of the administrator of Lomas Barbudal, based on the fact that they have riparian forest (bosque ripario) lands in adequate conservation conditions, as well as the main springs (nacientes) of the Cabuyo River and Amores Creek.

Organization for Tropical Studies (Organización de Estudios Tropicales) Due to their importance, relevant passages from the report conducted by the OET, which was the technical input for the compensation carried out in the specific case, are transcribed as pertinent. Said report states in its executive summary the following:

“The impact site in Lomas de Barbudal has three types of environments, each corresponding to a distinct forest cover (cobertura boscosa): deciduous forest (bosque deciduo), secondary forest (bosque secundario), and mature forest (bosque maduro) associated with the streams at the site and therefore referred to here as riparian forest (bosque ripario). The deciduous forest (bosque deciduo) represents 70% of the forest cover (cobertura boscosa) at that site, and corresponds to an early successional stage characterized by being open, consisting of pioneer species, and having a low density of trees. The secondary forest (bosque secundario) has more structure and corresponds to a more advanced stage where dominant trees persist. Finally, the riparian forest (bosque ripario), composed mainly of evergreen species and with dominant trees, is one of the most threatened plant associations in the region. Approximately 30 hectares exist at the impact site, representing about 11% of the cover of that type of association in the Biological Reserve. The compensation site is also heterogeneous in forest cover (cobertura boscosa) and has deciduous forest (bosque deciduo), secondary forest (bosque secundario), and pasture and non-forest areas. This site does not have riparian forest (bosque ripario).

Thus, the site in the Biological Reserve produced estimates of species richness greater than the estimates at the potential compensation site in ASETREK. Furthermore, the species found in the Biological Reserve are not the same as those found in ASETREK: the greatest similarities in composition were found in the amphibian community, arthropod families, and birds, with 79%, 76%, and 62% shared species, while for woody plants and mammals, the sites share only 55% and 50% of their species. For reptiles, fish, and herbaceous plants, the sites in Lomas de Barbudal and ASETREK share 39%, 34%, and 33% of the species. These discrepancies mean that the species composition in ASETREK represents approximately 45% of that quantified at the reference site. Our analyses reveal that, in general, the potential inundation site in Lomas de Barbudal has greater structure, more dominant trees, biomass, and potential for carbon sequestration. The contribution of the riparian forest (bosque ripario) to these indicators is undeniable, but differences were also observed between the secondary forest (bosque secundario) covers of Lomas de Barbudal and that of ASETREK, the latter showing the lowest values. These differences indicate that the environment at the compensation site in ASETREK has been more disturbed than the site in Lomas de Barbudal. In terms of structure and environment quality, the habitat in ASETREK obtained a lower score than the reference, equivalent to 51.2% of its quality. The uncertainty derived from the heterogeneity of the present environments reduces the estimated environment quality score, so the minimum possible environment quality value estimated from our data results in 34 points. Being a lower quality environment, approximately 332 hectares of a habitat like that observed in ASETREK would be required to compensate for the loss of the 113 hectares of the reference. Therefore, the potential compensation site in ASETREK is inferior in environment quality, composition, and biodiversity to the site that would be directly impacted by the Rio Piedras Reservoir within the Lomas de Barbudal Biological Reserve. Following the procedure for estimating the area needed to compensate for losses derived from the impact, we recommend annexing at least 332 Ha of the habitat type observed at the potential compensation site to offset the losses that the Lomas de Barbudal Biological Reserve will suffer from the Piedras Reservoir. One proposal is to designate the forested part of ASETREK as the compensation area. This requires segregating 444 Ha from said property, in order to join the available forest fragments. Even so, this land does not include the riparian forest (bosque ripario) cover, so it is suggested to additionally annex Brindis de Amor, an 86 Ha property adjacent to the northern end of the Biological Reserve that has almost 16 hectares of riparian forest (bosque ripario). The incorporation of both properties (segregated ASETREK and Brindis de Amor) entails the annexation of 530 hectares in compensation for the 113 Ha that would be lost in the Lomas de Barbudal Reserve.” Regarding the grievance raised by the petitioners, that the OET study was conducted hastily and that farms were subsequently added without a similar study to the one conducted on the ASETREK farm, they stated the following:

“In the northeast of the Lomas de Barbudal Biological Reserve, there are private properties with fragments of riparian (riparios) and secondary (secundarios) forests. In fact, a quick examination reveals that near the Quebrada Amores there are forest conditions that could be of protection interest. One of them is Brindis de Amor, a property of approximately 86 Ha that borders the Lomas de Barbudal Reserve and whose forest cover (cobertura boscosa) has been protected by its owner Carlos Jiménez over the last twenty years (Figure 47). (…)

1. The results of our study, both in habitat quality and community composition, reveal the need to offset the loss in Lomas de Barbudal with at least 332 Ha of forested habitat. However, to achieve that number of hectares in ASETREK, it is necessary to include part of the deciduous forest (bosque deciduo) on the eastern slope of the property, whose quality is lower (due to having a steeper slope) than that of the west side. Furthermore, there is no fragment of mature-riparian forest (bosque ripario-maduro), which undoubtedly constitutes a shortcoming in the compensation capacity of the ASETREK property evaluated in our study. 2. The Brindis de Amor property has 15.87 ha of mature-riparian forest (bosque ripario-maduro). Although the composition analysis of this fragment was preliminary, our field observations indicate that it consists of evergreen species similar to those found in the same cover in the RBLB and that it is comparable in basal area (Figure 49) to that of the fragment found at the potential inundation site in Lomas de Barbudal. While it is true that the extent of the riparian forest (bosque ripario) in Brindis de Amor is less than what would be lost in Lomas de Barbudal, (…)

In fact, the area of riparian forest (bosque ripario) in Brindis de Amor represents 7.4% of the area covered by that type of forest within the Biological Reserve currently. 3. The area of riparian forest (bosque ripario) in Brindis de Amor could constitute a core area of species for repopulating other riparian environments on the property. Although this situation does not chronologically correspond to the loss in Lomas, it is a considerable advantage over the ASETREK property, which lacks such a core. Our on-site observations show significant recruitment of typical riparian forest (bosques riparios) tree species, such as the espavel (Anacardium excelsum) and the terciopelo (Sloanea terniflora). 4. Both the deciduous (deciduo) and secondary (secundario) forests have been protected in Brindis de Amor for at least twenty years. In contrast to ASETREK, the Brindis de Amor property has a gentle slope and the forest cover (cobertura boscosa) is in better structural and compositional condition than those found on the ASETREK property. Unlike ASETREK, there are no records of logging or recurrent fires, although there is evidence of fire entering the property from the south side. 5. Although this study did not include an analysis of species composition in its secondary (secundario) or deciduous (deciduo) forest, the protection that has been given to these covers in Brindis de Amor could mean that these covers are in better condition than their namesakes in ASETREK. (…)

To the south of Brindis de Amor is Rancho Wilson, which has a protected forest fragment and could be of interest for protection by reducing the aforementioned peninsula (Figure 50). However, we argue that precisely because of the protection currently afforded to that fragment in Rancho Wilson, the annexation of Brindis de Amor could be a more suitable alternative to consolidate the block of riparian forest (bosque ripario) in the north of the Reserve. In our view, this annexation would allow negotiating with Rancho Wilson the future incorporation of the remnant forest fragment in that property. Furthermore, the protection of a segment of the Cabuyo River would be achieved through the protection of the area currently occupied by Brindis de Amor.” (In the report submitted to the Chamber, they clarified that where it says Rancho Wilson, it actually refers to Hacienda Ciruelas).

Thus, the technical study itself highlights what was subsequently reported in the action of unconstitutionality by the person in charge of conducting the baseline study. In the report submitted to the Chamber, it was acknowledged that the integration of these two farms was done to improve the original compensation proposal, but “these areas were not analyzed with the depth that we did in ASETREK.” In the report submitted to this Chamber, as pertinent, it states the following:

“The use of Brindis de Amor as a foraging site demonstrates the biological importance of this property and how right it would be to protect it. Annexing a fraction of Hacienda Ciruelas is due to avoiding leaving a peninsula in the contour of the RBLB upon annexing Brindis de Amor, which would contravene the basic notions of reserve design, which seeks to minimize the edge effect and its impact on the species intended to be protected. Furthermore, that fraction also contains a fragment of riparian cover. In our own report, we indicated that, if one had to choose between one of those two properties, it is suggested that Brindis de Amor be acquired since Ciruelas is already maintaining some protection in that area of its property. Our detractors indicate that the study did not evaluate those properties. That is not entirely correct, because as mentioned previously, there was a vegetation assessment on the Brindis de Amor property. The reason why other taxonomic groups (fauna) were not evaluated is that: (1) there is already evidence of the importance of that place for the fauna of the RBLB; (2) including this property complements the ASETREK property; (3) Brindis de Amor was effectively identified after the decision was made to compensate with ASETREK. The fragment in Hacienda Ciruelas (erroneously called Rancho Wilson in our report) was effectively not evaluated. However, I reiterate that undertaking the protection of both this property and Brindis de Amor would provide a better service to the environment that the RBLB aims to conserve.” (Report submitted by Dr. Mahmood Sasa Marín by virtue of the hearing granted as evidence for a better resolution).

Conclusions on this matter Based on the statements made by the authorities themselves contained in the unconstitutionality action file, it is possible to conclude that the compensation study conducted for the specific case was not executed with identical rigor in the incorporation of the ASETREK farm, compared to the subsequent integration of two other farms called Brindis de Amor and Hacienda Ciruelas.

As noted above, the petitioners' disagreement is that the final report “Establishment of the Biodiversity Baseline for the Lomas de Barbudal Biological Reserve (RBLB) and adjacent farm” (“Establecimiento de la línea Base de Biodiversidad para la Reserva Biológica Lomas de Barbudal (RBLB) y finca adyacente”) omits incorporating studies on the biological conditions of the other two properties, so it cannot be determined scientifically that these are properties that actually have environmental characteristics that replace the ecosystem functions of the area to be degazetted.

The PGR insisted on the need for the soundness of said study, because otherwise, there is a danger that the environmental impact generated by the degazettement of a part of said biological reserve would not be adequately mitigated.

The Presidency of the Legislative Assembly showed that indeed the studies on the Brindis de Amor and Hacienda Ciruelas farms were not executed with the same detail and rigor as the study conducted on the ASETREK farm. The other authorities agreed that the comprehensive evaluation of said farm resulted in the lack of riparian forest (bosque ripario) compensation, a priority in environmental protection for being almost unique in the country. This led to the adoption of recommendations from the authorities of the Conservation Area (Área de Conservación) themselves to integrate two other farms. However, regarding these two farms that were integrated into the compensation subsequently, no biological and biodiversity equivalence study was conducted with similar parameters of rigor and discipline. Furthermore, according to the OET's own considerations, which was the entity in charge of the study, the analysis regarding the Brindis de Amor Farm was merely preliminary, did not include an analysis of species composition in its secondary (secundario) or deciduous (deciduo) forest, and no fauna study was conducted. Likewise, the final decision to include Hacienda Ciruelas, although it denotes an eagerness to ensure adequate compensation, was not supported by any scientific study that accounts for the equivalence and the mandatory compensation of natural resources. The head of the study acknowledged that “the fragment in Hacienda Ciruelas (erroneously called Rancho Wilson in our report) was effectively not evaluated.” To the above, it is worth adding that based on a ten-month study in which fauna, flora, habitat structure, ecosystem services, and physical attributes were assessed, and which included sampling in both the dry and rainy seasons, it was concluded that the ASETREK farm was not sufficient to compensate for the degazetted forest areas in the RBLB. Therefore, there is even less indication of the basis for making inclusions, at the last moment, that can truly meet the compensation requirements demanded regarding fauna species, forests, and carbon sequestration.

Therefore, I consider that the deficiencies detected in the studies, which were recognized by the authorities that intervened in this constitutionality process, are detrimental to the constitutional principles already mentioned and which, in general terms, oblige the State to adopt decisions related to the reduction of protected wild areas based on a duly substantiated technical study.

Conclusions

The considerations made allow us to conclude that there are four types of studies in this matter that are not comparable: 1) the study justifying the degazettement of a protected area, 2) the compensation study for the degazettement of a protected area, 3) the environmental impact study of an infrastructure project. Separately, there is the feasibility study for carrying out an infrastructure project. In the case of the law under review, the first was omitted, the second was poorly done, and the third is yet to be done (as would correspond after having the first two, and after the law is enacted). The feasibility study of the project does not substitute, in part or in whole, any of the three aforementioned. For this reason, I believe those who argue that the challenged regulation is unconstitutional due to the infringement of the precautionary principle, the principle of non-regression in environmental matters, the principle of lifetime tenure (irreductibilidad), and the objectification of environmental protection, which must govern decision-making in this matter, are correct.

Anamari Garro Vargas Magistrate (Magistrada) CO12/20 The foregoing, because the international analysis instrument itself does not indicate at exactly what moment the compensation and the respective communication to the Permanent Office created by Article 8 of the same instrument must be carried out.

On the other hand, it is necessary to point out that, although reasons of public interest have been detailed for carrying out a project that seeks to provide a long-term solution to the water shortage in the province of Guanacaste, it has not been verified that, to date, there has properly been a formal declaration of urgent reasons of national interest for the questioned removal of protection (desafectación) from RBLB as part of Palo Verde National Park. It is worth recalling what was reported by the Office of the Attorney General of the Republic (Procuraduría General de la República, PGR) in this regard, which pointed out the following as relevant:

“In that case, the norm could be contrary to the Ramsar Convention, because although it is true that it does not obligate States to communicate the decision to modify the area of internationally important sites in advance, its Article 4 subjects that possibility to the existence of a reason of urgent national need, which would not be duly justified in this particular case.” (Highlighting does not correspond to the original).

From which it must be concluded that, although there is no deadline for notification to the competent Ramsar office, the Costa Rican State does have the obligation to justify the decision on “a reason of urgent national need”; all of which must be calibrated by the Costa Rican State so as not to incur international responsibility for the breach of sovereignly accepted obligations.

On the dimensioning of the effects of the challenged legislation In relation to the effects of the challenged legislation, it is necessary to transcribe as relevant what was stated by the PGR in the report on this unconstitutionality action:

“Law 9610 presents certain particularities with respect to other legal norms that seek to reduce the size of protected wild areas, because, in this case, the decision to remove protection from part of the RBLB is not motivated by loss of environmental value or the need to protect the area, but exclusively by the need to develop an infrastructure project as part of the execution of the PAACUME project. That is, the authorized removal of protection is only relevant for the development of that project.

Based on the foregoing, the Attorney General's Office believes that, apart from the observations noted in the previous segment, a defect of the Law that could cause its unconstitutionality is that it did not contemplate any provision that would dimension the effects of the removal of protection carried out until the moment the project is executed, because the decision to remove protection only makes sense and is justified if that project is carried out. If for some reason the project is not developed, the removal of protection carried out would have no meaning, and, therefore, it would have no justification whatsoever.

The justification for the removal of protection depends on the eventual execution of the project, which could be prevented for various reasons. For example, because –as the plaintiffs argue– environmental viability is not granted to the project, because the necessary financing does not exist, because interest in developing it is lost, or because, for some other reason, it is impossible to execute it.

Furthermore, it must be taken into account that the guarantee of non-impact to the RBLB lies in the proposed compensation measure. But the fact is that, with the challenged law, a part of the Reserve was removed from protection and, despite the fact that the compensation area was included within its limits, those lands are private properties that have not been expropriated. Based on the provisions of Article 37 of the Organic Environmental Law (Ley Orgánica del Ambiente), until those properties are expropriated or purchased, they cannot become part of the protected wild area, and, therefore, the proposed compensation has not materialized. In other words, with the issuance of Law 9610, the area of the RBLB was reduced, and the impact generated by that reduction has not been compensated, in contravention of the precautionary and preventive principles.

If for some reason the project is not developed and the necessary expropriations to carry out the proposed compensation are also not executed, Law 9610 would have removed protection from the RBLB in vain, without a valid justification existing and without having compensated and mitigated the effects generated by that reduction. This would constitute a violation of the principle of lifetime tenure (irreductibilidad) of protected wild areas, of non-regression, precautionary, and preventive principles, and even a violation of the Ramsar Convention by there not being a reason of urgent necessity to justify the reduction of the area of one of the internationally important sites.

Therefore, without prejudice to what is verified regarding the sufficiency of the studies and technical criteria previously indicated, the Attorney General's Office believes that, for what has just been indicated, Law 9610 could be unconstitutional, unless it is interpreted that the removal of protection it authorizes will take effect until the moment the project is executed and the lands necessary for the proposed compensation to operate are expropriated.” (Highlighting does not correspond to the original).

These statements are extremely relevant and reveal that the competent legislator did not introduce any dimensioning regarding the effects of the legislation examined in this unconstitutionality action.

Likewise, in light of the PGR’s statements, it is necessary to point out that although there was agreement with the majority vote in the sense that there was no standing to hear a potential infringement of the right to private property, enshrined in Article 45 of the Political Constitution, the truth is that it is noted that the effectiveness of the proposed compensation is contingent upon the expropriation of the lands contemplated for those purposes and the corresponding compensation to the plaintiffs. That is, the materialization of the compensation is conditioned on the effective expropriation of the lands subject to the compensation study. At this moment, as long as the expropriation has not been completed, the lands are not subject to an environmental protection regime (a type of precautionary measure), nor has the compensation offered been consolidated as a parameter of legitimacy for the removal-of-protection norm.

The lack of dimensioning on the part of the legislator himself makes the legitimacy of this compensation rest on an expropriation that has not materialized and that compromises the constitutionality of the norm under analysis. It even reveals that the change of coordinates removing protection from RBLB has already been carried out, but a resolutory condition and provisions regarding the consequences of the project not being carried out were not introduced. That is, the question arises as to what happens with the removal of protection from this important biological reserve in the event that the infrastructure project cannot be executed.

With all due respect, I consider that on this point, the solution offered by the majority of this Chamber to the effect that it is a conditional law is not sufficient, because the truth is that the corresponding coordinate change has already been made, without offering clarity on the effects of the infrastructure project intended to be carried out not being executed.

Anamari Garro V. Magistrate CO12/20 ... See more Res. No. 2020-0013836 CONSTITUTIONAL CHAMBER OF THE SUPREME COURT OF JUSTICE. San José, at fifteen hours thirty minutes on twenty-two July two thousand twenty.

Unconstitutionality action filed by MARÍA DEL MILAGRO GAMBOA MIRANDA, of legal age, single, businesswoman, resident of San José, with identity card number 1-1433-0357, and GARY DOUGLAS STEWART POSTEL, of legal age, married, businessman, resident of Bagaces, with identity card number 1-0466-0672; against Law No. 9610 of 17 October 2018, called “Modificación de límites de la Reserva Biológica Lomas de Barbudal para el desarrollo del Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras”. Resulting: 1.- By brief received in the Constitutional Chamber at 12:32 hours on 9 January 2019, the plaintiffs filed an unconstitutionality action against Law No. 9610 of 17 October 2018, “Modificación de límites de la Reserva Biológica Lomas de Barbudal para el desarrollo del Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras”, in defense of an interest that concerns the community as a whole: the right to a healthy and ecologically balanced environment. They state that, for the foregoing reason, individual and direct harm is not required. They consider Articles 7, 11, 45, 50, and 176 of the Political Constitution and the constitutional principles of non-regression in environmental matters, in dubio pro natura, reasonableness and proportionality, economy and efficiency, budgetary balance, and legal certainty to be violated. They affirm that the procedure established in numeral 208 bis of the Regulations of the Legislative Assembly was violated. They indicate that the challenged law aims to remove protection (desafectar) from 113 hectares of the Lomas de Barbudal Biological Reserve (RBLB), which has a level of absolute protection similar to that of a national park, and to change its use to proceed to flood such land and build the Río Piedras Reservoir there, which would bring water to the middle Tempisque river basin and the coastal communities. That project, known as PAACUME, contemplates a reservoir with a water surface (espejo de agua) of 850 hectares, as well as the expansion and improvements to the West Canal and the construction of 300 kilometers of canals to convey and distribute water in the cantons of Carrillo, Santa Cruz, and Nicoya. The challenged law also seeks to compensate the area of the RBLB that would be reduced with other private lands adjacent to the biological reserve belonging to the companies ASETREK Tres Azul S.A., Hacienda Ciruelas SP S.A., and 3-101-734726 S.A. (known as Brindis de Amor or Brindis de Amor en Liberia). They relate that, in compliance with the Convention on Wetlands of International Importance especially as Waterfowl Habitat (RAMSAR Convention), the Costa Rican State included the Palo Verde National Park and the Caño Negro Wildlife Refuge on the list of wetlands of international importance. They assert that this park is part of the Tempisque Conservation Area (Área de Conservación de Tempisque) and this area includes the Caballero Wildlife Refuge, the Barra Honda National Park, and the Lomas de Barbudal Biological Reserve (RBLB). They add that, on the official RAMSAR website, in the section called “Ramsar Sites Information Service”, the technical sheet for the extension of the “RAMSAR Palo Verde, Costa Rica” site can be seen, in which the RBLB is clearly mentioned as part of this international wetland. They add that since the RBLB forms part of the Palo Verde wetland, the Regional Council of the Arenal Tempisque Conservation Area (Consejo Regional del Área de Conservación Arenal Tempisque) warned the Legislative Assembly, at the time, that it was necessary to communicate the intention to carry out this project to the Convention on Wetlands of International Importance especially as Waterfowl Habitat and to activate any other procedure to comply with the country's commitments (see official letter SINAC-CORACAT-049-2018); however, RAMSAR was not notified about the removal of protection of the RBLB area or the change in the limits of that biological reserve, which constitutes an omission that infringes our country's international commitments and, therefore, a violation of Article 7 of the Political Constitution. They mention that numeral 4, paragraph 2) of the RAMSAR Convention establishes that when a Contracting Party, for urgent reasons of national interest, withdraws from the list or reduces the limits of a wetland included in it, it shall compensate, as far as possible, the loss of wetland resources and, in particular, create new nature reserves for waterfowl and for the protection of an adequate portion of their original habitat, in the same region or elsewhere. They state that the modification of the limits of the RBLB has not been declared of urgent national interest. They allege that in that same official letter (No. SINAC-CORACAT-049-2018) it was recorded that it was necessary to analyze whether the PAACUME project could have any indirect impact on the World Heritage site Área de Conservación Guanacaste and assess the activation of the relevant mechanisms to communicate this initiative to the World Heritage Centre; however, this was not done. They claim that, consequently, the UNESCO World Heritage Convention was also violated. They affirm that, according to various pronouncements of the Constitutional Chamber, constitutional article 50 introduced science and technique into environmental decisions, whether legislative or administrative, in such a way that state actions in environmental matters must be based on and cannot contradict the unequivocal rules of science and technique in order to achieve full and universal enjoyment of a healthy and ecologically balanced environment, in addition to greater well-being for all the inhabitants of the country (this has been called the principle of objectification of environmental protection). They accuse that Law No. 9610 violates the cited Article 50 of the Constitution, since it does not incorporate a serious, comprehensive, and objective study on the consequences of removing protection from 113 hectares of the RBLB and the substitution or compensation with some 500 hectares of private properties intended to be incorporated into the biological reserve. They refer to the report of Dr. Jorge Arturo Lobo Segura –commissioned by the School of Biology of the University of Costa Rica to respond to a request for information from the National Environmental Technical Secretariat (Secretaría Técnica Nacional Ambiental, SETENA) concerning the PAACUME project–, in which regarding the study by the Organization for Tropical Studies (OET) –through which they intend to justify the aforementioned removal of protection and compensation– it is concluded that it is “insufficient to define the change of limits of Lomas de Barbudal, and does not demonstrate that this change will be fully compensated by additional areas in other sectors of the Reserve. The ASETREK farm, studied in more detail by the consultants, is ultimately recognized as insufficient to justify the land swap, and other nearby farms are hastily resorted to in order to balance the compensation, in my opinion an unserious exercise because it is not properly substantiated.” The cited report also says that “the lack of knowledge of the environmental impacts of the Río Piedras Reservoir on the Biological Reserve and on all the wetland ecosystems of the Lower Tempisque must be known before accepting the flooding of a sector of the Lomas de Barbudal Reserve and, in general, of the ecosystems affected by the future PAACUME reservoir.” They allege that such violation of Article 50 of the Constitution is complemented by the harm to the principles of non-regression in environmental matters and in dubio pro natura. They insist that the study carried out by the OET is not complete, objective, scientific, or technical, since it suffers from many omissions and weaknesses. They reiterate that this study focuses practically on a portion of one of the three private properties with which it is intended to compensate the 113 hectares removed from protection by the law; however, it omits incorporating studies on the biological conditions of the other two properties, so it cannot be scientifically determined that these are properties that effectively have environmental characteristics that replace the ecosystem functions of the area to be removed from protection. They add that the impact that could be caused to Palo Verde National Park, which is a wetland with international protection provided by the RAMSAR Convention, of which the RBLB forms part, was also not analyzed. They accuse that the challenged law was enacted, but the Environmental Impact Assessment (Estudio de Impacto Ambiental) to carry out the PAACUME project has not yet been approved, even though this project implies building a reservoir with a water surface of 850 hectares in a dry forest zone, which would ultimately affect the Río Piedras and the internationally categorized Palo Verde wetland. They allege that, consequently, in the processing of the bill that gave rise to the challenged regulations, they proceeded to “put the cart before the horse.” They argue that Law No. 9610 violates Article 45 of the Political Constitution, since three legal entities are deprived of private property in order to incorporate almost 500 hectares of private properties into the RBLB as compensation for removing protection from 113 hectares belonging to the State and that are part of the RBLB. They maintain that such deprivation of private property is done without there being a public interest that has been legally proven and without prior compensation. They state that report No. AL-DESTCJU-068-2018 from the Department of Technical Services of the Legislative Assembly indicates that the bill that finally resulted in Law No. 9610 modified the original limits of the Lomas de Barbudal Biological Reserve, subsuming private property into its limits; furthermore, that by “modifying the original limits of the Lomas Barbudal Biological Reserve, one is faced with the intervention of private property, the bill being neglectful in indicating that such properties will be acquired by expropriation, leaving the private estates within its new limits under environmental limitations.” They add that it is clear that the second paragraph of Article 45 of the Political Constitution establishes that, for reasons of public necessity, the Legislative Assembly may impose limitations of social interest on property; however, such limitations of social interest require the fulfillment of several requirements to materialize. First, the approval of the law imposing such limitations requires 38 votes; in which case, although it is true the challenged law was approved by more than 38 votes, the truth is that a good part of the parliamentary procedure was carried out through an abbreviated procedure based on Article 208 bis of the Regulations of the Legislative Assembly, which implies the unconstitutionality of the law for violation of parliamentary procedure, since that abbreviated procedure is prohibited for bills that require for their approval the vote of a qualified majority of deputies. Likewise, Article 45 of the Constitution stipulates that private property may be expropriated or encumbered if there is prior compensation. That requirement has also not been met, since the mentioned private properties have never been expropriated. Nor was an appraisal of the affected private properties prepared or has been prepared, nor was there a budget item before the bill was approved to pay the corresponding compensation. They accuse that, upon the entry into force of this challenged law, which involves private properties belonging to three legal entities (ASETREK, Hacienda Ciruelas S.P. S.A., and Brindis de Amor), these become encumbered, which clearly violates Article 45 of the Political Constitution, since that encumbrance is done without prior compensation and, furthermore, the way in which it is decided to expropriate the property of Brindis De Amor to incorporate it into the RBLB leaves out and enclaved within the reserve a property of approximately 14 hectares belonging to the company Inversiones y Desarrollos Costa Rica Pacifico del Mar CMP S.A., but which forms part of the entire Brindis de Amor project (property that remains enclaved within the new limits of the RBLB, without access to a public road). They reiterate that the law being challenged through this unconstitutionality action was largely processed through an abbreviated procedure based on numeral 208 bis of the Regulations of the Legislative Assembly. They accuse that this infringed the limitations established in that norm, which establishes that the Legislative Assembly may establish special procedures for processing reforms to its regulations and bills whose approval requires an absolute majority; in which case, the bill in question, which later became Law No. 9610, required a qualified majority for its approval, since it clearly affected private properties by incorporating them into the RBLB as compensation for the area from which protection would be removed. They explain that, on this issue, the Department of Technical Services, in the cited report AL-DESTCJU-068-2018, indicated: “By virtue of the foregoing, a defect is observed in the processing of the Bill through the Special Commission created by a motion of order and regulated under Article 208 bis, which prescribes that only bills whose approval requires an absolute majority can be processed, and in the specific case, the Bill requires a two-thirds vote of the deputies of the Legislative Plenary…” They note that this defect in the procedure, pointed out by the Department of Technical Services, is clear and evident. They highlight a note that the National Geographic Institute (Instituto Geográfico Nacional, IGN) sent to the Legislative Assembly (official letter DIG-0388-2018) in response to the consultation made through official letter AL-DSDI-OFI-0313-2018, from which a violation of the principle of legal certainty is derived, as the existence of inconsistencies and errors in the coordinates included in the law finally approved is verified. They argue that with the approval of Law No. 9610, violations of the principle of legality (article 11 of the Political Constitution) have been configured. They add that the Organic Environmental Law (Law No. 7554) has been infringed, in its Articles 32, 34, 36, 37, and 38, because in the process to modify the limits of the RBLB to remove protection from 113 hectares and include approximately 500 hectares of private lands within the new limits of the biological reserve, requirements contemplated in that regulation were disregarded; for example, preliminary physiographic and biological diversity studies were not developed for all the private properties being incorporated into the RBLB; nor were socioeconomic studies carried out that would justify, on the one hand, the removal of protection and, on the other, the increase of the RBLB by almost 500 hectares of private lands; a technical feasibility and land tenure study was never conducted for all the potential lands that could have been considered to compensate the 113 hectares being removed from protection from the RBLB; nor was the minimum financing available to acquire the area (there is not even an appraisal of the properties to be expropriated), protect it, and manage it. They explain that the private lands incorporated into the RBLB were not previously compensated. They argue that technical studies were not carried out on two of the three properties that were finally incorporated into the RBLB, which violates Article 50 of the Political Constitution and the principles of non-regression in environmental matters and in dubio pro natura. They consider that numeral 58 of the Biodiversity Law (Law No. 7788) has also been infringed, since there was no technical report with the recommendations and justifications for including in the biological reserve two of the three properties that finally ended up within the new limits of the RBLB. They explain that articles 71 and 72 of the Regulations to the Biodiversity Law have been infringed, given that the OET report does not record that the mandatory consultations with communities that could be harmed by removing protection from 113 hectares of the biological reserve and the creation of a large reservoir with a water surface of approximately 850 hectares were carried out. They mention that an analysis of land tenure around the RBLB was not performed to determine which area was ideal to compensate the area removed from protection from that biological reserve, but rather it was SENARA that determined with which lands to compensate. They state that the foregoing was not the product of a detailed land tenure study. They state that the requirement to verify the existence of sufficient financial resources to acquire the lands in the proposed area was not met. They add that, as can be seen from the review of the OET technical report, this report was not coordinated by the respective SINAC authority, in clear violation of what is regulated in Article 71 of the Regulations to the Biodiversity Law. They argue that the Law Creating the National Parks Service (Law No. 6084) was additionally violated, whose numeral 8 clearly states the type of property limitations experienced by those properties that are declared a biological reserve. They argue that in this case, technical studies were not carried out on two of the three properties that were included in the biological reserve and, furthermore, an estate enclaved within the biological reserve was left out of the expropriation area. They relate that Article 36 of the Environmental Law establishes that to create new protected wild areas that are State property, whatever the management category it establishes, minimum financing to acquire the area, protect it, and manage it must be previously fulfilled, among other requirements. They maintain that this condition was not met in the case of Law No. 9610. They indicate that the ordinary budget for the year 2018, in execution when Law No. 9610 was approved, lacked a budget item to pay for the expropriations of the private properties incorporated into the RBLB. They add that this non-compliance violates the principle of budgetary balance (Article 176 of the Political Constitution), since new payment obligations are assumed through that law without them having been foreseen in the budget law, which is a requirement to expand protected areas. They state that Law No. 9610 removes protection from 113 hectares of the RBLB in order to flood them. They note that, in order to accomplish that removal of protection, compensation is provided with more than 500 hectares of private lands; however, the question arises as to why those properties were chosen and not others adjacent to the RBLB, including lower-value lands or lands already belonging to the State that are adjacent to the Lomas de Barbudal Biological Reserve and that have a much lower protection category than that of a biological reserve (more than 300 hectares). They allege that, consequently, there is a violation of the constitutional principle of reasonableness and proportionality, since an expenditure of billions of colones is not justified to compensate 113 hectares of the RBLB from which protection is removed by the challenged law, when options exist that range from zero cost to the State to a much more reduced cost. They argue that the principle of economy and efficiency is closely related, in the context of this challenged law, to the previously mentioned constitutional principle of reasonableness and proportionality. They accuse that there is a violation of the constitutional principle of economy and efficiency when the law obligates the expropriation of more than 500 hectares to compensate 113 that are being removed from protection, when more than 300 hectares of the State that have a management and protection category lower than that of a national park or biological reserve could perfectly be incorporated into the RBLB, at no cost to the public treasury. They maintain that the work was also not done to review all the properties adjacent to the RBLB in order to find a way to compensate at the lowest possible cost, nor was a cost-benefit analysis of all the properties adjacent to the RBLB carried out. By virtue of the foregoing, they request that the challenged norm be declared unconstitutional. 2.- By order at 15:16 hours on 10 January 2019, the Presidency of the Chamber asked the plaintiffs to clarify: “a) if they have any type of legal relationship or economic interest regarding the companies ASETREK Tres Azul S.A., Hacienda Ciruelas SP S.A., 3-101-734726 S.A. (known as Brindis de Amor or Brindis de Amor en Liberia), Inversiones y Desarrollos Costa Rica Pacífico del Mar CMP S.A. or any other legal entity eventually affected by the challenged regulation, as well as documentary evidence accrediting their statement; and b) regarding the alleged infringement of the rights and interests of such companies, including the alleged violations of Articles 11 and 45 of the Political Constitution and 208 bis of the Regulations of the Legislative Assembly, if there is an underlying case in which the unconstitutionality of the challenged regulation has been expressly invoked –prior to the filing of the action– and, if so, they must clarify at what phase or procedural stage this underlying case is and provide a certified copy of the brief in which such unconstitutionality was invoked.” 3.- By brief received at 10:19 hours on 16 January 2019, the plaintiffs María del Milagro Gamboa Miranda and Gary Douglas Stewart Postel appeared. They indicate that the first is the legal representative of 3-101-734726 S.A.

and the second from Hacienda Ciruelas SP S.A. They indicate that neither holds shares nor has legal representation of the companies Asetrek Tres Azul S.A. and Inversiones y Desarrollos Costa Pacífico del Mar CPM S.A. They mention that they are appearing in their personal capacity and not as representatives of those companies. They note that there is no prior matter in which the constitutionality of the approved law is being disputed.

4.- By order of the Presidency at 11:05 a.m. on January 23, 2019, the acción de inconstitucionalidad filed by María Del Milagro Gamboa Miranda and Gary Douglas Stewart Postel, in their capacity as legal representatives of 3-101-734726 S.A. and HACIENDA CIRUELAS SP S.A., respectively, against Law No. 9610 of October 17, 2018, entitled "Modificación de límites de la Reserva Biológica Lomas de Barbudal para el desarrollo del Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras," was admitted. In this regard, the Procurador General de la República, the President of the Asamblea Legislativa, the Ministro de Ambiente y Energía, and the Gerente General of the Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento were given an opportunity to be heard. Likewise, it was ordered that the acción was admitted because it met the requirements set forth in articles 73 through 79 of the Jurisdicción Constitucional and that the standing of the plaintiffs derived from paragraph 2 of article 75 of that same body of law, as they were acting in defense of diffuse interests to protect the right to a healthy and ecologically balanced environment.

5.- The edicts indicated in the second paragraph of article 81 of the Ley de la Jurisdicción Constitucional were published in issues No. 35, 36, and 37 of the Boletín Judicial on February 19, 20, and 21, 2019, respectively.

6.- In a written submission incorporated into the digital case file at 11:07 a.m. on February 15, 2019, Julio Jurado Fernández appears in his capacity as Procurador General de la República. He indicates that, in order to outline and facilitate the analysis of the acción, he will group the points to be set forth according to their content, as follows: “1) Allegations regarding the violation of the right to a healthy and ecologically balanced environment. a) Violation of Article 50 of the Constitución Política. Referring to the constitutional case law on the right to a healthy and ecologically balanced environment, the plaintiffs indicate that Law 9610 violates the principle of objectification of environmental protection (principio de objetivación de la tutela ambiental), because it was issued without a serious, comprehensive, and objective study on the consequences of removing 113 hectares from the RBLB and on the substitution or compensation with 500 hectares of private properties. Based on a study from the Escuela de Biología of the Universidad de Costa Rica which they submit as evidence, they indicate that the study by the Organización para Estudios Tropicales (OET) that was used for the approval of the Law ("Establecimiento de la línea de base de biodiversidad para la Reserva Biológica Lomas de Barbudal (RBLB) y finca adyacente") is insufficient to define the boundary change, that it does not demonstrate that the removed area will be fully compensated, that it hastily includes other nearby farms without adequate foundation, and does not take into account the environmental impacts of the Río Piedras reservoir on the Reserve and especially on all the wetland ecosystems of the Bajo Tempisque. b) Violation of Article 7 of the Constitución Política. The plaintiffs believe that Law 9610 violates Article 7 of the Constitution, because it is contrary to the Convention on Wetlands of International Importance especially as Waterfowl Habitat (Convención Ramsar, approved by Law No. 7224 of April 9, 1991) and the Convention for the Protection of the World Cultural and Natural Heritage of the United Nations Educational, Scientific and Cultural Organization (approved by Law No. 5980 of November 16, 1976). They indicate that this Reserve is located north of the Parque Nacional Palo Verde and that in 2001 it was included within the geographical area of the Sitio Ramsar Palo Verde (sic). For this reason, based on various official letters from the Área de Conservación Arenal Tempisque, they believe that the project should have been communicated to the Convention, because otherwise, the country is disregarding the commitments acquired by signing it. Specifically, they believe that Article 4, paragraph 2, of the Convención Ramsar has been violated, which establishes that 'where a Contracting Party in its urgent national interest, deletes or restricts the boundaries of a wetland included in the List, it should compensate, as far as possible, any loss of wetland resources, and in particular it should create new nature reserves for waterfowl and for the protection, either in the same region or elsewhere, of an adequate portion of the original habitat.' They further indicate that the modification of the limits of the RBLB has not been declared of urgent national interest. On the other hand, based on the official letters from the Área de Conservación Tempisque submitted, they state that the Área de Conservación Guanacaste is a world heritage site that is under constant monitoring by UNESCO and that recently the World Heritage Committee requested the country to carry out a strategic environmental assessment of the area, to foresee the possible direct or indirect impacts of the projects, even if they are located outside the limits of the site declared as heritage. They indicate that although the RBLB is not within the area of that site, it adjoins the Corredor Biológico Morocochas, which in turn adjoins the Parque Nacional Rincón de la Vieja, which is part of the World Heritage Site. For this reason, they indicate, it is necessary to analyze whether the PAACUME has any impact on that site. They argue that the OET study that serves as the basis for the challenged Law does not mention the Humedal Palo Verde or details on how to compensate the affected area. Likewise, they indicate that this study also does not mention the UNESCO World Heritage Convention, which gives special protection to the Área de Conservación Guanacaste. c) Violation of the principle of non-regression in environmental matters. The plaintiffs transcribe several rulings of the Sala Constitucional regarding the principle of non-regression in environmental matters and the application of this principle to the issue of reducing the size of protected wilderness areas, and indicate that when the challenged Law was issued, the requirement demanded by the Sala Constitucional of having a technical and scientific criterion justifying the reduction in the size of the protected area was not met. Based on the opinion from the Escuela de Biología of the Universidad de Costa Rica that they submit and transcribe, they state that the OET study that served as the basis for Law 9610 is not a complete, objective, scientific, and technical study and that it suffers from many omissions and weaknesses. They begin by saying that the first defect of the study is that it was the Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento (SENARA) that determined which farm should be used for the compensation of the area to be removed from the RBLB, without any technical justification. Then, they indicate that the OET study includes two more farms that were finally used to compensate the removed area, without a baseline biology study being conducted to scientifically determine that these are properties that actually have environmental characteristics that replace the ecosystem functions of the removed area. In addition, they criticize that this study did not contemplate the possible impact on the Parque Nacional Palo Verde, which is a Ramsar site of which the RBLB is also a part. Due to the foregoing, they consider that the study justifying the removal of 113 hectares from the RBLB is incomplete and does not technically or scientifically determine what the environmental impact of this removal and the flooding of those lands will be. And with that, in their judgment, the requirements demanded by the Sala Constitucional for the reduction of boundaries of protected wilderness areas are not met, as indicated in ruling No. 13367-2012 regarding the bill for recognizing the rights of the inhabitants of the southern Caribbean. In support of what has been said, they transcribe the note from the Escuela de Biología of the Universidad de Costa Rica, signed by Jorge Arturo Lobo, in which it is indicated that the compensation proposal put forward by the OET is insufficient in relation to the environmental damages that the 850-hectare reservoir will generate on the ecological integrity of such an important protected area of dry forest. This note questions the methodology used by the OET and indicates that to determine the area of land to be used to compensate for the removed lands, a numerical value was assigned to different ecosystem variables of the floodable area of the RBLB and the "ASETREK" farm, then the scores of each area were tallied and the totals obtained. It is explained that in several aspects the ASETREK farm had a lower score than that obtained by the RBLB ecosystem, that therefore the necessary area of the compensation farm was calculated to level the score, and that, based on this calculation, the final result was reached regarding the number of hectares needed to compensate for the 113 hectares of the RBLB that will be flooded. Additionally, it is questioned that when tallying ecosystem services, the services of pollination, soil protection, aquifer protection, and pest control were not considered; limitations of the field sampling are pointed out, because, for example, bird sampling was not carried out during the arrival season of migratory species; and it is indicated that there are limitations in the scoring system because the difference in slopes between both sites was not adequately assessed nor was the importance of water sources quantified. The transcribed Report criticizes the final result of the OET study, as it indicates that the authors, considering that the ASETREK farm does not have riparian forests, propose the incorporation of other lands that were not studied and to which no score was assigned regarding ecosystem value. Also, the final recommendation of considering the Río Piedras reservoir that will be developed, as part of the compensation for the flooded area of the RBLB, is criticized when indicating that it can be declared as a wetland under the category of Refugio de Vida Silvestre. Regarding this last point, it is indicated that 'it would be an exchange between two formally different ecosystems (a forest ecosystem for a wetland one),' and furthermore, it is questioned that the environmental impacts generated by the reservoir were not assessed. Based on the foregoing, the plaintiffs reiterate that the OET study does not meet the requirements demanded by the Sala Constitucional to remove part of a protected wilderness area and add, as shortcomings, that the same study points out that due to the shape and location of the "Brindis de amor" farm, its annexation would extend the northern end of the RBLB forming a forested peninsula that would not contribute to the formation of a compact block and that this contravenes basic notions of Reserve design. They also allege that the Hacienda Ciruelas (mentioned in the study as Rancho Wilson) was incorporated into the RBLB without being studied, since in the OET study reference is made to it tangentially and, in addition, the formal proposal for its incorporation was put forward by SENARA through official letter No. SENARA-INDEP-441-2017, after the OET study was prepared, based on the maps and knowledge of the site by SENARA and the Ministerio de Ambiente y Energía officials. d) Violation of the precautionary principle. The plaintiffs believe that the precautionary principle is violated, by virtue of the fact that upon approval of the Law, 113 hectares of the RBLB have already been removed in order to flood them and create the Río Piedras reservoir, without the environmental impact assessment (evaluación de impacto ambiental, EIA) for the PAACUME project having been approved by the Secretaría Técnica Nacional Ambiental (SETENA). Therefore, they consider that the boundaries of a Biological Reserve, which has a high level of protection, were modified without any certainty that the project will obtain environmental viability and be able to be executed. e) Violation of the principle of legal certainty. The official letter from the Instituto Geográfico Nacional No. DIG-388-2018, submitted by the plaintiffs, refers to the content of bill No. 20645 and points out several inaccuracies regarding the coordinates and the geographical delimitation set forth in Article 1 of the bill. Based on this, the plaintiffs consider that the principle of legal certainty is violated because it is not possible to know with certainty how many hectares must be expropriated and what the definitive boundaries of the RBLB are. f) Violation of the principle of legality. Another of the plaintiffs' arguments is that the Law is contrary to several provisions of the Ley Orgánica del Ambiente, the Ley de Biodiversidad and its Reglamento, and the Ley de Creación del Servicio de Parques Nacionales, which set the requirements for creating or modifying protected wilderness areas. For this reason, they believe the principle of legality established in Article 11 of the Constitución Política is violated. 2) Allegations related to the violation of the principle of budget balance. The plaintiffs explain that the principle of budget balance or principle of necessary content of the budget derives from Article 176 of the Constitución Política, and that Law 9610 is contrary to this principle because, disregarding the requirement set forth in Article 36 of the Ley Orgánica del Ambiente to have the minimum financing for the creation of protected wilderness areas, it includes private properties within the RBLB without the 2018 budget contemplating any budget item to pay for the necessary expropriations. In line with the foregoing, they believe the principle of reasonableness and proportionality has been violated because, in their opinion, the Law obligates the State to allocate a large amount of resources to expropriate the lands that will compensate for the area removed from the RBLB, when the compensation could have been made with lands owned by MINAE or with less costly lands than those chosen. They consider that, in the current environment of deficit public finances, there is no justification for the State to allocate huge sums to the expropriation of those lands when more favorable options existed. For this same reason, they believe the principle of economy and efficiency has been violated since the option existed to compensate the removed area with a MINAE property, at no cost to the State. They also question that not all properties adjacent to the Reserve were studied to determine how to compensate the removed area at the lowest possible cost. 3) Allegations regarding the violation of the right to private property. In the plaintiffs' judgment, Law 9610 affects the private property of three legal persons and subjects them to the area of the RBLB, without a legally proven public interest and without prior indemnification. This, in their opinion, constitutes a violation of Constitutional Article 45. In close relation to this last argument, the plaintiffs indicate that since it is a norm that restricts the right to property, the Law was voted by a qualified majority, and for that reason, it could not be processed using the procedure set forth in Article 208 bis of the Reglamento de Orden, Dirección y Disciplina Interior de la Asamblea Legislativa, which is conceived as a procedure for processing bills approved by an absolute majority. They indicate that, as the Departamamento de Servicios Técnicos of the Asamblea pointed out, the bill was processed, in part, through that procedure, and that this constitutes a violation of the limitations set by Article 208, which, in their opinion, is a parameter of constitutionality for norms. Por tanto, they believe the law is unconstitutional due to a violation of the parliamentary procedure.” In this regard, the Procuraduría considers that the plaintiffs have standing to file this acción in accordance with the second paragraph of Article 75 of the Ley de la Jurisdicción Constitucional, solely regarding the claims concerning the violation of the fundamental right to a healthy and ecologically balanced environment and those referring to the violation of the principle of budget balance. It notes that the Sala Constitucional has recognized standing for the defense of diffuse interests in environmental matters on multiple occasions (for example, in rulings No. 18360-2017 of 10:50 a.m. on November 15, 2017, No. 9201-2009 of 9:07 a.m. on June 12, 2009, and No. 2699-2009 of 3:06 p.m. on March 2, 2011, among many others) and also in matters where the sound management of public funds is defended (rulings No. 472-2018 of 9:15 a.m. on January 17, 2018, No. S798-2014 of 4:33 p.m. on April 30, 2014, and No. 14348-2009 of 3:19 p.m. on September 16, 2009). It mentions that there is no diffuse interest to defend the alleged violation of the right to private property and, in the sub iudice case, the existence of a prior matter in which the alleged unconstitutionality is invoked as a means to protect the claimed right or interest is not proven. It deems that the acción is admissible only regarding the allegations related to the violation of the right to a healthy and ecologically balanced environment and the principle of budget balance and, consequently, the criticisms regarding the violation of the right to private property are inadmissible. Regarding the merits of the acción, it states the following. 1) Allegations referring to the violation of the right to a healthy and ecologically balanced environment. A. The reduction of protected wilderness areas. It argues that the Sala Constitucional has recognized, on multiple occasions, that the validity of reducing the size of a protected wilderness area depends on whether or not it conforms to the provisions of Article 38 of the Ley Orgánica del Ambiente. It explains that, in other words, reducing the land area of a protected wilderness area is not unconstitutional if two essential requirements are met: that the measure is adopted by law, and that it is previously justified with sufficient technical studies. It partially cites ruling No. 1056-2009 of 2:59 p.m. and similarly refers to judgments No. 11155-2007, No. 14772-2010, and No. 2375-2017. It recounts that this Tribunal, in ruling No. 12887-2014 of 2:30 p.m. on August 8, 2014, added a third requirement: 'A protected area can only be reduced if done by law, if there are technical and scientific studies that rule out environmental damage and if compensation is provided for the suppressed area with another of equal size. This is evident from what this Chamber has resolved on previous occasions in rulings numbers 2012-13367 and 2009-1056… there is no doubt that all those norms in which there is a reduction of protected areas without the backing of technical studies or any compensation, are unconstitutional.' Regarding the technical study that must justify the measure, it partially transcribes judgment No. 13367-2012 of 11:33 a.m. on September 21, 2012: 'In this sense, the requirement for technical studies that justify the approval of bills tending to reduce or remove an environmentally protected area must be satisfied prior to or during the development of the legislative procedure. Furthermore, the requirement for technical studies is not a mere formality, but rather a substantive requirement, that is, it must be substantively demonstrated through a scientific and individualized analysis, the degree of impact of the corresponding measure on the environment, propose recommendations aimed at lessening the negative impact on it, and demonstrate how such a measure implies development that meets the needs of the present without compromising the ability of future generations to meet their own needs.' It refers similarly to ruling No. 10158-2013. It adds that the foregoing jurisprudential development configures the principle of lifetime tenure (irreductibilidad) of protected wilderness areas, according to which this type of space cannot be reduced or modified if the established requirements are not met. It adds that the foregoing bears a clear relationship with the principles of non-regression in environmental matters, objectification of environmental protection, prevention, and precaution. Regarding the principle of non-regression, it partially cites judgment No. 13367-2012, and regarding the principle of objectification of environmental protection, it partially transcribes ruling No. 2063-2007 of 2:40 p.m. on February 14, 2007. It explains that the preventive principle, contemplated in Article 11 of the Ley de Biodiversidad (No. 7788 of April 30, 1998), requires the adoption by public authorities of those measures destined to avoid, mitigate, or correct the adverse effects that human activities or actions generate on the environment. It argues that the precautionary principle finds support in Article 15 of the Río Declaration on Environment and Development and in Article 11 of the Ley de Biodiversidad, and implies that when there is a danger of harm being produced to the environment, even if there is no scientific certainty of its occurrence, activities or projects must be halted, or the granting of authorizations that could generate those impacts must be rejected or suspended. It mentions, in support of the foregoing, ruling No. 6322-2003 of 2:14 p.m. on July 3, 2003. B. On the technical foundation of the challenged law. It asserts that in legislative file No. 2046, where the challenged law was processed, the study “Establecimiento de la Línea base de Biodiversidad para la Reserva Biológica Lomas de Barbudal y Finca Adyacente” by the Organización para Estudios Tropicales is on record (folios 268-504), which aimed to determine the biological and geophysical characteristics of the area of the RBLB that would be substituted by the reservoir area and to evaluate the biodiversity components in an adjacent farm owned by ASETREK Tres Azul S.A., in order to assess its potential to compensate for the affected area of the RBLB; that is, this study was aimed at determining the possibility of compensating for the area of the RBLB that would be removed. It recounts that this study determined that, to compensate the area, 444 hectares of the ASETREK farm and 86 hectares of the Brindis de Amor farm had to be included within the Reserve, besides using the Río Piedras reservoir as part of the compensation. It maintains that, based on the criterion of the Comité Técnico of the Área de Conservación Arenal Tempisque (minute No. 5 of June 30, 2017, folios 1478-1491 of the legislative file), the regional council of that conservation area assessed the OET study and indicated: '... except for the considerations made regarding the conservation target called riparian forest; technically it can be affirmed that: a) the conservation targets that support the creation of the Reserva Biológica Lomas Barbudal are not being affected and b) That the area is compensated by another of equal size that fulfills the same purposes and similar ecosystem conditions. III- That it has been verified that the technical report sent to this body for its consideration has met the content required by Articles 71 and 72 of Decreto Ejecutivo 34433-MINAE “Reglamento a la Ley de Biodiversidad.” (Official Letter No. SINAC-CORACAT-SE-041 of July 7, 2017, folios 1492-1497).' It indicates that, as a deficiency was found in the OET study regarding the area of riparian forest to compensate for the affected area of that type of ecosystem, the Comité Técnico and the Consejo Regional of the Área de Conservación, in the cited documents, recommended: 'Identify an area of riparian forest that allows compensating for the deficit in hectares for this type of ecosystem.' It points out that the Consejo Regional, in the aforementioned note, stated: 'There are some official letters sent by SENARA, for example, SENARA-GG-0374-2017, SENARA-GG-0257-2017, and SENARA-INDER-172-2017 that indicate that within the ASETREK property there are 6.14 hectares (sic) of riparian forest. However, this data is not mentioned in the study conducted by the OET, or supported by any study in this regard, with the same characteristics as the initial study. Regarding the Brindis de Amor farm, this Council also believes that the studies were not carried out with the same depth of analysis compared to the initial study, nor in sufficient time to technically support the quality of the components addressed from the beginning of the investigation. It is necessary that the studies on this property, or any other considered as a compensation proposal, be deepened so that this Council can issue a reasoned opinion.' It notes that the Consejo Nacional de Áreas de Conservación recommended the preparation of a bill with a technical foundation, including the recommendations given by the Comité Técnico and the Consejo Regional of the Área de Conservación Arenal Tempisque. (Official Letter No. SINAC-CONAC-SA-226 of August 14, 2017, folios 1476-1478). It states that, considering the deficit in the riparian forest area pointed out by the Comité Técnico and the Consejo Regional, the final compensation proposal was defined in official letter No. SENARA-INDEP-441-2017 of July 17, 2017 (folios 141-149), in which it was indicated that to compensate the removed area and cover the deficit in riparian forest, 444.04 hectares of the ASETREK Tres Azul S.A. farm, the entirety of the Finca Brindis de Amor en Liberia S.A. with an area of 86.96 hectares, and an area of 40 hectares of the Hacienda Ciruelas SP S.A. farm would be included. It states that the Consejo Regional of the Área de Conservación Tempisque, after the bill was approved in the second debate, indicated that what SENARA proposed was basically a compensation of 5 to 1, that is, compensating with an area 5 times larger than what would be removed (official letter No. SINAC-CORACAT-049-2018 of September 9, 2018, folios 2641-2644). It states that, since the Procuraduría acts as a legal advisor, it cannot technically assess the OET study or the way the final compensation proposal for the area removed from the RBLB was defined. It mentions that this assessment must take into account the criteria of the other institutions, which were heard in this acción de inconstitucionalidad. It declares that, if the OET study and the final compensation proposal for the protected wilderness area were technically insufficient, the challenged law would be unconstitutional for violating the principle of objectification of environmental protection. It asserts that, in the statement of grounds for the bill and throughout the legislative file, the removal of a part of the RBLB has been justified with the argument that the proposed compensation guarantees that the conservation targets that were the basis for the creation of the RBLB would not be affected and that the removed area would be compensated by another of equal size that would fulfill the same purposes and similar ecosystem conditions. It explains that the guarantee that the protected wilderness area will not be affected and that the impact of removing a part of it is mitigated directly falls on the proposed compensation. It adds that if it is concluded that the OET study and the final compensation proposal are insufficient and suffer from technical flaws, the challenged law would violate the principle of lifetime tenure (irreductibilidad) of protected wilderness areas, as it would not be guaranteeing that the approved variation in the boundaries does not affect the integrity of the RBLB and would not be adequately mitigating the environmental impact generated by the removal of a part of that biological reserve. It adds that consequently, the precautionary and preventive principles would be violated, besides there being no technical support that the adopted legislative measure does not harm the right to a healthy and ecologically balanced environment. It maintains that the foregoing could also be contrary to the Convención Ramsar, regarding the obligation established by Article 3 to promote the conservation of wetlands included in the list of wetlands of international importance, of which the RBLB forms part, given that Palo Verde is integrated into the Ramsar site. It asserts that, even if the sufficiency of the OET study and the final compensation proposal is verified, it must be noted that this technical study would only justify the validity of the compensation carried out and, as such, is not a technical study that directly justifies the decision to remove a part of the RBLB. It states that, according to the constitutional case law on the subject, the study required by Article 38 of the Ley Orgánica del Ambiente to justify the reduction of a protected wilderness area must be a study that determines the necessity and advisability of adopting this type of measure.

It points out that, in this case, it would be the study that technically substantiates the need to disaffect part of the RBLB; that is, one that determines that the only alternative for developing the PAACUME project and the Río Piedras reservoir is to disaffect part of the biological reserve. It notes that the Regional Council of the Tempisque Conservation Area, when referring to the OET study, indicated: "this body considers that it has not yet been demonstrated that other alternatives for the PAACUME project exist, without necessarily having to disaffect an area of the current RBLB. If these alternatives are indeed not viable, it will be necessary to assess the third measure, which is compensation" (official letter no. SINAC-CORACAT-SE-041 of July 7, 2017, folios 1492-1497 of the legislative file). It mentions that the council itself, after the bill was approved in the second debate, stated: "it is necessary that sufficient environmental technical, legal, and financial studies exist to justify the appropriate selection of both the area to be disaffected and the areas that will serve as compensation. The existence of these studies must be verified within the file of this bill, since to date this Council does not have such information" (official letter no. SINAC-CORACAT-049-2018 of September 9, 2018, folios 2641-2644). It states that the document "PAACUME Project Profile," prepared by SENARA (folios 505-621), assumes that "one of the properties within the reservoir area belongs to the Lomas Barbudal Biological Reserve, with an approximate area of 112 ha"; furthermore, it is noted that the "area must be compensated with an adjacent area of similar ecological characteristics, for which the elaboration of a biodiversity baseline study is required to demonstrate the equivalence of the compensation areas." It adds that it is recorded that such a study was prepared by the OET (folio 557). It expresses that some of the officials who appeared at the sessions of the legislative committee that processed the project stated that, technically, the PAACUME project could not be developed without disaffecting and flooding part of the RBLB, and in the document called "Mandatory Consultation of Local Communities. Compensation Proposal for the Lomas Barbudal Biological Reserve" (folios 622-726), in response to one of the questions posed by one of the participants, it was answered that "if the 113 hectares of the RBLB are not obtained, the project changes completely, since without these 113 hectares of the RBLB, the conditions of the dam, the amount of water to be impounded, the project cost, and the design would have to change completely" (folio 661). It argues that, based on the opinion of the institutions granted an audience in this unconstitutionality action, it must be assessed whether there is sufficient technical support to justify the need to disaffect part of the RBLB for the purposes of executing the PAACUME project. It argues that, if this support is not verified, Law No. 9610 should be declared unconstitutional for violating the principles of irreductibility (lifetime tenure) of protected wilderness areas, objectification of environmental protection, and non-regression. It maintains that, in this scenario, the norm could be contrary to the Ramsar Convention, because although this does not obligate States to communicate in advance the decision to modify the area of internationally important sites, its Article 4 subjects that possibility to the existence of a reason of urgent national need, which would not be duly justified in this particular case. It asserts that it is also important to verify whether the text of the challenged law considered the inaccuracies noted by the National Geographic Institute (official letters found at folios 1890-1914 and 2604-2608) regarding the coordinates and geographic location, as well as whether these inaccuracies have any consequence on the proper delimitation of the disaffected area and the areas included in the reserve that must be expropriated, as this could, to some extent, prevent the proposed compensation from materializing. It suggests that the technical opinion of the National Geographic Institute be requested. It indicates that the plaintiffs' arguments relating to the violation of the principle of legality, due to non-compliance with legal and regulatory requirements to reduce or modify the extent of protected wilderness areas, are encompassed within the analysis conducted in this regard and, therefore, are not examined separately. It points out that the matter concerning the possible violation of the UNESCO Convention for the Protection of the World Cultural and Natural Heritage and the possible effects of the PAACUME project on the site declared as a World Heritage Site in the Guanacaste Conservation Area is an issue that must be assessed in the environmental impact assessment (evaluación de impacto ambiental, EIA) process for the project, which is currently in progress. Regarding the effects of the challenged law. It notes that Law No. 9610 presents certain particularities with respect to other legal norms that aim to reduce the extent of protected wilderness areas, since, in this case, the decision to disaffect part of the RBLB is not motivated by the loss of environmental value or the protection of the zone, but exclusively by the need to develop an infrastructure project as part of the execution of the PAACUME project. It adds that the authorized disaffection is of interest only to the development of that project. Based on the foregoing, the Office of the Attorney General considers that, apart from the observations noted in the previous segment, a defect of the law that could cause its unconstitutionality refers to the fact that it did not include any provision dimensioning the consequences of the disaffection until the project is executed, given that the decision to disaffect only has meaning and justification if that project is carried out. It adds that, if for some reason the project is not developed, the disaffection carried out would have no meaning whatsoever and, therefore, would lack justification. It insists that the justification for the disaffection depends on the eventual execution of the project, which could be impeded for several reasons, such as: because environmental viability (viabilidad ambiental) is not granted for the project, the necessary financing does not exist, interest in developing it is lost, or it is impossible to execute. It explains that the guarantee of no impact on the RBLB lies in the proposed compensation measure, but the truth is that with the challenged law a part of the reserve was disaffected, and despite the compensation area being included within its boundaries, those lands are private properties that have not been expropriated. It explains that, based on the provisions of Article 37 of the Organic Environmental Law (Ley Orgánica del Ambiente), as long as those properties are not appropriated or purchased, they cannot become part of the protected wilderness area, meaning the proposed compensation has not materialized. It states that, in other words, with the enactment of Law No. 9610, the area of the RBLB was reduced and the impact generated by that reduction has not been compensated, which contravenes the precautionary and preventive principles. It states that if for some reason the project is not developed and the necessary expropriations to carry out the proposed compensation are also not executed, the law would have disaffected the RBLB in vain, without a valid justification existing and without having compensated or mitigated the effects generated by that reduction. It mentions that the foregoing would constitute a violation of the principle of irreductibility (lifetime tenure) of protected wilderness areas, of non-regression, precautionary, and preventive principles, and even a violation of the Ramsar Convention as there would be no reason of urgent need to justify the reduction of the area of one of the sites of international importance. It argues that, without prejudice to what is verified regarding the sufficiency of the technical studies and opinions mentioned above, the Office of the Attorney General considers that, for the reasons just indicated, Law No. 9610 could be unconstitutional, unless it is interpreted that the disaffection it authorizes will only take effect once the project is executed and the lands necessary for the proposed compensation to operate are expropriated. 2) Regarding the violation of the principle of budgetary equilibrium. It indicates that Article 176 of the Political Constitution establishes that the ordinary budget includes all probable revenues and all authorized expenditures of the Public Administration for the entire fiscal year, and that the amount of budgeted expenses cannot exceed that of probable revenues. It points out that, based on this provision, the principle of budgetary equilibrium has been developed, which indicates: "What the constituent envisioned was simply an equilibrium of an accounting nature, in the sense that the total of the planned expenditures could never exceed the total of projected revenues" (Voto No. 481-2002 of 14:42 hours on January 23, 2002, and in a similar sense Votos Nos. 2794-2003 and 15712-2016). It notes that the discussion about whether the specific budget line item destined to cover the expropriations required for the RBLB compensation has been included in the ordinary budget does not refer to a violation of the principle of budgetary equilibrium. It states that the failure to execute these expropriations could rather constitute an impact on the right to a healthy and ecologically balanced environment, as previously explained. It mentions that the selection of land to compensate for the reduction in the size of a protected wilderness area should not respond solely to an economic criterion, but must be based on the ecological attributes of the land, so that it meets environmental conditions equivalent to the disaffected area, thus allowing the compensation to fulfill its ultimate objective. It argues that the Constitutional Chamber has ruled that the rights to health and to a healthy and ecologically balanced environment are fundamental rights and that "any economic criterion that one wishes to apply in a specific case must yield in importance to the former," and, furthermore, that "the criterion of opposing them by giving greater value to purely economic matters..." is not valid (Voto No. 5906-1999 of 16:15 hours on July 28, 1999). It asserts that the fact that there might have been other less costly lands to carry out the compensation does not constitute a violation of the principles of reasonableness, proportionality, economy, and efficiency, in the terms stated by the plaintiffs; unless it were technically proven that there were other less expensive lands with the same or better environmental conditions that were totally suitable to compensate for the disaffected area of the reserve. It concludes the following: "1. The action is admissible only regarding the arguments related to the violation of the right to a healthy and ecologically balanced environment and the principle of budgetary equilibrium, and, consequently, the reproaches relating to the violation of the right to private property are inadmissible. 2. If it is determined that the OET study and the final compensation proposal for the RBLB are technically insufficient, the challenged law would be unconstitutional for violating the principles of objectification of environmental protection, precautionary, preventive, and of irreductibility (lifetime tenure) of protected wilderness areas, since it would not be guaranteed that the approved boundary variation does not affect the integrity of the RBLB, and the environmental impact generated by the disaffection of part of said Biological Reserve would not be adequately mitigated. Also, this would be contrary to the obligation established in Article 3 of the Ramsar Convention to promote the conservation of wetlands included in the list of wetlands of international importance. 3. It must be assessed whether there is sufficient technical support to justify the need to disaffect part of the RBLB to be used in the execution of the PAACUME project. If this foundation is not verified, Law 9610 must be declared unconstitutional for violating the principles of irreductibility (lifetime tenure) of protected wilderness areas, objectification of environmental protection, and non-regression, and for failing to prove the reason of urgent national interest to which the Ramsar Convention subjects the possibility of modifying the area of sites of international importance. 4. It is advisable to request the opinion of the National Geographic Institute as to whether the challenged Law considered the inaccuracies noted regarding the coordinates and geographic location, and whether these inaccuracies have any consequence on the proper delimitation of the disaffected area and the areas that are included in the Reserve and must be expropriated, as this could prevent the proposed compensation from materializing. 5. If for some reason the project is not developed and the necessary expropriations to carry out the proposed compensation are also not executed, Law 9610 would have disaffected the RBLB in vain, without a valid justification existing and without having compensated and mitigated the effects generated by that reduction. This would constitute a violation of the principle of irreductibility (lifetime tenure) of protected wilderness areas, the precautionary, preventive, and non-regression principles, and even a violation of the Ramsar Convention as there would be no reason of urgent need to justify the reduction of the area of one of the sites of international importance. The foregoing, unless it is interpreted that the disaffection it authorizes will only take effect once the project is executed and the lands necessary for the proposed compensation to operate are expropriated. 6. The inclusion or not of the specific budget line item destined to cover the expropriations required for the RBLB compensation in the ordinary budget does not imply a violation of the principle of budgetary equilibrium. 7. The fact that there might have been other less costly lands to carry out the compensation does not constitute a violation of the principles of reasonableness, proportionality, economy, and efficiency. Unless it were technically proven that those lands possess the same or better environmental conditions than the selected ones and were totally suitable to compensate for the disaffected area of the Reserve." 7.- By a document received in the Secretariat of the Chamber at 11:02 hours on February 15, 2019, Carolina Hidalgo Herrera appears, in her capacity as president of the Legislative Assembly. She indicates that the action was filed by Gary Douglas Stewart Postel and María del Milagro Gamboa Miranda, who justified their standing based on the regulation provided in Articles 11 and 50 of the Constitution, insofar as the protection of diffuse interests is sought, since according to their criteria, the challenged norm harms the right to a healthy and ecologically balanced environment as well as the principles of legality, pro natura principles, precautionary, and non-regression in environmental matters. She partially cites Article 75 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional) in relation to diffuse interests. She points out that, in light of the second paragraph of the preceding norm, a prior pending case is not necessary when, due to the nature of the matter, there is no individual and direct harm, or if it concerns the defense of diffuse interests that concern the community as a whole. She partially transcribes Voto No. 8239-2001 of the Chamber on the parameters of diffuse interests. She notes that, in the jurisprudential position, diffuse interests are those whose ownership belongs to groups of people not formally organized, but united based on a certain social need, a physical characteristic, their ethnic origin, a certain personal or ideological orientation, among others. She states that the Chamber has repeatedly indicated that when it comes to the legal protection of the environment, the standing of private individuals is particularly relevant to act judicially and achieve the application of norms with that purpose, or to request jurisdictional protection to restore rights deemed violated. She mentions that, in the present matter, the plaintiffs justified their action on the basis that the challenged norm harms—in their opinion—the right of every person to enjoy a healthy and ecologically balanced environment, provided for in Article 50 of the Constitution; that is, they do not base their standing on the impact on any particular private subject or on themselves, but on society as a whole, i.e., collective interests, which is why their standing is not questioned. Regarding wetlands and their legal regime. She states that the Convention on Wetlands of International Importance Especially as Waterfowl Habitat (RAMSAR Convention), incorporated into the Costa Rican legal system through Law No. 7224 of April 9, 1991, defines wetlands as follows: "For the purpose of this Convention, wetlands are areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six metres. For the purpose of this Convention, waterfowl are birds ecologically dependent on wetlands." She argues that, based on this definition, the RAMSAR Convention establishes that the parties define within their territory the wetlands they consider to be of international importance in accordance with what the convention itself establishes, which gives rise to a list of wetlands. She argues that, as established in Article 2 of the RAMSAR Convention, the international importance of a wetland is defined based on ecological, botanical, zoological, limnological, or hydrological criteria, with special attention to the importance these have for waterfowl throughout the year. She adds that this article states the following in relation to the possibility of adding to or reducing the list of wetland areas: "The Contracting Parties shall have the right to add to the 'List' other wetlands situated within their territory, to extend the boundaries of those which are already included, or, for urgent reasons of national interest, to withdraw from the 'List' or to reduce the boundaries of wetlands already included and they shall inform of these modifications, as soon as possible, the organization or government responsible for the duties of the permanent Office specified in Article 8." She asserts that Article 3 of the RAMSAR Convention mandates the State parties to develop management plans that favor the conservation and rational use of wetlands: "Article 3.- The Contracting Parties shall formulate and implement their planning so as to promote the conservation of the wetlands included in the 'List', and as far as possible the wise use of wetlands in their territory. Each Contracting Party shall arrange to be informed at the earliest possible time if the ecological character of any wetland in its territory and included in the 'List' has changed, is changing or is likely to change as the result of technological developments, pollution or other human interference. Information on such changes shall be passed without delay to the organization or government responsible for the duties of the permanent Office specified in Article 8." She maintains that, as indicated in the preceding article, technological development as an element to be taken into account is relevant and important to highlight, as it does not prohibit intervention as long as the sustainability of the ecosystem is guaranteed. She notes that Article 4 of the RAMSAR Convention urges the State parties to establish legal conservation regimes in wetlands, but does so in general terms without reference to any specific type and, furthermore, recommends compensation in cases where wetlands included in the list are reduced: "Article 4.- Each Contracting Party shall promote the conservation of wetlands and waterfowl by establishing nature reserves on wetlands, whether they are included in the 'List' or not, and provide adequately for their wardening and care... Where a Contracting Party in its urgent national interest withdraws or reduces the boundaries of a wetland included in the 'List', it should as far as possible compensate for any loss of wetland resources, and in particular it should create additional nature reserves for waterfowl and for the protection, either in the same area or elsewhere, of an adequate portion of their former habitat." She maintains that the philosophy of the Ramsar Convention revolves around the concept of wise use of wetlands, which is defined as "the maintenance of their ecological character, achieved through the implementation of ecosystem approaches, within the context of sustainable development." She asserts that the conservation of wetlands, as well as their sustainable use and that of their resources, is at the heart of "wise use," for the benefit of humanity. She indicates that, regarding the legal regime of wetlands in Costa Rica, according to the provisions of Article 40 of the Organic Environmental Law, these are defined as: "ecosystems dependent on aquatic regimes, natural or artificial, permanent or temporary, lentic or lotic, fresh, brackish, or salt, including marine extensions up to the posterior limit of marine phanerogams or coral reefs, or, in their absence, up to six meters deep at low tide." She indicates that, from this legal perspective, wetlands are ecosystems defined by their biological characteristics, where the water resource prevails or is exclusive (Article 1.1 of the RAMSAR Convention, Articles 40, 51, and 52 of the Organic Environmental Law, and 5, 6, and 7 of Executive Decree No. 35803 of January 7, 2010). She points out that other provisions are applicable to wetlands, such as those contained in the Water Law (Ley de Aguas), the Wildlife Conservation Law (Ley de Conservación de Vida Silvestre), and the Maritime Terrestrial Zone Law (Ley de Zona Marítimo Terrestre). She notes that national legislation does not contain a specific legal regime for wetlands (as an ecosystem) and, therefore, it has been accepted that certain activities may be possible without implying a deterioration in the level of legally established protection. She clarifies that the Lomas Barbudal Biological Reserve is not strictly a wetland, but it does form part of the Palo Verde Ramsar site, because when defining Ramsar sites, not only are the ecosystems considered in isolation, but also the existing interrelationships that impact, for better or worse, the wetlands, including that protected wilderness area. She mentions that "The Convention on Wetlands of International Importance Especially as Waterfowl Habitat (RAMSAR Convention), because although it is true that said Convention urges to compensate, as far as possible, the loss of wetland resources through the creation of new natural reserves, in those cases where a wetland is withdrawn from the list of wetlands of international importance or the boundaries of one of them are reduced, and similarly the matter of communication regarding the modification of wetlands situated in its territory and included in the 'List'; it is convenient to specify that the objective of Law No. 9610 is for the development of the Water Supply Project for the Middle Basin of the Tempisque River and Coastal Communities (Paacume), as stated in the statement of motives (legislative file number 20.465), a matter considered of vital importance. Likewise, the Convention does not specify a precise moment for the contracting State to make such communication and carry out the required compensation actions; being that in the specific case, the approval of Law No. 9610 is the moment from which such action could occur by virtue of the effects of the same being generated, and not before, therefore there is no violation of said Convention nor infringement of Article 7 of the Constitution, since the Costa Rican State can make the respective communication in parallel to the actions taken internally in protection of the wetlands by the Ministry of Environment and Energy as the competent entity, specifically in relation to the management category to be assigned to the Río Piedras Reservoir, in accordance with Article 6 of the cited law." Principle of objectification of environmental protection. She states that this principle, also called the principle of linkage to science and technique, or the principle of reasonableness in relation to environmental law. She explains that it has been recognized by constitutional jurisprudence and consists of the obligation to support, through technical and scientific studies, decision-making in environmental matters, whether in relation to individual administrative acts or provisions of a general nature, both legal and regulatory. She adds that, by virtue of the foregoing, serious, exhaustive, and comprehensive technical and scientific studies must always be available to guarantee the least possible environmental impact. She partially cites Voto No. 2063-2007 of 14:40 hours on February 14, 2007. She states that this principle is linked to the preventive principle contained in Article 15 of the Rio Declaration and in Article 11 of the Biodiversity Law (Ley de Biodiversidad), which requires the adoption by public authorities of measures aimed at avoiding, mitigating, or correcting the adverse effects on the environment generated by human activities or actions. She explains that, in relation to the processing of Law No. 9610 (legislative file 20.465), visible from folio 268 to folio 728, the study called "Establishment of a Biodiversity Baseline for the Lomas del Barbudal Biological Reserve (RBLB) and Adjacent Farm," prepared by the Organization for Tropical Studies (OET), is on record. She adds that this document defined the baseline that allows determining the ecological integrity, relevance, and fragility of the present ecosystems, as well as the existing biodiversity in the area of the RBLB when directly impacted by the Río Piedras Reservoir, and, furthermore, a comparative analysis was carried out between the reserve and adjacent lands previously selected to ascertain the conditions of similarity and feasibility of being used as a replacement and being ecologically equivalent (statement of motives of the bill). She adds that this study used the "habitat-hectare method" developed in Australia, which employs a set of indicators that describe the condition of the site (composition of stages, structure, recruitment potential, invasive species, etc.) and its landscape context. She mentions that these indicators are weighted and combined into a habitat score, all of which is explained in detail (pages 296 and 297 of legislative file 2/10). She maintains that after applying this methodology, the OET could verify that the area of the RBLB intended for disaffection was in better ecological condition than the areas proposed for compensation, in a ratio of 3 to 1, meaning that for each hectare disaffected, 3 should be compensated. She asserts that, even so, when reviewed in detail, it is determined that one of the purposes for the creation of the RBLB, precisely the riparian forest (bosque ripario), was not represented within the ASETREK farm, which was the proposal to compensate the 113 hectares that would be disaffected. She indicates that it was for this reason that the need arose to search for other adjacent lands with riparian forest to compensate for the lack of that ecosystem in the compensation proposal. She points out that, because what was required was solely to find the riparian forest, the studies on the Brindis de Amor and Hacienda Ciruelas farms did not delve with the same detail as the ASETREK studies; however, even so, the OET did conduct a characterization study of the Brindis de Amor Farm, as a compensation complement, which is visible in folios 209 to 215 of the Baseline Study. She notes that the Arenal Tempisque Conservation Area (ACAT) of the National System of Conservation Areas, in its capacity as the competent technical body, carried out the analysis in relation to the study called "Establishment of the Biodiversity Baseline for the Lomas de Barbudal Biological Reserve (RBLB) and Adjacent Farm," as recorded in folios 126 to 131 of the legislative file, by virtue of which it issued the following improvement recommendations: "... Therefore, save for the considerations made regarding the conservation target known as riparian forest; technically it can be affirmed that: a) the conservation targets that underpin the creation of the Lomas de Barbudal Biological Reserve for the same purposes are not being affected and b) That the area is compensated by another of equal size that meets the same purposes and similar ecosystem conditions. III. That it has been verified that the technical report submitted to this body for its consideration has met the content required by Articles 71 and 72 of Executive Decree No. 34432-MINAE 'Regulations to the Biodiversity Law' (Reglamento a la Ley de Biodiversidad). IV.

The study presents a series of recommendations that have been analyzed by this collegiate body and that, where pertinent, should be accepted..." (Agreement No. 1 of the extraordinary session of July 5, 2017, of the Regional Council of the Tempisque Conservation Area, visible from folio 126 to folio 131 of legislative file 1/10). It states that the technical studies were seen and reviewed by the respective instances of SINAC: the ACAT Technical-Scientific Committee, the ACAT Regional Council (Agreement No. 1 of the extraordinary session held on July 5, 2017), and the National Council of Conservation Areas (extraordinary session No. 3-2017 of July 11, 2017). Principle of environmental non-regression or lifetime tenure (irreductibilidad). It mentions that the RBLB corresponds to a wild protected area (área silvestre protegida) of absolute protection category, which was declared by Executive Decree No. 16849-MAG of January 23, 1986, has an area of 2,602 hectares, and is part of the Arenal-Tempisque Conservation Area (ACAT) of SINAC. It states that the modification of wild protected areas is provided for in the Organic Law of the Environment, whose Article 38 provides: "The surface area of wild protected areas, natural patrimony of the State, whatever its management category, may only be reduced by Law of the Republic, after conducting the technical studies that justify this measure." It adds that the legislator has the possibility of reducing the areas, subject to prior compliance with the technical justifications. It adds that, related to the principle of non-regression (a substantive guarantee of strictly environmental rights that prohibits the State from adopting measures or policies, or approving or modifying norms, that worsen, without reasonable or proportionate justification, the rights previously achieved, deriving it from the principles of progressivity of human rights, objectification of environmental protection, and non-retroactivity of norms). It mentions vote No. 2012-13367 of the Constitutional Chamber. It argues that the Constitutional Court has established that it is valid to expand the physical extent of protection areas by executive decree (principle of progressivity); however, reduction can only be done by law, after a technical study adjusted to the principles of reasonableness and proportionality, to the requirements of ecological balance and a healthy environment, and to the general welfare of the population that serves to justify the measure. It partially cites judgment No. 7294-98. It refers to vote No. 5994-2017 regarding the scope of the principle of non-regression in environmental matters: "not every modification of environmental regulations should be considered a violation of said principle." It affirms that, in judgment No. 2012-13367, the Chamber explains in which situations the principle of non-regression is not violated, as well as its link with the principle of singular non-derogability (inderogabilidad singular) of the regulations. It adduces that, in the specific case, the modification made to the RBLB responds to a better use of water resources in the province of Guanacaste and, therefore, it is a justified and reasonable modification in light of the principle of sustainable development conceptualized in judgment No. 763-1994 at 16:45 hours on April 13, 1994, which it partially transcribes. It asserts that this principle, at the national level, is contained in numeral 50 of the Political Constitution, which establishes a right to a healthy and ecologically balanced environment. It partially cites judgment No. 15315-2008 at 14:59 hours on October 10, 2008. It indicates that, regarding the legislative process, from folio 268 to 726, there is the study called "Establishment of a Biodiversity Baseline for the Lomas de Barbudal Biological Reserve (RBLB) and adjacent farm" carried out by the OET, in which a comparative analysis was made between the reserve and previously selected surrounding lands to ascertain the conditions of similarity and feasibility of being used as an ecologically equivalent replacement: "Thus, according to the results presented in the study conducted by the OET and what was proposed in the Piaag high-level commission, the definitive compensation proposal is: 1.- From the Asetrek Tres Azul S.A. farm, a total of 444.04 hectares according to the map of the proposed area. 2.- The entirety of the Brindis de Amor de Liberia S.A. Farm, with a registered area of 86.96 hectares according to the map. 3.- An area of the farm of 40.00 hectares from Hacienda Ciruelas SP S.A. In total, the purchase of 571 hectares, which represents a factor of 5 times the area that will be affected in the RBLB, with a direct equivalence in forest types, as indicated in table 7. Table 7. Comparison of area by forest type between the affected area of the RBLB and the proposed compensation area\n Cover type\n\t\n Affected area in the RBLB (Ha)¹\n\t\nArea of ASETREK Tres Azul S.A. (Ha)\n\t\n Area of Brindis de Amor S.A. (Ha)\n\t\nArea of the Hacienda Ciruelas SP S.A. farm\n\t\nTotal proposed compensation area (Ha)\n\n\n Mature forest (Riparian)\n\t\n24.71\n\t\n6.14\n\t\n16.41\n\t\n8.49\n\t\n 31.04\n\n\n Secondary forest\n\t\n9.13\n\t\n59.5\n\t\n6.63\n\t\n2.44\n\t\n 68.57\n\n\n Deciduous forest\n\t\n 96.05\n\t\n 286.67\n\t\n 45.74\n\t\n 26.91\n\t\n 359.32\n\n\n Pastures\n\t\n 0.79\n\t\n 73.23\n\t\n 18.18\n\t\n 2.16\n\t\n 93.57\n\n\n Non-forest areas\n\t\n0.39\n\t\n18.5\n\t\n-\n\t\n-\n\t\n 18.5\n\n\n TOTALS\n\t\n 131.07\n\t\n 444.04\n\t\n 86.96\n\t\n 40\n\t\n 571\n¹Although the required area of the RBLB is 113 hectares, the OET conducted the study on 130.64 hectares, which is why this value is used for comparison. With the proposed compensation measures, the conservation objective is achieved and, therefore, it can be affirmed: 1.- That the conservation objects that underpin the creation of the “protected area” are not being affected. 2.- That the area is compensated by another of equal size that fulfills the same purposes and similar ecosystem conditions." It points out that the Arenal Tempisque Conservation Area of the National System of Conservation Areas, in its capacity as the technical competent body, analyzed the previous study. It notes that, in view of the above, there exists a prior study for the specific case of a scientific nature and duly founded, with recommendations regarding the mitigation of (inevitable) impacts generated through equivalent biodiversity compensation. It mentions that this study was taken as a basis within the legislative file, thus complying with what is required both at the level of regulatory and constitutional parameters. It states that the study takes the precautions so that, at a technical level, the conservation objects that underpinned the creation of the wild protected area are effectively compensated. Constitutional principle in dubio pro natura or precautionary principle. It affirms that it is contained in Article 11 of the Biodiversity Law and in Principle 15 of the Rio Declaration on Environment and Development. It partially cites legal opinion No. OJ-139-2001 of September 27, 2001, of the Attorney General's Office of the Republic: "In any case, and even if there were doubt as to whether the environmental alterations analyzed here will occur upon authorizing the titling in wild protected areas, it is clear that the State must refrain from approving this type of laws in application of the so-called precautionary principle, contained in the Rio Declaration on Environment and Development (in the same sense, Article 11 of the Biodiversity Law No. 7788 of April 30, 1998): '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 other words, given the serious threat that allowing the registration of lands in the Public Registry in the name of private individuals within protected areas represents for the different ecosystems, the precautionary principle orders the elimination of such possibility or its substitution by a rule that is not harmful to natural resources. Not doing so violates this principle, which is a direct derivation of 'in dubio pro natura,' a basic pillar of Environmental Law." It transcribes, in relevant part, resolution No. 2000-10465 of November 24, 2000: "...One of the essential principles that make up environmental law is the 'precautionary principle' or 'principle of prudent avoidance'; which is contained in the United Nations Conference on Environment and Development, 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 same sense, see Article 11 of the Biodiversity Law). The term prevention derives from the Latin 'praeventio,' which alludes to the action and effect of preventing, to those preparations and dispositions made in advance to avoid a risk or execute something. 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 people. Thus, 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 the activity in question postponed. This is because in environmental matters, a posteriori coercion is ineffective, since if the biologically and socially harmful consequences have already occurred, the repression may have moral transcendence, but will hardly compensate for the damages caused to the environment." It argues that a distinction must be made between the study required for the processing of Law No. 9610 (on which it referred above) and the environmental impact assessment (evaluación de impacto ambiental, EIA) of the "Water Supply Project for the Middle Basin of the Tempisque River and Coastal Communities (Paacume)" that must be processed before SETENA, as provided for in numeral 4 of said regulation: "ARTICLE 4- The National Service for Groundwater, Irrigation, and Drainage (Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento, Senara) shall be the entity responsible for carrying out the environmental study of the Water Supply Project for the Middle Basin of the Tempisque River and Coastal Communities (Paacume), which must include the prevention, mitigation, and compensation measures for the area released (área desafectada) affected in Article 2 of this law, which must be implemented by the developer. The environmental impact assessment must consider the baseline approved by the entities and endorsed by the Regional Council of Conservation Areas of the National System of Conservation Areas (SINAC), without prejudice to the terms of reference issued by SETENA, in accordance with the corresponding legal framework." It refers that the Convention on Biological Diversity and its Annexes 1 and 2, signed in Rio de Janeiro in 1992 and approved by Law No. 7416 of June 30, 1994, establishes in Article 14 the instrument of environmental impact assessment, under the preventive principle with the minimization of adverse impact: "Article 14. Impact Assessment and Minimizing Adverse Impacts 1. Each Contracting Party, as far as possible and as appropriate, shall: (a) Introduce appropriate procedures requiring environmental impact assessment of its proposed projects that are likely to have significant adverse effects on biological diversity with a view to avoiding or minimizing such effects and, where appropriate, allow for public participation in such procedures; (b) Introduce appropriate arrangements to ensure that the environmental consequences of its programmes and policies that are likely to have significant adverse impacts on biological diversity are duly taken into account." It adds that numeral 17 of the Organic Law of the Environment provides: "Environmental impact assessment. Human activities that alter or destroy elements of the environment or generate waste, toxic or hazardous materials, shall require an environmental impact assessment by the National Environmental Technical Secretariat created in this law. Its prior approval, by this body, shall be an indispensable requirement to initiate the activities, works, or projects. The laws and regulations shall indicate which activities, works, or projects will require the environmental impact assessment." It mentions that Articles 92 and following of the Biodiversity Law require the environmental impact assessment of all projects when they are considered to potentially affect biodiversity. It partially transcribes subparagraph 38 of Article 3 of Executive Decree No. 31849: "the administrative scientific-technical procedure that allows identifying and predicting what effects an activity, work, or project will have on the environment, quantifying and weighing them to lead to decision-making. Generally, the environmental impact assessment covers three phases: a) the Initial Environmental Assessment, b) the preparation of the Environmental Impact Study or other corresponding environmental assessment instruments, and c) the Environmental Control and Follow-up of the activity, work, or project through the established environmental commitments." It adds that the environmental impact assessment refers to the development and implementation of the Water Supply Project for the Middle Basin of the Tempisque River and Coastal Communities (Paacume), as set forth in Article 17 of the Organic Law of the Environment. It states that the environmental impact assessment must be conducted prior to any human activity that may alter, contaminate, or damage the environment: "VI.- Competencies in environmental assessment matters. In development of the State's obligations of defense and preservation of the environment established in Article 50 of the Constitution, numeral 17 of the Organic Law of the Environment, number 7554 of October four, nineteen ninety-six, has established the obligation of persons, physical or juridical, to conduct an environmental impact study before undertaking activities or projects that by their nature may alter or contaminate the environment" (judgment No. 2003-06311 of July 3, 2003). It posits that it will be the EIA granted by SETENA, in accordance with numeral 84 of the Organic Law of the Environment, that will determine if the activities intended to be developed under said project are environmentally possible, or if the activities submitted for consideration must be restricted as a precondition to their approval and, in turn, establish the corresponding mitigation measures. It adduces that the EIA is not a requirement for the enactment of a law of release from protection (desafectación), according to Article 38 of the Organic Law of the Environment. It asserts that SETENA must consider as one of the inputs the study "Establishment of a Biodiversity Baseline for the Lomas de Barbudal Biological Reserve (RBLB) and adjacent farm," without it being understood as the sole one, as the same regulation indicates that, in accordance with the legal framework, it must issue the pertinent terms of reference that allow for the analysis of that project in the exercise of its technical and legal competencies. It maintains that what is indicated in Article 4 of Law No. 9610 is in accordance with numeral 50 of the Constitution and with subparagraphs 17 and 43 of the Organic Law of the Environment, as it requires the EIA as a pre-requisite prior to the development of the project. It points out that Article 1 of the questioned law has the following content: "ARTICLE 1- The area of the Lomas de Barbudal Biological Reserve, created by Executive Decree No. 16849-MAG, of January 23, 1986, is rectified and delimited for the development of the Water Supply Project for the Middle Basin of the Tempisque River and Coastal Communities (Paacume)..." It states that it is not feasible, as the claimants intend, for the environmental viability process of the project to be carried out prior to the approval of the law. Private areas immersed within the limits of wild protected areas (Article 37 of the Organic Law of the Environment and Article 45 of the Political Constitution). It cites Article 37 of the Organic Law of the Environment: "When establishing wild protected areas, whatever their management category, the Executive Branch, through the Ministry of Environment and Energy, is empowered to include, within their limits, the private farms or parts of private farms necessary to fulfill the objectives set forth in this law and to implement them in accordance with the respective management plan or to create legal easements (servidumbres) for ecological protection and compliance with this law. In the case of national parks, biological reserves, or state national wildlife refuges, the lands shall be acquired by purchase, expropriation, or both procedures, upon prior compensation. In the cases of forest reserves, protective zones, mixed wildlife refuges, and wetlands, the properties or their parts may also be purchased or expropriated, unless, at the owner's request, they voluntarily submit to the forest regime. This subjection shall be registered in the Public Property Registry, as an encumbrance on the property, which shall be maintained for the time established in the management plan. Private farms affected according to the provisions of this article, for being in national parks, biological reserves, wildlife refuges, forest reserves, and protective zones, shall be included within the state protected areas only from the moment they have been paid for or legally expropriated, except when they voluntarily submit to the Forest Regime. In the case of forest reserves, protective zones, and wildlife refuges, and if payment or expropriation has not been carried out and while it is being carried out, the areas shall be subject to an environmental management plan that includes the environmental impact assessment and subsequently, the plan for management, recovery, and restoration of the resources." It notes that this numeral establishes the power of the Executive Branch, through the Ministry of Environment and Energy, to establish wild protected areas, whatever their management category, being empowered to include, within their limits, private farms or parts of private farms, necessary to fulfill the objectives set forth by the law and to implement them in accordance with the respective general management plan. It mentions that when it concerns national parks, biological reserves, or state national wildlife refuges, the lands must be acquired by purchase, expropriation, or both procedures, upon prior compensation, as the management and conservation purposes of those management categories make them incompatible with private property. It cites judgment of the Chamber No. 1019-1997: "Despite the declaration of a wild protected area by decree or law, private owners retain all the attributes of ownership, subject to the limits of ordinary environmental legislation, until expropriation or payment. These people can continue with their crops or pastures and maintain their constructions but could not expand their activities if these imply a land-use change (cambio de uso del suelo), that is, tree felling and loss of forest cover (cobertura boscosa). In the case of establishing forest reserves, protective zones, and wildlife refuges, the option is given for the owner to consent to it, as, following the management plan, they can continue to exploit it in economic terms. But integration will be voluntary. But if those affected by the limitations do not wish to submit to the forest regime, they can negotiate the sale of the land with the State or submit to the expropriation proceedings." It states that the current regulations foresee the possibility of including private properties within the limits of wild protected areas, as the right to property is not absolute and may be subject to limitations. It partially transcribes resolution of the Chamber No. 2007-011359 of August 10, 2007. It affirms that the doctrine indicates that there has been a change from the intangibility of the concept of absolute and unlimited property (Article 29 of the Political Constitution of 1871) to a functional right, elastic and adaptable to the social reality experienced by the community (Article 45 supra), which provides for the authorization of expropriation for reasons of public utility and the imposition of limitations of social interest and due to the social function of property. It cites resolution No. 4205-1996 of August 20, 1996: "The content of this 'property-function' consists in that the owner has the power to use the good that is the object of the domain to satisfy their own needs, but has the corresponding duty to also put it at the service of social needs when such behavior is essential. With this new concept, the legislator's powers to determine the content of property rights are broadened, which is achieved through the limits and obligations of social interest that may be created, putting an end to its exclusive, sacred, and inviolable sense." It partially transcribes the vote of the Chamber No. 2007-011359: "the Right to property of Article 45 of the Political Constitution, like the others, are not absolute, so they may be subject to restrictions, which are legitimate only when they are necessary to make possible the validity of democratic and constitutional values, meaning that besides being 'necessary,' 'useful,' 'reasonable,' and 'opportune,' the restriction must imply the existence of an imperative social need that supports it." It argues that a restriction on property rights that empties its essential content becomes a covert expropriation and, consequently, generates the obligation to compensate. It explains that the Chamber, in resolution No. 4465-99 of June 11, 1999, established the obligation to compensate in cases of expropriations, but not for limitations of interest that are established by a qualified vote. It adds that, for the specific case, numeral 37 of the Organic Law of the Environment once again becomes relevant. It adds that the private lands included in the declaration of a wild protected area maintain their condition until the Executive Branch carries out the expropriation processes, in accordance with the aforementioned numeral 37, and therefore, the content of the property right is not being emptied. It expounds that the same Article 37 provides for acquisition by direct purchase or expropriation, so there is no omission in Law No. 9610. It adduces that the legal system must be integrated in such a way that it is understood that, because it concerns the management category of a biological reserve, there is an obligation to acquire the properties through the mechanisms established for that purpose (Expropriation Law No. 7495). It asserts that it is not feasible to carry out the procedures contained in the Expropriation Law until the release from protection of private properties by law has occurred. It maintains that what is indicated regarding the budgetary content and administrative appraisals should also not be a prerequisite, since timely administrative and procedural moments are provided for that purpose, for the purpose of carrying out the due compensation of private owners in the respective processes. It indicates that, with respect to what is indicated in points 4 and 5 of section E, the arguments correspond to private interests (impact on the development of a tourism project and the existence of easements and enclaved fundos) whose defense must be exercised by the supposedly affected companies, so it makes no reference to that. It points out that there are no constitutional defects, as the current legal system contains the regulation related to all the aspects that were pointed out in this action and are matters of ordinary legality. Legislative procedure (numeral 208 bis of the Legislative Assembly). It notes that legislative file No. 20,465 was sent to the Directorate Secretary on July 20, 2017, and, at that time, the Presidency of the Legislative Assembly assigned it to the "Special Investigative Commission of the Province of Guanacaste to analyze, study, rule on, and assess the pertinent recommendations in relation to the social, economic, business, agricultural, tourism, labor, and cultural issues of the entire province of Guanacaste" (special commission No. 19.206). It mentions that the above was provided according to the ordinary law-making procedure; however, in ordinary session No. 28 of June 20, 2016, the Plenary agreed to apply a special procedure for its knowledge, in accordance with Article 208 bis of the Regulations of the Legislative Assembly. It states that, based on these rules, legislative file No. 20,465 was assigned to special commission No. 20,869, "Special Commission that shall be in Charge of analyzing, studying, and ruling on File No. 20,465 'Law for the Modification of the Limits of the Lomas de Barbudal Biological Reserve for the development of the Water Supply Project for the Middle Basin of the Tempisque River and Coastal Communities'." It argues that this body issued a ruling on the initiative. It refers that, in consideration of these facts and as a result of the arguments of several Deputies, in ordinary plenary session No. 46 of August 7, 2018, it was agreed to approve by a majority of 46 votes in favor and 3 against, an order motion that established: "To render null and void the special procedure approved via Article 208 bis for legislative file No. 20,465 'LAW FOR THE MODIFICATION OF THE LIMITS OF THE LOMAS DE BARBUDAL BIOLOGICAL RESERVE FOR THE DEVELOPMENT OF WATER SUPPLY PROJECTS FOR THE MIDDLE BASIN OF THE TEMPISQUE RIVER AND COASTAL COMMUNITIES,' as there are clashes of constitutionality in the process that make it incompatible with the application of a special procedure and that henceforth, it continue its ordinary legislative process." It explains that, consequently, the Legislative Assembly disavowed all the agreements made under the special procedure and took up the bill based on the rules of the ordinary law-making procedure. It adds that it can be verified in the minutes that, after the approval of the order motion, the Legislative Assembly resumed knowledge of the bill and agreed to dispense with all prior procedures, except for its publication, in accordance with Article 177 of the Regulations of the Legislative Assembly (minutes of ordinary session No. 46 of August 7, 2018). It adds that the initiative was not known previously by any legislative commission, but directly by the Plenary, which acted as a general commission. It states that legislative file No. 20,465 entered the Plenary's agenda on August 9, 2018, and, in extraordinary session No. 7 of that date, it was discussed and approved in the first debate. It adduces that the Presidency of the Legislative Assembly indicated at the beginning of the discussion: "The discussion begins in the first debate procedure. This bill has been dispensed from all procedures except publication and counts, from the order motion approved in ordinary session number 46, held on August 7, 2018." It asserts that there is no substantial defect in the procedure, as it was not known and approved in first and second debate based on Article 208 bis of the Regulations of the Legislative Assembly, but rather in accordance with numerals 135, 150, and 177 as a bill dispensed from prior committee procedures. Principle of legal certainty. It relates that the Chamber has repeatedly indicated that legal certainty is a constitutional principle that, in its generic sense, consists of the guarantee given to the individual that their person, their property, and their rights will not be subject to violent attacks, or that, if these should occur, they will be assured protection and reparation; furthermore, it is the situation of the individual as an active and passive subject of social relations who, knowing or being able to know what the current legal norms are, has fundamental expectations that they will be fulfilled.

Indicates that this legal value seeks to provide certainty and attempts to avoid the uncertainty of current Law (arbitrary legal modifications, carried out without prior study and consultation). It expresses that it can be considered in both a subjective and objective sense: the former is the conviction a person has that the situation they enjoy will not be modified by an action contrary to the principles governing social life, and the latter is the existence of a state of social organization or a social order. It notes that ley n.º 9610 has the respective supporting studies and, therefore, does not entail an arbitrary modification of the legal system. It mentions that in the specific case there is absolute certainty of the properties registered in the name of Asetrek Tres Azul S.A, Finca Brindis de Amor en Liberia S.A., and Hacienda Ciruelas SP S.A. affected by ley n.º 9610 (conditions that appear in the National Registry entry) and that, as previously indicated, they must undergo the procedure set forth in the Ley de Expropiaciones for their effective integration into the Lomas de Barbudal biological reserve. It states that the limits of the Lomas de Barbudal biological reserve are duly indicated in decreto ejecutivo n.º 16849-MAG of January 23, 1986, and in the coordinates established in ley n.° 9610. It affirms that, should doubts arise in the field (subsequent to the acquisition of the private properties), it will be the responsibility of the Ministerio de Ambiente y Energía to comply with the provisions of numeral 16 of the Ley Forestal: "ARTICULO 16.- Boundaries. The Ministerio del Ambiente y Energía shall demarcate on the ground the boundaries of the areas that make up the State's natural heritage. The boundary demarcation procedure shall be established in the regulations of this law." It mentions that the State's Natural Heritage is defined in numeral 13 of the Ley Forestal and is comprised of Protected Wild Areas (whatever their management category) declared by law or Executive decree; that is, forest reserves, protected zones, national parks, biological reserves, national wildlife refuges, wetlands, and natural monuments. It states that, according to the regulation provided in articles: 1, 2, 3 subsection i) of the Ley Forestal, 31 of the Ley Orgánica del Ambiente; 22 and 58 of the Ley de Biodiversidad, 3 subsections d) and f) of the Ley de Servicio de Parques Nacionales, and 82 subsections a) and b) of the Ley de Conservación de la Vida Silvestre. It partially cites the Sala's judgment n.º 2003-03840 from 14:02 hours on May 2, 2003, and refers in the same sense to vote n.º 05266-2009 from 12:24 hours on March 27, 2009. It argues that the aspects indicated by the plaintiffs are regulated in the current environmental regulations and, therefore, ley n.º 9610 does not have constitutionality defects. Principle of legality (article 11 of the Constitución Política). It clarifies that, in the case of ley n.º 9610, the situation involves the boundary modification of the Lomas de Barbudal biological reserve, which was established as a protected wild area through decreto ejecutivo n.º 16849-MAG of January 23, 1986. It refers that current regulations were complied with, since article 71 of the Reglamento a la Ley de Biodiversidad indicates: "For the declaration, modification, or change of management category of an ASR, a technical report must be prepared, which will be coordinated by the respective Instance of SINAC." It adds that, to comply with these studies, the Servicio Nacional de Agua Subterránea, Riego y Avenamiento (SENARA) contracted the Organización para Estudios Tropicales (OET) to develop the study "Establishment of the Biodiversity Baseline for the Lomas de Barbudal Biological Reserve (RBLB) and adjacent farm." It explains that the objective of the study consisted of developing and defining the baseline to determine the ecological integrity, relevance, and fragility of the present ecosystems, as well as the existing biodiversity in the area of the Lomas de Barbudal biological reserve that would be directly impacted by the Río Piedras Reservoir; furthermore, a comparative analysis between an area of the RBLB and previously selected surrounding lands, to determine the conditions of similarity and feasibility of being used as an ecologically equivalent replacement zone. It adds that this study was carried out following the specifications of article 72 of the Reglamento a la Ley de Biodiversidad, as expressly indicated in the official letter from the Organización para Estudios Tropicales dated January 30, 2017, and visible on folio 212 of legislative file 1/10. It adds that, in relation to point h) of numeral 72 of the Reglamento a la Ley de Biodiversidad (decreto ejecutivo n.º 34433-MINAE), the legislative file contains a document called "Mandatory Consultation with Local Communities Compensation Proposal for the Lomas de Barbudal Biological Reserve." It states that, likewise, the Arenal Tempisque Conservation Area of the Sistema Nacional de Áreas de Conservación, in its capacity as the competent technical body, with respect to the study by the Organización Para Estudios Tropicales (OET), indicated the following: "… That it has been verified that the technical report submitted to this instance for its consideration has complied with the content required by numerals 71 and 72 of Decreto Ejecutivo Nº 34433-MINAE 'Reglamento a la Ley de Biodiversidad...' (agreement n.° 1 of the extraordinary session of July 5, 2017, of the Regional Council of the Tempisque Conservation Area, visible on folios 126 to 131 of legislative file 1/10). Principle of Budgetary Balance. It alleges that, according to article 5 of the Ley de Administración Financiera de la República y Presupuestos Públicos (n.° 8131), the budget must reflect balance between income, expenditures, and financing sources. It asserts that, in addition to what has already been indicated regarding the procedure contained in the Ley de Expropiaciones that must be followed for the acquisition by the State of the private properties affected by ley n.º 9610, it is necessary to indicate that the legislative file contains official letter DM-MAG-264-2017 of April 18, 2017, from the Ministerio de Agricultura y Ganadería in which it commits to including within the extra budgetary limit the 1,425,000,000.00 million colones for the acquisition of land for the compensation of areas of the Lomas de Barbudal biological reserve within the framework of the PAACUME project (folio 150 legislative file 1/10). It notes that the foregoing was established based on estimates made by SENARA: "To comply with this legal requirement, it is necessary to have an estimated amount of one billion four hundred twenty-five million colones 00/100 (1,425,000,000.00), on the understanding that, once the law authorizing the compensation is approved, the corresponding expropriation procedures will be carried out" Official letter SENARA-GG-0231-2017 of April 6, 2017, folios 214 to 218 of legislative file 1/10)." It mentions that the requirement set forth in subsection g) of numeral 72 of the Reglamento a la Ley de Biodiversidad was fully satisfied within the legislative process, since the MAG committed to having the economic content to address the obligations established in ley n.º 9610. It states that, upon the issuance of ley n.º 9610, the obligation to purchase the private properties located within the biological reserve arises, distinct from the effective moment at which the resources corresponding to indemnification must be available, according to the Ley de Expropiaciones. Principle of reasonableness and proportionality. It cites the Sala's vote n.º 732-2001: "V. THE PRINCIPLE OF REASONABLENESS AS A CONSTITUTIONAL PARAMETER. Constitutional jurisprudence has been clear and consistent in considering that the principle of reasonableness constitutes a parameter of constitutionality ... To carry out the judgment of reasonableness, US doctrine invites one to examine, in the first instance, the so-called 'technical reasonableness' within which the specific regulation is examined (law, regulation, etc.). Once it is established that the chosen regulation is adequate to regulate a certain matter, it must be examined whether there is proportionality between the means chosen and the intended purpose. Once the criterion of 'technical reasonableness' is overcome, 'legal reasonableness' must be analyzed. For which this doctrine proposes examining: a) balancing reasonableness, which is a type of legal assessment used when, in the presence of a certain antecedent (e.g., income), a certain benefit is required (e.g., tax) and in this case it must be established whether it is equivalent or proportional; b) reasonableness of equality, is the type of legal assessment that assumes that equal antecedents must have equal consequences, without arbitrary exceptions; c) reasonableness in the purpose, at this point it is assessed whether the objective to be achieved offends the purposes foreseen by the legislator with its approval. Within this same analysis, it is not enough to affirm that a means is reasonably adequate for an end; it is also necessary to verify the nature and size of the limitation that a personal right must bear through that means. In this way, if the same end can be achieved by seeking another means that produces a less burdensome limitation on personal rights, the chosen means is not reasonable…". It argues that the principle of reasonableness and proportionality plays a leading role in Administrative Law, projecting itself in various areas. It refers that it is of vital importance as a limit to the exercise of administrative discretion, as the Ley General de la Administración Pública establishes that discretionary administrative acts cannot be issued that are contrary to the unambiguous rules of science or technique, or to the elementary principles of justice, logic, or convenience (articles 1G, 1st paragraph, 158, 4th paragraph, and 160) (Principios constitucionales que rigen a las Administraciones Públicas, Ernesto Jinesta L). It explains that, on the subject of compensation and the properties selected for that purpose, the statement of motives of the bill, based on the study called "Establishment of the Biodiversity Baseline for the Lomas de Barbudal Biological Reserve (RBLB) and adjacent farm" indicates: "The lands evaluated for the compensation area are owned in the name of ASETREK Tres Azul S.A., legal ID N° 3-101-370259, whose representative is Mr. Ramón Agilitar Facio, identification number Nº 9-0001-0541, cadastral map N° 5-666-1976, real folio N° 034932-000, located in the first district Bagaces, of the fourth canton Bagaces, of the province of Guanacaste, with a registered area of 751 hectares. The procedure carried out by the OET for the compensation evaluation is based on a methodology called: Habitat/Hectare, a scoring system developed by Australian researchers which identifies a series of environmental quality indicators and assigns values to each of the habitat factors to be evaluated. Two independent compensation evaluations were carried out, one based on habitat quality indicators and the other based on diversity and community composition, both adapted to the tropical dry forest. Additionally, the methodology used by the OET was modified to include other indicators (geophysical, ecosystem services, among others). The final score results from the sum of the values determined for each indicator and represents the habitat quality or community composition in relation to the reference habitat (RBLB). From the result obtained in the Study, it was possible to estimate the number of hectares required to achieve a quality level like that of the reference and thus compensate for the 113 hectares to be flooded in the RBLB. It is important to note that the study carried out by the OET considered an area in the RBLB of 131.07 hectares, because it was during its execution that SENARA carried out the field topography work to prepare the definitive map on the effective area required for the reservoir, which resulted in the 113 hectares, all included within the 131.07 hectares studied by the OET. The Study carried out by the OET (over 131.07 hectares), considering the established area, determined that this sector of the RBLB has three types of forest cover (cobertura forestal): deciduous forest covering 96.05 hectares, secondary forest covering 9.13 hectares, and mature forest covering 24.71 hectares. The latter will henceforth be called riparian forest, because it is related to the watercourses of the area and composed of remnants of vegetation that subsist on the banks of rivers and streams, constituted by evergreen species. Additionally, the farm has 1.18 hectares in non-forest area and pastures. The area of riparian forest in ASETREK corresponds to small fragmented areas, a situation that led to its existence not being considered for the purposes of assigning scores in the evaluation carried out in the Study to determine the required compensation area. The conclusions of the study reveal, according to habitat quality, that an equivalent area between 290 and 332 hectares is necessary to compensate the area to be flooded in the RBLB, because the studied farm represents between 34.00% and 51.20% of the reference site, which corresponds to the 113 hectares of the RBLB. These differences indicate that the farm ASETREK Tres Azul SA has been more disturbed and, lacking riparian forest cover, 332 hectares will be required for compensation, considering the maximum probable value resulting from the applied methodology. On the other hand, applying the methodology for diversity and community composition, ASETREK contains 30.90% of the reference (113 hectares of the RBLB), that is, the reserve has a greater species richness of the studied taxonomic groups, so 290 hectares are needed to compensate for the loss in the RBLB. In conclusion, considering the result obtained by applying the methodology, both for habitat quality and for diversity and community composition, the compensation site ASETREK Tres Azul S.A is inferior in environmental quality, composition, and biodiversity to the RBLB site that would be flooded by the Río Piedras Reservoir, for which reason, when considering the most adequate condition for the RBLB, the OET recommended acquiring at least 332 hectares of the Farm ASETREK Tres Azul S.A. to compensate for the losses of the RBLB. The farm ASETREK Tres Azul S.A, as an extension for compensation and studied by the OET, has a total area of 751 hectares, of which an important part is dedicated to agricultural and livestock production. Upon considering the proposed compensation area resulting from the prepared Study, an analysis of the site was carried out to assess the extension that should be proposed for the compensation of the 113 hectares to be flooded in the RBLB, considering the following fundamental parameters: 1. Meet the minimum required area for compensation obtained from the study, which corresponds to 332 hectares. 2. Consider that the area to be acquired for compensation has sufficient forest quantity, according to the types of cover found in the area to be flooded in the RBLB. 3. That the area to be purchased includes the 189.30 hectares that were studied by the OET for the respective comparisons between the potential compensation site and the reference site (RBLB). 4. That the area can be adequately integrated into the rest of the RBLB, respecting the highest possible percentage of adjacency between them. 5. That the area proposed for compensation allows connectivity of the RBLB with the protection areas considered to be left around the future Río Piedras Reservoir as a protection ring, mainly on its left bank. 6. That the boundary of the proposed area with areas with non-forest cover, paddocks, or pastures be minimized, as these can increase and facilitate the risk of fires within the RBLB. 7. Standardize the property boundary, so that the compensation area allows adequate management by the SINAC administration in the RBLB. Once the previous parameters were analyzed, the result obtained denotes that the area that should be purchased from the Farm ASETREK Tres Azul S.A. is 444.04 hectares. Of these, an estimated presence of deciduous forest is 286.87 hectares, secondary forest is 59.50 hectares, pastures are 73.23 hectares, and a non-forest area, that is, an area of pastures with other native herbs, is 18.50 hectares. It is important to indicate that the selected area of the farm also has a riparian forest area of 6.14 hectares, distributed in small sections, which due to their lack of connectivity or because they are located in the direct impact zone of the reservoir, were not considered for the application of the methodology used in the Study to determine the compensation area. Although it is true that the proposed area of 444.04 hectares as compensation for the 113 hectares that would be flooded in the RBLB meets the requirements established based on the results of the habitat quality methodology applied in the Study by the OET, the reality is that this area only has an area of 2.2 hectares of mature or riparian forest with characteristics similar to that found in the area to be flooded in the RBLB. Under these circumstances, it was deemed pertinent to search for an additional surface that could solve this deficiency of riparian forest in the compensation area on the Farm ASETREK Tres Azul S.A., complying with the parameters mentioned above, identifying, after joint field work between OET experts, RBLB officials of SINAC, and SENARA, two potential farms for compensation, located on the northwest boundary of the RBLB. This property is registered in the name of Brindis de Amor en Liberia S.A and Hacienda Ciruelas SP S.A. In this sense and according to the field inspections carried out jointly by experts from the OET, SINAC, and SENARA, supported by aerial images taken with a drone flying at low altitude, it was determined that the properties of Brindis de Amor have an initial estimate of 11.41 hectares of riparian forest and Hacienda Ciruelas SP S.A. has an estimated riparian forest of 8.49 hectares formed by forest cover (cobertura boscosa) constituted by evergreen species and that is comparable in quality to that found at the potential flood site in the RBLB. The riparian forest area in Brindis de Amor represents 7.40% of the area covered by that type of forest within the current RBLB; hence the importance of incorporating this area into the RBLB. Another important aspect is that the riparian forest area on this farm can become a core area of species to repopulate other riparian environments on the property. Although this situation does not chronologically correspond to the loss in the RBLB, according to the OET, it is a considerable advantage as this core area allows for short-term restoration and incorporation of new riparian forests, a situation that would not occur on the ASETREK Tres Azul S.A. property. The deciduous forest (45.74 hectares), as well as the secondary forest (6.63 hectares) in Brindis de Amor have been protected for at least twenty years and there are no records of recent logging or fires, so they are in better structural and composition condition than those found at the potential impact site in the RBLB or on the ASETREK Tres Azul S.A. property. Although it is not the main objective, the annexation of this type of forest from Brindis de Amor to the RBLB implies a significant gain in these forest covers as well. The Biodiversity Baseline Study for the RBLB evidenced the increase in diversity of different taxonomic groups as a response to more permanent water sources, a condition that is greatly favored on the Brindis de Amor farm, which has several permanent water sources, including the Cabuyo River and its tributaries, giving added value to this farm. There are studies by Dr. Susan Perry (University of California, Los Angeles), which indicate that troops of white-faced capuchin monkeys (Cebus capuccinus) from the RBLB use the forests within Brindis de Amor as feeding and resting sites; that is, there is evidence of a constant flow of animals between the RBLB and Brindis de Amor as a foraging site, which demonstrates the biological importance of this property for being incorporated into the RBLB. Finally, it is important to mention that the Study carried out by the OET establishes a compensation area that considers the current condition of the lands being assessed, without referring to the future improvements they will have upon being incorporated into a protection regime such as the reserve. Given this, we proceeded to identify a riparian forest area that allows compensating for the deficit in hectares for this type of ecosystem while maintaining the ecosystem connectivity of the protected area, concluding that the Hacienda Ciruelas SP S.A. property presents such conditions and allows compensating an area of 8.49 hectares of riparian forest. Additionally, it is concluded that the best option to complete the compensation of the riparian forest is to acquire an area of 40.00 hectares belonging to Hacienda Ciruelas SP S.A., which contains 8.49 hectares of riparian forest. According to the cover layers mentioned previously, this farm has a total of 33.64 hectares of riparian forest, where the majority of this type of forest is found bordering the Amores creek, where the area selected for compensation has an area of 8.49 hectares of riparian forest, 2.44 hectares of secondary forest, 26.91 hectares of deciduous forest, and 2.16 hectares of pastures. On the other hand, it is expected that among the future benefits of the pasture regeneration present in ASETREK Tres Azul S.A., will be the contribution to the establishment of secondary forest, carbon (CO2) fixation, soil protection, cover gain, protection of biodiversity and scenic beauty of the place, protection of water sources, while contributing to increasing its ecological, economic, and social value. That is, the new area established under the protection regime will have a tendency to improve its current condition, both in habitat quality and in diversity and community composition. As indicated by Quesada, R (2008), in his Manual for promoting natural regeneration in degraded pastures in the Central and North Pacific of Costa Rica, 'to revert pasture areas into forests through natural regeneration methods, they must have a strategic location near seed sources and proximity to forest patches', conditions that the proposed area on the farms ASETREK Tres Azul S.A. and Brindis de Amor en Liberia S.A. present. These conditions predict that although currently the 91.74 hectares (pasture area of 73.23 hectares and a non-forest area of 18.51 hectares) in ASETREK Tres Azul S.A., 18.18 hectares of pastures in Brindis de Amor, and 2.16 hectares of Hacienda Ciruelas SP S.A., in a few years, under a protection regime like that of the RBLB and controlled fire management, these areas may be incorporated into the different stages of secondary forest succession. Thus, according to the results presented in the study carried out by the OET and what was proposed in the High-Level Commission of the PIAAG, the definitive compensation proposal is: 1- From the farm ASETREK Tres Azul S.A a total of 444.04 hectares, according to the map of the proposed area. 2- The entirety of the Farm Brindis de Amor en Liberia S.A., with a registered area of 86.96 hectares according to the map. 3- An area of the farm of 40.00 hectares from Hacienda Ciruelas SP S.A. In total, the purchase of 571 hectares, representing a factor of 5 times the area that will be affected in the RBLB, with a direct equivalence in types of forests." It notes that from the foregoing, the following considerations of interest are extracted: "The study did take into consideration the property of Hacienda Ciruelas SP S.A. The decision on which farms to choose stems from the application of the habitat-hectare method on which the OET study is based. The considerations of the study refer to technical aspects and not to economic ones. Compensation with lands already under a protection regime was not considered simply because of their status; because that would entail superimposing an economic issue on the technical aspects contained in the OET report, which is the basis for carrying out true compensation—based on the characteristics of the lands to be included to contain the conservation objects for which the protected wild area was created—and not becoming a simple equating with state lands to fulfill the requirement without any support; which would weaken the law under analysis." Principle of Economy and Efficiency. It refers that the plaintiffs' statements regarding the violation of this principle are repetitive. It requests that the unconstitutionality action be dismissed.

8.- Through a brief received in the Secretariat of the Sala at 13:21 hours on February 15, 2019, Patricia Quirós Quirós appears, in her capacity as General Manager with powers of unlimited general agent of the Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento (SENARA). I. Public Interest of the PAACUME Project. It indicates that the project complements, with waters from the Arenal Lagoon, the availability of water resources for different uses currently supplied by natural sources on the right bank of the Río Tempisque (cantons of Carrillo, Santa Cruz, and Nicoya) and that, ultimately, are not sufficient to meet the ever-increasing needs for water resources, both for human use (drinking water) and for use in agriculture (irrigation), which allows providing sustainability to the water supply throughout the year. It points out that the Chorotega region in general has a natural rainfall regime that presents more than 5 months of water deficit per year, without considering extreme natural effects, such as longer droughts caused by the El Niño phenomenon or climate change, which are increasingly frequent and recurrent (e.g., the drought from 2014 to 2016), which severely affect communities and both productive and economic activity and which, for the first time in Costa Rica, required a drought emergency declaration, according to decreto ejecutivo n.° 38642-MP-MAG of November 30, 2014. It expresses that SENARA is an autonomous institution created by ley n.º 6877 of July 1983 and is responsible for the execution of the PAACUME. It notes that article 2 of that regulatory body entrusted it with the following objectives: "•Promote agricultural development in the country, through the establishment and operation of irrigation, drainage, and flood protection systems. •Contribute preferentially to developing those agricultural development projects based on a fair distribution of land. •Ensure that in the territory benefited by the creation of irrigation and drainage districts, a rational and democratic modification of land ownership is carried out." It mentions that the PAACUME represents an excellent initiative for utilizing the water stored in the Arenal Lagoon and that feeds the Arenal- Dengo- Sandillal (ARDESA) Hydroelectric System operated by the ICE, in value-generating activities such as irrigation, in agricultural production activity and irrigation in coastal tourist developments, as well as for drinking water and hydroelectric generation, which implies a great opportunity for growth and development for the province of Guanacaste, with a national-level impact. It states that the project would use the existing infrastructure for water catchment and conveyance in the Arenal Tempisque Irrigation District operated by SENARA (Miguel Pablo Dengo dam and Canal Oeste Tramo I) and, in addition, works would be built such as the storage dam on the Río Piedras, the expansion and improvements to the western canal (from the Río Piedras to the Río Tempisque; that is, approximately 55 kilometers in length) and the water conveyance and distribution networks on the right bank of the Río Tempisque (around 300 kilometers of gravity and pumped conveyance lines). It argues that, from the storage in the Río Piedras reservoir, the PAACUME will make it possible to supply water to a historically dry area, which, due to reasons of variability and climate change, has increased its drought condition, in many cases to extreme drought, limiting sustainability and discouraging the socioeconomic growth of the region and the country in general.

It states that the PAACUME is made up of four components: the Río Piedras reservoir (which includes the system automation, the powerhouse, and the dam and reservoir proper), the expansion of the West Canal from the Río Piedras to the Río Tempisque with a length of approximately 55 kilometers, the construction of the distribution network on the right bank of the Río Tempisque (approximately 300 kilometers in length), and the proposed implementation of a Regional Development Plan for the area directly and indirectly affected by the project, a process that is in the conceptualization and formulation stage. It notes that the PAACUME, as a public investment project, is linked, according to the classification established in Decreto Ejecutivo No. 38536-MP-PLAN of the Reglamento Orgánico del Poder Ejecutivo, published on July 25, 2014, to the Agricultural and Rural Development sector (due to its importance and impact on food security and social development in the area of influence) and to the Environment, Energy, Seas, and Land Management sector (due to its value as a climate change adaptation measure and the effect on water availability in the impact zone). It adds that the PAACUME is included in the Plan Nacional de Desarrollo and is one of the main projects conceptualized as priorities for the country's economic reactivation. It adds that, with the construction of the set of works comprising PAACUME, agricultural producers located in the cantons of Carrillo, Santa Cruz, and Nicoya will directly benefit, as well as consumers of potable water and irrigation water for green areas in tourism enterprises. It adds that among the direct beneficiaries are large, medium, and small producers (in this last category, reference is made, for the most part, to awardees in peasant settlements characterized by a greater need for support from institutions of the agricultural sector). It explains that the irrigation area for agricultural production is estimated at 18,639 hectares where 746 producers among large, medium, and small owners could benefit (SENARA, 2018 PAACUME Feasibility Study). It adds that this project is of vital importance to the community, since 2 cubic meters per second of water will be allocated for human consumption (the treatment and distribution of which will be the responsibility of the Instituto Costarricense de Acueductos y Alcantarillados). It explains that, regarding the supply of water for human consumption, the flow rate established for the sector is based on a 50-year demand projection; likewise, it is estimated that by 2025 there will be a population within the project area equivalent to more than 220,000 inhabitants, who will become users of the main aqueducts in the area. It adds that rural aqueducts currently serve a population of over 139,000 people. It argues that, in addition to the population that will be supplied with water for human consumption (estimated at about 200,000 inhabitants of the region), any population inserted in the goods and services sector will indirectly benefit, as will people hired to attend the new areas under irrigation at different productive stages and new actors who manage to consolidate production and commercialization activities. It adds that another sector that will benefit is tourism, for which the PAACUME will aim to supply irrigation water for an estimated area of 1,213 hectares distributed among the 171 tourism enterprises duly identified in the coastal zone that show their willingness to belong to the project, which will also seek to reduce the pressure generated by the extraction of groundwater from the coastal aquifers (SENARA, 2018 PAACUME Feasibility Study). It asserts that PAACUME will be able to generate electricity at the Río Piedras dam (7 MW per year), as a project benefit that implies optimal use of the available water resources. It maintains that, as previously mentioned, the infrastructure proposed in PAACUME includes three main components: the reservoir on the Río Piedras composed of the reservoir itself, the dam, the spillway, the intake structure, and the powerhouse for electricity generation; the main conveyance network running from the Río Piedras reservoir to the Río Tempisque (55 kilometers in length); and, finally, the distribution network composed of the canal network on the right bank of the Río Tempisque, where the distribution of the 20 m3/sec to be extracted from the Río Piedras reservoir, originating from the Arenal Lake, will take place. It indicates that the construction of the Río Piedras dam will generate a reservoir with an extent (water surface) of approximately 850 hectares. It points out that the site where the dam will be located corresponds to the Río Piedras, specifically between the coordinates West Longitude 358930, North Latitude 1163180 and West Longitude 359690, North Latitude 1155330 at a maximum water level elevation of 50.00 m.a.s.l. It states that the dam site will be located in a natural narrowing of the Río Piedras channel. It notes that the water from Arenal Lake, captured at the Miguel Pablo Dengo B. Diversion Dam, is conveyed to the Río Piedras via the West Canal Section I, which has a length of 21 km and a hydraulic capacity of 55 m3/sec. It mentions that it is important to highlight that before the West Canal Section I intersects with the Río Piedras, there is a natural drop, and it is precisely that drop that allows the conception of the storage site that generates the reservoir on the Río Piedras. It declares that the location of the dam on the Río Piedras is due to a unique topographical condition that prevents it from being moved to another site; therefore, that location and the difference in elevation between the canal inlet that supplies it and the canal outlet that will carry the water to the Río Tempisque will determine the maximum reservoir level and its capacity to supply 20 m3/sec to PAACUME for distribution on the right bank of the Río Tempisque. It affirms that, at some point, the possibility of building a dike to avoid flooding that area of the RBLB and a tunnel of over 2 kilometers to evacuate the waters was evaluated; however, it turned out that the dike site that would need to be built coincides with a geological fault that would make its construction impossible due to the high risk it poses to the work. It concludes that there is no possibility of relocating or reducing the reservoir volume without significantly affecting the scope of PAACUME, which determines the urgent and indispensable need for the 113 hectares of the Lomas Barbudal Biological Reserve to be flooded, making it an essential element for the construction of the dam on the Río Piedras; therefore, the dam at that site is PAACUME's only possibility for storing the available water coming from Arenal Lake. It argues that Law No. 9610 "Modificación de límites de la Reserva Biológica Lomas Barbudal para el Desarrollo del Proyecto Abastecimiento de Agua para la Cuenca del Río Tempisque y Comunidades Costeras" is urgently and necessarily indispensable to execute PAACUME. It states that the construction of the dam on the Río Piedras is an essential element of PAACUME that requires Law No. 9610 to be in force, in order to satisfy the public interest of being able to provide solutions to various needs such as agricultural, productive, and drinking water supply in an area where water resources are increasingly scarce. It explains that the challenged law is urgent to provide solutions to the towns of the Tempisque watershed and the coastal communities of Guanacaste, such as Sardinal, impacted by supply problems and aquifer salinization (situations that have been brought to the attention of the Constitutional Chamber in multiple amparo appeals seeking defense of the water resources). It adds that, in these cases, SENARA's role has enabled the correct protection of water resources. It adds that in this specific case, SENARA's participation will guarantee the correct use and promotion of water resources, positively impacting the Tempisque watershed and the coastal zones of Guanacaste. It requests that this unconstitutionality action be analyzed considering the public interest of the coastal towns and the Tempisque watershed benefited by the PAACUME project, for which it is absolutely necessary to have Law No. 9610 for its development. It argues that the arguments of the petitioner will be analyzed in the same order in which they were presented. A) Non-existent obligation to communicate to the convention on the law entitled "Modifica límites de la Reserva Biológica Lomas de Barbudal para el desarrollo del proyecto de abastecimiento de agua para la cuenca media del río tempisque y comunidades costeras". It rejects what the petitioner stated, since there is no obligation whatsoever to communicate the scope of the challenged norm to the RAMSAR Convention. It relates that the convention stipulates an obligation of the signatory States to protect the wetlands reported as part of the sites included in the Wetlands of International Importance Especially as Waterfowl Habitat. It asserts that the challenged norm does not impair or reduce the RAMSAR site of international interest registered by our country (Palo Verde National Park), but on the contrary, increases the protected areas, since the boundaries are expanded by incorporating a greater amount of flooded area, as well as a greater amount of area with forest cover (cobertura boscosa). It maintains that Article 4 of the RAMSAR Convention establishes the obligation to promote the conservation of wetlands and waterfowl by creating nature reserves for this purpose; in turn, it establishes a concrete obligation in subsection 2 regarding the withdrawal or reduction of the boundaries of a wetland, regulating that if, for urgent national interest, such a need arises, the loss of wetland resources must be compensated for to the extent possible: "Article 4. 1. Each Contracting Party shall promote the conservation of wetlands and waterfowl by establishing nature reserves on wetlands, whether they are included in the 'List' or not, and provide adequately for their wardening. 2. Where a Contracting Party in its urgent national interest withdraws or reduces a wetland included in the 'List', it should as far as possible compensate for any loss of wetland resources, and in particular it should create additional nature reserves for waterfowl and for the protection, either in the same area or elsewhere, of an adequate portion of the original habitat. 3. The Contracting Parties shall encourage research and the exchange of data and publications regarding wetlands and their flora and fauna." It indicates that, based on this regulation, the obligation arises, according to the petitioner, to inform of the modification of the boundaries of the Lomas de Barbudal biological reserve prior to its approval. It points out that this argument of the petitioner will be addressed more broadly by the Ministry of Environment and Energy, which states that, even though no wetland is affected by the approval of the challenged norm, it must be clarified that the Ramsar Convention would indeed be complied with, given that, due to the release (desafectación) of the 113 ha, 549 ha of area with an environmental protection regime would be incorporated. It states that Law No. 9610 provides that the water surface of the reservoir to be built, of approximately 850 ha, and the protection zone (once consolidated) be declared a wetland with a special management category. It deems that there is no violation of Constitutional Law. B) The OET study guarantees respect for Article 50 of the Political Constitution. It clarifies that, contrary to what the petitioner indicates, the study for the "Establecimiento de la línea Base de Biodiversidad para la Reserva Biológica Lomas de Barbudal (RBLB) y finca adyacente" was indeed carried out and was prepared by the Organization for Tropical Studies. It notes that community participation was also generated, and the communities were consulted. It mentions that on May 8, 2017, a formal activity was even held at the CEPROMA Bagatzí premises, in order to consider the communities' observations regarding the project (the consultation report is attached). It indicates that, likewise, the Arenal Tempisque Conservation Area (ACAT) participated. It affirms that, on June 30, 2017, in a meeting of the Technical Committee in which 19 ACAT professionals participated (including its legal department), the Río Piedras Reservoir project, Lomas de Barbudal biological reserve was analyzed (the meeting minutes are provided). It argues that the official letter SINAC-COACAT-SE-041 of July 7, 2017, sent to the National Council of Conservation Areas, is attached, so that they would be aware of the agreement adopted by the ACAT Regional Council upon reviewing the project of interest. It states that it is evident that the petitioners are not clear on the difference between the study prepared by the OET (required for the purposes of approving Law No. 9610) and the so-called environmental impact assessment (evaluación de impacto ambiental, EIA). It states that the former is the specific and exclusive study for the Lomas de Barbudal area to be released and the adjacent farm as a compensation area; in contrast, the EIA covers the entire PAACUME project area and its objective is to incorporate the technical studies necessary for impact assessment and to propose environmental mitigation measures that allow for obtaining Environmental Viability from SETENA. It adds that the OET study was prepared in coordination with SENARA, MINAE, and other involved institutions. It explains that the OET is an organization with great prestige and technical capacity for this type of study; likewise, it possesses technical solvency due to its operation for over 50 years in a consortium with 50 universities, colleges, and research institutions from seven countries on four continents. It adds that the OET's mission is to provide leadership in education, research, and the responsible use of natural resources in the tropics; its goal is to maintain tropical ecosystems through the conduct of scientific discovery and knowledge, by enriching human perception of nature and improving policy measures throughout the tropics worldwide. It adds that the organization operates four research stations: Skukuza in South Africa; and La Selva, Palo Verde, and Las Cruces in Costa Rica. It explains that, in accordance with the foregoing, it must be clear that to execute the PAACUME project, the first requirement is the release of 113 ha of the Lomas de Barbudal biological reserve (in order to build the reservoir), since without the reservoir there is no project, and without a project, viability is not required; therefore, they are completely independent studies and procedures. It argues that the study carried out by the OET is undoubtedly a study of scientific rigor, developed by a world-renowned organization, issued in light of an administrative procurement. It asserts that, although the procurement was done by SENARA, the terms, purpose, objective, and scope were defined jointly with MINAE and other involved institutions. It maintains that, due to the seriousness of the study and the organization that prepared it, the Legislative Assembly decided to use it as the basis for the approval of the law. It indicates that the petitioner forgets that this is an unconstitutionality action and not a proceeding of full knowledge in which aspects of legality, science, or technique can be discussed. It points out that the procedure established by the Constitutional Jurisdiction Law does not provide for an adversarial process in order to discuss the terms of the study. It states that the approval procedure for the questioned law required nothing more than the rendering of said study, which has already been prepared and a copy is provided with this filing. It partially cites Chamber ruling No. 3049-08. It notes that there is a need to separate constitutional and legality control in matters of protecting the right to a healthy and ecologically balanced environment. It partially transcribes the dissenting vote of former Magistrate Ernesto Jinesta and Magistrate Salazar Alvarado issued in Chamber ruling No. 06340-2017. It indicates that any discrepancies the petitioner may have with the OET study are an issue discussable in ordinary proceedings and not in constitutional court. It requests that the action be dismissed regarding this point. C) Non-existent breach of the principle of non-regression in environmental matters. It affirms that Law No. 9610 provides for compensation of the area, and since 556 hectares are being incorporated for the release of 113 hectares, there is no reduction whatsoever. It argues that the OET recommends acquiring at least 332 hectares of Finca ASETREK; however, to facilitate management and fire control, the decision was made to incorporate 444 hectares of ASETREK, thereby compensating for all the different ecosystems found within the 113 ha of the Lomas de Barbudal biological reserve, except for the riparian forest. It states that if the petitioner is not pleased with the study prepared by the OET, this is not the appropriate venue to discuss it. It clarifies that the incorporation of the Brindis de Amor and Hacienda Ciruelas farms into the compensation proposal is carried out upon the recommendation of Manrique Montes Obando, administrator of Lomas Barbudal, based on the fact that they have riparian forest lands in adequate conservation conditions, as well as containing the main springs (nacientes) of the Cabuyo River and Amores stream. It quotes the second paragraph of Article 5 of Law No. 9610: "Of the fee charged by the Ministry of Environment and Energy (Minae) to users for the use and exploitation of water, fifty percent (50%) shall be allocated to the National System of Conservation Areas (Sinac) for the implementation of the General Plan for Sustainable and Rational Use Management; economic resources are incorporated" and Article 6: "Once the construction works are completed and the Río Piedras Reservoir is put into operation by the National Service of Groundwater, Irrigation and Drainage (Senara), the reservoir area, which includes the protection buffer zone, shall constitute a wetland ecosystem managed by the National System of Conservation Areas (Sinac) and in accordance with the provisions of Article 33 of Law No. 7575, Forest Law (Ley Forestal), of February 13, 1996. There must be strict coordination with Senara for the use of water according to the various required uses." In this same article, the Law establishes: "For the preparation of the General Plan for Sustainable and Rational Use Management, a commission shall be formed with representation from Sinac, Senara, and the Municipality of Bagaces." It concludes that the compensation proposal, as established in Law No. 9610, does not constitute an environmental regression for the Lomas de Barbudal biological reserve, but rather, on the contrary, a strengthening in protection and administration in environmental matters is being provided, since the reserve area is increased, areas with natural wetlands (Cabuyo River and Amores Stream) are protected and incorporated, financial resources are allocated for the administration and management of natural resources, coordination between institutions for management and preparation of corresponding environmental plans is integrated, and finally a new wetland ecosystem will be incorporated, which, besides being a new destination for waterfowl, will be an ecosystem that will contribute to climate change adaptation in the entire province of Guanacaste. It requests that the action be dismissed regarding this point. D) Non-existence of a violation of the in dubio pro natura principle. It states that the delimitation proposed in Law No. 9610 of the new boundaries of the Lomas de Barbudal biological reserve does not violate Constitutional Law, but rather, on the contrary, the norm proposes a variation of the boundaries that allows for the release of 113 ha to compensate them with another 556 ha. It adds that, although the OET study recommended acquiring at least 332 ha of Finca ASETREK, the decision was made to include 444 ha in order to facilitate management and fire control; on the other hand, the incorporation of the Brindis de Amor and Hacienda Ciruelas properties makes it possible to have riparian forest in adequate conservation conditions, and also to be able to conserve (by being within the project area) the main springs (nacientes) of the Cabuyo River and Amores stream, which are located on those farms. It adds that Articles 5 and 6 of Law No. 9610 also establish obligations for MINAE and SENARA respectively; the former is tasked with allocating 50% of the fee charged by MINAE to users for the use and exploitation of water, so that SINAC can implement the General Plan for Sustainable and Rational Use Management, while SENARA is instructed that once the construction phase is completed and the Río Piedras reservoir becomes operational, the reservoir area (which includes the protection buffer zone) shall become a wetland ecosystem managed by SINAC, in accordance with Article 33 of Law No. 7575. It explains that, in addition, a commission comprised of SINAC, SENARA, and the Municipality of Bagaces will be tasked with preparing a General Plan for Sustainable and Rational Use Management for the areas that will increase the zones of interest due to the existence of wetlands. It argues that this is not an environmental regression, but rather a strengthening will be generated in protection and administration matters in Guanacaste. E) Non-existent violation of Article 45 of the Political Constitution. It asserts that Article 1 of Law No. 9610 redefines the boundaries to expand the Lomas de Barbudal biological reserve: "ARTICLE 1- The area of the Lomas de Barbudal Biological Reserve, created by Executive Decree No. 16849-MAG, of January 23, 1986, is rectified and delimited for the development of the Water Supply Project for the Middle Basin of the Tempisque River and Coastal Communities (Paacume). The protected area starts from a point located on the Cabuyo River at coordinates in the CRTM05 System x 350792.224 and Y 1163050.33 and continues along the boundary with the property of Inversiones y Desarrollos Costa del Pacífico del Mar CPM S.A. with the following coordinates: (...)”. It maintains that, as can be seen from reading the provision, no owner is being dispossessed of their private property. It indicates that, in application of the Expropriation Law, the corresponding procedures will be processed to expropriate the properties required for the project, including the surveying of cadastral maps, the definition of accesses or easements (servidumbres), the preparation of appraisals, the issuance of the expropriation decree including its public interest nature, and the communication of the appraisal to the owner. F) Propriety of using the 208 bis figure for the approval of Law No. 9610. It points out that the questioned law does not contain provisions that expressly affect, dispossess, or expropriate any private property, hence the procedure applied for its approval is valid. It notes that the figure of 208 bis of the Regulations of the Legislative Assembly is a regulated legal instrument; that is, it provides with complete clarity which cases are applicable and which are not. It states that this procedure is not usable to approve a bill when it concerns the approval of administrative contracts, sale of State assets or opening of its monopolies, and international treaties and conventions, regardless of the vote required for their approval. It cites Article 208 bis of the Regulations of the Legislative Assembly. It states that in this case, none of the cases that the norm in question stipulates as inadmissible are present, nor are we dealing with a norm that requires a qualified majority, therefore there was no impediment for the bill to be processed through the special procedure. G) Respect for the principle of legal certainty. It explains that this representation is clear that the appeal does not claim that the coordinates in the law are incorrect, but that they do not match those registered with the National Geographic Institute. It adds that the foregoing does not cause any unconstitutionality defect, as the coordinates delimiting the Lomas de Barbudal biological reserve, indicated in Law No. 9610, are correct. It adds that the Lomas de Barbudal biological reserve was established by Decreto Ejecutivo No. 16849-MAG, published in La Gaceta 45 of March 5, 1986, at a time when the technological instruments of geographic precision that exist today were not available. It states that in a joint effort between MINAE and SENARA, the necessary field topographic restudy and re-planning were carried out, which allowed for adequate geographic precision of the actual location and delimitation of the reserve area of interest. It explains that for the delimitation, the coordinates established in Decreto Ejecutivo No. 16849-MAG were considered, and additionally, the 3 farms included as compensation were integrated in accordance with the cadastral maps of each one of them. It argues that, likewise, the 113 ha required for the Río Piedras reservoir were excluded. It maintains that the coordinates indicated in Law No. 9610 mark the total area of the Lomas de Barbudal biological reserve in strict adherence to the previous delimitation, with the inclusion and exclusion of the corresponding areas. It considers that there is no legal uncertainty that could qualify the project as unconstitutional. H) Non-existent violation of Article 11 of the Constitution. It partially transcribes Article 4 of the RAMSAR Convention: "Article 4. 1. Each Contracting Party shall promote the conservation of wetlands and waterfowl by establishing nature reserves on wetlands, whether they are included in the 'List' or not, and provide adequately for their wardening. 2. Where a Contracting Party in its urgent national interest withdraws or reduces a wetland included in the 'List', it should as far as possible compensate for any loss of wetland resources, and in particular it should create additional nature reserves for waterfowl and for the protection, either in the same area or elsewhere, of an adequate portion of the original habitat. 3. The Contracting Parties shall encourage research and the exchange of data and publications regarding wetlands and their flora and fauna." It asserts that, as can be extracted from the above, it is a faculty of the State to withdraw from the list or reduce the boundaries of a wetland when so required by the national interest. It affirms that for the above, compensation is demanded, to the extent possible, for the loss of wetland resources. It indicates that, according to that line of thought, what is required for the reduction of a wetland's boundaries is a compensation study. It points out that, in the specific case, such studies were prepared by the OET, as well as by MINAET, SENARA, and other institutions. It notes that this area compensation study (included in the study "Establecimiento de la línea base de Biodiversidad para la Reserva Biológica Lomas de Barbudal (RBLB) y finca adyacente") should not be confused with the Environmental Impact Assessment (EIA) necessary for the construction of the PAACUME project, as they are different. It cites, in relation to the Environmental Impact Assessment, Article 4 of the questioned law: "ARTICLE 4- The National Service of Groundwater, Irrigation and Drainage (Senara) shall be the entity responsible for conducting the environmental study of the Water Supply Project for the Middle Basin of the Tempisque River and Coastal Communities (Paacume), which must include the prevention, mitigation, and compensation measures for the area released in Article 2 of this law, which must be implemented by the developer. The environmental impact assessment must consider the baseline approved by the entities and endorsed by the Regional Council of Conservation Areas of the National System of Conservation Areas (Sinac), without prejudice to the terms of reference issued by the National Environmental Technical Secretariat (Setena), in accordance with the corresponding legal framework." It states that, as can be inferred from the above, the law does not contain any defect of unconstitutionality. I) Non-existent violation of Article 176 of the Political Constitution. It considers that the petitioner is not correct in indicating that, prior to the approval of the challenged law, the entire project had to be complete, since, as can be observed from a simple reading of the norm in question, it does not stipulate the creation of any obligation that must be covered by the budget of the Republic.

It mentions that law No. 9610 could be said to be an accessory and necessary rule to execute the PAACUME project, since it allows a new delimitation of the boundaries of the Lomas de Barbudal biological reserve, so that those properties can later be acquired through expropriation processes. It states that the challenged law is not the one called to regulate the expropriation process, but rather that, in the appropriate phase of the PAACUME project, the State will initiate the respective procedures to finalize the expropriation processes for all those properties that have been determined to be of public interest for the project's execution, at which time the owners may assert their rights in accordance with the process established in the applicable regulations. It argues that since the project's execution phase has not begun (without any process aimed at expropriating a property), there is no obligation to have budgetary content to address the processing and payment of expropriations. It affirms that, as of today, the respective appraisals are not available to determine the exact amount to be paid. It clarifies that SENARA has made a global estimate (given that the specific appraisals will be carried out once the law is approved) and, based on it, extraordinary budget No. 3 was prepared, approved through official communication DFOE-AE-0602 of December 20, 2018, from the Contraloría General de la República, for an amount of ₡2,851.1 million contained in Law No. 9622 and its expenditure counterpart in the sub-item for indemnifications, to be applied to the expropriation of three properties corresponding to the compensation of 113 hectares of the Lomas de Barbudal biological reserve. It attaches official communication DFOE-AE-0602, as well as a certification of budgetary content SENARA-DAF-FIN-PRES-O63-2019, issued by the head of the Budget Process. It requests the rejection of this claim. J) Regarding the principles of reasonableness and proportionality. It affirms that there is no violation whatsoever of these principles in the processing of Law 9610. It explains that, in relation to the study of the Brindis de Amor, ASETREK, and Hacienda Ciruelas farms, there is a technical study that demonstrates that they do qualify as compensation areas and they were mentioned as such in the OET study, which determines which parameters were used to determine reasonableness and proportionality. It argues that the determination of the properties to be expropriated does not entail a discussion of constitutionality, but rather one of legality regarding the possibility that other areas might meet the parameters to be considered suitable for compensation. It argues that there is a high-level scientific study prepared by a recognized international organization, which accredited that the Brindis de Amor and Asetrek properties were suitable due to their conditions for use as compensation. It asserts that this is not a discretionary decision (where the Administration chose one property or another at its will), but rather that a scientific analysis of the properties mediated the process to determine the suitability of using them as a useful area for compensation. It maintains that the proposed compensation proposal (Asetrek and Brindis de Amor) was referred to the Minister of Environment and Energy for the corresponding processing, in accordance with the provisions of Articles 71 and 72 of the Regulation of the Biodiversity Law. It adds that CORACAT, according to agreement No. 1 taken in the extraordinary session held on July 5, 2017, and subsequently, CONAC, in extraordinary session No. 3 of July 11, 2017, considered that the sum of the proposed areas of riparian forest was 18.07 hectares; that is, an area smaller than the fragment that would be lost at the RBLB inundation site (24.71 hectares). It adds that, therefore, these bodies proposed the identification of an additional area for the compensation proposal that would include riparian forest and thus make it possible to compensate for the shortage in hectares for this type of ecosystem. It argues that the identified shortage was approximately 6.64 hectares of riparian forest, because the area had to be compensated by another of equal size (24.71 hectares) that fulfilled the same purposes and had similar ecosystem conditions; that is, at a minimum ratio of 1:1. It maintains that, after analyzing the proposals for possible compensation areas for the missing riparian forest and jointly with SINAC officials, it was considered to add a part of the Hacienda Ciruelas SP S.A. farm, legal ID No. 3-101-290749, cadastral map No. 5-734177-2001, real estate folio No. 034930-000, located in the first district Bagaces of the fourth canton Bagaces of the province of Guanacaste, with a total area of 1299 hectares (1699.15 m2). It asserts that, after a field analysis carried out by officials from the Dirección de Aguas and SENARA, the acquisition of 25.00 hectares was proposed. It indicates that this proposal borders the Brindis de Amor farm to the north, the rest of the Hacienda Ciruelas farm to the east, the Amores creek (quebrada Amores) to the south, and the RBLB to the west. It notes that a preliminary analysis of the 25.00 hectares of the farm was carried out, which present 7.16 hectares of riparian forest, 2.42 hectares of secondary forest, 13.13 hectares of deciduous forest, and 2.28 hectares of pasture. It states that, for the purposes of processing Law 9610, the document called "Compensation Proposal for the Lomas de Barbudal Biological Reserve" was considered, a copy of which is provided. It mentions that, since this scientific criterion exists that supports the administrative decision, the actions taken in the law's approval process are reasonable and proportional. K) Law 9610 and the determination of the properties of interest for the PAACUME project are in accordance with the principles of economy and efficiency. It states that it has been proven that the selection of the properties that will later be expropriated derives from a technical scientific study prepared by the Organization for Tropical Studies, hence it is irrelevant, given the scientific rigor, to question why another property was not chosen, when the determination is duly justified. It refers that the affected properties are suitable for the correct protection of the areas in the zone. It mentions that discussing the suitability of choosing one farm or another as a compensable area is not an aspect of constitutionality, but rather a discussion proper to the ordinary contentious-administrative jurisdiction. It requests the rejection of the unconstitutionality action regarding this claim. It requests that an oral hearing be held to formulate conclusions before the ruling on this action. It requests that the unconstitutionality action filed against Law No. 9610 be declared without merit.

9.- By a brief incorporated into the digital file at 3:04 p.m. on February 18, 2019, Carlos Manuel Rodríguez Echandi appears, in his capacity as Minister of Environment and Energy. Regarding the Water Supply Project for the Middle Basin of the Tempisque River and Coastal Communities (Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras, PAACUME). It indicates that the project aims to promote the socioeconomic development of the province of Guanacaste through the sustainable use of water resources from the Arenal-Dengo-Sandillal Hydroelectric System (ARDESA) and other available sources as climate change adaptation measures within a framework of sustainability and equity. It points out that it includes the automation of the Miguel Pablo Dengo B Diversion Dam and the West Canal Section I up to the río Piedras reservoir, contemplating the construction of a storage reservoir on the río Piedras, expansion and construction of the West Canal Sections II and III from there to the río Tempisque. It states that, in addition, the secondary and tertiary conveyance lines for agricultural irrigation and tourism development areas, water delivery works for the populations that will be administered by the Instituto Costarricense de Acueductos y Alcantarillados (ICAA), all from the plain of the río Tempisque to the coastal zone. It notes that the project equally integrates the construction of a powerhouse for electricity generation at the dam site. It mentions that the fundamental objective is the provision of water, accessible in quantity, quality, and timeliness - 20 cubic meters per second - for different potential uses. It states that it is projected to benefit at least 204,000 people and cover at least 17,000 hectares under irrigation. It affirms that from this flow, 2 cubic meters per second will remain available for the long-term supply of communities in the cantons of Santa Cruz, Nicoya, and Carrillo, which will be administered by the ICAA. It argues that the project contemplates at least 1.5 cubic meters per second of water for irrigation as support for tourism activity in the coastal zone and thereby benefit coastal communities with the release of groundwater currently used for irrigation. It refers that this project will not only allow sustainable access to water by communities and the productive sector, but also aims to harmonize and regulate the rational exploitation of the main groundwater resources in aquifers on the right bank of the middle basin of the río Tempisque, as it will allow the State to regulate the maximum use of wells for these activities. It adds that the construction of the dam on the río Piedras implies a reservoir with a water mirror of approximately 850 hectares, of which, according to the field survey conducted by SENARA, 113 hectares are within the Lomas Barbudal Biological Reserve. It adds that the dam site will be located in a natural narrowing of the channel of this river between coordinates West Longitude 358930, North Latitude 1163180 and West Longitude 359690, North Latitude 1155330, at a maximum water level elevation of 50.50 meters above sea level. It states that the dam's function will be to create a backwater for water storage, which will be captured by SENARA at the Miguel Pablo Dengo dam located on the Rio Santa Rosa. It argues that from that site, the water will be conveyed through the West Canal, Section I, which has a length of 21 km and a hydraulic capacity of 55 cubic meters per second. It asserts that before the West Canal Section I intersects with the río Piedras, there is a natural drop that allows for conceiving a storage site. It mentions that the project will be located in the Chorotega region, province of Guanacaste; furthermore, its area of influence comprises the cantons of Bagaces, Carrillo, Santa Cruz, and Nicoya. It maintains that the irrigation area only covers some districts of Filadelfia, Palmira, Belén, and Sardinal of the canton of Carrillo, the districts of Santa Cruz, Bolsón, Cartagena, and Diriá of the canton of Santa Cruz, and the district of San Antonio of the canton of Nicoya. It indicates that the location of the dam on the río Piedras is due to a unique topographical condition that does not allow it to be moved to another site, so the location and level difference between the inlet of the canal that supplies it and the outlet of the canal that will carry the water to the río Tempisque determine the maximum reservoir level and its capacity to supply 20 cubic meters per second to PAACUME. It points out that at some point the possibility of building a dike to prevent flooding of that area of the Lomas Barbudal Biological Reserve and a tunnel of more than 2 kilometers to evacuate the waters was assessed; however, the dike site coincides with a geological fault that would make its construction impossible due to the high risk it generates for the works. It states that, therefore, there is no possibility of relocating or reducing the reservoir volume without significantly affecting the scope of PAACUME and thereby the benefits for the Guanacastecan population, thus determining the need to have 113 hectares of the Lomas de Barbudal biological reserve to be flooded. It notes that it is of vital importance that this reservoir be fully developed, for which it is essential to have that extension as a floodable area. It mentions that SENARA, through multiple studies, has demonstrated that this reservoir extension, including the zone within the Lomas de Barbudal Reserve (113 hectares), is the only way to do so in order to sustainably meet the water demand within the project's scope. It states that the project was conceived to take advantage of the waters of the ARDESA Hydroelectric System, which is already built, and using infrastructure already installed in the Irrigation District managed by SENARA. It affirms that the project profile document prepared by SENARA covers several topics that were later developed, based on studies conducted in June 2016 by ICE at SENARA's request. It argues that, according to the claimants, the following were not assessed in the baseline study: project identification, background, identification of the water problem, and assessments of possible reservoirs. Project beneficiaries. It refers that with PAACUME, three cantons of the province of Guanacaste (Carrillo, Santa Cruz, and Nicoya) will benefit from irrigation, and it will allocate 2 cubic meters per second of water for human consumption (whose treatment and distribution will be the responsibility of ICAA), which implies solving the deficit with a 50-year horizon for approximately 500,000 people (including the water supply to the populations of the aforementioned cantons). It adds that hydroelectric generation is also planned at the dam site, which will produce 7 MW per year, and regarding irrigation, in addition to that destined for the agricultural productive sector, it intends to cover an area estimated at 1,875 ha in the tourism sector of the coastal zone, which would release the groundwater currently used for that purpose. It highlights that in the project's feasibility stage (the stage it is in), the principles of the National Water Policy -PHN- are not the only ones governing, particularly 5.1.1.4 priority of water use for human consumption, 5.1.1.1 Fundamental human right of access to drinking water and basic sanitation; and 5.1.1.7 sustainable use of water, since the project is not only being managed for the indicated supply, but also, as reported, it seeks that there be water on the coast in an alternative manner that allows the release of groundwater use for irrigation. It adds that the foregoing is for the purpose of leaving that water only for drinking and thus improving the pressure on that resource in the coastal zone, which is the most vulnerable to water deficit and high demands. It affirms that the potential beneficiaries of the project are composed of the general population of the province of Guanacaste. It explains that, according to data from the Instituto Nacional de Estadística y Censos (INEC), by 2016 the projected population was 371,375 inhabitants, plus the floating population composed of national and foreign tourism, estimated at more than one million people per year, to which must be added another population composed of workers from different companies including tourism, who are constantly entering and leaving the area. It states that the ICAA has estimated that by 2025 there will be a population within the project area equivalent to more than 220,000 inhabitants as users of the main aqueducts in the zone (Senara, 2006). It argues that, regarding the tourism sector, in 2002 the entry of 1,113,359 tourists was recorded and the growth trend is constant since by 2014 the number of visits to the country had doubled. It relates that, contrary to the poverty outlook of the Chorotega region, this is one of the areas that has experienced the greatest tourism development; the main hotel complexes existing in the country are located on its coasts. It asserts that in 2015 it was estimated that the installed capacity in the hotels of the project zone was for 140,812 people in high season and it was projected that by the year 2025 it would reach 230,900 people (Senara, 2006). It maintains that the resource under the greatest pressure at present is water, due to extraction from aquifers for human consumption and other uses, an aspect that is further aggravated in tourist areas due to the threat of well salinization. It indicates that, in 2005, the average drinking water demand (with installed capacity) was estimated at 570 l/s and with sustained growth by 2025 it would reach 935 l/s. It points out that the agricultural irrigation area is estimated at 17,000 ha where 1,067 agricultural producers (large, medium, and small) could benefit. Table 1. Distribution of producers by canton (source: SENARA, 2017):

Table 2. Distribution of current land use in the influence area of PAACUME. By canton in hectares (source: SENARA, 2016)

It notes that Table 2 reflects the total coverage area of the project corresponding to 41,477 hectares and the irrigable area, in which protection areas, protected areas, forest, scrubland, forestry, industry, and the urban zone are excluded for the three cantons, totaling 33,900 hectares. Proposed land use. It states that based on the water supply introduced by PAACUME, the area that will actually be irrigated is identified. It argues that for areas that cannot be supplied by the project, the option that proves feasible and viable among the potential alternative solutions must be sought and analyzed later. It states that, in the case of water supply for human consumption, what is being proposed is a future reservation over a use that is a priority. It affirms that, based on the determination of crops located within the irrigable area of the project and considering that the potential irrigation area exceeds the possible area to be irrigated with the available water, a proposal of crops to be irrigated will be determined based on land use, which will be used as a reference for determining water demand and for the financial and economic valuation of the project. It mentions that Table 3 presents the proposed land use adjusted according to the availability of water supply for agricultural use. It adds that, depending on the available flow, water demand may vary according to the proposed planting seasons, irrigation method efficiency, and water availability. Table 3. Proposed land use, planting and harvest seasons according to available water supply (source: SENARA, 2017):

Potential land use. It states that the potential land use table reflects a crop proposal over an estimated timeframe of three years after the start of the irrigation system's operation, maintaining the same crops and planting seasons. It argues that there is an increase in production area, because it is considered that the irrigation system's operation is optimized and the efficiency of the irrigation methods used increases. It asserts that Table 4 breaks down the planting area for each of the different production systems and it is observed that the planted areas of sugar cane, fruit trees, bales, roots and tubers, and watermelon increase. Table 4. Potential crops, planting, harvest seasons, and potentially irrigable areas (source: SENARA, 2017)

It maintains that the 18,800 hectares have their maximum demand in April with a total of 16.35 m³/s. Regarding the Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar Convention). It indicates that the Ramsar Convention (1971) is an intergovernmental treaty whose mission is the conservation and wise use of wetlands through local, regional, and national actions and through international cooperation, as a contribution to achieving sustainable development worldwide. It points out that, by acceding to the convention, countries commit to adding sites to a list of wetlands of international importance (The Ramsar List). It notes that these sites are internationally recognized for their ecological value for humanity. It states that the Lomas Barbudal Biological Reserve is part of Palo Verde, designated by Costa Rica on the list of Ramsar sites. It argues that, through agreement 3 of extraordinary session No. 4-2017 of the National Council of Conservation Areas (Consejo Nacional de Áreas de Conservación, CONAC), it was agreed that it is necessary to communicate the intention to carry out this project to the Ramsar Convention and activate any other procedure to comply with the country's commitments. It relates that the Palo Verde wetland, together with Caño Negro, were the first wetlands declared Ramsar sites for Costa Rica in 1991; it asserts that it is a complex of seasonal and permanent wetlands formed by a group of swamps, marshes, lakes, rivers, and streams of the middle and lower basin of the río Tempisque, which, along with its tributaries, are the main fluvial systems of the basin. It asserts that, as a consequence of the marked changes in precipitation between the dry and rainy seasons, the flow varies considerably, producing overflows that flood areas adjacent to the channels. Site location. It indicates that it is located in the cantons of Nicoya and Bagaces in the province of Guanacaste and includes the following protected wild areas: Palo Verde national park; Lomas de Barbudal biological reserve; Mata Redonda and Cipancí national wildlife refuges; Corral de Piedra, Laguna Madrigal, and Zapandí Wetlands; and the wetland ecosystems of El Tendal and Sonzapote. It points out that this wetland is managed by the Tempisque and Arenal-Tempisque Conservation Areas. It states that some of the communities located in the vicinity of the wetland are: Bagaces, Bagatzi, Bebedero, Bolsón, Ortega, Playitas, Pijije, Llanos del Cortés, Falconiana, Pozo de agua, Charco, Colorado, Puerto Humo, Raizal, Roblar, Rosario, and San Antonio. It notes that, in 2002, the site underwent an expansion and its boundary continues as follows (according to Rodríguez and Alvarado, 2014): “The new boundary starts from a point located on the left bank of the Río Bebedero channel (coordinates 25 74 20 N and 40 37 80 W) and continues along a public road, crosses a landscape matrix composed of minor vegetation, pastures, and crops near the sector called Asentamiento Tamarindo, then the banks of the quebrada La Mula are used as a natural boundary, the boundary of the west irrigation canal bank is also used, until meeting the boundary of the Lomas Barbudal Biological Reserve. It continues using physical boundaries such as roads leading to different peasant settlements and drainage canals, until reaching the old channel of the Río Tempisque, where it intercepts the old boundary of the Palo Verde National Park until closing with the current channel of the Río Tempisque. Source: Updated Technical Information Sheet 2018”. It mentions that, for the geographical location, the following coordinates correspond to a midpoint in the Ramsar site and “are in the official system for Costa Rica CRTM05 with Datum WGS84 and Transverse Mercator projection 357269 and 11431 26”. It refers, regarding the area of Ramsar sites in Costa Rica, to the following: “Palo Verde 27/12/1991 Guanacaste 24,519 ha 10º20´ N 085º 20´W ”. It states that the Ramsar manuals compile, topic by topic, the various pertinent guidelines adopted by the parties, to which material from the information documents of the conferences of the parties, case studies, and other relevant publications have been added, in order to illustrate the essential aspects of the guidelines. It affirms that Ramsar manual No. 17, 4th edition, called “Designating Ramsar Sites: Strategic Framework and guidelines for the future development of the List of Wetlands of International Importance-HPII-”, establishes the criteria for identifying wetlands of international importance, guidelines for applying them, and long-term goals. Justification criteria that defined the inclusion of Palo Verde as a Ramsar site. It refers to the following: “ The Ramsar criterion and its justification specifically used for the Lomas de Barbudal Biological Reserve. Criterion 1: Representative, rare, or unique natural or near-natural wetland types. The Palo Verde Wetland is located in a representative region of the tropical dry forest, therefore the wetlands located in the middle and lower basin of the Río Tempisque are considered representative and important. This is a very extensive basin within Costa Rican territory and is interconnected to a fluvial network with all its characteristics, such as rainwater collection areas, flood plains, forests, and estuaries. The Ríos Tempisque and Bebedero are the main tributaries within the basin and are essential for the wetlands. These present variations in their flows and during the rainy season they can overflow (Rodríguez and Alvarado, 2014). The wetlands of the lower parts of the basin that make up this Ramsar site are considered islands or havens for the diversity of species distributed in this region. This is due to the loss of ecosystems to which the wetlands of Guanacaste were and are subjected (50%) to be transformed into agricultural and livestock fields especially (Convention on Wetlands Ramsar, 1998). A case that arose for the Cañas lagoons, Filadelfia and Liberia wetlands, Hacienda el Viejo and Pelón, and others in Bagaces. In the surroundings of the wetlands, practices such as the planting of rice, sugar cane, and melon are common, reducing the spaces and availability of resources for the biota, added to more than 60,000 ha dedicated to livestock and forestry plantations. This absence of wetland ecosystems is especially critical considering the long and pronounced dry period that occurs in this part of the country during the dry season. In this sense, the lacustrine, palustrine, mangrove, flooded forests, estuaries, rivers, among other wetlands, that form part of the different protected areas of the Wetlands of International Importance - HPII-, maintain important ecosystems for life in general throughout the year and especially during dry conditions (Rodríguez et al. 2012; UNED-SINAC, 2012; SINAC, 2013a; SINAC, 2013b, SINAC, 2013c), also because their forested natural areas allow the mobility of fauna between the areas to take advantage of the water bodies.

Similarly, springs (ojos de agua) and natural sources can be found during scarcity; in Palo Verde there are the so-called Guayacán, Almendro, Coyol, Espíritu Santo, Saíno, Bejuco, Avellanal, Cerritos, Oropopo (SINAC, 2013b)." Regarding the provisions of the RAMSAR Convention on Wetlands concerning the announcement of the disaffectation of the area of the Lomas de Barbudal Biological Reserve. It argues that both the Ramsar Convention and its manuals are aimed at guiding the "wise use" of ecosystems. It asserts that the wise use of wetlands is defined as: "the maintenance of their ecological character, achieved through the implementation of ecosystem approaches, within the context of sustainable development." It states that paragraph 5 of Article 2 of the convention indicates: "Any Contracting Party shall have the right to add to the List other wetlands situated within its territory, to extend those already included or, for urgent reasons of national interest, to withdraw from the List or to reduce the boundaries of wetlands already included, and shall inform these modifications as soon as possible to the organization or government responsible for the functions of the permanent Office specified in Article 8." It adds that the international instrument provides that, for reasons of urgency and national interest, wetlands may be reduced or withdrawn from the list and, in this case, the urgent need for water to serve the population, to provide development options for the Guanacaste area, and to ensure access to water resources for future generations constitutes a matter of public interest, which was declared by the decrees of public convenience and national interest mentioned in the project section.

It affirms that Manual 19 titled "Addressing the modification of the ecological character of wetlands" (4th edition) establishes: "The promotion of the conservation of designated Wetlands of International Importance ('Ramsar Sites') (Article 3.1 of the Convention), through the maintenance of their ecological character, is one of the fundamental principles of the Ramsar Convention on Wetlands. Therefore, Contracting Parties to the Convention are expected to establish planning and monitoring mechanisms for wetland management to maintain the ecological character of all wetlands they have designated for the List of Wetlands of International Importance." It adds that this manual indicates the following: "D. Withdrawal or reduction of the boundaries of a Ramsar Site from the List: interpretation of the expression 'urgent reasons of national interest' in Article 2.5 of the Convention 35. Article 2.5 of the Ramsar Convention establishes that 'Any Contracting Party shall have the right... for urgent reasons of national interest, to withdraw from the List or to reduce the boundaries of wetlands already included.' 36. Following from Article 2.5, Article 4.2 of the Convention indicates that 'Where a Contracting Party, for urgent reasons of national interest, withdraws from the List or reduces the boundaries of a wetland included therein, it shall, as far as possible, compensate for the loss of wetland resources.' 37. However, at COP8 (2002), the Contracting Parties recognized through Resolution VIII.20 that neither Article 2.5 nor Article 4.2 provide any guidance regarding the interpretation of the expression 'urgent reasons of national interest' nor the manner in which compensation should be determined, and adopted general guidance on these matters as an Annex to Resolution VIII.20. 38. Below is that guidance for interpreting the expression 'urgent reasons of national interest' in Article 2.5, and in Section G of this Manual, the provision on compensation under Article 4.2 is provided. General guidance for interpreting the expression 'urgent reasons of national interest' in Article 2.5 of the Convention (paragraphs 1 to 3 and 5 to 7 of the Annex to Resolution VIII.20) Purpose 39. In accordance with the provisions of Article 2.3 of the Convention that 'the inclusion of a wetland in the List does not prejudice the exclusive sovereign rights of the Contracting Party in whose territory the wetland is situated,' the determination of 'urgent reasons of national interest' is the sole responsibility of the Contracting Party. The following guidance may assist Contracting Parties in interpreting Article 2.5 and Article 4.2. This guidance may be used by Contracting Parties if they so wish. 40. This general guidance does not prevent a Contracting Party from maintaining or introducing stricter regulations for the application of the clause relating to 'urgent reasons of national interest' and the provisions relating to compensation when that clause has been invoked. 41. When invoking its right under Article 2.5 to withdraw from the List of Wetlands of International Importance (Ramsar Sites) or reduce the boundaries of a wetland included therein, in the case of urgent reasons of national interest, a Contracting Party may take into account, among other things, the following: i) the national benefits of maintaining the integrity of the wetland system and its related benefits; ii) whether maintaining the status quo threatens a national interest; iii) whether the proposed change is compatible with national policies; iv) whether immediate action is required to avoid a significant threat; v) whether a national interest is under an increasing threat; vi) other reasonable alternatives to the proposed action, including the 'no-project' option, the search for an alternative location, the introduction of buffer zones, etc.; vii) the economic, social, and ecological values and the existing functions of the site in question. (The more important the values and functions of the site, the higher the social, economic, or ecological benefits of the proposed project should be); viii) the particular value of habitats that host endemic, threatened, rare, vulnerable, or endangered species; ix) whether the proposed action provides benefits to a broad base of recipients; x) whether, in the long term, the proposed action offers greater benefits; xi) the alternative that minimizes damage to the site in question; and xii) transboundary effects." Law No. 9610 establishes that the Río Piedras reservoir must be given a management category that allows its activities to be regulated in a sustainable manner. It mentions that the foregoing, without losing its creation objective, constitutes the reasonable alternative set forth in paragraph 41 above of Manual 19, which contemplates the introduction of buffer zones, alternative location, consideration of social benefits, among others.

It cites Article 6 of Law No. 9610: "ARTÍCULO 6- Once the construction works are completed and the Río Piedras Reservoir is put into operation by the Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento (Senara), the reservoir area, which includes the protection ring, shall be constituted as a wetland ecosystem managed by the Sistema Nacional de Áreas de Conservación (Sinac) and in accordance with the provisions of Article 33 of Law No. 7575, Ley Forestal, of February 13, 1996. There must be strict coordination with Senara for the use of water according to various required uses. The Executive Branch, through Sinac, shall carry out the necessary studies to grant said space a management category, which must not conflict with the use given to the water resulting from the Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras (Paacume). For the preparation of the General Plan for Sustainable and Wise Use Management, a commission shall be formed with representation from Sinac, Senara, and the Municipality of Bagaces." It explains that important criteria have been considered regarding the special management category of this reservoir and its ecosystem benefits: "• The competencies of each institution would be defined more clearly, and the mechanisms and procedures for the planning and use of resources would be better defined. • Under the official category of Wetland, there would be greater opportunities to order use so that local, national, and international society can obtain quality goods and services produced by the well-conserved resource, including: education, research, water, recreation, and tourism. • It will allow for the prevention and control of different illicit activities, such as land invasion and illegal logging, poaching and illegal fishing, and forest fires, with greater efficiency and rigor. • By assigning a management category to the Reservoir and incorporating it as a Ramsar site, the country would be responsibly fulfilling international commitments as a signatory country to the Convention on Wetlands of International Importance; the Ramsar Convention approved by Law No. 7224 of April 2, 1991. • Granting official status as a Wetland will facilitate the process of planning tourism activity, where local groups and micro-entrepreneurs from the area could integrate to develop sustainable rural tourism as a socio-economic alternative. • With the creation of this protected area, an important zone that serves as a Biological Corridor between the Lomas Barbudal Biological Reserve, Palo Verde National Park, and the Nambiral Biological Corridor would be strengthened. • Local civil society and related local institutions would be integrated to coordinate and carry out comprehensive environmental planning and management through the Local Wetland Council, efficiently utilizing the resources and installed capacity of each of the related institutions. • The Wetland category will allow for the planning, ordering, and harmonious and sustainable use of natural resources with a low level of friction or conflict, as opposed to what might possibly occur if a National Park or Biological Reserve category were assigned. • Having a core wildland area will serve as justification and motivation for local, regional entities, and international bodies to provide technical and financial cooperation to promote the development of actions aimed at conservation and sustainable socio-productive activities in the basin territory in general. • Assigning a management category for the planning and sustainable use of the Reservoir would contribute significantly to the conservation of the ecosystems and species of the Lomas Barbudal Biological Reserve, as in addition to favoring connectivity and the movement of species, it will also function as a buffer zone and reduce pressure on the resources of the Reserve." It clarifies that, regarding the questioning of communications to Ramsar, a procedure exists. It argues that Costa Rica, after the approval of Law No. 9610, is in a phase of compiling information to detect probable changes, given that the modification of the site operates based on the development of the reservoir project, and part of that information is immersed in the environmental impact assessment (Evaluación ambiental) process of the Secretaría Técnica Nacional Ambiental; all protected under the terms of Article 2.5 to modify the boundaries of the Palo Verde wetland included in the list, for urgent reasons of national interest, due to the threat to the availability of water resources and the human, social, and economic benefits of the project.

It maintains that the Vice Minister of Water and Seas, through official communication No. VAM-068-2019 of February 11, 2019, regarding the PAACUME project, requested the National Advisory Council on Wetlands "to collaborate in faithfully fulfilling the obligations contracted by the country in accordance with the procedures established in the RAMSAR Convention." Regarding the inconsistencies in the coordinates included in Law No. 9610. It asserts that the Lomas de Barbudal biological reserve was declared on January 23, 1986, through Decreto Ejecutivo No. 16849-MAG published in Gaceta No. 45 of March 5, 1986, at which time the technological instruments of geographic precision available today did not exist. It indicates that, in a joint effort between MINAE and SENARA, the necessary field topographic studies and re-evaluations were carried out, which allowed for adequate geographic precision of the location and real delimitation of the RBLB area. It points out that, for the modification approved in the challenged law, the coordinates established for the Lomas de Barbudal biological reserve in Decreto Ejecutivo No. 16849-MAG were considered, and, in addition, the 3 farms included as compensation were integrated according to the cadastral plans of each of them; likewise, the 113 hectares required for the Río Piedras reservoir were excluded. It states that the coordinates indicated in Law No. 9610 delimit the total area of the Lomas de Barbudal biological reserve in strict adherence to the previous delimitation, with the inclusion and exclusion of the corresponding areas.

Regarding the allegations referring to the violation of constitutional principles. • Right to a healthy and ecologically balanced environment. It notes that Article 50 of the Magna Carta establishes the right to a healthy and ecologically balanced environment, as well as the State's duty to guarantee, preserve, and defend that right. It mentions that the same article establishes as a mandate the State's obligation to procure the greatest well-being for all the country's inhabitants, organizing and stimulating production and the most adequate distribution of wealth. It refers that this constitutional precept is the basis for the development of this public work. It states that one of the fundamental obligations of the Costa Rican State is to procure the well-being of its inhabitants through development and production; however, true development will not exist if it does not unfold in harmony with the environment. It argues that we are in the presence of two concepts that, far from juxtaposing, complement each other, and it is precisely at this juncture that the concept of sustainable development arises, which has been defined from different points of view, with the one set forth in the Brundtland Report "Our Common Future," drafted by the World Commission on Environment and Development (1987), prevailing worldwide: "… sustainable development is a process of change in which the exploitation of resources, the direction of investments, the orientation of technological development, and institutional change are in harmony and enhance both current and future potential to meet human needs. The concept implies limits, imposed by the state of technology and social organization on the environment's ability to meet present and future needs." It refers that Article 50 of the Constitution imposes development and production in harmony with the environment, such that we are in the presence of two constitutional mandates of identical rank, whose fulfillment is mandatory. It explains that this article embodies the State's obligation to efficiently provide the community with public services, in a clear balance with the environment. It adds that the foregoing constitutes a fundamental parameter that frames the State's actions, equating identically the powers it holds in the realm of the country's development, for the benefit of the community, and environmental protection. It cites Article 26 of the American Convention on Human Rights and Article 11 of the Protocol of San Salvador. It proposes that the combination of the cited articles of these two international instruments leads to sustainable development in harmony with the environment, the progress of peoples, and the fulfillment of other economic and social rights, a situation that, in the case of Costa Rica and especially in the Province of Guanacaste, would operate to improve the living conditions of the area's inhabitants.

• In dubio pro natura. It cites Resolution of the Chamber No. 2000-10465 of November 24, 2000. It argues that there is no violation of this principle, because the institutions involved in this project have carried out the corresponding studies, as well as actions that compensate for the areas where the project will be developed.

• Non-regression in environmental matters and lifetime tenure (irreductibilidad). It asserts that the principle of non-regression, or prohibition of backsliding, provides that regulations and jurisprudence should not be modified if that implies regressing regarding the levels of environmental protection previously achieved; therefore, the new norm or ruling should not and cannot worsen the situation of the pre-existing environmental law regarding its scope, breadth, and effectiveness. It maintains that the State is empowered to approve the reduction of protected wildland areas in accordance with Article 38 of the Ley Orgánica del Ambiente. It partially transcribes Resolution of the Chamber No. 2012-13367.

It details that, in January 2016, SENARA signed the "Agreement between the Organization for Tropical Studies (OET) to carry out the Study for the establishment of the biodiversity baseline for the Lomas de Barbudal Biological Reserve and adjacent farm." It indicates that the objective of the study consisted of elaborating and defining the baseline to determine the ecological integrity, relevance, and fragility of the ecosystems present, as well as the existing biodiversity, in the area of the Lomas de Barbudal biological reserve to be directly impacted by the Río Piedras reservoir. It points out that at the same time, a comparative analysis was made between an area of the RBLB and previously selected surrounding lands, to understand the similarity conditions and feasibility of using them as an ecologically equivalent replacement zone; that is, there were scientific criteria and a sustainable development policy that supports it from the perspective of access to water as a Human Right.

• Inviolability of private property. It cites Articles 37 and 38 of the Ley Orgánica del Ambiente. It notes that the claimants are guaranteed the property of their real estate until the expropriation process is initiated. It partially transcribes the ruling of a judgment of the First Chamber that it identifies with No. 356. It refutes that, with the first article of Law No. 9610, the claimants have been dispossessed of their properties, so the State has no obligation to pay any compensation until the expropriation process.

• Regarding the technical basis of Law No. 9610. It partially cites rulings No. 7294-98 and No. 6322-2003, as well as referring to Voto No. 18665-2012. It states: "The Study for the establishment of the biodiversity baseline for the Lomas de Barbudal Biological Reserve -RBLB- and adjacent farm carried out by the Organization for Tropical Studies -OET- constitutes the technical input considered for the approval of Law No. 9610. The procedure carried out by the OET for the evaluation of compensation is based on a methodology called: Habitat/Hectare, a scoring system developed by Australian researchers which identifies a series of environmental quality indicators and assigns values to each of the factors of the habitats to be evaluated. Two compensation evaluations were carried out independently, one based on habitat quality indicators and the other based on diversity and community composition, both adapted to the tropical dry forest. Additionally, the methodology used by the OET was modified in order to include other indicators (geophysical, ecosystem services, among others). The final score results from the sum of the values determined for each indicator and represents the habitat quality or community composition in relation to the reference habitat (RBLB). From the result obtained in the Study, it was possible to estimate the number of hectares required to achieve a quality level like that of the reference and thus compensate for the 113 hectares to be flooded in the RBLB. It is important to note that the study carried out by the OET considered an area in the RBLB of 131.07 hectares, because it was during its execution that SENARA carried out the field work in topography to prepare the definitive plan on the effective area required for the reservoir, which resulted in the 113 hectares, all included within the 131.07 hectares studied by the OET. The Study carried out by the OET (on 131.07 hectares), when considering the established area, determined that this sector of the RBLB has three types of forest cover (cobertura forestal): deciduous forest in 96.05 hectares, secondary forest in 9.13 hectares, and mature forest in 24.71 hectares. The latter will henceforth be called riparian forest, because it is related to the watercourses of the area and composed of remnants of vegetation that subsist on the banks of rivers and streams, constituted by evergreen species. Additionally, the farm has 1.18 hectares in non-forest area and pastures. The lands evaluated for the compensation area are owned by the company ASETREK Tres Azul S.A., legal identification number 3-101-370259, whose representative is Mr. Ramón Aguilar Facio, identity card number 9-0001-0541, cadastral plan No. 5-666-1976, real property folio No. 034932-000, located in the first district of Bagaces, of the fourth canton of Bagaces, in the province of Guanacaste, with a registered area of 751 hectares. The riparian forest area in ASETREK consists of small, fragmented areas, a situation that led to its non-consideration for the purposes of score assignment in the evaluation carried out in the Study to determine the required compensation area. The conclusions of the study reveal, according to habitat quality, that an equivalent area between 290 and 332 hectares is necessary to compensate for the area to be flooded in the RBLB, because the studied farm represents between 34.00% and 51.20% of the reference site, which corresponds to the 113 hectares of the RBLB. These differences indicate that the ASETREK Tres Azul SA farm has been more disturbed and, lacking riparian forest cover, 332 hectares will be required for compensation, considering the maximum probable value resulting from the applied methodology. On the other hand, applying the methodology for diversity and community composition, ASETREK contains 30.90% of the reference (113 hectares of the RBLB), that is, the reserve has a higher species richness of the taxonomic groups studied, so 290 hectares are needed to compensate for the loss in the RBLB. In conclusion, considering the result obtained by applying the methodology, both for habitat quality and for diversity and community composition, the ASETREK Tres Azul S.A compensation site is inferior in environmental quality, composition, and biodiversity to the RBLB site that would be flooded by the Río Piedras Reservoir, which is why, by considering the most suitable condition for the RBLB, the OET recommended acquiring at least 332 hectares of the ASETREK Tres Azul S A. Farm to compensate for the losses of the RBLB. The ASETREK Tres Azul S.A farm, as an extension for compensation and studied by the OET, has a total area of 751 hectares, of which a significant part is dedicated to agricultural and livestock production. When considering the proposed compensation area resulting from the prepared Study, an analysis of the site was carried out to assess the extension that should be proposed for the compensation of the 113 hectares to be flooded from the RBLB, addressing the following fundamental parameters: 1. Comply with the minimum area required for compensation obtained from the study, which corresponds to 332 hectares. 2. Consider that the area to be acquired for compensation has a sufficient amount of forest, according to the types of forest cover (cobertura) found in the area to be flooded of the RBLB. 3. That the area to be purchased includes the 189.30 hectares that were studied by the OET for the respective comparisons between the potential compensation site and the reference site (RBLB). 4. That the area can be adequately integrated into the rest of the RBLB, respecting the highest possible percentage of adjacency between them. 5. That the area proposed for compensation allows the connectivity of the RBLB with the protection areas that are considered to be left around the future Río Piedras Reservoir as a protection ring, mainly on its left bank. 6. Limit as much as possible the boundary of the proposed area with areas with non-forest cover, paddocks, or pastures, as these can increase and facilitate the risk of fires within the RBLB. 7. Standardize the property boundary so that the compensation area allows for adequate management by the SINAC administration in the RBLB. Once the previous parameters were analyzed, the result obtained denotes that the area to be purchased from the ASETREK Tres Azul S.A. Farm is 444.04 hectares. Of these, an estimated presence of deciduous forest is 286.87 hectares, secondary forest is 59.50 hectares, pastures are 73.23 hectares, and a non-forest area, that is, an area of pastures with other native grasses of 18.50 hectares. It is important to indicate that the area selected from the farm also has a riparian forest area of 6.14 hectares, distributed in small sections, which due to their lack of connectivity or because they are located in the direct impact zone of the reservoir, were not considered for the application of the methodology used in the Study to determine the compensation area. While it is true that the proposed area of 444.04 hectares as compensation for the 113 hectares that would be flooded from the RBLB meets the requirements established based on the results of the habitat quality methodology applied in the Study by the OET, the reality is that this area only has an area of 2.2 hectares of mature or riparian forest with characteristics similar to that found in the area to be flooded in the RBLB. Under these circumstances, it was considered pertinent to search for an additional surface area that could remedy this deficiency of riparian forest in the compensation area at the ASETREK Tres Azul S A. Farm, complying with the parameters mentioned previously, identifying after joint field work between experts from the OET, officials from the RBLB of SINAC, and SENARA, two potential farms for compensation, located on the northwest boundary of the RBLB. This property is in the name of Brindis de Amor en Liberia S.A and Hacienda Ciruelas SP S.A. In this regard and according to the field inspections carried out jointly by experts from the OET, SINAC, and SENARA, supported by aerial images taken with a drone flying at low altitude, it was determined that the Brindis de Amor property has an initial estimate of 11.41 hectares of riparian forest, and Hacienda Ciruelas SP S.A. has an estimate of 8.49 hectares of riparian forest, made up of forest cover constituted by evergreen species and that is comparable in quality to that found at the potential flood site in the RBLB. The riparian forest area in Brindis de Amor represents 7.40% of the area covered by that type of forest within the RBLB currently; hence the importance of incorporating this area into the RBLB. Another important aspect is that the riparian forest area on this farm can constitute a core area of species to repopulate other riparian environments on the property. Although this situation is not chronologically corresponding to the loss in the RBLB, according to the OET, it is a considerable advantage since this core area allows for short-term restoration and incorporation of new riparian forests, a situation that would not be occurring on the ASETREK Tres Azul S.A. Property. That is, the Hacienda Ciruelas SP S.A. property is being taken into consideration. The deciduous forest (45.74 hectares), as well as the secondary forest (6.63 hectares) in Brindis de Amor, have been protected for at least twenty years, and there are no records of recent logging or fires, so they are in better structural and compositional condition than those found at the potential impact site in the RBLB or on the ASETREK Tres Azul S.A. property. Although not the main objective, the annexation of this type of forest from Brindis de Amor to the RBLB implies a significant gain in these forest covers as well. The Biodiversity Baseline Study for the RBLB evidenced the increase in diversity of different taxonomic groups in response to more permanent water sources, a condition that is highly favored on the Brindis de Amor farm, which has several permanent water sources, including the Cabuyo River and its tributaries, giving an added value to this farm. There are studies by Dr.

Susan Perry (University of California, Los Angeles), who indicate that troops of white-faced monkeys (Cebus capucinus) from the RBLB use the forests within Brindis de Amor as feeding and resting sites; that is, there is evidence of a constant flow of animals between the RBLB and Brindis de Amor as a foraging site, which demonstrates the biological importance of this property for incorporation into the RBLB. Finally, it is important to mention that the Study carried out by OET establishes a compensation area that considers the current condition of the lands being assessed, without referring to the future improvements they will have when incorporated into a protection regime such as the reserve. In view of this, a riparian forest area was identified that allows compensating the shortfall in hectares for this type of ecosystem while maintaining the ecosystem connectivity of the protected area, concluding that the property of Hacienda Ciruelas SP S.A. presents such conditions and allows compensating an area of 8.49 hectares of riparian forest. Additionally, it is concluded that the best option to complete the compensation of the riparian forest is to acquire an area of 40.00 hectares owned by Hacienda Ciruelas SP S.A., which contains 8.49 hectares of riparian forest. According to the cover layers mentioned above, this property possesses a total of 33.64 hectares of riparian forest, where the majority of this forest type is found bordering the Amores stream, and the area selected for compensation possesses an area of 8.49 hectares of riparian forest, 2.44 hectares of secondary forest, 26.91 hectares of deciduous forest, and 2.16 hectares of pastures. For its part, it is expected that among the future benefits of the regeneration of pastures owned by ASETREK Tres Azul S.A. will be the contribution to the establishment of secondary forest, carbon (CO2) sequestration, soil protection, cover gain, protection of biodiversity and the scenic beauty of the place, protection of water sources, while contributing to increasing its ecological, economic, and social value. In other words, the new surface area established under the protection regime will tend to improve its current condition, both in habitat quality and in diversity and community composition.

According to Quesada, R (2008), in his Manual to promote natural regeneration in degraded pastures in the Central and Northern Pacific of Costa Rica, "to revert pasture areas into forests through natural regeneration methods, they must have a strategic location to seed sources and proximity to forest patches," conditions presented by the proposed area on the ASETREK Tres Azul S.A. and Brindis de Amor en Liberia S.A. properties. These conditions make it predictable that although currently 91.74 hectares (a pasture area of 73.23 hectares and a non-forest area of 18.51 hectares) in ASETREK Tres Azul S.A., 18.18 hectares of pastures in Brindis de Amor, and 2.16 hectares of Hacienda Ciruelas SP S.A., in a few years, under a protection regime like that of the RBLB and controlled fire management, these surfaces will be able to incorporate into the different succession stages of secondary forests.

Thus, according to the results presented in the study carried out by OET and to what was raised in the PIAAG High-Level Commission, the definitive compensation proposal is: 1- From the ASETREK Tres Azul S.A. property, a total of 444.04 hectares, according to the plan of the proposed area. 2- The entirety of the Brindis de Amor en Liberia S.A. property, with a registered area of 86.96 hectares according to the plan. 3- An area of 40.00 hectares from the Hacienda Ciruelas SP S.A. property. In total, the purchase of 571 hectares, representing a factor of 5 times the area that will be affected in the RBLB, with a direct equivalence in forest types, as indicated in Table 6.

Table 6. Comparison of area by forest type between the affected area of the RBLB and the proposed compensation area.

¹Although the required area of the RBLB is 113 hectares, OET conducted the study on 130.64 hectares, which is why this value is used for the comparison. SOURCE: Baseline Biodiversity Study for the RBLB carried out by OET.

With the proposed compensation measures, the conservation objective is achieved, and therefore it can be affirmed that there is clear compliance with the regulations when it comes to exchanging areas that have been subjected to a specific management category and must be released. So, on this matter we can conclude: 1.- That the conservation objects that underpin the creation of the "protected area" are not being affected. 2.- That the area is compensated by another of equal size that fulfills the same purposes and similar ecosystem conditions, according to the Establishment of the Biodiversity Baseline for the Lomas de Barbudal Biological Reserve (RBLB) and adjacent property prepared by the Organization for Tropical Studies (OET).

The Project implies an economic and social transformation of the area. An improvement in how things are done, and doing them differently from how they have been done until now. The general population, farmers, and the hotel area must be educated on the good and efficient management of water, which is part of the effort that has been carried out by this Administration, from the very moment the first Working Group for Guanacaste began. The claim initially made by the plaintiff, that the communities have not had participation, is not true. As anticipated in the lines above, the current Administration is executing the Comprehensive Water Supply Program for Guanacaste-North Pacific (PIAAG) incorporated into the National Development Plan 2015-2018 and included in the National Development and Investment Plan of the Bicentennial 2019-2022, which seeks to ensure the optimal use of water resources in the province of Guanacaste to satisfy the resource demands of different activities. Within this program, as indicated in the lines above, the project questioned by the plaintiffs is being executed, which is strategic and whose scope is to supply irrigation to an area of approximately 18,800 hectares, benefiting more than 1,000 producers, and allowing long-term water access for the communities of the canton of Santa Cruz and Nicoya. Additionally, the water supply to support irrigation in coastal tourism developments and includes electricity generation.

An important aspect of the PIAAG has been the citizen participation that has occurred during its construction and implementation. This program has been validated by various organizations in the province and by citizens in various spaces such as the working group for Guanacaste. Therefore, those unique 7 companies that will benefit from the project do not exist. Specifically, and as a fulfilled requirement according to the provisions of Article 25, numeral 3 of the Biodiversity Law No. 7788, a consultation process was carried out with the local communities regarding both the PAACUME project and the proposal for the release and compensation of the Lomas de Barbudal Biological Reserve. This is attached to the bill and must be recorded in the corresponding legislative file." • Economy and efficiency. Asserts that the plaintiffs have stated that there are other lands owned by MINAE adjacent to Lomas Barbudal that could have been added to the Biological Reserve (which he admits regarding the existence of the lands); however, in his opinion, it is not viable to compensate a part of the Lomas Barbudal Biological Reserve with State Natural Heritage that is precisely already under a conservation scheme, and in which case it could be questioned whether or not any compensation actually exists. He maintains that for this reason, the Organization for Tropical Studies' studies were conducted, which were based on scientific facts and determined which properties were suitable for the compensation of the protected area.

• Principle of legality. Partially cites ruling no. 16202-2010 of September 28, 2010. Indicates that this principle has not been violated, since there is no obligation to notify the Ramsar Convention, as the country is in the data collection stage. Regarding non-compliance with the procedure established in the regulations to the Biodiversity Law. Points out that the content of the studies carried out by OET is in accordance with the regulation. Expresses that there is a document in its files that systematizes a "mandatory consultation with local communities" regarding the compensation proposal for the Lomas Barbudal Biological Reserve, so it is not true that the consultation was not carried out. Notes that the mentioned studies were coordinated with SINAC, since, as can be inferred from multiple documents, good coordination has existed between SINAC and SENARA since long before the studies began. Mentions that among the technical considerations that supported the creation of the Lomas del Barbudal Biological Reserve were: “• That the site conserves very valuable samples of the flora and fauna of the lowland dry wooded savanna, the lowland riparian forest, and the lowland deciduous forest, which in the past covered extensive areas of the province of Guanacaste. • That the site possesses at least 10 springs and part of the Río Cabuyo basin, important for the agricultural and livestock production of the region. • That the soil type does not present conditions for sustained agricultural development, but from the point of view of research and tourism, the area is important for presenting a unique entomological fauna and for containing dry savannas that are not protected in any other conservation unit.” States that the legal advisory office of the Legislative Assembly had indicated, regarding a similar (compensation) initiative, that, being a protection zone, the authorization, according to the regulations, cannot be granted as long as the technical study required by law is not completed. Argues that the Regulations to the Biodiversity Law state in Article 71: "For the declaration, modification, or change of management category of a WPA, a technical report shall be prepared, which will be coordinated by the respective SINAC instance." Refers that, for the above purposes, SENARA contracted the Organization for Tropical Studies to develop the study "Establishment of the Biodiversity Baseline for the Lomas de Barbudal Biological Reserve (RBLB) and adjacent property," which began in January 2016 and concluded in December of the same year. Explains that one of the options explored and which gave rise to the study was the compensation of the impact by replacing it with a surface area with similar characteristics that would allow biodiversity continuity for the RBLB. Adds that it was originally identified that the area that could potentially serve as compensation was located within the ASETREK property owned by Tres Azul S.A. Adds that some of the conditions defined before the development of the studies were: “• Consider that the area to be acquired has a sufficient amount of forest, according to the types of cover existing in the RBLB. • That the area can be adequately integrated into the rest of the Reserve. • Standardize and adjust the boundary of the property to be acquired so that the compensation area allows for adequate management of the Reserve by the administration.” Presents that “This is how the study is developed in both sites (the potential one to be flooded and the potential one to be replaced), and the results, in very general terms, in relation to the types of cover in both sites, determine that the following covers are present a) Deciduous forest; b) Mature forest, referred to in the Report as 'riparian forest'; c) Secondary forest; d) Non-forest use; e) Pastures. However, in the site potentially to be flooded within the RBLB, three habitats are distinguished: Deciduous forest, secondary forest, and Mature or riparian forest; however, in the case of the mature or riparian forest, it is present practically only in the potential flood site and not in the compensation site. Another fact worth highlighting, and which is included in the OET Final Report, is that riparian forest is present or represented within the RBLB, only in 8.0% of the total RBLB area; the Final Report also indicates 'The riparian forest within the flood site in the reserve corresponds to 11.4% of the total area of that cover in the region, a percentage not insignificant considering that the cover constitutes a single continuous fragment within the site.' Related to this same cover or plant association of riparian forest, the Report indicates 'the other fragments of riparian forest are located towards the north of the reserve bordering the Río Cabuyo, so the fragment in our study site is practically isolated.' According to the report, in relation to the connectivity factor, based on distance, it differs between covers, given that the deciduous forest in both sites (potential to be flooded and potential for compensation) is contiguous to a similar cover in the RBLB that would not be flooded. In the case of the secondary forest cover in the compensation site, it is very close (Regarding the approval of the Environmental Impact Study. States that the biodiversity baseline study conducted by OET is not and does not substitute the Environmental Impact Study, which does determine the impacts of the entire project and the measures that must be taken to avoid, mitigate, or compensate those impacts. Argues that this study is also a direct competence of SETENA and is in the processing stage. Clarifies that, according to Article 17 of the Environmental Organic Law, the Environmental Impact Assessment is for activities, works, and projects. Argues that the General Regulation on Environmental Impact Assessment Procedures (Executive Decree No. 31849-MINAE-S-MOPT-MAG-MEIC) defines Environmental Impact Assessment as “Scientific-technical administrative procedure that allows identifying and predicting what effects an activity, work, or project will have on the environment, quantifying and weighing them to lead to decision-making. In general, the Environmental Impact Assessment covers three phases: a) the Initial Environmental Assessment, b) the preparation of the Environmental Impact Study or other corresponding environmental assessment instruments, and c) the Environmental Control and Monitoring of the activity, work, or project through the established environmental commitments.” Maintains that the assessment is for an activity, work, or project and not for a bill. Asserts that, on December 7, 2017, SENARA submitted to SETENA the D1 Assessment Document for the project called “Water Supply for the Middle Basin of the Tempisque River and Coastal Communities (PAACUME)” with a final rating of Environmental Impact Significance 1052 which, according to the decision path, implies the preparation of an Environmental Impact Study within the procedure. Indicates that the Coordinator of the Department of Environmental Auditing and Monitoring, through official letter SETENA-DT-ASA-0148-2018 of March 7, 2018, pointed out that 24 properties were identified that had to be acquired for the execution of the project and one of 113 ha within the reservoir area belonging to the Lomas de Barbudal Biological Reserve (State Natural Heritage) that had to be segregated and integrated into the Río Piedras reservoir, which was intended to be done through bill no. 20465, therefore requested internal criteria on postponing the assessment analysis process until the Legislative Assembly approved the bill. Indicates that on July 12, 2018, SETENA made the following project consultations: “ • Tempisque Conservation Area of SINAC, official letter SG-DEA-1197-2018-SETENA, response on October 10, 2018, from Mr. Celso Alvarado Murillo, Director of Protected Wild Areas ACAT, Coordinator of the Temporary EsIA Commission, PAACUME through official letter ACAT-DASP-060, which delivered the Technical report of the Analysis of the Environmental Impact Study of the project. On October 25, 2018, Eng. Alexander León Campos, Director of the Arenal Tempisque Conservation Area, presented criteria on the Environmental Impact Study and on December 20, 2018, official letter SINAC-SE-IRT-304 from the Executive Secretariat of SINAC, the Territorial Information and Regularization Area indicates participation in a field visit from November 12 to 15, 2018, attaching the official letter of December 19, 2018, from Mr. Nelson Marín Mora, Regional Director of the Tempisque Conservation Area in official letter ACT-OR-DR-1764-18, which in turn forwards the criteria of the Coordinator of the Wetlands Program of the ACT-RNVS-MR-016-2018 and adds that the reservoir and change to be made at the Ramsar site must be communicated by the Administrative Authority in the country to the Ramsar Convention. • National Museum of Costa Rica, official letter SG-DEA-1191-2018-SETENA. • National Wetlands Program, official letter SG-DEA-1190-2018-SETENA. • College of Biologists, official letter SG-DEA-1187-2018-SETENA. • School of Biology of the University of Costa Rica, official letter SG-DEA-1188-2018-SETENA. • School of Biological Sciences National University, official letter SG-DEA-1189-2018-SETENA, response by email of 9-17-2019 and UNA-ECB-ofi-1456-2018. • National Institute of Innovation and Transfer in Agricultural Technology (INTA), official letter SG-DEA-1196-2018-SETENA (folios 2685-2686), response in DSTINT A-574-2018.” Notes that, the Department of Environmental Auditing and Monitoring, by official letter SETENA-DT-ASA-0016-2019 of January 14, 2019, forwarded the PAACUME-IT-DT-ASA-008-2019 Forest Technical Criteria. Mentions that on January 22, 2019, the Department of Environmental Assessment issued Technical Report DEA-0133-2019 with a recommendation to request an Annex to the Environmental Impact Study, a matter pending review by the Full Commission. States that in these terms, the case file in question is in process and, by virtue of the effects of the action, SETENA will not issue the final act of the procedure, i.e., a pronouncement on the request for environmental viability of the project, until the Court resolves the present action, unless in this case it decides otherwise for the public interest. Requests that an oral hearing be held. Requests that the action be declared without merit.

10.- By written submission received at the Secretariat of the Court at 9:40 a.m. on March 6, 2019, Mario Andrés Boza appears. He indicates that he is filing an active joinder, with basis and standing in Article 50 of the Political Constitution. He points out that the unconstitutionality action must be declared with merit for the following reasons. 1. Law approved without having environmental viability. Notes that Law No. 9610 was published in November 2018 without an approved environmental viability study. Questions that a law related to such a large project was approved without knowing whether it is environmentally viable or not. Refers that this was addressed by a conservation group called the Front for Protected Wild Areas. Expresses that it was not until February 2019 that SETENA issued a report noting 91 deficiencies in the environmental impact study submitted by SENARA. 2. An ecologically balanced environment. Mentions that Article 50 of the Political Constitution refers to an ecologically balanced environment, which should be understood as one in which there is a dynamic state and perfect harmony between living beings and their surroundings. States that an alteration to this balance can be caused by natural or artificial causes, such as climate change, a forest fire, illegal hunting and fishing, or the extraction of water necessary for wild fauna. Argues that the Constitutional Court, in resolution no. 2014-12887, made clear reference that it was only possible to reduce a protected area if, among other requirements, there was compensation for the suppressed area with another of equal size. He believes that when part of a national park or equivalent reserve is segregated for other uses, the least that can be expected is that the compensation of one hectare for one hectare is done taking into account the ecological situation of the lands being exchanged; that is, the compensation of one hectare of primary forest cannot have the same ecological value as one hectare of completely deforested pastureland - a biological desert. Argues that this compensation, according to what the plaintiffs have stated, is not occurring from an ecological point of view.

3.- There will be no compensation for the suppressed area. Asserts that Article 71 of the Regulations to the Biodiversity Law establishes that for the declaration, modification, or change of management category of a protected wild area, a technical report must be prepared, which will be coordinated by the respective SINAC instance. Maintains that subsection g) of Article 71 indicates that for such purposes, sufficient financial resources must exist to acquire the lands of the proposed area and ensure its adequate protection and management in the long term. Points out that neither of the two conditions is included in the law being challenged. Notes that Law No. 9610 establishes in Article 1 the new boundaries of the Lomas de Barbudal Biological Reserve. Expresses that in this way the reserve loses 113 ha of primary forest, which is not possible to replace. Describes that Article 2 establishes the limits of the segregated area and that numeral 4 assigns SENARA the responsibility of conducting the environmental study of the PAACUME project which must include, among others, the compensation measures for the released area; that is, the compensation measures are transferred to a study. He poses the following question: why is there not an article in this law that clearly indicates, based on what the study done by the Organization for Tropical Studies recommended, that the 113 ha must be compensated by the purchase of 571 ha of neighboring lands? Refers that if that article does not exist, it is because that compensation will not be produced at all. Mentions that nowhere is it stated, for example, that SENARA, MINAE, or ICAA will be the institutions that will acquire, by purchase or expropriation, the lands that would compensate for the segregated ones. States that this issue was also noted by the "Front for Protected Wild Areas" in its press release. Argues that the single transitory provision of the law does not remedy that problem but only states that regulations will be issued to rehabilitate (the forest) in the compensation areas. Questions that many years may pass before those areas are acquired, because, again, no institution is responsible for the purchase of those lands. Highlights that the 571 ha would partially compensate, from an ecological point of view, for the 113 ha to be segregated. 4. Neither protection nor development for the reserve. Argues that the Constitutional Court, in decision no. 2017-014907, ordered: "the State has not been able to provide effective protection to the country's conservation areas." States that, in July 2018, the Director of the Arenal-Tempisque Conservation Area referred to the issue of the protection of Lomas de Barbudal when he appeared before the special commission of the Legislative Assembly that was studying file 20,465 (which gave rise to Law 9610); at that time, he stated that the bill "must have a financial mechanism that guarantees its sustainability, management, and care of the reserve. There must be a financial mechanism and ensure the sustainability of the management, the care, not only of that reservoir that will be formed there, but also of the Lomas Barbudal Biological Reserve itself. [...] Such resources are important to be able to address problems of hunting or forest fires, as significant investment is required to deal with any problem." Asserts that the law continues with that regrettable tendency of not benefiting in any way one of the few protected areas that conserve the tropical dry forests that still exist in the country, which has great scenic beauty, possesses a river excellent for swimming (the Cabuyo), and is exceptionally rich in insect species such as bees, wasps, and diurnal and nocturnal butterflies. He maintains that the reserve is forced to cede its most precious forest and, in exchange, not only is this area not compensated, but it will also not have funds to improve its protection and the development of facilities for the benefit of its visitors. Indicates that, in fact, Lomas de Barbudal only has three park rangers, which in practice means that only one or two of them protect it from poaching, forest fires, and timber theft. Points out that the law does not contemplate, for example, that with a certain part of the profit from the sale of water—5% of net income—a trust be created destined solely and exclusively to achieve better protection and development of the reserve. Notes that the only thing Article 5 of the law says is that 50% of a canon will be used by SINAC to implement the management plan. He poses the following question: What guarantee exists that the management plan will give high priority to the protection and development of the Reserve? He believes that the above is left up in the air. Refers that SINAC has been characterized by using the funds generated by the parks and reserves to cover needs unrelated to them, as indicated in the amparo appeal processed under file no. 08-011453-0007-CO. Considers that the challenged law not only territorially harms the Lomas de Barbudal Biological Reserve, but also does not contemplate any benefit from the profits from the sale of water that SENARA and ICAA will obtain, nor MINAE. Mentions that the law violates numeral 50 of the Political Constitution.

11.- By written submission received at the Secretariat of the Court at 1:14 p.m. on March 8, 2019, Jorge Arturo Lobo Segura appears. He indicates that he is filing a joinder. He states that he has standing by virtue of diffuse or collective interests in environmental matters. He expresses that Law No. 9610 violates Articles 7 and 50 of the Political Constitution and the principles of non-regression in environmental matters, objectification of environmental protection, precautionary, preventive, and lifetime tenure (irreductibilidad) of protected wild areas, based on the following arguments: “I- VIOLATION OF ARTICLE 50 OF THE POLITICAL CONSTITUTION AND OF THE CONSTITUTIONAL PRINCIPLES OF NON-REGRESSION IN ENVIRONMENTAL MATTERS, OBJECTIFICATION OF ENVIRONMENTAL PROTECTION, PRECAUTIONARY, PREVENTIVE, AND LIFETIME TENURE (IRREDUCTIBILIDAD) OF PROTECTED WILD AREAS. As the Attorney General's Office has very well described in its response brief to the unconstitutionality action on which I am presenting this joinder, the Constitutional Court has defined in numerous rulings that reducing the size of a protected wild area is not unconstitutional, provided that three essential requirements are met: 1- That it is done through a law; 2- That prior to the approval of the law, sufficient technical studies exist that justify the measure; and 3- That compensation of the suppressed area be given with another of equal size and characteristics. See in that sense the following rulings: # 2003-11397 of October 8, 2003; #1999-2988 of April 23, 1999, #7294-98 of October 13, 1998, #1056-2009 of 2:59 p.m. on January 28, 2009, #12887-2014 of 2:30 p.m. on August 8, 2014, as well as decisions #11155-2007, #14772-2010, #2012-13367, #2009-1056, and #2375-2017. VERIFICATION OF COMPLIANCE WITH THE 3 REQUIREMENTS TO REDUCE THE SIZE OF A PROTECTED WILD AREA. Reviewing compliance with those 3 requirements to determine if the reduction of the size of the Lomas Barbudal Biological Reserve, through the release of 113 hectares with the intention of flooding them, the following can be concluded: 1- IT DOES COMPLY WITH REQUIREMENT 1, which is that it be done through a law. The area reduction was duly approved through Law #9610, therefore complying with the first requirement established by the Constitutional Court.

2- IT DOES NOT COMPLY WITH REQUIREMENT 2, which requires that prior to the approval of the law, sufficient technical studies justifying the measure be available, as will be demonstrated below: Regarding the technical study that must justify the reduction of the size of a protected Wild Area, the Constitutional Chamber has indicated that: "In this sense, the requirement for technical studies that justify the approval of legislative bills aimed at the reduction or removal of protection (desafectación) of an environmentally protected area must be satisfied prior to or during the development of the legislative procedure. Furthermore, the requirement for technical studies is not a mere formality, but rather a material requirement, i.e., it must be materially demonstrated, through a scientific and individualized analysis, the degree of impact of the corresponding measure on the environment, propose recommendations aimed at mitigating the negative impact on it, and demonstrate how such a measure implies development that meets the needs of the present without compromising the ability of future generations to meet their own needs." (Voto # 13367-2012 of 11:33 a.m. on September 21, 2012; and #10158-2013). (Underlining is not from the original) I agree with the Attorney General's Office (Procuraduría General de la República), which points out that the aforementioned jurisprudential development configures the principle of lifetime tenure (irreductibilidad) of protected wild areas, according to which this type of protected spaces cannot be reduced or modified unless the requirements established for this purpose are met. The foregoing has a clear relationship with the principles of non-regression in environmental matters, objectivization of environmental protection, prevention, and precaution. Regarding the study in question, it must be noted that in the legislative file for the bill that culminated in the approval of Law #9610, there is a study called "Establishment of the Biodiversity Baseline for the Lomas de Barbudal Biological Reserve and Adjacent Farm (Establecimiento de la Línea base de Biodiversidad para la Reserva Biológica Lomas de Barbudal y Finca Adyacente)", which was carried out by the Organization for Tropical Studies (OET, Organización para Estudios Tropicales) according to the terms of reference outlined by SENARA, which was the contracting entity (see Folios 268-504 of the file), and whose objective was to determine the biological and geophysical characteristics of the area of the Lomas Barbudal Biological Reserve (RBLB) that would be replaced by the reservoir area and to evaluate the biodiversity components on an adjacent farm owned by ASETREK Tres Azul S.A., in order to assess its potential to compensate for the affected area of the RBLB. That is to say, said study was intended to determine the possibility of compensating for the area of the RBLB that would be removed from protection (desafectada). In that study, it was determined that to compensate for the area, 444 hectares of the ASETREK farm should be included within the Reserve, and in a very superficial manner, since detailed studies were not carried out, it is mentioned that the 86 hectares of the Brindis de Amor farm should be incorporated, in addition to using the Río Piedras reservoir as part of the compensation. The obligatory questions regarding this study are the following: Does the Study prepared by the OET comply with the terms of reference set by SENARA and the criteria established by the Constitutional Chamber? Does this Study demonstrate, through a scientific and individualized analysis, the degree of impact of the corresponding measure (the removal of protection of 113 hectares of that Biological Reserve) on the environment? Does it propose recommendations aimed at mitigating the negative impact on the environment? Does it demonstrate how such a measure (the removal of protection of 113 hectares) implies a development that meets the needs of the present without compromising the ability of future generations to meet their own needs? THE ANSWER IS A RESOUNDING NO. Below I explain why: 1- Observations on the OET Study for the compensation of the area floodable by the reservoir. 1.1 Theoretical framework. The study adopts, as a methodology for calculating the compensation area, the quantification of the relative value of different aspects of the ecosystems, assigning a numerical value to different ecosystem variables. This exercise is carried out for the floodable area of Lomas de Barbudal and its corresponding comparable ecosystem on the ASETREK farm, a farm chosen by SENARA. Note that the study was not intended to search adjacent lands to the Lomas Barbudal Biological Reserve (RBLB) for an area to compensate with environmental characteristics as similar as possible to the area to be flooded. SENARA was the entity that determined that the study should be done on a part of the ASETHEK farm. To perform the numerical comparison of habitat quality between the area to be flooded in the HBLB and a portion of the ASETREK farm, the Study divides the area of each site into three main ecosystems: mature riparian forest, deciduous forest, and secondary forest. Scores are assigned according to the number of species from different taxonomic groups, or according to forest cover (cobertura de bosque), number of strata, etc. The scores in each area are tallied to later obtain the totals. As in many cases, the ASETREK farm has a lower score than the corresponding ecosystem of the area to be flooded in the Lomas de Barbudal Biological Reserve, so the necessary area of the compensation farm is calculated to level the score of the affected area. This is how they arrive at the final calculation that 252 ha would be required (later 330 ha are mentioned, there is some confusion about this at the end of the study) of a farm like ASETREK to compensate for the 113 ha flooded at Lomas de Barbudal. My opinion based on my technical knowledge is that this theoretical framework is a numerical exercise that leads to a dangerous accounting, with little biological foundation. The categories for defining scores, the aspects of the ecosystem that were compared, and the numerical values assigned to each category are largely arbitrary; they are overvaluing some aspects and undervaluing others, as will be seen later with some examples. The main problem is establishing a supposedly quantitative principle of compensation, where modifying the size of a compensation area can equal the area lost within a protected area. This is mistaken, since the populations or species affected by the loss of a protected area will not necessarily appear in their original abundance in a compensation area, even if its area is increased many times over, if the habitats and resources required by this species, or the population nuclei or sources for population migration that guarantee their repopulation, do not exist in the compensation area. Drastic differences in habitat quality, especially in the degree of human alteration of the ecosystems, such as those detected between Lomas de Barbudal and the ASETREK farm, are not balanced by increasing the area of the latter. This inflation of the area to compensate for less biodiversity will not result in the affected species being restored in the compensation area, especially if in the compensation area we have habitats very different from the affected area within the National Park or Biological Reserve. In the area of Lomas de Barbudal that will be flooded, there are riparian forests, and possibly other habitats not quantified by the study, that are not represented in ASETREK. It would be a worrying precedent if the Legislative Assembly, SETENA, and the Constitutional Chamber were to consider this study as valid, because this practice could lead to promoting the alteration of the limits of more protected areas, based on compensation with larger private farms, but with ecosystems much more altered than the protected ones. Ecosystem accounting and the Habitat/Hectare method (section 1.1.3 of the OET Study) would endorse this type of compensation. 1.2 Accounting for ecosystem services. An aspect that raises doubts about the environmental accounting of the OET study is the accounting of ecosystem services, and the comparison of both areas in relation to these services. The accounting of ecosystem services was carried out by selecting those services that: "(1) are clearly distinguishable and quantifiable products or benefits on metric scales, (2) have no direct relationship with each other, to avoid redundancy of criteria, (page 99) among other criteria. This criterion leaves out extremely important services that natural ecosystems provide to human and wild environments, but that are difficult to quantify, and that are related to each other, because ultimately forest cover (cobertura boscosa), soil quality, and biodiversity are common elements to all ecosystem services. There will always be "redundancy of criteria". Due to these selection criteria, ecosystem services as important as pollination, soil protection, aquifer protection, pest control, and others did not enter the comparative accounting of Lomas de Barbudal with ASETREK. It should be emphasized that the pollination services of the floodable area of Lomas de Barbudal must be substantial, given the great diversity of bees that largely motivated its creation in 1986. 1.3 Limitations of field sampling. For a study that aims to evaluate the ecosystem and biological diversity of two moderately extensive areas (on a scale of hundreds of hectares), 10 months of work seem insufficient to make a true assessment of the biological diversity of a site, despite the effort being very intensive. For some cases, such as vegetation sampling, despite being based on a good number of plots, the species accumulation curve (page 125 of the Study) shows that more sampling is still needed to stabilize the species diversity counts. Here I must express my doubts about the tables of plant species presented in this chapter, where apparently all samples were identified at the species level, which in my opinion requires extensive work in the national herbaria. This point is not reported. Regarding the sampling of bird species, the number of counts that were carried out is not stated, although it is recognized that "Due to the short duration of this study, it was not possible to complete the information with sampling during the arrival season of migratory species from the northern hemisphere, which occurs in the region during the months of August-May" (page 145 of the Study). It should be noted that long-term studies of bird populations, carried out by Dr. Gary Stiles in Costa Rica and Colombia, show very strong annual and supra-annual temporal changes, causing new species to continue appearing during inventories of many years, while others disappear. A similar criticism could be applied to the entomofauna (insect) sampling, since this was limited to the placement of two permanent Malaise traps (traps made with curtains and jars) at each site, from which insects were collected over one year. Limiting this sampling to this technique is insufficient; many insects of great ecosystem importance are not efficiently collected with this method, such as much of the soil entomofauna, bees, ants, etc. One example is the limited number of individuals captured from the Apidae family (bees) (Table 56, page 195 of the Study). This table shows that within Lomas de Barbudal, no individuals of this family were collected and only 11 bees at ASETREK. This result is completely wrong. Detailed studies in the region show that, in a single tree, during its flowering, 30-70 species of bees and thousands of individuals can be collected. 1.4 Limitations of the scoring system The fractionation of ecosystems into individual habitats and elements, and the somewhat arbitrary distribution of each element and level of similarity between the affected area and the compensation area, causes, from my point of view, the loss of the general perspective of each site, creating an accounting that misses important differences between Lomas de Barbudal and ASETREK. An example of this problem is the difference in slopes between both sites. On page 52 of the Study, it is recognized that the area within Lomas de Barbudal is between 10-80 masl in altitude, with slopes less than 5%, while ASETREK shows elevations greater than 85 masl, including a plateau with an average elevation of 140 masl (page 53 of the Study). The average slope of ASETREK is not reported. This difference is again highlighted on page 214 of the OET report, where the possibility of including another farm (Brindis de Amor) as part of the compensation is discussed, since "in contrast to ASETREK, the Brindis de Amor property has a slight slope...". Differences in slopes are very important, and should have affected the final score according to the philosophy adopted by the consultants. However, on page 58 of the Study, the consultants assign 4 points (out of a maximum of 5) to the geophysical attributes of ASETREK. The large difference in slope and altitude only meant one point less in the study's accounting. Another example of how the study's accounting missed important elements was the quantification of the importance of water sources. On page 105 of the Study, in the "Water Sources (Fuentes de Agua)" section, it is stated that two water sources were identified at the study sites: Quebrada Viscoyol and an unnamed stream (quebrada). Then, on the same page, they conclude: "From our observations in the field, it is concluded that, in terms of water sources, accessibility to them, and production, both sites are similar. Therefore, following the criteria indicated in Table 16, ASETREK receives a score of 3 points for this indicator." However, on page 183 of the report, those responsible for the ichthyofauna analysis acknowledge, when trying to explain the lower quantity of fish species at ASETREK: "This notable difference in composition possibly reflects the differences in elevation and in the qualities of the aquatic microenvironments between the compared sites: the HBLB site presents a greater number and greater depth in pools and backwaters while in the stream system at the compensation site at ASETREK the water flows shallower." This type of observation is repeated at the end of the study (page 214 of the Study), where it is stated "The compensation site at ASETREK does not have permanent streams..." Although these differences were not quantified, it is clear that surface water prevails for a longer time in RBLB, an effect especially notable during the dry season months. The presence of a water source with greater permanence in the dry season is an extremely important element in the ecology of the dry forest, and should have affected the score to a greater extent. However, aside from the ichthyofauna differences, the effect of this variable was indirect and was not directly accounted for. One more example of this problem: in chapter 4.2. of the Study, "Other compensation alternatives", it is recognized that ASETREK has been subject to recurrent logging and fires, an observation that had not appeared nor been quantified in the rest of the study. Finally, variables related to the landscape importance of Lomas de Barbudal were not considered, such as which ecosystems are protected and how much of these ecosystems remain in the province of Guanacaste. It would be possible to conclude that Lomas de Barbudal protects "ecosystems in extinction", based on the following statement from the study, in its conclusions: "The reserve is located within the Tempisque River Watershed and protects remnants of natural environments that have practically disappeared from its surroundings, such as riparian forests and mature lowland dry forest." This categorization does not appear anywhere in the study. It would have been interesting to know how many "mature lowland dry forests" and "riparian forests" remain in the province of Guanacaste, to assess the site in its landscape context. 1.5 The initial theoretical framework is abandoned to make final adjustments in the study's conclusions. Ultimately, the authors warn that the ASETREK farm is insufficient to compensate for habitat losses at Lomas de Barbudal, a fact that could have been corroborated with more comprehensive and not necessarily accounting-based analyses. The authors do not seem satisfied with the Habitat/Hectare equation, despite it being the theoretical framework of the study. From this calculation originates the recommendation to buy 252 hectares (later the figure of 330 hectares is mentioned, page 208 of the Study) of the ASETREK farm so that the final scores are leveled. However, the authors recognize that ASETREK does not have riparian forests, and therefore propose, without detailed studies, an additional compensation area that does contain this habitat. The doubt remains as to how the recommendation of 252 or 330 hectares of ASETHEK is justified, given that now there is a thought to add another property whose score was not calculated, much less subtracted, from the balance of hectares originally proposed. It should be highlighted that, despite these doubts, the authors maintain a categorical conclusion on the viability of the compensation: "7. Despite the differences in environmental quality, it is possible to compensate for the losses at the potential flood site in RBLB through the incorporation of habitats evaluated at ASETREK (and other sites, as noted below)." There is no justification for this conclusion, especially if the authors' own assessments cast doubt on the equalization of areas. At the end of the study, the possibility of adding the property "Brindis de Amor", with a total extension of 86 Ha, is presented, for having 15.8 ha of riparian forest (without it being documented with certainty how that number of hectares was arrived at, since no study was done on that property), in the northern sector of the Lomas de Barbudal Reserve. This area would be added to the 252 ha of ASETREK, as an additional area that would compensate for the loss of the riparian forest of Lomas de Barbudal due to flooding. This would add a strip of forest, like an isolated peninsula, in the north of the Reserve (Figure 51 of the study). The authors acknowledge that the analysis of this additional fragment was superficial (page 213), and the extensive physical and biological inventories carried out at ASETREK were not performed. It can be observed that "Brindis de Amor" would remain as an island isolated from the rest of the Reserve, creating a more elongated and narrow geometry in the northern sector of Barbudal, something not advisable due to the significant edge effect that this section of the reserve would have. 1.6 The Río Piedras reservoir as part of the compensation At the end of the study, a new idea is added: the consideration of the Río Piedras Reservoir as part of the compensation for the flooded area of Lomas de Barbudal, since it could be declared a wetland under the category of Wildlife Refuge, constituting a new protected area that could be accounted for as part of the compensation. NO FURTHER DETAILS ARE GIVEN ABOUT THE CHARACTERISTICS OF THE RESERVOIR AND ITS EFFECTS ON THE ENVIRONMENT. It would be an exchange between two totally different ecosystems (a forested ecosystem for a wetland). It is a poorly developed idea in the study. Furthermore, this proposal ignores the environmental impacts of the reservoir, among them those on the Piedras River itself. 1.7 Biological compensation or transfer of land to the State? From the information provided by the OET compensation study, it is observed that the area of the ASETREK, Brindis de Amor, and Ciruelas farms is mostly covered by different types of forest ecosystems (mature, secondary, or deciduous forests). They are areas of existing forests, which represent remnants or regeneration of forests after the intense historical period of deforestation in the province of Guanacaste, during the years between the 1950s and 1990s, a process that has changed towards secondary regeneration in the last 10-20 years (see for example: Calvo-Alvarado et. al. 2009. "Deforestation and forest restoration in Guanacaste, Costa Rica: Putting conservation policies in context". Forest Ecology and Management, 258, 931-940). The owners of the ASETREK farm have expressed interest in selling their properties to the State, or maintaining them under forest cover for tourist exploitation or protection (case of the Brindis de Amor property). It seems very probable that under a protection incentive program (payment for environmental services -PSA-) and under current forestry legislation, those forests are not subject to imminent or immediate land-use change (cambio de uso del suelo) processes. On the other hand, if the forest cover in the sector of the Piedras river basin to be affected by the PAACUME project is visualized, before and after the execution of the project, it could be accounted that a drastic net reduction in forest cover will occur (loss of 450 hectares of forest cover, transformed into a body of water), with no foreseeable increase in forest cover in the coming years. Although 459 hectares of forests within private farms would pass into the hands of the State through the compensation program, this does not alter the panorama of net loss of forest cover. A real biological compensation is not occurring, only a transfer of land between different owners. This transfer would be acceptable as compensation if the private lands were under threat of loss of cover, a situation that does not seem probable. In the end, the final situation for the species within the future reservoir is a drastic loss of habitat, with no possibilities for their populations, present and future, to occupy new areas of a dimension similar to the losses due to the flooding of the reservoir. It would seem more logical that a compensation program serve to add NEW forest areas to the RBLB, or to private farms, that established a balance between habitat loss and habitat gain. Compensating forest areas within a protected area with other forest areas outside the protected area does not seem like an exchange that results in a true ecological compensation for wild species, only a territorial compensation to a protected area, a laudable but insufficient objective. 1.8 General conclusions on the OET study The report provided by the OET is insufficient to define the change of limits of Lomas de Barbudal, and does not demonstrate that this change will be fully compensated for by additional areas in other sectors of the Reserve. The ASETREK farm, studied in more detail by the consultants, is ultimately recognized as insufficient to justify the land swap, and other nearby farms are hastily turned to in order to balance the compensation, in our opinion an unserious exercise because it is not properly substantiated. Furthermore, the lack of knowledge of the environmental impacts of the Río Piedras reservoir on the Biological Reserve and on all the wetland ecosystems of the Bajo Tempisque must be known before accepting the flooding of a sector of the Lomas de Barbudal Reserve and, in general, of the ecosystems affected by the future PAACUME reservoir. 2. The Environmental Impact Study (EIA) of PAACUME and environmental impacts not addressed by that EIA Law #9610, "Modification of limits of the Lomas Barbudal Biological Reserve for the development of the water supply project for the middle basin of the Tempisque River and coastal communities (Modificación de límites de la Reserva Biológica Lomas Barbudal para el desarrollo del proyecto de abastecimiento de agua para la cuenca media del río Tempisque y comunidades costeras)", published in Alcance #199 of La Gaceta on November 23, 2018, and the OET Study that was presented to justify the removal of protection (desafectación) of 113 hectares of the Biological Reserve that would be flooded, and to determine the area that should be used from the ASETREK property to compensate for that loss of area, cannot be seen in isolation from the PAACUME project. In fact, in SENARA's response to the hearing granted by the Constitutional Chamber in the action of unconstitutionality in which I am cooperating, it is made clear that the Río Piedras Reservoir is vital for the PAACUME project, and that this reservoir requires flooding the 113 hectares of the RBLB, for which it is necessary to remove them from the absolute protection level they currently have by being part of that Biological Reserve. That is why the bill was processed that culminated in the promulgation of Law #9610, the object of this action of unconstitutionality. For this reason, the analysis of the OET Study cannot be isolated from the other study presented before the National Environmental Technical Secretariat (Secretaría Técnica Nacional Ambiental, SETENA) on the PAACUME project. In fact, in said EIA there are mentions of the Río Piedras Reservoir and the impact on the RBLB. 2.1 The EIA does not address the general compensation for forest areas flooded by the reservoir According to what is stated in the Biological Environment Chapter of the EIA for the PAACUME project, the future project reservoir will cover areas that currently have various degrees of forest cover. It is mentioned that 292 hectares of pastures, 170 hectares of secondary forests, 10 hectares of scrubland, and 289 hectares of mature riparian forests would be flooded. The flooding of these areas represents a significant impact on the biodiversity of the protected and unprotected areas of the Piedras River basin. According to the land-use map of the project area, the natural ecosystems of the Piedras River basin, especially the least altered forests, are linear fragments of riparian forests, surrounded by secondary forests and isolated by crops and areas of pastures or scrubland, especially in its southern sector. Although the EIA and the OET Compensation Study use slightly different forest categories, it could be concluded that the reservoir area will flood 459 hectares of area with forest cover, with possibly half of the area corresponding to riparian forests, while the OET compensation study only considers the 113 hectares that will be flooded within the RBLB. No interest is perceived in compensating for the loss of forest cover due to the flooding of forests OUTSIDE the RBLB. In this sense, the EIA for PAACUME, as well as the entire environmental processing of the project, has been aimed more at solving the legal problems due to the impact on a protected area than at real compensation for the environmental impacts on local biodiversity. It should be noted that there are important areas of riparian forests outside the RBLB that will be flooded, such as those present in the Quebrada Viscoyol basin and in the Piedras River basin, near the site of the future dam. In these sites, individuals of tree species in danger of extinction have been located, such as Dalbergia retusa, Swietenia macrophylla, Dalbergia retusa, Astronium graveolens, and Agonandra macrocarpa (Fig 20, Annexes Volume II of the Environmental Impact Study for the PAACUME project). 2.2 Environmental effects of the reservoir on deciduous forest ecosystems. The PAACUME reservoir will be an extensive and permanent body of water, which will alter the water regime of the soils in the vicinity of the reservoir (increase in the water table), representing a new ecosystem, very different from the riparian forests, deciduous forests, secondary forests, and scrublands that occupy most of the flood area and the Lomas de Barbudal Biological Reserve. The forest area of the RBLB will now have approximately 1 to 2 kilometers of reservoir edge, and the area of remaining forests on private farms within the Piedras River basin will be in contact with the reservoir for an even greater extension. It is foreseeable that the reservoir, by occupying the lowest regions, will form an edge that will make contact with what are now deciduous or secondary forests (also composed of many deciduous species), located in areas adjacent to the riparian forests of the Piedras River basin. It would be important to know what the width of the soil strip around the reservoir would be where the water table is altered by the presence of the reservoir. This data is not available in the EIA. The problem with the water effect of the reservoir is that it substitutes the edaphic conditions of a deciduous dry forest with that of a humid ecosystem, without water deficit or seasonality of that variable. Many plant and animal species have adapted to the water deficit of the dry months, and have evolved different strategies to survive the seasonality characteristic of the tropical dry forest. This characteristic is what makes the tropical dry forest a unique ecosystem, different from other tropical ecosystems, which deserves particular conservation attention due to its degree of alteration and decline worldwide. It could be predicted that the area around the reservoir will be colonized by new species of plants and animals, many of them more related to more humid and less seasonal ecosystems than the original.

Another element of biodiversity that may be favored by the existence of the reservoir is invasive species, which have found artificial reservoirs to be a very suitable medium for dispersal and formation of new populations (see for example Richardson, David M., et al. "Riparian vegetation: degradation, alien plant invasions, and restoration prospects." Diversity and distributions 13.1 (2007): 126-139, or also Havel, J. E. et al. 2005. "Do reservoirs facilitate invasions into landscapes?." AIBS Bulletin 55.62 518-525.). This phenomenon may include species of terrestrial or aquatic plants. What would be the impact of such a drastic change in plant communities on the deciduous seasonal forest, inside and outside the Lomas de Barbudal Reserve? This question is not contemplated in the Environmental Impact Importance Matrix of PAACUME (PAACUME Environmental Impact Declaration). This matrix only considers, as environmental impacts of the reservoir operation, the modifications to the aquatic ecosystems of the Piedras River basin, not the impact on remaining terrestrial ecosystems of the Biological Reserve or the deciduous forest areas in general.

2.3 Effect of irrigation on soils and hydrology in the irrigation area. Irrigation activities have provided the possibility of expanding the agricultural frontier into dry, arid, or semi-arid areas worldwide, offering a substantial increase in food production and in the production level of agro-export products. However, the environmental impacts on the soils and the aquifer of irrigation systems are a problem about which there is an increasing level of knowledge, with more warnings directed at countries interested in expanding their irrigated areas. There are many examples of large irrigation projects where problems with the loss of soil nutrients, rising water table, and salinization occur. Salinization is a consequence of the rapid evaporation of irrigated water and the accumulation of salts by capillarity, or by irrigation with water provided with some level of salinity. See for example: Hillel, D., Braimoh, A. K., & Vlek, P. L. (2008). Soil degradation under irrigation. In Land Use and Soil Resources (pp. 101-119). Springer, Dordrecht. Nunes, J. M., López-Piñeiro, A., Albarrán, A., Muñoz, A., & Coelho, J. (2007). Changes in selected soil properties caused by 30 years of continuous irrigation under Mediterranean conditions. Geoderma, 139(3-4), 321-328. http://www.icid.org/resirri_env imp.html Although the PAACUME project proposes the construction of irrigation canals 350 kilometers in length, which will influence irrigation in an area of approximately 58,000 hectares, no mention is found in the EIA of the potential environmental impacts derived from soil degradation as a result of irrigation. No effort is observed in the study of a project that represents an important antecedent of a mega-irrigation project: the Arenal-Tempisque Irrigation District, which could be an interesting precedent for understanding the long-term effects of irrigation. Some studies exist that show potential problems with the water table: Campos-Chaves, E. Informe del Proyecto de Graduación, Licenciatura en Ingeniería Agrícola, Universidad de Costa Rica, Escuela de Ingeniería Agrícola, San José (Costa Rica). Impacto del riego en el drenaje subterráneo y niveles freáticos en el área demostrativa San Luis del Distrito de Riego Arenal-Tempisque. As well as the results of land distribution projects based on the Arenal-Tempisque irrigation project for poor peasant families. Ramos González, W. (2005). Evaluación del impacto económico del Proyecto de Parcelación Bagatzí: el caso de diez familias 20 años después. Tesis de Maestría, Evaluación de Programas y Proyectos de Desarrollo. UCR. In addition to some isolated studies on the effect of the project on mosquito populations, a problem that could potentially increase with the irrigation area: Vargas, V., Vargas, C., & Jorge, v. (2003). Male and mosquito larvae survey at the Arenal-Tempisque irrigation project, Guanacaste, Costa Rica. Revista de biología tropical, 51 (3-4), 759-762.

2.4 Environmental impact on the Piedras River. In the document "Declaración de Impacto Ambiental", it is noted that the 40-meter dam that will be built to form the reservoir will affect both the Piedras River and the Viscoyol stream. The Piedras River will suffer a 75% reduction of its average flow (1.5 m3/s), flow that will increase significantly in the rainy season. In the EIA, the consultants acknowledge that a more detailed study would be necessary to determine the impacts on the Piedras River, under various reservoir operation schemes. A profound impact on the downstream Piedras River is to be expected, as the water level, the biochemical characteristics of the water, and with them the aquatic and terrestrial ecosystems that depend on this flow downstream of the reservoir are drastically modified. SETENA should not accept that this analysis is absent from the EIA of the PAACUME project.

3-DOES NOT COMPLY WITH REQUIREMENT 3, that compensation be provided for the removed area with another of equal size and characteristics. As I noted previously, the main problem is establishing a compensation principle, supposedly quantitative, where modifying the size of a compensation area can equal the area lost within a protected area. This is mistaken, since the populations or species affected by the loss of a protected area will not necessarily appear, in their original abundance, in a compensation area, even if its area is increased many times, since the compensation area does not contain the habitats and resources required by this species, or the population nuclei or sources for the migration of populations that guarantee their repopulation. Drastic differences in habitat quality, especially in the degree of human alteration of the ecosystems, such as those detected between Lomas de Barbudal and the ASETREK farm, are not balanced by increasing the area of the latter. This inflation of area to compensate for less biodiversity will not result in the affected species being restored in the compensation area, especially if in the compensation area we have habitats very different from the area affected within the National Park or Biological Reserve. In the area of Lomas de Barbudal that will be flooded, there are riparian forests, and possibly other habitats not quantified by the study, which are not represented in ASETREK. It would be a worrying precedent if the Legislative Assembly, SETENA, and the Constitutional Chamber considered this study as valid, because this practice could lead to fostering the affecting of the boundaries of more protected areas, based on compensation with private farms of larger area, but with ecosystems much more altered than the protected ones. Ecosystem accounting and the Habitat/Hectare method (section 1.1.3 of the OET Study) would endorse this type of compensation.

OTHER COMMENTS ON THE VIOLATION OF ARTICLE 50 OF THE POLITICAL CONSTITUTION AND THE CONSTITUTIONAL PRINCIPLES OF NON-REGRESSION IN ENVIRONMENTAL MATTERS, OBJECTIFICATION OF ENVIRONMENTAL PROTECTION, PRECAUTIONARY, PREVENTIVE, AND LIFETIME TENURE (IRREDUCTIBILIDAD) OF PROTECTED WILD AREAS. Since, in the OET Study, a shortfall of riparian forest area was verified to compensate the area of that type of ecosystem that would be affected, the Technical Committee and the Regional Council of the Arenal Tempisque Conservation Area recommended, "Identify an area of riparian forest that allows compensating the shortfall in hectares for this type of ecosystem." On that same topic, the Regional Council indicated: "There exist some official communications sent by SENARA, for example, SENARA-GG 0374-2012, SENARA-GG-0257-2017, and SENARA-INDEP-172-2017, which indicate that within the ASETREK property there are 6.14 hectares of riparian forest. However, this figure is not mentioned in the study conducted by the OET, or supported by any study in this regard, with the same characteristics as the initial study. Regarding the Brindis de Amor farm, this Council also believes that the studies were not carried out with the same depth of analysis as the initial study, nor with sufficient time to technically support the quality of the components addressed from the beginning of the investigation. It is necessary to carry out more in-depth studies on this property or any other considered as a compensation proposal, so that this Council can issue a reasoned opinion." (The highlighting is not from the original.) (See notes of the Technical Committee of the Arenal Tempisque Conservation Area, minute No. 5 of June 30, 2017, folios 1478-1491 of the legislative file, and official communication No. SINACCOHACAT-SE-041 of July 7, 2017, folios 1492-1497).

Considering the shortfall of riparian forest area indicated by the Technical Committee and the Regional Council, the final compensation proposal was defined in official communication No. SENARA-INDEP-441-2017 of July 17, 2017 (folios 141-149), indicating that to compensate the de-designated area and cover the shortage of riparian forest, 444.04 hectares of the ASETREK Tres Azul S.A. farm, the entirety of the Brindis de Amor en Liberia S.A. farm with an area of 86.96 hectares, and an area of 40 hectares of the Hacienda Ciruelas SP S.A. farm would be included. It should be noted that this compensation proposal was defined by SENARA and was not the product of a technical, objective, and comprehensive study.

Finally, the Regional Council of the Tempisque Conservation Area, after the bill was approved in the second debate, indicated that what SENARA proposed was basically a 5 to 1 compensation, that is, compensating with an area 5 times larger than the one to be de-designated. (Official communication No. SINAC-COHACAT-049-2018 of September 9, 2018, folios 2641-2644).

The Procuraduría notes that it cannot technically assess the OET study, nor the manner in which the final compensation proposal for the de-designated area of the RBLB was defined. Therefore, as a joint party (coadyuvante), I provide my observations based on my technical knowledge of biology. Precisely to accredit said knowledge, I attach my curriculum vitae as an Annex to this joint brief.

As the Procuraduría correctly points out, if it is determined that the OET study and the final compensation proposal for the protected wild area are technically insufficient, the challenged law would be unconstitutional for violating the principle of objectification of environmental protection. That is precisely what I have detailed in this joint brief.

The OET report or Study is insufficient, partial, and incorporates a compensation principle, supposedly quantitative, where modifying the size of a compensation area can equal the area lost within a protected area. This is mistaken, since the populations or species affected by the loss of a protected area will not necessarily appear, in their original abundance, in a compensation area, even if its area is increased many times, since the compensation area does not contain the habitats and resources required by this species, or the population nuclei or sources for the migration of populations that guarantee their repopulation. Drastic differences in habitat quality, especially in the degree of human alteration of the ecosystems, such as those detected between Lomas de Barbudal and the ASETREK farm, are not balanced by increasing the area of the latter. This inflation of area to compensate for less biodiversity will not result in the affected species being restored in the compensation area, especially if in the compensation area we have habitats very different from the area affected within the National Park or Biological Reserve. In the area of Lomas de Barbudal that will be flooded, there are riparian forests, and possibly other habitats not quantified by the study, which are not represented in ASETREK. That is why I stated previously that it would be a worrying precedent if the Legislative Assembly, SETENA, and the Constitutional Chamber considered this study as valid, because this practice could lead to fostering the affecting of the boundaries of more protected areas, based on compensation with private farms of larger area, but with ecosystems much more altered than the protected ones. Ecosystem accounting and the Habitat/Hectare method would endorse this type of compensation.

The report provided by the OET is insufficient to define the boundary change of Lomas de Barbudal, and does not demonstrate that this change will be fully compensated by additional areas in other sectors of the Reserve. The ASETREK farm, studied in more detail by the consultants, is ultimately recognized as insufficient to justify the land swap, and other nearby farms are hastily resorted to in order to balance the compensation, which in my opinion is a less-than-serious exercise because it is not duly substantiated. Furthermore, the lack of knowledge of the environmental impacts of the Piedras River Reservoir on the Biological Reserve and on all the wetland ecosystems of the Bajo Tempisque must be known before accepting the flooding of a sector of the Lomas de Barbudal Reserve and, in general, of the ecosystems affected by the future PAACUME reservoir.

In its brief responding to the decision granting leave to the unconstitutionality action on which I am acting as a joint party, the Procuraduría General de la República notes that the statement of reasons for the bill and throughout the legislative file, the de-designation of a part of the HBLB has been justified by indicating that the proposed compensation guarantees that the conservation targets that underpinned the creation of the RBLB are not being affected and that the de-designated area is compensated by another of equal size that fulfills the same purposes and similar ecosystem conditions. That is, the guarantee that the protected wild area is not affected and that the impact of de-designating part of its area will be mitigated, rests directly on the proposed compensation. This being the case, as I have pointed out, it is evident that the OET study and the final compensation proposal are insufficient and have technical shortcomings that we pointed out above, so the challenged law would clearly violate the principle of lifetime tenure (irreductibilidad) of protected wild areas, as it would not be guaranteeing that the approved boundary variation does not affect the integrity of the RBLB and would not be adequately mitigating the environmental impact generated by the de-designation of a part of said Biological Reserve. Consequently, the precautionary principle and preventive principle would be violated, and there would be no technical support that the adopted legislative measure does not affect the right to a healthy and ecologically balanced environment.

IS THE PRESENTED STUDY THE STUDY REQUIRED TO JUSTIFY THE DECISION TO DE-DESIGNATE A PART OF THE RBLB? IS THIS THE ONLY OPTION FOR DEVELOPING THE PAACUME PROJECT? IS THERE A NEED TO DE-DESIGNATE THE RBLB? We agree with the Procuraduría in the sense that even if the sufficiency of the OET study were verified – which I have demonstrated it is not – and of the final compensation proposal – which also is not, according to what I have indicated – it must be warned that this technical study would only justify the validity of the practiced compensation, and, as such, it is not a technical study that directly justifies the decision to de-designate a part of the RBLB. The Procuraduría is emphatic on this issue, and I agree with said entity, when it points out that … "in accordance with the constitutional jurisprudence on the matter, the study required by Article 38 of the Ley Orgánica del Ambiente to justify the reduction of a protected wild area should be a study that determines the necessity and advisability of adopting that type of measure." (the underlining is not from the original). In this case, a study in that sense would be one that technically substantiates the need to de-designate part of the RBLB. That is, a study that determines that the only alternative to develop the PAACUME project and the Piedras River Reservoir is by de-designating part of the Biological Reserve. Incidentally, said study has not been carried out. There are no studies presented in the legislative file contemplating other options, such as that of completing the construction of the pending irrigation canals to take advantage of the water from the Arenal Reservoir, nor studies on the water capacity of the aquifers available for exploitation in the cantons of Nicoya, Santa Cruz, and Carrillo. Incidentally, the Sardinal-El Coco-Ocotal aqueduct has just been inaugurated, with an investment of approximately $3 million to provide potable water to almost 30,000 people through drilling to access underground aquifers. Much less money than the $500 million projected for the development of the PAACUME project, contemplating the construction of a dam to store water and then channel it through 350 kilometers of canals.

The Procuraduría points out, and I support it, that if the necessity and advisability of de-designating 113 hectares of the RBLB are not verified, Law 9610 must be declared unconstitutional for violating the principles of lifetime tenure (irreductibilidad) of protected wild areas, objectification of environmental protection, and non-regression. Such is the non-existence of that type of study, that in this regard, the Regional Council of the Tempisque Conservation Area, when referring to the OET study, indicated that "this body considers that it has not yet been demonstrated that other alternatives for the PAACUME project exist, without necessarily having to de-designate an area of the current RBLB. If these alternatives are indeed not viable, it will be necessary to assess the third measure, which is compensation." (Official communication No. SINAC-CORACATSE-041 of July 7, 2017, folios 1492-1497 of the legislative file). What this paragraph means is that it has not been demonstrated that the ONLY way to carry out the PAACUME project is through the de-designation of the 113 hectares of the RBLB to flood them. Other options exist for bringing water to the middle basin of the Tempisque River and coastal communities that have not been adequately assessed and that lead to the conclusion that the construction of the Piedras River Reservoir is the ONLY option.

And, that same Council, after the bill was approved in the second debate, indicated that "it is necessary that there be sufficient environmental, legal, and financial technical studies that justify the adequate selection of both the area to be de-designated, and the areas that would serve as compensation. The existence of these studies within the file of this bill must be verified, since to date this Council does not have such information." (Official communication No. SINACCÓRACAT-049-2018 of September 9, 2018, folios 2641-2644).

On the other hand, in the document called "Consulta Obligatoria a las Comunidades Locales. Propuesta de Compensación para la Reserva Biológica Lomas Barbudal" (Folios 622-726), in response to one of the questions asked by one of the participants, it was indicated that "if the 113 hectares of the RBLB are not obtained, the project changes completely, since without these 113 hectares of the RBLB the conditions of the dam, the amount of water to be stored, the cost of the project, and the design would have to change completely." (Folio 661). What does that mean? That it is possible to bring water to the middle basin of the Tempisque River and to coastal communities, but the design of the PAACUME project would have to change. That is the missing study, which makes Law 9610 unconstitutional for violating the principles of lifetime tenure (irreductibilidad) of protected wild areas, objectification of environmental protection, and non-regression in environmental matters.

II- VIOLATION OF ARTICLE 7 OF THE POLITICAL CONSTITUTION. I consider that Law 9610 also violates Article 7 of the Political Constitution, since said law is contrary to the Ramsar Convention regarding the obligation established in Article 3 thereof to promote the conservation of wetlands included in the list of wetlands of international importance, of which the RBLB forms a part, being integrated into the Palo Verde Ramsar Site, since although it is true that said Convention does not obligate States to communicate in advance the decision to modify the area of sites of international importance, its Article 4 subjects that possibility to the existence of a reason of urgent national necessity, which would not be duly justified in this particular case. Therefore, we would also be facing an unconstitutionality for violation of Article 7 of the Political Constitution.

PETITION. I request that the unconstitutionality of Law #9610, "Modificación de límites de la Reserva Biológica Lomas Barbudal para el desarrollo del proyecto de abastecimiento de agua para la cuenca media del río Tempisque y comunidades costeras", published in Alcance #199 of La Gaceta of November 23, 2018, be declared, for violation of Articles 7 and 50 of the Political Constitution; and the constitutional principles of non-regression in environmental matters, objectification of environmental protection, precautionary, preventive, and lifetime tenure (irreductibilidad) of protected wild areas." 12.- By document received in the Secretariat of the Chamber at 2:57 p.m. on March 11, 2019, Juan Carlos Peralta Víquez appears, in his capacity as president of the Asociación para el Bienestar y Amparo de los Animales del Cantón de San José. He indicates that he is filing an active joint brief (coadyuvancia activa). He states that his standing emanates from the diffuse interests being discussed, specifically regarding the potential transgressions of the right to a healthy and ecologically balanced environment. He affirms that the purpose of the association is: "the protection and defense of the National Fauna", "the faithful compliance with existing laws or those enacted in the future in defense of animals, reporting any violation of said laws and regulations to the corresponding authorities", and "All of the foregoing without prejudice to also protecting wild animals in coordination with state and private entities, national and international". He states that the action must be granted based on the following reasons: “1. The Lomas de Barbudal Reserve is an oasis of aquatic life that protects interesting examples of tropical dry forest, with certain evergreen patches of tropical rainforest and riparian forest. It is best known as the 'insect park' or 'wasp park' due to its immense variety of insects that can be found there. It is estimated that there are some 250 species of bees and 60 species of diurnal and nocturnal butterflies. It is a very important wild area, which even during the summer has abundant water sources, numerous streams, and natural springs (nacientes). It conserves water in the always-difficult dry season that affects all of Guanacaste and the Dry Pacific, allowing the survival of wild animals during the severe droughts of El Niño periods. It protects a dense presence of many mammals such as deer, capuchin or white-faced monkeys, howler monkeys or congos, guatuzas, and a large number of reptiles and freshwater fish. As for birds, approximately 130 species have been observed in this area, the most characteristic being great curassows, yellow-naped parrots, king vultures, toucans or black curré, quail, chachalacas, trogons and elegant trogons, and owls. In the southern sector of the reserve, aquatic birds such as yellow-crowned night herons, great blue herons, piches, and others are frequently observed. 2. The Lomas de Barbudal Reserve is part of the wetland system of the Palo Verde National Park, which were declared in 1991 as ecosystems of global importance and were therefore designated RAMSAR Sites. This wetland is recognized as one of the most important sites in the world for being an area for nesting, refuge, and feeding for resident and migratory aquatic birds. 3. In the Lomas de Barbudal Reserve, seven different habitats are found. We can mention the deciduous or tropical dry forest, which occupies 70% of the reserve and has 240 species of trees where ron ron, pochote, cristóbal, mahogany, carboncillo, cocobolo, and real guayacán are common, precious woods that are in danger of extinction in the rest of the country. The riparian or riverside forest, which forms a strip along the rivers and streams, is evergreen, is considered the densest and most diverse in the area, and is especially rich in solitary bees and wasps. The grassland-covered savanna is dotted with trees. 4. Through the challenged Law No. 9610, 'SENARA is trying to cut off 113 hectares that belong to the Lomas de Barbudal Reserve, which would be flooded to make the Piedras River Reservoir and continue the same model of inefficiency and water injustice to benefit the same people as always and continue with the "mal-development" that increases poverty, dispossession, and the expulsion of the inhabitants of Guanacaste day by day' ... 'The Piedras River Reservoir is an old project, designed for irrigation, which in the past was discarded and shelved, for being unfeasible'… 'It was designed under the logic, now outdated, that water is "wasted" if it reaches the sea and that it is inexhaustible and that ecological nutrient or aquatic cycles do not exist. Continuing to think like this is to be unaware of the changes needed in the face of the new ecological conditions of climate change.' … 'The reality of the Piedras River Reservoir megaproject is that it is being developed to subsidize agro-industry and mega-tourism. It is the very denial of climate change, not accepting what we see, year after year, in increasing temperatures and droughts'... 'Instead of solving problems, socio-environmental conflicts and water injustice are fostered. They add to this model of uncontrolled plundering for the benefit of agro-industry'… 'The State's investment in PAACUME is initially about 500 million dollars to give 80% of the water obtained to large landowners, to irrigate their farms, who would pay a "water fee" of 3 colones per cubic meter (m3), when the inhabitants will see their bills increase to more than 600 colones for the same m3, despite the fact that the discourse and justification state that "the priority is human consumption"' (Diario Digital El Independiente, 6-9-2016). 5.- In April 2010, the 'Agua para Guanacaste' Project was announced, 'an initiative that includes the Piedras River Reservoir with a cost exceeding 9 billion colones. They assured that it would solve the problems of potable water supply (domestic-industrial) to this entire area for the next 50 years, although in the mentioned area of influence there is almost no population or real estate or coastal tourism investments, and rather it will benefit sugarcane and rice latifundia.' (Kioscos Ambientales UCR. 8-4-2010). 6. This 'Proyecto de Abastecimiento de Agua para la Cuenca Media del Rio Tempisque y Comunidades Cercanas,' known as PAACUME, is basically for irrigation, and would involve 400 kilometers of aqueducts to take that water to the destination monocultures, with pumping and potabilization plants. Irrigation is the great water consumer (more than 80%) and the great waste, since it mostly uses earthen canals and a plot flooding system. Due to its centralized planning, it would manage to take away the control and administration of water from the communities, today predominantly supplied by communal aqueducts (ASADAS). 7. According to information captured from promotional videos of SENARA itself, which promote its PAACUME project, this is the distribution they plan to make of the water: (…) 16.5 m³/s FOR AGRICULTURAL IRRIGATION 82.5% (…) 2 m³/s FOR HUMAN CONSUMPTION 10.0% (…) 1.5 m³/s FOR IRRIGATION IN TOURIST ZONES 7.5% (…) 36 GW ANNUAL HYDROELECTRIC GENERATION IS IT NECESSARY? AT WHAT COST? In relation to the Piedras River Reservoir Project (which is really about a new hydroelectric dam), the Government's promotional campaign is fallacious, since it says that 'this reservoir is not the project, but it is the heart of one called PAACUME,' and that without the reservoir on the Piedras River 'it will not be possible to store the amount of water necessary to guarantee secure supply conditions,' but it does not provide details on how they determined that amount and also fails to mention the most important fact: the water that will supply this project is already stored in Lake Arenal, classified as the largest potable water reservoir in the country. 8. On August 1, 2018, Yamileth Astorga declared through the local newspaper La Voz de Guanacaste 'PAACUME is an alternative for times of drought in Guanacaste, but large reservoirs generate large impacts' and indicates that 'For now, AyA will not need this water to supply human consumption. AyA is only going to use two cubic meters per second, 10% of PAACUME's capacity, but not at this moment.' With other projects it is carrying out, it will not need more water from here to 20 years.” 9. SETENA has just issued resolution No. 459-2019 dated February 19, 2019, which grants "potential" environmental viability (viabilidad ambiental) to the megaproject, while in a second resolution No. 460-2019 of the same date, it pointed out more than 90 inconsistencies that must be corrected regarding the environmental impact assessment (estudio de impacto ambiental) of the PAACUME project, confirming the greatest fears we have been denouncing regarding the tremendous impact this enormous dam would bring to the wildlife inhabiting the Lomas de Barbudal Biological Reserve (the last remaining tract of tropical dry forest in the region, a World Natural Heritage site), as well as to the migratory bird species that visit the Palo Verde wetland (a RAMSAR site of international importance) and to freshwater fish. Not to mention a large number of insects, especially bees and wasps vital for human survival. This great contradiction highlights that the interests of the Executive Branch in carrying out this project at all costs to fulfill a campaign promise prevail over the technical and scientific judgment of a body as serious as the Environmental Technical Secretariat. 10. The sad thing is that the situation is much more serious than we believed, because throughout the 91 points on legal and technical aspects that SENARA must correct and clarify, the lack of environmental commitment from which this mediocre project suffers, from its conception to its planning, becomes more than evident. It is exposed that it does not contemplate other viable alternatives for bringing water to Guanacaste, does not evaluate the flood risks entailed by the reservoir (embalse), nor does it establish environmental impact mitigation measures. What is more, it does not even contemplate existing wells and springs (nacientes) that would be flooded, does not include all the elements necessary for construction and operation, and does not even have clear the routes delimiting the works. 11. Likewise, the budget seems to have fallen very short, leaving out a large part of the investment that will be required to build the hydroelectric plant, to acquire replacement lands (terrenos de reposición), to mitigate environmental damage, to prevent disaster risk, etc. 12. Although the flood risk is recognized, the seismic risk is minimized in an area full of geological faults, which is under permanent earthquake threat. Magnitudes of 6.7 to 7.9 could burst the dam, releasing a head of 85 million tons of water that would sweep away everything in its path until reaching the sea. It is not difficult to imagine the great number of human lives that would be lost and the environmental catastrophe it would cause in the region. Environmental Impact Study for the Water Supply Project for the Middle Tempisque River Basin and Coastal Communities (PAACUME) Table No. 7. 101 Specific seismic scenarios related to the dam site and peak horizontal acceleration values for each of them. (Climent et al., 2016).

According to the results obtained in table No. 7.102, it is determined that the seismic threat in the near field, in the sector where the project's dam site is located, is controlled by the occurrence of a magnitude 6.5 event on the Bagaces fault (southern segment), and whose maximum peak horizontal acceleration value has been estimated at 855 cm/s2 (0.84g), a value obtained from the average of the values estimated for each of the prediction models used. Another important scenario is the one posed for the subduction zone, since if a magnitude 7.9 event occurs in this Nicoya seismic zone, a peak acceleration of 548 cm/s2 (0.56 g) would occur, which is a quite significant intensity level (Climent et al., 2016). 13. The recommendation of the Japanese experts to discard this project due to the impact it may cause to the environment and the low investment return rate due to its high cost is being ignored. The environmental impact of PAACUME is due to its effect on Palo Verde National Park by altering the Río Piedras basin and diverting 40% of its flow: JAPAN INTERNATIONAL COOPERATION AGENCY (JICA) STUDY OF THE RURAL DEVELOPMENT PROJECT OF THE MIDDLE TEMPISQUE RIVER BASIN (…) SEPTEMBER 2002 PACIFIC CONSULTANTS INTERNATIONAL NAIGAI ENGINEERING CO.LTD. B. Piedras Dam Project Profile: It consists of building a dam in the upper basin of the Río Piedras with a dam height of 35 m and an effective storage capacity of 83 million cubic meters. This dam would allow irrigating about 6,500 ha with an additional flow of 6.5 m³/s. It could be used to irrigate the left bank of the Río Tempisque, so the beneficiary population includes approximately 100 families of small and medium-sized producers. Limitations: The Piedras Dam will bring a significant impact on the environment, including the Palo Verde National Park in the lower basin, by altering the basin, diverting 40% of the total available flow in the Río Piedras basin to the Río Tempisque basin. The local geography and geology also do not favor the implementation of the project, and it is required to expand one section and build another section of a 40 km conveyance canal, which makes the project more expensive. The cost of water distribution on the right bank is high. Evaluation: This option will not be recommended in this Project due to the impact it may cause to the environment and due to its low project economy index. Although not mentioned here, the expansion and construction of a 40 km section to extend the Canal Oeste crossing biological corridors will interrupt the passage and exchange of fauna. 14. The IICA-BID study is ignored, which also points out the project's vulnerability to natural disasters (earthquakes, volcanism, and floods) and highlights the importance of protecting Palo Verde. The errors of the past are perpetuated, as solutions to the overuse of water resources are not proposed. Although it does not evaluate the impact of irrigation on vegetation and wildlife, it denounces that the overexploitation and contamination of aquifers continues, which greatly affects the marine life of the Gulf of Nicoya. ARENAL-TEMPISQUE IRRIGATION PROJECT SMALL-AREA IRRIGATION PROGRAM DECEMBER 1993 INTER-AMERICAN DEVELOPMENT BANK (BID) IICA/BID AGREEMENT ATH/3185-RE. Regarding water resources, in the irrigation zone, the waters of the Río Tempisque are being overused, which causes serious problems for the marine life of the Gulf of Nicoya. Both in the water catchment area and in the irrigated zone, cases of contamination with organochlorines are mentioned, due to aerial spraying of agrochemicals on fish and shrimp that colonize the irrigation canals. Although the effect of irrigation on vegetation and wildlife is not being evaluated, oral reports indicate that piches (birds from Palo Verde) and other birds of prey affect rice crop planting and consume fish from ponds designed for their breeding. The decrease in populations of melon-pollinating insects is also mentioned, apparently due to the abuse of agrochemicals. Regarding windbreak barriers, of 25 km planted, approximately 6 km remain in good condition. At present, coordination between state companies in charge of reforestation and conservation of natural resources is very weak and the attitude must change to achieve more effective results. Regarding the impact of the environment on the project, there are two aspects of lively interest, one is the vulnerability of the project itself to natural catastrophes, earthquakes, volcanism, and floods (ICE, 1980), and the danger of overexploitation of aquifers. 2.40 Integrate the Palo Verde National Park, the protected areas in the project's area of influence, and the protected wilderness areas in the Arenal Conservation Area and reforestation plans within the Arenal-Tempisque Integrated Irrigation Management Plan. There is experience in this regard that must be considered, especially when it comes to integrating vegetation into the windbreak barrier system. 15. This leaves a very bitter taste in our mouths and leads us to the conviction that the last Governments have gone headfirst, suddenly and without much study, to hastily approve a poorly planned project that makes use of public domain assets. The Executive Branch is forgetting its duty to safeguard the natural heritage of all citizens and guarantee a healthy and ecologically balanced environment. It intends that Costa Ricans, besides losing part of the inheritance of future generations, pay for this folly out of our own pockets.” 13.- By a brief incorporated at 3:47 p.m. on March 11, 2019, Luis Renato Alvarado Rivera appears, in his capacity as Minister of Agriculture and Livestock. He indicates that he formulates “negative coadjuvancy” (coadyuvancia negativa). He asks to be considered as coadjuvant of SENARA, since he serves as minister of the agricultural sector to which said entity belongs. He points out that PAACUME will impact 500,000 people, mostly small and medium-sized farmers, so it will bring water to the coastal zones of Carrillo and Santa Cruz, which will allow the recovery of aquifers and the irrigation of 18,800 agro-productive hectares, as a climate change adaptation measure, so that agricultural production is sustainable and constant, thanks to the irrigation systems that will be developed. They consider that the plaintiffs are legitimized, in accordance with the second paragraph of Article 75 of the Ley de la Jurisdicción Constitucional, only regarding claims related to the violation of the right to a healthy and ecologically balanced environment, as well as the principle of budgetary balance. They note that there is no diffuse interest regarding the alleged violation of the right to private property and it is not proven that there is any prior matter in which the alleged unconstitutionality has been invoked. They consider that the action is admissible only regarding the allegations related to the violation of the right to a healthy and ecologically balanced environment and the principle of budgetary balance, and inadmissible the reproaches related to the violation of the right to private property. They set forth the following background: “The Water Supply Project for the middle basin of the Río Tempisque and Coastal Communities, PAACUME, is a project that complements, with waters from Lake Arenal, the availability of water resources for different uses currently supplied by natural sources on the right bank of the Río Tempisque (cantons of Carrillo, Santa Cruz, and Nicoya) and which, ultimately, are not sufficient to meet the ever-increasing needs for water resources, both for human use (drinking water) and for agricultural use (irrigation) that allows giving sustainability to the water supply throughout the year. The Chorotega region, in general, has a natural precipitation regime that presents more than 5 months of water deficit per year, without considering extreme natural effects, such as more prolonged droughts caused by the El Niño phenomenon or climate change, which are increasingly frequent and recurrent (e.g., the 2014 to 2016 drought) that severely affect communities and productive and economic activity in general and which, for the first time in Costa Rica, required a drought emergency declaration, according to Decreto Ejecutivo N° 38642-MP-MAG of November 30, 2014. The Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento (SENARA) is the institution responsible for executing PAACUME. It is an autonomous institution created by Law 6877 of July 1983 and is entrusted with the following objectives in Article 2: • “Promote agricultural development in the country, through the establishment and operation of irrigation, drainage (avenamiento), and flood protection systems. • Contribute to preferentially developing those agricultural development projects that are based on a just distribution of land. • Ensure that in the territory benefited by the creation of irrigation and drainage districts, a rational and democratic modification of land ownership is carried out (Law 6877). PAACUME represents an excellent initiative for utilizing the waters stored in Lake Arenal that feed the Arenal Dengo-Sandillal Hydroelectric System (ARDESA) operated by ICE, in value-generating activities such as irrigation, agricultural production activity, and irrigation in coastal tourism developments, as well as for drinking water and hydroelectric generation, which implicitly carries a great opportunity for growth and development for the province of Guanacaste, with a nationwide impact. For this Project, the existing infrastructure for water capture and conveyance in the Arenal Tempisque Irrigation District operated by SENARA (Miguel Pablo Dengo dam and Canal Oeste Section I) would be used, and works would be built such as the storage dam on the Río Piedras, the expansion and improvements to the Canal Oeste from the Río Piedras to the Río Tempisque (55 km in length), and the water conveyance and distribution networks on the right bank of the Río Tempisque (around 300 km of gravity and pumped conveyance lines). From the storage in the Río Piedras reservoir, PAACUME will allow supplying water to a historically dry area, which, for reasons of variability and climate change, has increased its drought condition, in many cases to extreme drought, limiting sustainability and discouraging the socioeconomic growth of the region and the country in general. This project is comprised of four components; namely: the Río Piedras reservoir (which includes system automation, the powerhouse, the dam, and the reservoir itself), the expansion of the Canal Oeste from the Río Piedras to the Río Tempisque with a length of approximately 55 km, the construction of the distribution network on the right bank of the Río Tempisque (approximately 300 km in length), and the proposed implementation of a Regional Development Plan for the area directly and indirectly affected by the Project, a process that is in the conceptualization and formulation stage. PAACUME, as a public investment project, is linked, according to the classification established in Executive Decree No. 38536-MP-PLAN of the Reglamento Orgánico del Poder Ejecutivo published on July 25, 2014, to the Agricultural and Rural Development sector due to its importance and impact on food security and the social development of the area of influence, and to the Environment, Energy, Seas, and Land Use Planning sector due to its value as a climate change adaptation measure and the effect on water availability in the impact zone. Additionally, PAACUME is included in the National Development Plan and is one of the main projects conceptualized as priorities for the country's economic reactivation. With the construction of the set of works comprising PAACUME, direct beneficiaries will be agricultural producers, located in the cantons of: Carrillo, Santa Cruz, and Nicoya, as well as beneficiaries of water for human consumption, irrigation for green areas in tourism companies. Among the direct beneficiaries are large, medium, and small producers. In this last category, reference is made, for the most part, to adjudicatees in peasant settlements, characterized by a greater need for support from agricultural sector institutions. The irrigation area for agricultural production is estimated at 18,639 hectares where 746 producers could benefit, including large, medium, and small owners. (SENARA, 2018 PAACUME Feasibility Study). This project is of vital importance for the community because 2 cubic meters per second of water will be allocated for human consumption (whose treatment and distribution will be the responsibility of the Instituto Costarricense de Acueductos y Alcantarillados). Regarding the supply of water for human consumption, it is important to indicate that the flow established for this sector is based on a projected demand forecast for 50 years. It is estimated that by 2025 there will be a population, within the project area, equivalent to more than 220,000 inhabitants who become users of the main aqueducts in the area. Rural aqueducts currently serve a population greater than 139,000 people. In addition to the population that will be supplied with water for human consumption, estimated at about 200,000 inhabitants of the region, the entire population engaged in the goods and services sector will benefit indirectly. Likewise, people hired to attend to the new irrigated areas in the different productive stages, as well as new actors who manage to consolidate production and commercialization activities. Another beneficiary sector is dedicated to tourism, for which PAACUME will seek to supply water for irrigation in an estimated area of 1,213 hectares distributed among the 171 duly identified tourism companies in the coastal zone that show their willingness to belong to the Project, thereby also trying to reduce the pressure generated on the extraction of groundwater from coastal aquifers (SENARA, 2018 PAACUME Feasibility Study). PAACUME will also be able to generate electricity at the Río Piedras Dam (7 MW per year), as a project benefit that implies optimal utilization of the available water resource. As mentioned previously, the infrastructure proposed in PAACUME contemplates three main components: the reservoir on the Río Piedras composed of the reservoir itself, the dam, the spillway, the intake works, and the powerhouse for electricity generation; the main conveyance network, which goes from the Río Piedras Reservoir to the Río Tempisque (55 km in length); and finally, the distribution network composed of the canal network on the right bank of the Río Tempisque, where the distribution of the 20 m3/sec extracted from the Río Piedras reservoir originating from Lake Arenal will be carried out. The construction of the Río Piedras dam will create a reservoir with an area (water surface) of approximately 850 hectares. The dam site corresponds to the Río Piedras, specifically between coordinates West Longitude 358930, North Latitude 1163180 and West Longitude 359690, North Latitude 1155330 at a maximum water level elevation of 50.00 m.a.s.l. The water from Lake Arenal captured at the Miguel Pablo Dengo B. diversion dam is conveyed to the Río Piedras via the Canal Oeste Section I, which has a length of 21 km and a hydraulic capacity of 55 m3/sec. It is important to highlight that before Canal Oeste Section I intersects with the Río Piedras, there is a natural drop; it is precisely this drop that allows conceiving the storage site that generates the reservoir on the Río Piedras. Thus, the location of the dam on the Río Piedras is due to a unique topographic condition that does not allow it to be moved to another site; therefore, this location and this difference in level between the canal inlet that supplies it and the canal outlet that will carry the water to the Río Tempisque determine the maximum reservoir level and its capacity to supply 20 m3/sec to PAACUME for distribution on the Right Bank of the Río Tempisque. At some point, the possibility of building a dike to avoid flooding this area of the RBLB and a tunnel of more than 2 kilometers to evacuate the waters was assessed; however, it turned out that the dike site that should be built coincides with a geological fault that would make its construction impossible due to the high risk it generates for the work. In conclusion, there is no possibility of relocating or reducing the reservoir volume without significantly affecting the scope of PAACUME, thereby determining the urgent and indispensable need to have the 113 hectares of the Lomas Barbudal Biological Reserve to be flooded, being an essential element for the construction of the dam on the Río Piedras, and the dam at this site being the only possibility for PAACUME to store the available water coming from Lake Arenal. This being the case, Law No. 9610 “Modification of the Boundaries of the Lomas Barbudal Biological Reserve for the Development of the Water Supply Project for the Tempisque River Basin and Coastal Communities” is indispensable to be able to execute said Project. Therefore, the construction of the dam on the Río Piedras is an essential element of PAACUME that requires Law No. 9610 to be in force in order to satisfy the public interest, to be able to provide solutions to various needs such as agricultural, productive, and water supply for human consumption in an area where water resources are increasingly scarce.” He states that, in view of the foregoing, the challenged regulation is fundamental to provide solutions to the towns of the Tempisque basin and the Coastal Communities of Guanacaste, such as Sardinal, impacted by supply problems, salinization of aquifers, situations that have led this Constitutional Chamber to hear multiple amparo actions seeking defense of water resources. He states that the role of SENARA has allowed the correct protection of water resources and, in this case, will guarantee the correct utilization and promotion of water resources, positively impacting the Tempisque basin and the coastal areas of Guanacaste. He requests the Constitutional Chamber to assess the public interest and the transcendental importance of the challenged regulation for the coastal towns and the Tempisque basin benefited by the PAACUME project, for which it is absolutely necessary to have Law No. 9610. Regarding the merits of the action, he reproduces arguments already set forth by the Procuraduría General de la República and SENARA.

14.- By resolution at 10:03 a.m. on March 14, 2019, the Presidency of the Chamber warned Juan Carlos Peralta Víquez, within a period of three days, to provide certification of the legal capacity (personería jurídica) of the Asociación para el Bienestar y Amparo de los Animales del Cantón de San José.

15.- By certification dated March 21, 2019, Vernor Perera León and Karen Cubero Barquero, in their order Acting Secretary and Court Technician of the Chamber, both of the Constitutional Chamber, made known: "That after reviewing, in the COSTA RICAN JUDICIAL CASE MANAGEMENT SYSTEM, the CONTROL OF DOCUMENTS RECEIVED; and, after a meticulous review of the case file in which this UNCONSTITUTIONALITY ACTION is processed, it does not appear that from the fourteenth to the twentieth of March two thousand nineteen, the Asociación para el Bienestar y Amparo de los Animales del Cantón de San José, represented by Juan Carlos Peralta Víquez, filed any brief or document to comply with what was ordered in the resolution of ten hours and three minutes of March fourteenth, two thousand nineteen." 16.- By resolution at 3:23 p.m. on March 21, 2019, the Presidency of the Chamber resolved: "Having reviewed the briefs filed with the Secretariat of this Chamber on March 6, 8, and 11, 2019, by which Mario Andrés Boza Loría, ID No. 1-0297-0932, Jorge Arturo Lobo Segura, ID No. 1-0526-0636, Juan Carlos Peralta Víquez, ID No. 3-0229-0629, who claims to be the president with powers as judicial representative of the Asociación para el Bienestar y Amparo de los Animales del Cantón de San José, legal ID No. 3-002-248601, and Luis Renato Alvarado Rivera, ID No. 1-0561-0205, in his capacity as Minister of Agriculture and Livestock, request to be considered as coadjuvants in this action; it is resolved: Article 83 of the Ley de Jurisdicción Constitucional states that within fifteen days following the first publication of the notice referred to in the second paragraph of Article 81, the parties appearing in matters pending on the date of the filing of the action, or those with a legitimate interest, may appear within it, in order to coadjuvate in the allegations that could justify its origin or impropriety, or to expand, as appropriate, the reasons related to the matter that interests them. In this specific case, the petitioners Mario Andrés Boza Loría and Jorge Arturo Lobo Segura appeared, respectively, on March 6 and 8, 2019, and requested to be considered as active coadjuvants, as both hold a legitimate interest, insofar as they allege that the challenged regulation infringes constitutional Article 50. While Luis Renato Alvarado Rivera, in his capacity as Minister of Agriculture and Livestock, appeared on March 11, 2019, and requested to be considered as a passive coadjuvant, as he holds a legitimate interest, as the minister governing the agricultural sector. Consequently, and given that the first publication of the notice occurred on February 19, 2019, the appropriate course is to consider the foregoing petitioners as coadjuvants in this matter. Interested parties are warned that -regarding the effects of coadjuvancy-, since the coadjuvant is not a main party to the proceeding, they will not be directly harmed or benefited by the ruling, that is, the effectiveness of the ruling does not reach the coadjuvant directly and immediately, nor does res judicata affect them; the immediate effects of the execution of the ruling do not reach them either, as through coadjuvancy the jurisdictional authority cannot be compelled to issue a resolution in their favor, since they were not a main party in the proceeding. What can affect them, but not because of their status as coadjuvant but like anyone else, is the erga omnes effect of the decision. A ruling in constitutional matters does not particularly benefit anyone, not even the plaintiff; it is in the prior trial where this can be recognized. Regarding the coadjuvancy petition made by Juan Carlos Peralta, who stated he appeared representing the Asociación para el Bienestar y Amparo de los Animales del Cantón de San José, the same must be rejected, given that, despite the warning made to him, by means of a resolution at 10:03 a.m. on March 14, 2019, to provide the respective certification of legal capacity (personería jurídica) accrediting his status as representative of said entity – under the warning of denying his petition if not complied with – the fact is that the petitioner did not provide the required documentation. The hearings granted to the Procurador General de la República, the President of the Legislative Assembly, the Minister of Environment and Energy, and the general manager of the Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento, in the resolution at 11:05 a.m. on January 23, 2019, are deemed answered. The case being ready, this unconstitutionality action is assigned to Judge Paul Rueda Leal, to whom the substantive study of the same corresponds by rotation." 17.- By a brief incorporated into the digital case file at 6:52 p.m. on May 3, 2019, the plaintiffs appear. They indicate that they make the following considerations: “OBSERVATIONS ON THE REPLY OF THE PROCURADURÍA GENERAL DE LA REPÚBLICA (PGR) The Procuraduría General de la República reinforces our argument, which has also been developed extensively through the Chamber's jurisprudence, that there exists a principle of lifetime tenure (irreductibilidad) of protected wilderness areas, according to which these types of protected areas cannot be reduced or modified unless the requirements established for that purpose are met. This has a clear relationship with the principles of non-regression in environmental matters, objectification of environmental protection, preventive, and precautionary. Those requirements are the following: 1- That it be done by means of a law; 2- That prior to the approval of the law, there be sufficient technical studies justifying the measure; and 3- That compensation be provided for the eliminated area with another of equal size and characteristics.

We know that the reduction of the area of the LOMAS BARBUDAL BIOLOGICAL RESERVE (RBLB) was carried out by law, thus complying with requirement number 1. That law is precisely the one we are challenging through this unconstitutionality action. As a side note, we highlight in capital letters the words “biological reserve” to draw attention to the fact that it is not just any type of protected wild area. We are talking about an area that has a level of protection comparable to that of a national park, which is absolute protection, and furthermore, in the case of the RBLB, we are talking about an area that has international protection as part of the Palo Verde RAMSAR Wetland. In relation to the other 2 requirements, the following questions must be answered: Does it have sufficient technical studies to justify the measure? Does the Study prepared by the OET, whose terms of reference were set by SENARA, comply with the criteria established by the Constitutional Chamber? Does that Study demonstrate, through a scientific and individualized analysis, the degree of impact on the environment of the removal of protection (desafectación) of these 113 hectares from the RBLB? Does it propose recommendations aimed at mitigating the negative impact on the environment? Does it demonstrate how the removal of protection of the 113 hectares implies development that meets the needs of the present without endangering the ability of future generations to meet their own needs? Does it meet the requirement that the area removed from the RBLB be compensated with another of equal size and characteristics? Regarding these questions, the Attorney General's Office (Procuraduría General de la República, PGR) states that it cannot technically assess the OET study, nor the way the final compensation proposal for the area removed from the RBLB was defined. However, the Attorney General's Office is clear in indicating that if it is determined that the OET study and the final compensation proposal for the protected wild area are technically insufficient, the challenged law would be unconstitutional for violating the principle of objectification of environmental protection (objetivación de la tutela ambiental). But the PGR also points out that even if the sufficiency of the OET study and the final compensation proposal is verified, it must be noted that this technical study would only justify the validity of the compensation carried out, and, as such, is not a technical study that directly justifies the decision to remove protection from a part of the RBLB. The Attorney General's Office is forceful on this issue, when it states that … “in accordance with the constitutional jurisprudence on the subject, the study required by Article 38 of the Ley Orgánica del Ambiente to justify the reduction of a protected wild area should be a study that determines the need and advisability of adopting this type of measure.” (the underlining and highlighting are not from the original). In this case, a study in that sense would be one that technically substantiates the need and advisability of removing protection from part of the RBLB. That is, a study that determines that the only alternative to develop the PAACUME project and the Río Piedras reservoir is by removing protection from part of the Biological Reserve. Incidentally, such a study has not been carried out. The Attorney General's Office points out that if the need and advisability of removing protection from 113 hectares of the RBLB is not verified, Law 9610 must be declared unconstitutional for violating the principles of lifetime tenure (irreductibilidad) of protected wild areas, objectification of environmental protection, and non-regression. In this direction, the mention made by the PGR of what was stated by the Regional Council of the Tempisque Conservation Area (Consejo Regional del Área de Conservación Tempisque, CORACAT) is very relevant, which, when referring to the OET study, indicated that "this instance considers that it has not yet been demonstrated that other alternatives exist for the PAACUME project, without necessarily having to remove protection from an area of the current RBLB. If these alternatives are indeed not viable, it will be necessary to assess the third measure, which is compensation." (Official Letter No. SINAC-CORACAT-SE-041 of July 7, 2017, folios 1492-1497 of the legislative file). And, that same Council, after the bill was approved in the second debate, indicated that "it is necessary that sufficient environmental, legal, and financial technical studies exist to justify the adequate selection of both the area to have protection removed, and the areas that would serve as compensation. The existence of these studies within the file of this bill must be verified, since to date this Council does not have such information." (Official Letter No. SINAC-CORACAT-049-2018 of September 9, 2018, folios 2641-2644). (The highlighting is not from the original) On the other hand, the PGR indicates that some of the officials who appeared at the sessions of the Legislative Commission that processed the bill (through the accelerated procedure given to that project by means of a procedure established in a motion via Article 208 bis of the Regulations of the Legislative Assembly) indicated that technically the PAACUME project could not be developed without removing protection from and flooding part of the RBLB. But on the other hand, in the document called "Mandatory Consultation of Local Communities. Compensation Proposal for the Lomas Barbudal Biological Reserve" (Folios 622-726), in response to one of the questions asked by one of the participants, it was indicated that "if the 113 hectares of the RBLB are not obtained, the project changes completely, since without these 113 hectares of the RBLB the conditions of the dam, the amount of water to be stored, the cost of the project, and the design would have to change completely." (Folio 661). (Highlighting is not from the original). Here applies the saying that a party's confession relieves the need for proof. From what was said by SENARA officials, it can be concluded then that the PAACUME project, as it is currently conceived, could not be carried out if 113 hectares of the RBLB are not flooded, since the project would have to change. “Without these 113 hectares of the RBLB the conditions of the dam, the amount of water to be stored, the cost of the project, and the design would have to change completely.” WHAT DOES THAT MEAN? THAT THERE ARE OTHER OPTIONS! For example, a SMALLER RESERVOIR could be built, prioritizing access TO DRINKING WATER (which, incidentally, in the PAACUME project corresponds to 10% of the water flow expected to be diverted to the right bank of the Tempisque River); combined with CERTAIN AQUIFER DRILLINGS (such as the NIMBOYORES Aqueduct, which is about to begin operations supplying 188 liters per second to more than 50,000 people in the canton of Santa Cruz, or the SARDINAL-EL COCO-OCOTAL Aqueduct, which recently began operations in the canton of Carrillo, to supply drinking water to 30,000 people); AND EVEN ALLOWING THE DESALINATION OF SEAWATER FOR IRRIGATION IN TOURIST PROJECTS (as is already being done in the Playa Conchal tourism development with the endorsement of the Institute of Aqueducts and Sewers), which supposedly would be one of the uses of the water from the PAACUME project. The PGR is very clear in its conclusions. It states as follows: “If it is determined that the OET study and the final compensation proposal for the RBLB are technically insufficient, the challenged law would be unconstitutional for violating the principles of objectification of environmental protection, precautionary, preventive, and lifetime tenure of protected wild areas, since it would not be guaranteeing that the approved boundary variation does not affect the integrity of the RBLB and the environmental impact generated by the removal of protection of a part of said Biological Reserve would not be adequately mitigated. Also, this would be contrary to the obligation established by Article 3 of the RAMSAR Convention to promote the conservation of wetlands included in the list of wetlands of international importance.” The PGR also points out that it must be “… assessed whether there is sufficient technical support to justify the need to remove protection from part of the RBLB to be used in the execution of the PAACUME project. If this foundation is not verified, Law 9610 must be declared unconstitutional for violating the principles of lifetime tenure of protected wild areas, objectification of environmental protection, and non-regression, and for not proving the reason of urgent national interest to which the RAMSAR Convention subjects the possibility of modifying the area of sites of international importance.” On the other hand, the PGR also recommends that the criterion of the National Geographic Institute be required as to whether the challenged Law considered the inaccuracies made regarding the coordinates and geographic location and whether these inaccuracies have any consequence on the adequate delimitation of the area with protection removed and the areas that are included in the Reserve and that must be expropriated, as this could prevent the proposed compensation from materializing. But we wish to place special emphasis on the observation made by the PGR for the case in which the PAACUME project is not developed, at least, not under the terms currently proposed. If for some reason the project is not developed and the necessary expropriations to effect the proposed compensation are not executed either, Law 9610 would have removed protection from the RBLB in vain, without a valid justification and without having compensated for and mitigated the effects generated by that reduction. This would constitute a violation of the principle of lifetime tenure of protected wild areas, precautionary, preventive, and non-regression, and even a violation of the RAMSAR Convention by not having a reason of urgent need to justify the reduction of the area of one of the sites of international importance. The foregoing, unless it is interpreted that the removal of protection it authorizes will take effect only at the time the project is executed and the necessary lands are expropriated for the proposed compensation to operate. However, this interpretation does not emerge from the reading of the approved law, nor from the statement of motives of the bill that culminated in said law.

OBSERVATIONS ON THE COADJUVANCY OF JORGE LOBO SEGURA While it is true that the PGR stated that it cannot technically assess the OET study, nor the way the final compensation proposal for the area removed from the RBLB was defined, the coadjuvant Jorge Lobo Segura, who is a biologist with a long career in his professional field and a professor at the Faculty of Biology of the University of Costa Rica, did make a technical assessment of the study and concluded that the answer is NO to all the questions mentioned in the previous section regarding whether there are sufficient technical studies to justify this removal of protection of 113 hectares from the RBLB. The study contained in the legislative file, called "Establishment of the Biodiversity Baseline for the Lomas de Barbudal Biological Reserve and Adjacent Property", which was carried out by the Organization for Tropical Studies (OET), had the objective of determining the biological and geophysical characteristics of the RBLB area that would be replaced by the reservoir area and evaluating the biodiversity components in AN ADJACENT property belonging to the company ASETREK Tres Azul S.A., chosen by SENARA without any technical criteria, in order to assess its potential to compensate for the affected area of the RBLB. The study was not to search the lands adjacent to the RBLB for an area for compensation with environmental characteristics as similar as possible to the area to be flooded. That is, said study was aimed at determining the possibility of compensating the RBLB area that would have protection removed with a particular property, which is the one on which the studies were conducted, which, incidentally, the studies were carried out on an area of 114 hectares of that property, which measures more than 700 hectares. SENARA was the one that determined that the study should be done on that part of the ASETREK property. The OET study DID NOT carry out a scientific and individualized analysis of the degree of impact on the environment of the removal of protection of the 113 hectares from that Biological Reserve. The OET study DID NOT carry out a study of the lands adjacent to the RBLB to determine which land had the best conditions to compensate for the 113 hectares that would have protection removed from the Biological Reserve. The OET study DOES NOT propose recommendations aimed at mitigating the negative impact on the environment. The OET study DOES NOT demonstrate how the removal of protection of the 113 hectares implies development that meets the needs of the present without endangering the ability of future generations to meet their own needs. That OET study finally determined that to compensate for the 113-hectare area with protection removed from the RBLB, 444 hectares of the ASETREK property should be included within the Biological Reserve, without conducting the study on more than 300 hectares of that property, since the study concentrated on 114 hectares. The OET study also mentions that, as compensation, the 86 hectares of the Brindis de Amor property should also be incorporated, without carrying out a study as appropriate on the characteristics of that property, and additionally, use the Río Piedras reservoir as part of the compensation, likewise, without any study. A portion of the SP Hacienda Ciruelas property is also incorporated as compensation for the RBLB area, on which NO study was carried out. This Study also does not comply with the requirement that the area removed from the RBLB be compensated with another of equal size and characteristics. On this subject, the coadjuvant Jorge Lobo Segura, an expert biologist in this area, makes it clear that: “the OET report or study is insufficient, partial, and incorporates a compensation principle, supposedly quantitative, where by modifying the size of a compensation area one can equal the area lost within a protected area. This is mistaken, since the populations or species affected by the loss of a protected area will not necessarily appear, in their original abundance, in a compensation area, even if its area is increased many times, if the compensation area does not have the habitats and resources required by that species, or the population nuclei or sources for the migration of populations to guarantee their repopulation. Drastic differences in habitat quality, especially in the degree of human alteration of the ecosystems, such as those detected between Lomas de Barbudal and the ASETREK property, are not balanced by increasing the area of the latter. This inflation of the area to compensate for less biodiversity will not result in the affected species being restored in the compensation area, especially if in the compensation area we have habitats very different from the affected area within the National Park or Biological Reserve. In the area of Lomas de Barbudal that will be flooded, there are riparian forests, and possibly other habitats not quantified by the study, that are not represented in ASETREK.” After all the reasons set forth demonstrating that the technical study used to justify the removal of protection of the 113 hectares from the RBLB DID NOT carry out a scientific and individualized analysis of the degree of impact on the environment of the removal of protection of the 113 hectares from that Biological Reserve; DID NOT carry out a study of the lands adjacent to the RBLB to determine which land had the best conditions to compensate for the 113 hectares that would have protection removed from the Biological Reserve; DOES NOT propose recommendations aimed at mitigating the negative impact on the environment; DOES NOT demonstrate how the removal of protection of the 113 hectares implies development that meets the needs of the present without endangering the ability of future generations to meet their own needs; DOES NOT comply with the requirement that the area removed from the RBLB be compensated with another of equal size and characteristics. It would be a worrying precedent if the Legislative Assembly, SETENA, and the Constitutional Chamber considered this study valid. If that were the case, it could open a loophole, rather a wide door, that would lead to promoting the alteration of the boundaries of more protected areas, based on compensation with private properties of a larger area, but with ecosystems much more altered than those protected. Ecosystem accounting and the Habitat per Hectare method would endorse this type of compensation. In conclusion, it is evident that the OET study and the final compensation proposal are insufficient and have technical flaws, so the challenged law would clearly violate the principle of lifetime tenure of protected wild areas, since it would not be guaranteeing that the approved boundary variation does not affect the integrity of the RBLB and the environmental impact generated by the removal of protection of a part of said Biological Reserve would not be adequately mitigated. Consequently, the precautionary principle, preventive principle would be violated, and there would be no technical backing that the adopted legislative measure does not affect the right to a healthy and ecologically balanced environment. As the coadjuvant Jorge Lobo Segura rightly points out, “… there are no studies that have been presented in the legislative file contemplating other options such as that of completing the construction of pending irrigation canals to take advantage of the water from the Arenal reservoir, nor studies on the water capacity of the aquifers available for exploitation in the cantons of Nicoya, Santa Cruz, and Carrillo. Incidentally, the Sardinal-El Coco-Ocotal aqueduct has just been inaugurated, with an investment of approximately $3 million to provide drinking water to nearly 30,000 people through drilling to access underground aquifers. Much less money than the $500 million projected for the development of the PAACUME project contemplating the construction of a dam to store water and then channel it through 350 kilometers of canals.” While that aqueduct was enabled in the canton of Carrillo recently, another aqueduct, Nimboyores, is about to begin operations in the canton of Santa Cruz, with a capacity of 188 liters per second to supply drinking water to 50,000 people. That means that between the two aqueducts, drinking water is being supplied to 80,000 people, which is almost half of the people who within a 50-year period would have access to drinking water through the PAACUME mega-project, and already built for a fraction of the $500 million that the PAACUME project would theoretically cost.

OBSERVATIONS ON THE COADJUVANCY OF MARIO ANDRÉS BOZA LORÍA In his coadjuvancy, Mr. Mario Andrés Boza Loría includes as an annex to his arguments, a summary of the press release from the Front for Protected Wild Areas of Costa Rica (Frente por las Áreas Silvestres Protegidas de Costa Rica), through which they indicate that the main objective of the project has been promoted as guaranteeing water for the communities of Guanacaste. However, according to the project itself, only 10% of the water production will have that purpose. This point is very relevant since in the arguments of SENARA and especially in those of SINAC of MINAE, two public purposes of equal value are spoken of, such as the conservation and environmental protection of the RBLB on one hand, and access to drinking water on the other. From the analysis of all the documentation supporting the PAACUME project, it is concluded that of the 20 cubic meters per second that would be transferred to the right bank of the Tempisque River to carry water to the cantons of Carrillo, Santa Cruz, and Nicoya, ONLY 10%, THAT IS 2 CUBIC METERS PER SECOND, ARE FOR HUMAN CONSUMPTION AS DRINKING WATER. On the other hand, said press release indicates that it has been widely publicized that PAACUME will favor tourism, however, only 7.5% of the amount of water is destined for that purpose. But, a precision must be made about the use of that water, since that water is for IRRIGATION of properties linked to tourism, not for human consumption which would be included within the 10% mentioned in the previous paragraph. That means that 82.5% of the water production from the PAACUME project will be destined for agricultural irrigation, especially for monocultures of large producers. The Front for Protected Wild Areas of Costa Rica points out that the PAACUME project is "sold" as a saving project for Guanacaste because of the reservoir that would be made within the Biological Reserve, but it is not indicated that the water is already stored in Lake Arenal, the largest reservoir in the country, which has that as one of its purposes, which already supplies water to the left bank of the Tempisque River basin and nothing prevents it from supplying water to the rest of the Guanacaste province. Why is it not used directly? This would mean changing the design of the PAACUME project, as SENARA's own officials well recognize, in the sense that if they cannot dispose of the 113 hectares of the RBLB to flood them, they should then change the project to store a smaller amount of water and complement it with other measures. As we see, it is possible to bring drinking water to the right bank of the Tempisque without needing to cut off 113 hectares of great ecological value from the RBLB. These reasons shared by the coadjuvant Mario Boza further bolster the reasons we have put forward for declaring Law #9610 unconstitutional.

OBSERVATIONS ON THE SENARA RESPONSE To understand the scope of SENARA's response to our unconstitutionality action, it is vital to understand that the PAACUME project has been conceptually developed by this autonomous institution for many years. It is like a beloved "child" of SENARA, and as sometimes happens with parents when their children are criticized or questioned, they defend their children in a fanatical and non-objective way. Let's go step by step: SENARA tries to make it seem that without the PAACUME project, just as they conceived it, there will be no drinking water for the cantons of Nicoya, Santa Cruz, and Carrillo. This is false and decontextualized from reality. When SENARA conceived the PAACUME project, there were drinking water supply problems in Carrillo and Santa Cruz, BUT, these problems have already been resolved through aqueducts that took the Costa Rican Institute of Aqueducts and Sewers (Instituto Costarricense de Acueductos y Alcantarillados, ICAA) many years to build. We refer to the aqueducts of SARDINAL-EL COCO-OCOTAL in the canton of Carrillo, and NIMBOYORES in the canton of Santa Cruz. Between both aqueducts, 80,000 people will be supplied with drinking water, apart from the 140,000 people who already receive drinking water through ASADAS. This covers the entire population of those cantons. On the other hand, SENARA points out, on page 8 of its response, that there is no possibility of relocating or reducing the reservoir volume without significantly affecting the scope of PAACUME. What does this mean? That there are indeed other ways to bring water to the right bank of the Tempisque River, but the project would have to be rethought. In fact, one of the most effective justifications for PAACUME was the issue of access to drinking water for the inhabitants of the cantons of Santa Cruz, Nicoya, and Carrillo. Even on page 9 of its response, they dramatically state that PAACUME will serve to bring water to SARDINAL in Carrillo, thereby demonstrating that SENARA officials are outdated on this issue, since, as we have pointed out in the previous paragraph, that water scarcity was resolved by the ICAA. The other justification, which is water for irrigation of coastal tourism projects, is also already being resolved by the ICAA, which authorized one of these tourism projects to use seawater by desalinating it. As can be appreciated, the needs have changed. It is not acceptable then to make the Constitutional Chamber and public opinion believe that we are facing two public purposes of equal rank (access to drinking water and environmental protection through a Biological Reserve unique in the country that even has international protection). PAACUME is not about drinking water then. That issue, which in any case represents 10% of the total PAACUME water, was already resolved by the ICAA. So everything comes down to affecting the RBLB to allow developing that project to irrigate lands of tourism developments (which could be irrigated by desalination of seawater), and the use of water for agricultural projects. SENARA maintains that the challenged law does not violate Article 7 of the Political Constitution nor the RAMSAR Convention. It states that far from reducing the area of the Palo Verde wetland, it is rather expanded with the increased boundaries of the RBLB and the 850 hectares of the Reservoir. But, what would happen if the PAACUME project is not carried out due to different circumstances, such as, for example, if the deputies do not approve the $500 million loan, or if SETENA does not approve the Environmental Impact Study (Estudio de Impacto Ambiental), to which, incidentally, said entity made nearly 100 very serious observations? In the event that the PAACUME project is not carried out, and the expropriation of the compensation lands does not materialize, there would be a reduction of the RBLB area by 113 hectares, clearly violating Article 7 of the Constitution and the RAMSAR Convention, as the PGR rightly points out, in addition to the other violations of Article 50 of the Constitution and the principles of lifetime tenure of protected wild areas, precautionary, preventive, and non-regression in environmental matters. On page 12 of its response, SENARA indicates that the study for the Establishment of the Biodiversity Baseline for the RBLB and adjacent property was indeed carried out, contrary to what we indicated in our unconstitutionality action. SENARA IS MISTAKEN AGAIN, since a good part of our argumentation in the unconstitutionality action is precisely about that study and its shortcomings. In relation to the consultation of communities, according to the provisions of Article 72 of the Regulations of the Biodiversity Law, ONLY 51 people were consulted. Considering the number of people living in those communities, that consultation is derisory. On page 20 of the SENARA response, there is a confession by that entity in the sense that there were no technical criteria to define the number of hectares that were finally incorporated from the ASETREK property. The OET study recommended incorporating 332 hectares and SENARA decided, without technical criteria, to incorporate 444 hectares from ASETREK. Additionally, it is indicated that the incorporation into the compensation proposal of the Brindis de Amor and Hacienda Ciruelas properties was carried out on the recommendation of Mr. Manrique Montes Obando, Administrator of Lomas de Barbudal, that is, without technical criteria. On the other hand, page 21 states that the 850 hectares of water surface of the Reservoir are incorporated as a wetland, and again without technical criteria. If there were no technical criteria in those cases, nor was there a study to determine if there was no other option to bring water to the right bank of the Tempisque River. Such is the non-existence of this type of study, that in this regard, the Regional Council of the Tempisque Conservation Area, when referring to the OET study, stated that "this instance considers that it has not yet been demonstrated that other alternatives exist for the PAACUME project, without necessarily having to remove protection from an area of the current RBLB. If these alternatives are indeed not viable, it will be necessary to assess the third measure, which is compensation." (Official Letter No. SINAC-CORACAT-SE-041 of July 7, 2017, folios 1492-1497 of the legislative file). What this paragraph means is that it has not been demonstrated that the ONLY way to carry out the PAACUME project is by removing protection from the 113 hectares of the RBLB to flood them. Other options exist for bringing water to the middle basin of the Tempisque River and coastal communities that have not been adequately assessed and that lead to the conclusion that the construction of the Río Piedras Reservoir is the ONLY option. And, that same Council, after the bill was approved in the second debate, indicated that "it is necessary that sufficient environmental, legal, and financial technical studies exist to justify the adequate selection of both the area to have protection removed, and the areas that would serve as compensation. The existence of these studies within the file of this bill must be verified, since to date this Council does not have such information." (Official Letter No. SINAC-CORACAT-049-2018 of September 9, 2018, folios 2641-2644). (Underlining is not from the original). On the other hand, in the document called "Mandatory Consultation of Local Communities Compensation Proposal for the Lomas Barbudal Biological Reserve" (Folios 622-726), in response to one of the questions posed by one of the participants, it was indicated that "if the 113 hectares of the RBLB cannot be obtained, the project changes completely, since without these 113 hectares of the RBLB the conditions of the dam, the amount of water to be impounded, the cost of the project, and the design would have to change completely." (Folio 661). What does that mean? That it is possible to bring water to the middle basin of the Tempisque River and to coastal communities, but the design of the PAACUME project would have to change. That is the study that is missing, which makes Law 9610 unconstitutional for violating the principles of lifetime tenure (irreductibilidad) of protected wild areas, objectification of environmental protection (objetivación a la tutela ambiental), and non-regression in environmental matters. On the other hand, in relation to the money required to pay for the private lands intended to compensate for the 113 hectares removed from the RBLB, SENARA again proves us right, by acknowledging on page 30 of its response brief that to date, the respective appraisals to determine the exact amount to be paid are not available. SENARA made a global estimate, without technical criteria, and based on that estimate, it prepared extraordinary budget number 3, approved through official letter DFOE-AE-0602 dated December 20, 2018, by the Contraloría General de la República, and incorporated into SENARA's budget for this year. It should be noted that said amount (2.851 million colones) results from an estimate made by SENARA without any technical criteria, and that said budget item was non-existent when the bill was approved. In relation to the incorporation of the farms called BRINDIS DE AMOR and HACIENDA CIRUELAS, as well as the selection of the ASETREK farm to make the compensation for the 113 hectares removed from the RBLB, SENARA repeatedly misrepresents the truth in its response brief. On page 31, it mentions that a study was conducted on the BRINDIS DE AMOR and HACIENDA CIRUELAS farms, which is false. As demonstrated in the action we filed and later emphasized by the coadjuvant Jorge Lobo Segura, a superficial mention of the Brindis farm was made in the OET study (in that nearly 300-page study, 6 pages including photographs are dedicated to that farm), with that study and also the CORACAT acknowledging that an in-depth study of that property would be necessary. In official letter SINAC-CORACAT-SE-041, submitted as evidence by SENARA, on page 58 of its response to this unconstitutionality action, it is clearly indicated that "Regarding the Brindis de Amor farm, this Council also considers that the studies were not carried out with the same depth of analysis as the initial study, nor in the sufficient time to technically support the quality of the components addressed from the beginning of the investigation. It is necessary to deepen the studies on this property or any other considered as a compensation proposal, so that this Council can issue a reasoned opinion." What was pointed out by the CORACAT ratifies our argument that a serious and objective study was not conducted on the Brindis de Amor property. Moreover, SENARA's selection of that property, without technical criteria, also fails to meet several requirements of the parameters to be considered for defining compensation areas, which are mentioned on page 67 of its response. There is one of them that is grossly violated, which is number 7, indicating that a fundamental parameter is to "Standardize the boundary (lindero) of the property, so that the compensation area allows adequate management by the SINAC administration in the RBLB." Well, in the sketch appearing on page 71 of its response brief, the Justices can see that the Brindis de Amor farm DOES NOT COMPLY WITH THIS PARAMETER. This farm is the one indicated in the upper part of the sketch, with a portion completely isolated from the RBLB, even elongating said reserve instead of helping to give it a more circular shape, as indicated by that document submitted as evidence. Furthermore, on page 69 of SENARA's response brief, in the last paragraph, there seems to be part of the answer to why SENARA chose that property. It reads: "… it must also be considered that this farm has a series of infrastructures that can be used by the RBLB administration (SINAC) as a control site for it." The case of the incorporation of the HACIENDA CIRUELAS property is even more dramatic. The OET study mentions this farm in 3 lines. On the other hand, on page 32 of its response, SENARA indicates that a field analysis of that farm was conducted, which is completely false. SENARA reiterates this on page 70. Were there other properties adjacent to the RBLB that could have been considered for compensation? The answer is yes. That is where SENARA should have started to conduct a technical study to identify which properties would be most similar in terms of biological characteristics to the 113 hectares that would be removed from the RBLB. In our unconstitutionality action, we provided information on several of those properties. Even SENARA acknowledges this by submitting official letter SINAC-CORACAT-SE-041 in its response brief, where on page 47 of SENARA's brief, one can observe the recording of statements by Mr. Wilfrán Murillo, who indicated that "advantage could be taken for the redefinition of the boundaries that Lomas has, with respect to another terrain that is not ASETREK, nor Brindis de Amor. It would be the opportunity to add those terrains that INDER has transferred to SINAC." This issue is relevant, since as we indicated in our unconstitutionality action, compensation for the area to be flooded could have been considered through the change of category of public entity lands adjacent to the RBLB, incorporating them within the boundaries of the Biological Reserve. It is very likely that those lands had a better ecological condition than the private lands that have been insisted upon for incorporation into the RBLB, without having to disburse money for the expropriations intended. After everything mentioned about the properties incorporated as compensation for the removal of 113 hectares from the RBLB, it should be clear that: 1- The ASETREK farm was previously selected by SENARA. There was no technical criterion indicating that this was the most suitable property. From there, there is a serious error in the genesis of the study subsequently prepared by the OET. 2- The OET study was conducted on a portion of land of the ASETREK farm of just over 100 hectares. Not on the minimum 332 hectares that the OET recommended acquiring for compensation. 3- The incorporation of the Brindis de Amor farm was done without any study, and SENARA seems motivated rather by using the infrastructure works existing on said farm. 4- The incorporation of the Hacienda Ciruelas farm was also done without any study or field visit having been conducted. 5- A study was not conducted to determine which properties adjacent to the RBLB were most suitable for compensation based on the ecosystemic characteristics of those properties. On the other hand, it is worth recalling what the PGR has pointed out regarding the OET Study. For the PGR, even if the sufficiency of the OET study and the final compensation proposal is verified, it must be warned that this technical study would only justify the validity of the compensation carried out, and, as such, is not a technical study that directly justifies the decision to remove a part of the RBLB. The Attorney General's Office is emphatic on this issue, stating that … "in accordance with constitutional jurisprudence on the matter, the study required by Article 38 of the Ley Orgánica del Ambiente to justify the reduction of a protected wild area should be a study that determines the need and advisability of adopting that type of measure." (underlining and highlighting not in the original). In this case, such a study would be one that technically substantiates the need and advisability of removing part of the RBLB. That is, a study that determines that the only alternative to develop the PAACUME project and the Río Piedras reservoir (embalse) is by removing part of the Biological Reserve. Incidentally, such a study has not been conducted. The Attorney General's Office points out that if the need and advisability of removing 113 hectares from the RBLB is not verified, Law 9610 must be declared unconstitutional for violating the principles of lifetime tenure (irreductibilidad) of protected wild areas, objectification of environmental protection (objetivación a la tutela ambiental), and non-regression. OBSERVATIONS ON THE RESPONSE OF THE MINISTRY OF ENVIRONMENT AND ENERGY (MINAE) The Minister of MINAE dedicates the first pages of his response to describing the PAACUME project, and on page 6 makes his first assertion that is not true. He indicates that SENARA, "through multiple studies has demonstrated that this reservoir extension, including the area within the Lomas de Barbudal Reserve (113 hectares), is the only way to do it in order to meet the water demand within the project's scope in a sustainable manner." THIS IS NOT TRUE. The same Consejo Regional del Área de Conservación Tempisque (CORACAT), linked to the MINAE's Sistema de Áreas de Conservación, is responsible for denying what the Minister stated. There are no such multiple studies. Regarding the lack of these studies, the CORACAT, when referring to the OET study, indicated that "this body considers that it has not yet been demonstrated that there are other alternatives for the PAACUME project, without necessarily having to remove an area from the current RBLB. If these alternatives are indeed not viable, it will be necessary to assess the third measure, which is compensation." (Official Letter No. SINAC-CORACAT-SE-041 of July 7, 2017, folios 1492-1497 of the legislative file). What that paragraph means is that it has not been demonstrated that the ONLY way to carry out the PAACUME project is by removing the 113 hectares from the RBLB to flood them. There are other options to bring water to the middle basin of the Tempisque River and coastal communities that have not been properly assessed and that would lead to the conclusion that the construction of the Río Piedras Reservoir (Embalse de Río Piedras) is the ONLY option. On the other hand, in the document called "Mandatory Consultation of Local Communities. Compensation Proposal for the Lomas Barbudal Biological Reserve" (Folios 622-726), in response to one of the questions posed by one of the participants, it was indicated that "if the 113 hectares of the RBLB cannot be obtained, the project changes completely, since without these 113 hectares of the RBLB the conditions of the dam, the amount of water to be impounded, the cost of the project, and the design would have to change completely." (Folio 661). What does that mean? That it is possible to bring water to the middle basin of the Tempisque River and to coastal communities, but the design of the PAACUME project would have to change. That is the study that is missing, which makes Law 9610 unconstitutional for violating the principles of lifetime tenure (irreductibilidad) of protected wild areas, objectification of environmental protection (objetivación a la tutela ambiental), and non-regression in environmental matters. In relation to the unconstitutionality alleged by us linked to the violation of Article 7 of the Political Constitution and the RAMSAR Convention, MINAE points out that such a violation does not occur because, in part, the 850 hectares of water surface (espejo de agua) of the Río Piedras reservoir will be added to the Palo Verde wetland with world-category protection. We are surprised that such an assertion comes from MINAE, which is clear on the characteristics of a wetland. Never can a reservoir where the water will be channeled through 350 kilometers of canals to the right bank of the Tempisque River until reaching the cantons of Carrillo, Santa Cruz, and Nicoya, be considered a wetland. It is like trying to give wetland status to Lake Arenal or Lake Cachí. Simply put, said reservoirs, due to their depths and the use and outflow speed of the water they store, can never be considered a wetland. Having said that, there should be no doubt that the removal of 113 hectares from the RBLB, in the event that the PAACUME project is not carried out within the scope currently planned and the expropriations of the private properties incorporated as compensation in the law challenged through this means do not materialize, would result in a clear violation of our international commitments upon registering the Palo Verde wetland as a RAMSAR site in our country. On the other hand, regarding the alleged studies supporting the challenged law, MINAE states that the institutions involved in this project have conducted the corresponding studies, as well as the actions that compensate for the areas where the project will be developed. MINAE IS MISTAKEN AGAIN. The PGR itself warns by pointing out that, even if the sufficiency of the OET study and the final compensation proposal is verified, it must be warned that this technical study would only justify the validity of the compensation carried out, and, as such, is not a technical study that directly justifies the decision to remove a part of the RBLB. The Attorney General's Office is emphatic on this issue, stating that … "in accordance with constitutional jurisprudence on the matter, the study required by Article 38 of the Ley Orgánica del Ambiente to justify the reduction of a protected wild area should be a study that determines the need and advisability of adopting that type of measure." (underlining and highlighting not in the original). The technical study used to justify the removal of the 113 hectares from the RBLB DID NOT perform a scientific and individualized analysis of the degree of environmental impact of removing the 113 hectares from that Biological Reserve; DID NOT conduct a study of the lands adjacent to the RBLB to determine which land had the best conditions to compensate for the 113 hectares that would be removed from the Biological Reserve; DOES NOT propose recommendations aimed at mitigating the negative impact on the environment; DOES NOT demonstrate how the removal of the 113 hectares implies development that meets the needs of the present without jeopardizing the ability of future generations to meet their own needs; DOES NOT comply with the requirement that the area removed from the RBLB be compensated with another of equal size and characteristics. It would be a worrying precedent if the Legislative Assembly, MINAE, SETENA, and the Constitutional Chamber considered this study valid. If that were so, a loophole could be opened, rather a wide-open door, that would lead to promoting the alteration of the boundaries of more protected areas, based on compensation with larger private farms, but with much more altered ecosystems than the protected ones. Ecosystem accounting and the Habitat per Hectare method would endorse this type of compensation. We have demonstrated, and coadjuvant Jorge Lobo Segura has also done so, that the OET study and the final compensation proposal are insufficient and have technical shortcomings, so the challenged law would clearly violate the principle of lifetime tenure (irreductibilidad) of protected wild areas, since it would not be guaranteed that the approved boundary variation does not affect the integrity of the RBLB and the environmental impact generated by the removal of a part of said Biological Reserve would not be adequately mitigated. Consequently, the precautionary principle, the preventive principle would be violated, and there would be no technical backing that the adopted legislative measure does not affect the right to a healthy and ecologically balanced environment. Nor are there studies that determine that the only alternative to develop the PAACUME project and the Río Piedras reservoir is by removing part of the Biological Reserve. OBSERVATIONS ON THE RESPONSE OF THE LEGISLATIVE ASSEMBLY In the first 20 pages of her response brief to the unconstitutionality action, the President of the Legislative Assembly reviews what the PAACUME project consists of and incurs the same errors as the Ministers of MINAE and MAG, as well as SENARA's errors, by indicating that the Study for the Establishment of the Biodiversity Baseline for the RBLB and adjacent farm is the study that environmental legislation and the jurisprudence of the Constitutional Chamber have established as a requirement to reduce the boundaries of a Protected Wild Area. All the explanations we have made in previous segments apply here, demonstrating that said study is not the study referred to by constitutional jurisprudence, as the PGR correctly pointed out. The technical study used to justify the removal of the 113 hectares from the RBLB DID NOT perform a scientific and individualized analysis of the degree of environmental impact of removing the 113 hectares from that Biological Reserve; DID NOT conduct a study of the lands adjacent to the RBLB to determine which land had the best conditions to compensate for the 113 hectares that would be removed from the Biological Reserve; DOES NOT propose recommendations aimed at mitigating the negative impact on the environment; DOES NOT demonstrate how the removal of the 113 hectares implies development that meets the needs of the present without jeopardizing the ability of future generations to meet their own needs; DOES NOT comply with the requirement that the area removed from the RBLB be compensated with another of equal size and characteristics. Where she does make some observations related to her level of competence, such as the parliamentary procedure followed to approve the bill that culminated in the law we are challenging, the President of the Legislative Assembly points out the following: "In their brief, the plaintiffs allege that Law Number 9610, 'Modification of boundaries of the Lomas de Barbudal Biological Reserve for the development of the water supply project for the middle basin of the Tempisque River and coastal communities' suffers from an essential defect in legislative procedure because it was heard and voted on based on a special procedure agreed upon in accordance with Article 208 bis of the Regulations of the Legislative Assembly. The defect consists, according to the plaintiffs, in that this type of abbreviated procedure cannot be applied to initiatives that require a qualified majority for approval. For this, they rely on report AL-DEST-DJU-068-2018 of July 30, 2018, from the Department of Technical Services of the Legislative Assembly." On this issue, what we argued in the unconstitutionality action is that a good part of the legislative procedure that culminated in the approval of that bill giving rise to Law 9610 was done through the special accelerated procedure of Article 208 bis approved by the legislative plenary in ordinary session number 28 of June 20, 2018. At no time did we state that the final vote had been done in accordance with the provisions of the approved procedure of Article 208 bis. The President of the Legislative Assembly continues saying: "Based on these rules, legislative file number 20,465 was assigned to special commission number 20,869 'Special Commission that will be in charge of analyzing, studying, and issuing a report (dictaminar) on File No. 20,465 "Law for the Modification of boundaries of the Lomas de Barbudal Biological Reserve for the development of the Water Supply Project for the Middle Basin of the Tempisque River and Coastal Communities'"; a body that issued a report on the initiative. In consideration of these facts and the legal argumentation of several deputies, in ordinary session of the Plenary number 46 on Tuesday, August 7, 2018, the deputies agreed to approve a procedural motion that literally established: 'To leave without effect the special procedure approved via Article 208 bis for legislative file No. 20,465 "LAW FOR THE MODIFICATION OF BOUNDARIES OF THE LOMAS DE BARBUDAL BIOLOGICAL RESERVE FOR THE DEVELOPMENT OF WATER SUPPLY PROJECTS FOR THE MIDDLE BASIN OF THE TEMPISQUE RIVER AND COASTAL COMMUNITIES", due to finding conflicts of constitutionality in the procedure that make it incompatible with the application of a special procedure and that henceforth, continue its ordinary legislative procedure'." (highlighting not in the original). What does that mean? That after meeting for a full month, with many weekly sessions for it, hearing a large number of people to improve the deputies' criteria in the decision-making process, and placing said bill in the first place of first debates on the legislative plenary's agenda, since that is what the special procedure motion via Article 208 bis that was approved provided, the deputies become aware that what they did on June 20 had been in violation of the provisions of Article 208 bis of the Regulations since they applied that article to a bill that required a qualified majority for its vote in the legislative plenary. Therefore, on TUESDAY, AUGUST 7, they approve the motion so that HENCEFORTH the procedure continues but with the ordinary procedure. According to the President of the Legislative Assembly, this means that the Assembly "disavowed all agreements made under the aforementioned special special procedure and proceeded to hear the bill based on the rules of the ordinary law-making procedure." THE PRESIDENT OF THE ASSEMBLY IS COMPLETELY MISTAKEN. The motion is clear, in the sense that from Tuesday, August 7 onwards, the ordinary procedure for processing bills would be followed. At no time does the motion indicate that what was processed through the abbreviated procedure is left without effect. Neither does the motion speak of returning the processing of that bill to the legislative procedural stage it was in prior to the approval of the motion of June 20, 2018. Nor does it speak of leaving without effect the formation of the Special Commission to issue a report on that bill that was created through the abbreviated procedure (Special Commission #20,869 Special Commission that will be in charge of analyzing, studying, and issuing a report on File No. 20,465 "Law for the Modification of boundaries of the Lomas de Barbudal Biological Reserve for the development of the Water Supply Project for the Middle Basin of the Tempisque River and Coastal Communities"). In the next session of the Legislative Assembly that hears bills, the session on Thursday, August 9, the bill was voted affirmatively in the first debate, a situation that leads the President of the Legislative Assembly to affirm that there was no violation of parliamentary procedure and therefore there was no constitutional breach with said proceeding. On the contrary, we allege that there was, and that if the Constitutional Chamber does not declare it so, a loophole would be opened to violate the democratic principle in the law-making process, since a temporary majority (mayoría coyuntural) of the Legislative Assembly could approve processing bills through the abbreviated procedure established in Article 208 bis in clear violation of the prohibitions established in that article. Then, send bills to a Special Commission formed according to the criteria of that temporary majority to process them quickly, hearing in audiences those deemed necessary and making consultations, processing motions with the deadlines for presentation and argumentation established in the abbreviated procedure, without giving deputies from minority caucuses the possibility of participating in those sessions due to the number of sessions scheduled per week, to finally issue a report on it. Then, in the plenary, they continue forward until exhausting the days for presenting motions via Article 137, and when they are about to vote on the substance of the bill in the plenary, they approve a motion to "move forward" with the ordinary procedure for the final discussion of the bill on the substance (20 minutes of argumentation per deputy) before the first debate vote, and then 10 minutes of argumentation for the second debate vote. That kind of trickery, with which a temporary majority in the Legislative Assembly could impose its point of view over the positions of deputies who do not share it, would be a kind of FRAUD ON THE LAW (FRAUDE DE LEY). It is precisely for that reason that we have pointed out this evident unconstitutionality in the processing of the bill. What they should have done, in any case, was to roll back the processing of the bill to June 7, 2018, to the moment before approving the motion that clearly violated Article 208 bis of the Regulations of the Legislative Assembly, which is a parameter of constitutionality. OBSERVATIONS ON THE PASSIVE OR NEGATIVE COADJUVANCY (COAYUVANCIA PASIVA) OF THE MINISTRY OF AGRICULTURE AND LIVESTOCK (MAG) The Minister of MAG, when appearing as a passive coadjuvant, recorded as reasons for his coadjuvancy the same allegations as SENARA. Therefore, our comments on that coadjuvancy are the same as those we made on SENARA's observations." 18.- Through a brief incorporated into the digital file at 10:02 a.m. on November 2, 2019, Henry José Picado Cerdas appears. He expresses interest in appearing in the file.

19.- By resolution at 12:28 p.m. on May 28, 2020, as evidence for better resolution, a hearing was granted to Mahmood Sasa Marín regarding what was alleged by the plaintiff, the Presidency of the Legislative Assembly, the Minister of Environment and Energy, the Servicio Nacional de Agua Subterránea, and the Procuraduría General de la República, in relation to the study he coordinated called "Establishment of the Biodiversity Baseline for the Lomas Barbudal Biological Reserve (RBLB) and adjacent farm".

20.- By resolution at 4:04 p.m. on May 28, 2020, the president of the Constitutional Chamber scheduled an oral hearing for 9:00 a.m. on June 11, 2020, and summoned María del Milagro Gamboa Miranda, Gary Douglas Stewart Postel, the Procurador General de la República, the President of the Legislative Assembly, the Minister of Environment and Energy, the General Manager of the Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento, Mario Andrés Boza, Jorge Arturo Lobo Segura, the Minister of Agriculture and Livestock, and Mahmood Sasa Marín. In this regard, he ordered that the hearing be held virtually through the Microsoft Teams application and for these purposes warned them to provide an email address for the corresponding registration and to send them the necessary information for the connection. Finally, he explained how the hearing would be conducted.

21.- Through a brief incorporated into the digital file at 12:49 p.m. on June 1, 2020, Julio Jurado Fernández appears, in his capacity as Procurador General de la República. He indicates that he will participate in the hearing with attorney Elizabeth León Rodríguez. He indicates that the email addresses for platform registration are [email protected] and [email protected].

22.- Through a brief incorporated into the digital file at 10:56 a.m. on June 2, 2020, Gary Douglas Stewart Postel appears. He provides the email address [email protected] for his registration on the platform.

23.- Through a brief incorporated into the digital file at 4:00 p.m. on June 2, 2020, María del Milagro Gamboa Miranda appears. She provides the email address [email protected] for her registration on the platform. She mentions that she will be accompanied by Jorge Lobo Segura, holder of identity card number 105260636, and Otto Guevara Guth, holder of identity card number 105440893, whose email addresses are [email protected] and [email protected], respectively.

24.- Through a brief incorporated into the digital file at 12:02 p.m. on June 3, 2020, Patricia Quirós Quirós appears, in her capacity as general manager of SENARA. She indicates that she will participate in the hearing and that the email address to register on the platform is [email protected]. She states that she will be accompanied by Giovanni López Jiménez, whose email address is [email protected].

25.- Through a brief incorporated into the digital file at 5:45 p.m. on June 5, 2020, Luis Renato Alvarado Rivera appears, in his capacity as Minister of Agriculture and Livestock.

Indicates that he will participate in the hearing scheduled with Yadira Vega Blanco, who is the institution's attorney. He notes that the emails for platform registration are [email protected] and [email protected].

26.- By a document filed in the case file at 6:37 p.m. on June 8, 2020, Mahmood Sasa Marín, in his capacity as researcher for the Organization for Tropical Studies and professor at the School of Biology of the University of Costa Rica, as well as Fabián Bonilla Murillo, in his capacity as researcher at the Clodomiro Picado Institute of the University of Costa Rica, appear. They set forth the following considerations in response to the resolution issued at 12:28 p.m. on May 28, 2020: "1. Environmental compensation for an environmental impact is a last resort measure, which should only be carried out if said impact cannot be avoided or adequately mitigated. Consequently, when a project's impacts require compensation, we are facing a situation where it is inevitable to make reparation for a potential impact. Under that circumstance, the discussion should not focus on whether or not compensation is possible, but on how to achieve it in a way that yields environmental gains. The fundamental principle on which environmental compensation is based is that the reparation cannot be less than the cost of the impact, environmentally speaking. In fact, it should be desirable for compensation to result in a net environmental gain. This last point is not trivial: compensation must ensure an environment that is better than the one existing before the impact. 2. There is no single methodology for carrying out compensation for environmental impact. Nor is there a simple methodology that allows for precisely defining compensation. If the objective is to ensure that the reparation is fair and –insofar as possible– to maximize environmental gain, one must resort to different strategies. This is a very important point, since the detractors of our study seem to expect an infallible and universal methodology for this, when no such thing exists. To maximize environmental gains, the approach must be dynamic and one must be willing to employ several criteria when establishing a compensation plan. Different procedures have been used in various countries, most of them compensating based on the substitution of surface area. Thus, reparation is carried out through a substitution of the impacted area with an area that will be environmentally equivalent (or better). This equivalence means that the biotic elements (species, communities) and abiotic elements (soil, geomorphology, etc.), habitat structure, and ecological processes are similar by area and landscape context. Equivalence does NOT imply that exactly the same elements and their same abundances are identical between sites, a situation that would be clearly impossible in complex systems like tropical environments. The procedure will try to maximize environmental gain in the compensation. 3. Some of the procedures employed in countries for environmental compensation are mere substitutions based on surface area, without quantification of other factors. Others are based on the quantification of a series of indicators (biotic or abiotic) and estimates of the 'ecological equivalence' between the site to be impacted and the potential site to be used in compensation. Among the latter, the approaches called standardized scoring methods are the most widely used. In these schemes, each indicator has a weight on the final score, and specialists assign scores on the quantifications made between the compensation site and the site to be impacted. These methods have the advantage of allowing the rationalization of the evaluation process and offering more predictable and repeatable assessments (aspects that should be important from a legal standpoint). 4. In Costa Rica, the issue of environmental compensation has not been sufficiently discussed, and there are no clear guidelines on when and how it should be carried out, which methodologies to employ, or how it should be evaluated. While it is true that we have some laws and regulations that tangentially touch upon the issue of compensation and refer to compensation measures, the references to environmental reparation in our legislation are very general, and the legal framework lacks the level of specificity regarding compensation. We set this forth in our report (pp. 32–37). As a consequence of this situation, there is not much experience available in environmental compensation, especially in cases involving protected wild areas. In that sense, our study should be considered pioneering work on this subject. 5. The study conducted by our team from the Organization for Tropical Studies, whose results and recommendations are presented in the report 'Establishment of the biodiversity baseline for the Lomas de Barbudal Biological Reserve and adjacent farm' (Establecimiento de la línea base de biodiversidad para la Reserva Biológica Lomas de Barbudal y finca adyacente), aimed to determine the biological and geophysical characteristics of an area within the protected zone of the Lomas de Barbudal Biological Reserve (RBLB) that would potentially be flooded if the reservoir on the Río Piedras were established as part of SENARA's PAACUME irrigation project. In addition to this characterization, we were asked to evaluate the compensation potential of an adjacent property if this impact were to occur, referred to in the report as ASETREK. To carry out this evaluation, our group opted for a methodology based on a scoring approach, called Habitat/Hectare (Hábitat/Hectárea). However, criteria other than those derived from this methodology were also used to arrive at a suggested compensation plan. 6. Our study attempts to answer three specific questions: (1) What biotic and abiotic characteristics do the potential impact site in RBLB and the site selected as potential compensation have; (2) are they environmentally equivalent or not; and (3) if they were, how should compensation be carried out with an environmental net gain if the impact occurs. Ours is a baseline and compensation study. Suggestions, observations, or criticisms of said study must be focused on its scope and dimensions. Our study does not contemplate, nor does it intend to, an assessment of the environmental impact of the Río Piedras reservoir project or the PAACUME Project. Nor does it constitute an assessment of the social approval of that project or its impacts. The study's objectives followed the guidelines requested by SENARA in its 'terms of reference' (términos de referencia). These objectives and the methodology proposed by our team were approved by the Arenal-Tempisque Conservation Area (ACAT) of SINAC. 7. Scoring methods are algorithms for evaluating and calculating compensation in the most objective way possible. But like any other methodology, they are not without limitations. The limitations of the Habitat/Hectare method are set forth in our report. Among the most notable are: (1) the method requires each indicator to have a weight in the final score, which means that step can be criticized. (2) The method requires similarity in the coverages being compared. (3) The premise of the method is that the environmental deficiencies of one of the sites will be balanced by increasing its area. There are several ways to deal with the first drawback: assign equal weights to all indicators, or assign weights by consensus. The reasoning is that if the indicator weights are assigned a priori, the environmental rating is done in a relatively objective and repeatable manner. In our case, the indicator weights were selected by consensus among the professionals comprising the research team, and presented and endorsed by SETENA and SINAC, through ACAT. Regarding the second limitation, the environments to be compared between the impact area in the RBLB and ASETREK are sufficiently similar (both sites are covered by a majority of altered deciduous forest (bosque deciduo alterado) with open areas in early successional stages in the Tropical Dry Forest life zone), such that we consider the algorithm can indeed be used. Even though more than 73% of the surface area at both sites is covered by this deciduous vegetation, we deliberately distinguished three types of coverages, based on our field observations and the coverage layer from the national forest inventory (SIREFOR, 2012-2013). The resulting coverages were named: deciduous forest (bosque deciduo), secondary forest (bosque secundario), and riparian forest (bosque ripario), and we proceeded to score each indicator individually for them. In this way, we maximized the contrast between the environment at the impact site and that of the compensation site. The third drawback rests on the idea that the environments to be compared are sufficiently similar so that equilibrium is achieved with area. This is undoubtedly one of the weakest aspects of the methodology, because similarity between environments is a topic that generates debate. However, we considered that other methodological proposals were even more subjective regarding the estimation of the area to be made whole, so we decided to opt for Habitat/Hectare due to the relative similarity and proximity of the sites to be compared. 8. The original Habitat/Hectare methodology focuses on comparing habitat structure (number of trees, fallen logs, etc.), but we also implemented a comparison of diversity across different taxonomic groups. That is, in our study, we evaluated not only habitat structure but also species composition (of plants, vertebrates, and understory insects), following a similar algorithm, but keeping the analyses separate. In our report, these analyses appear in Chapter II (pp. 47–111) and Chapter III (112–206). From these evaluations, we obtained an estimate of between 220 and 332 hectares in the case of the habitat structure analysis, and 290 hectares in the case of the diversity component analysis. Due to the principle that compensation must maximize environmental gain, the figure we handle is 332 hectares of an environment similar to that found in ASETREK to compensate for what would be lost at the impact site in RBLB. That is the reason for the 3:1 ratio indicated in the report. 9. A recommendation in our report, which has generated much criticism and confusion, and which seems to be the reason for the unconstitutionality action, is the incorporation of the properties Brindis de Amor and Ciruelas into the compensation plan. As mentioned earlier, following the proposed methodology, a reparation of three hectares of ASETREK for every one lost in RBLB is concluded. However, on page 209 of our report, we indicate the advisability of also using other properties that possessed important elements for conservation, in addition to the area in ASETREK. We even indicate (p. 217) the reasons why we consider that the reservoir to be formed in the flood zone should be part of the compensation. Although these areas were not analyzed with the depth that we did in ASETREK, we emphasize that using these properties improves the compensation proposal. Our reasoning is, once again, based on maximizing environmental gains as much as possible. The selection of Brindis de Amor is not casual, nor arbitrary as is attempted to be made believe in the documents submitted. That property, located at the northwestern end of the RBLB, is crossed by one of the few permanent streams in the area (río Cabuyo) and maintains a brief riparian cover (cobertura riparia). The vegetation at this site was indeed evaluated, as indicated on pages 210–216 of our report. Furthermore, as we also indicate in the report, the uninterrupted studies for more than 25 years in the area by Dr. Susan Perry (University of California, Los Angeles) indicate that troops of white-faced capuchin monkeys (Cebus capuccinus) from the Lomas de Barbudal Biological Reserve use the forests within Brindis de Amor as feeding and resting sites. That is, there is evidence of a constant flow of animals to and from the Reserve. The use of Brindis de Amor as a foraging site demonstrates the biological importance of this property and how right it would be to protect it. Annexing a fraction of Hacienda Ciruelas is intended to avoid leaving a peninsula on the perimeter of the RBLB if Brindis de Amor were annexed, which would contravene the basic notions of reserve design, which tries to minimize the edge effect and its impact on the species intended for protection. Furthermore, that fraction also contains a fragment of riparian cover. In our own report, we indicate that if one had to choose between those two properties, it is suggested that Brindis de Amor be acquired, since Ciruelas is already maintaining some protection in that area of its property. Our detractors indicate that the study did not evaluate those properties. That is not entirely correct, because as mentioned earlier, there was indeed a vegetation evaluation on the Brindis de Amor property. The reason other taxonomic groups (fauna) were not evaluated is that: (1) there is already evidence of the importance of that place for the fauna of the RBLB; (2) including this property complements the ASETREK property; (3) Brindis de Amor was effectively identified after it was decided to compensate with ASETREK. The fragment in Hacienda Ciruelas (erroneously called Rancho Wilson in our report) was indeed not evaluated. However, I reiterate again that assuming the protection of both this property and Brindis de Amor would provide a better service to the environment that the RBLB intends to preserve. 10. Like other environmental studies conducted, as instruments of evaluation and analysis on which to base management decisions, compensation studies must be completed within a reasonable timeframe and with a restricted budget. This means that studies have limitations regarding monitoring time, but also regarding the taxonomic groups and variables to be contemplated. It will always be possible to incorporate more information by extending the period or variables when conducting an environmental study, but in practice, it is clear that a study cannot be extended indefinitely in time or budget. For this reason, we consider that raising objections on these aspects does not provide much information when evaluating this type of work. 11. In some paragraphs of the analyzed documents, and particularly in the opinions of Dr. Jorge Lobo, direct questions are raised about the capability of the OET work team for the identification of certain groups, particularly plants. This judgment is unacceptable. On one hand, the Organization for Tropical Studies has had a scientific presence in the area since 1970, when the Palo Verde Biological Station was created in what is now Palo Verde National Park. That station has contributed to generating the bulk of knowledge in the Lower Tempisque Basin, and its scientific directors, myself included, have represented important support for SINAC's management in the region. Among other important scientific inputs, the meteorological station and the Ulises Chavarría Herbarium provide the repositories of climate and flora information for both Lomas de Barbudal and Palo Verde. Furthermore, the team formed by OET to address this study includes two professors from the School of Biology, with doctoral degrees and solid experience in their specialty groups, as well as the collaboration of a third professor from this same school for the identification of Hymenoptera, which include pollinators. Also included are three specialists with a Master's academic degree, one of whom is also an employee of the University of Costa Rica, as well as three independent professionals. Our project was registered with the Vice-Rectory for Research of the University of Costa Rica (Project 741-B6-A02), and the final report was approved by the Research Council of the Clodomiro Picado Institute. At no time did we receive a copy of Dr. Lobo's statements or those of the School of Biology Directorate against the study conducted. To assume that the study is weak just because someone from an academic unit has objections without much basis is to not want to recognize that other units of the same institution do support it. 12. Finally, to understand our position in this debate, it is important to distinguish between judgments based on opinion and judgments based on evidence. Opinion is an estimation or concept based on experience, which may or may not conform to reality, and therefore there is no complete confidence in the truth of the knowledge. Judgments based on evidence are made on tangible facts or bases, and thus should be interpreted as more conforming to reality. We consider that the effort made in the baseline study and the compensation estimation far exceeds similar studies conducted for other projects, and our databases, museum, and herbarium specimens testify to this. The judgments we issue in our report are based on evidence. 13. In our study, we maximized the contrast between the environment to be impacted in the Lomas de Barbudal Reserve and potential compensation areas. Our position is that, if the reservoir on the Río Piedras is built, and with it the consequent flooding of 113 hectares of the reserve, that impact be compensated with the ASETREK, Brindis de Amor, and Ciruelas properties, and that from the outset, the artificial wetland to be established in the impact area be managed. This is a real and substantive gain. Raising minor objections to undermine the study is to lose perspective on what exactly is being proposed. Likewise, attempting to argue against the methodology out of fear of setting a precedent that allows for the redrawing of the boundaries of other protected areas makes us lose perspective on the point in question: if needed, a positive compensation in environmental terms can indeed be achieved in the Lomas de Barbudal Biological Reserve. Below, we will proceed to answer the observations referring to our study in Document 0001-01-09-2019 (Acción de Inconstitucionalidad contra la ley #9610) submitted. Given that the other 7 documents repeat much of this same information, and refer more to the response of different Institutions and Bodies to the same unconstitutionality action and do not raise doubts or new questions about our report, we consider that with these responses to literal transcriptions from the unconstitutionality action, we cover all the possible questions raised: Document 0001-01-09-2019. ACCIÓN DE INCONSTITUCIONALIDAD Contra la ley #9610, “MODIFICACIÓN DE LÍMITES DE LA RESERVA BIOLÓGICA LOMAS BARBUDAL PARA EL DESARROLLO DEL PROYECTO DE ABASTECIMIENTO DE AGUA PARA LA CUENCA MEDIA DEL RÍO TEMPISQUE Y COMUNIDADES COSTERAS”, published in Alcance #199 of La Gaceta on November 23, 2018. • " Page 9. R/ An unfounded opinion is expressed that the study is superficial and biased, given that the terms of reference for the study were defined by SENARA. It is also indicated that the selection of compensation in ASETREK was arbitrary. This is not correct. The terms of reference are based on SINAC's observations. Furthermore, the selection of the ASETREK property is based on the recommendation of SINAC, given that it is the property closest to the affected site with vegetation cover (cobertura vegetal) and habitat structure worth evaluating." • "Pages 9 and 10. R/ It is indicated that there was no review of all the properties adjacent to the RBLB to search for those that could potentially compensate for the losses due to the impact on the reserve. Our team conducted a review through image analysis to confirm the choice of ASETREK as a potential compensation area. Furthermore, SINAC personnel had previously conducted a similar exercise before opting for ASETREK. The methodology followed (Habitat/Hectare) was approved by SINAC and SENARA. Following this methodology, we concluded that: (1) It is possible to establish an ecological equivalence between the two sites (RBLB and ASETREK); (2) That the compensation in area is a ratio of 3:1. However, as we specified in our report, our recommendation was to request even more to make reparation for the losses in the reserve, in the interest of improving the reparation in environmental terms. The incorporation of these two properties into our final recommendation did not require further evaluation, as they constitute a complementary annexation, not an essential one, given the methodology outlined. While it is true that the Ciruelas property was not evaluated, it is important to clarify that on the Brindis de Amor property, we carried out a survey of the structure and plant composition as specified in our report." • "Page 10. It is indicated that 'Neither in the OET Study, nor in the project discussion process in the Legislative Assembly, is there any record that adjacent communities to the RBLB were consulted about the impact that this change in the boundaries of the biological reserve could cause them.' " R/ This comment reveals a lack of clarity regarding the dimensions and scope of the OET study, a situation indicated in consideration # 6 above. • "Pages 10 and 11. The OET Study used to justify the release (desafectación) of the 113 hectares is a study that does not meet the requirements established by the Constitutional Chamber (Sala Constitucional) for those purposes. It has a large number of technical and scientific shortcomings as indicated by the Faculty of Biology of the University of Costa Rica." R/ It is not clear what is meant by "requirements established by the Constitutional Chamber." Regarding the technical and scientific shortcomings pointed out by the School of Biology, one would assume that the School would speak directly to OET or to some of the researchers who conducted this study and who are, in turn, teaching staff of the School. If there are observations, the proper course is that they be forwarded to the indicated bodies, but this is not the case: we find ourselves facing the issuance of opinion judgments. The project was, in fact, registered with the Vice-Rectory for Research of the University of Costa Rica and approved by the Research Council of the Clodomiro Picado Institute, also of the same University. If the School of Biology has reservations regarding technical aspects of this project, other bodies do not seem to have them. • "Pages 12 and 13. It says: 'One of the consequences of the approval of that law, as well as the dam, the reservoir with a water surface of 850 hectares, and more than 300 kilometers of canals intended to be built based on this law, is the impact on the Palo Verde wetland, which has an international protection level through the RAMSAR Convention. For the release of 113 hectares of the RBLB, which forms part of the Palo Verde Wetland, the procedure established in that international instrument for releasing the area to be flooded was not followed.' The same is pointed out by the Regional Council of the Arenal Tempisque Conservation Area (CORACAT) by means of official note SINAC-CORACAT-049-2018: '…As noted in agreement 3 of the minutes of extraordinary session 04-2017 of the National Council of Conservation Areas (CONAC), it is necessary to communicate to the Convention on Wetlands of International Importance especially as Waterfowl Habitat, known as the Ramsar Convention, the intention to carry out this project and to activate any other procedure to comply with the country's commitments. Furthermore, it is important to take into consideration that, under the Convention concerning the Protection of the World Cultural and Natural Heritage, known as the UNESCO World Heritage Convention, the World Heritage site Área de Conservación Guanacaste is under monitoring by UNESCO. At the most recent session of the World Heritage Committee, this body decided to request the country to conduct a Strategic Environmental Assessment of the zone, to foresee the possible direct or indirect impacts of the projects on the World Heritage site, even when these are outside its boundaries. While this bill does not directly impact the World Heritage site, the Lomas Barbudal Biological Reserve borders the Morocochas Biological Corridor, which in turn borders the Rincón de la Vieja National Park included in the World Heritage site. For this reason, it is necessary to analyze whether the Water supply project for the middle basin of the Río Tempisque and Coastal Communities could have any indirect impact on the World Heritage site, and to assess the activation of the pertinent mechanisms to communicate this initiative to the World Heritage Centre.' This last point was also not considered in the OET study, which omits the procedure for releasing an area that is part of a wetland with international protection, as is inferred from official RAMSAR documents. Said convention establishes in Article 4, paragraph 2, that when a Contracting Party, for urgent national interest reasons, deletes from the List or restricts the boundaries of a wetland included therein, it should compensate, as far as possible, the loss of wetland resources and, in particular, create new natural reserves for waterfowl and for the protection of an adequate portion of their original habitat, in the same region or elsewhere. Incidentally, the modification of the RBLB boundaries has not been declared of urgent national interest." R/ Once again, there is a lack of knowledge about the scope of the project carried out by OET. Evaluating the impact on the environments surrounding the project site, including the potential effects on the wetlands protected by Palo Verde, must be carried out with another instrument: the environmental impact assessment (estudio de impacto ambiental). OET was not responsible for that evaluation; therefore, this point must be addressed by whoever was responsible for it. On the other hand, a quick look at the area map would clarify that the connection intended to be made between Lomas de Barbudal and Rincón de la Vieja National Park as a single protected area is clearly false. • "Pages 25 and 26. Said study analysis and concludes that the area to be compensated is in more deteriorated ecological conditions than the area to be released (currently protected and part of the Lomas Barbudal Biological Reserve). Based on this, the study itself proposed a 3-to-1 compensation to guarantee the ecosystem's ecological functions. Even so, the studies determined the non-existence in the areas proposed for compensation of the riparian forest (bosque ripario), this being one of the conservation targets defined in the creation of the protected area; for this reason, ACAT's criterion from the outset is that this conservation target (riparian forest) must be compensated; so in the end, SENARA basically recommends a 5-to-1 compensation, that is, compensating with an area 5 times larger than the one that would eventually be released." R/ As indicated earlier, the suggestion to annex other properties was to improve environmental reparation, complementing the results obtained using the methodology followed in the study. • "Page 32. It says: 'the study carried out by OET for the compensation of the released area does not mention the Palo Verde wetland of which the RBLB forms part, nor details on how to compensate the affected wetland area. Nor does it mention the UNESCO World Heritage convention, which grants special protection to the entire Área de Conservación Guanacaste. That study also omits the totality of the properties intended to be used to compensate for the released area, as it was carried out solely on the property belonging to the company ASETREK and not on the other properties that were finally incorporated into the law we are challenging.' " R/ This paragraph shows ignorance or an intention to confuse the reader. The impact area in the southeastern part of the Lomas de Barbudal Reserve is not a wetland nor is it connected to the wetlands of Palo Verde National Park. Furthermore, neither Lomas de Barbudal nor Palo Verde National Park are located in the Área de Conservación Guanacaste (ACG, UNESCO heritage site) but in the Arenal-Tempisque Conservation Area (ACAT). The farms identified and evaluated as potential compensation agents are not either. The OET study is limited to establishing which elements and structure exist in the environments of the impact site and evaluates whether compensation is possible and how much it could be for.

• Pages 37 and 38: It states: "Well then, Law #9610, which is challenged through this unconstitutionality action, clearly violates Article 50 of the Political Constitution, since it does not incorporate a serious, comprehensive, and objective study on the consequences of the removal of protection from 113 hectares of the RBLB, and the substitution or compensation with some 500 hectares of private properties intended to be incorporated into the biological reserve." Response: Unfounded opinion. Arguing that the study is incomplete is not acceptable, given that the critics do not even indicate why it is so. The reasoning regarding the annexation of the Brindis de Amor and Ciruelas properties to the recommendations followed in our report has already been mentioned previously.

• Page 44-72: Having stated all the foregoing, it is pertinent to determine whether the OET Study fully complies with the technical and scientific criterion established by the Constitutional Chamber as a requirement for reducing the area of a protected area. That requirement for technical studies is not a mere formality; rather, it is a substantive requirement, meaning it must be substantively demonstrated, through a scientific and individualized analysis, the degree of impact of the corresponding measure on the environment, propose recommendations aimed at mitigating the negative impact on it, and demonstrate how such a measure implies development that meets the needs of the present without compromising the ability of future generations to meet their own needs." Response: Once again, the scope of the study conducted by the OET is confused with the environmental impact assessment (EIA) of the project. Mixing the dimensions of these studies seems like a strategy designed with malice to reach pre-established conclusions.

• "Well then, in the specific case, the record in volume two of the legislative file that gave rise to the law challenged here includes a study conducted by the Organization for Tropical Studies (OET), which corresponds to a baseline study of biology, intended to justify the acquisition of the property known as ASETREK, to replace the 113 hectares of forest whose protection is being removed through the law being challenged via this unconstitutionality action. (See Annex 6 of this unconstitutionality action)." Response: Correct that the study conducted by the OET is the baseline study. If the result of that study endorsed it, then the acquisition of the ASETREK property could be proposed. Such was the case.

• "This study is not complete, nor objective, nor scientific, nor technical, since it suffers from many omissions and weaknesses. To begin with, the scope of the study was determined by SENARA, which was the entity that contracted the OET for its preparation. In official communication SENARA-INDEP-172-2017 of March 28, 2017, signed by Eng. Marvin Coto, Director of Engineering and Project Development of SENARA, he provides a recount to the institution's general manager, Patricia Quirós, regarding the selection process for the compensation property and the bidding process to contract the Baseline Study, as can be read in the following segment: '…In 2015, the bidding process for conducting the technical study to manage the compensation and removal of protection for the required area of the RBLB was promoted on two occasions. However, these bids were declared void due to a lack of bidders, so after several meetings, an agreement was reached and the "Agreement between the Organization for Tropical Studies (OET) and SENARA to conduct the Study for the establishment of the biodiversity baseline for the RBLB and adjacent property" was signed in January 2016, within the framework of the Water Supply System Project for the Middle Basin of the Tempisque River and Coastal Communities (PAACuMe). The study's objective is to develop and define the baseline to determine the ecological integrity, relevance, and fragility of the present ecosystems, as well as the existing biodiversity, in the area of the RBLB to be directly impacted by the Río Piedras Reservoir. At the same time, a comparative analysis is conducted between an area of the RBLB and previously selected surrounding lands (ASETREK Tres Azul S.A. property), to ascertain the conditions of similarity and feasibility of being used as a replacement zone that is ecologically equivalent. It is important to point out that the property was selected for its connectivity relationship with the RBLB, as this is fundamental for management and administration by the National System of Conservation Areas (SINAC). This property is registered in the name of ASETREK Tres Azul S.A., legal ID number 3-101-370259, with Ramón Aguilar Facio as general proxy, identity card number 9-0001-0541, cadastral map number 5-666-1976, real folio number 034932-000, located in the first district Bagaces, of the fourth canton Bagaces, of the province of Guanacaste, with a registered area of 751 hectares….'." Response: Once again, opinions not based on evidence are issued regarding the study's incompleteness, and it is mentioned that it has weaknesses and deficiencies without indicating them. These paragraphs attempt to discredit the study conducted by the OET outright, for having addressed SENARA's request. The study was indeed requested by SENARA from the OET, and there is no sin in that. From the outset, Eng. Marvin Coto, then in charge of the project on behalf of SENARA, was told that the OET would conduct the most objective study possible, adhering to its technical knowledge, and that the results would be presented as is. Furthermore, one of the requirements set by the OET for participating was to make transparent the data and information generated in the study. This has been respected from the first moment by our Organization.

• "Towards the end of the 237-page study, the OET makes mention of two more properties: Brindis de Amor (which is the property belonging to the corporation 3-101-734726 S.A., known as Brindis de Amor, or Brindis de Amor in Liberia), and Hacienda Ciruelas. A baseline study of biology was not conducted for either of them, which would allow for scientifically determining that they are properties that effectively possess environmental characteristics that replace the ecosystem functions of the area whose protection will be removed. In the case of the property belonging to Hacienda Ciruelas, it is even more dramatic, as it is only mentioned in 8 lines of the 237-page study." Response: The reasoning employed in incorporating these two properties into the final suggestion for compensation has already been mentioned. I indicate here that there continues to be an attempt to make invisible the effort we made to characterize the vegetation and structure in Brindis de Amor.

• "Specifically on page 215 of the OET Study, referring to the property belonging to Hacienda Ciruelas SP S.A. as Rancho Wilson. In conclusion, that OET Study did not incorporate studies on the biological conditions of two of the three properties intended to compensate for the 113 hectares whose protection is being removed by the law." Response: It was indeed my error in drafting a 267-page text by using the old name of the property instead of the current Hacienda Ciruelas SP S.A. There is an insistence on ignoring the reasoning set forth in our final report regarding the compelling reason why the Ciruelas and Brindis de Amor properties were annexed to the proposal.

• "Thus, it is substantively impossible to have scientific certainty about the suitability of the lands that were annexed to the Lomas de Barbudal Biological Reserve; therefore, the legislative decision to replace the hectares whose protection is being removed from the Lomas Barbudal Biological Reserve does not withstand constitutional review, as it lacks sufficient technical support to justify its adoption, and clearly violates the principle of non-regression in environmental matters." Response: I believe that before reaching these conclusions and recommendations, the person drafting this paragraph should read the final report of our study and try to understand it.

• "The Constitutional Chamber a few years ago considered that the bill called "Law for the recognition of the rights of the inhabitants of the southern Caribbean", legislative file number 18,207, was unconstitutional due to a violation of Article 50 of the Political Constitution, since it is based on an incomplete study because it did not technically and scientifically determine what the real impact on the environment would be, a defect that is essential to the legislative procedure. (Exp: 12-011721-0007-CO, Res. No. 2012013367, CONSTITUTIONAL CHAMBER, at eleven hours and thirty-three minutes on September twenty-first, two thousand twelve.) That is exactly what happens with this law, since the study accompanying the legislative file to justify the removal of protection for 113 hectares of a BIOLOGICAL RESERVE is clearly incomplete and does not technically or scientifically determine what the impact on the environment of that removal of protection will be, prior to subsequently flooding that amount of land. The study was not only not conducted on 2 of the 3 properties intended to be used as compensation, but it also did not analyze the impact that could be caused to the Palo Verde National Park, which is a Wetland with international protection afforded by the RAMSAR Convention, of which the RBLB is a part, as developed in point A) above regarding the Legal Basis of this unconstitutionality action." Response: Again, the author of these lines attempts to confuse the environmental impact assessment (estudio de impacto ambiental) with the compensation study. And again, they refer to the two properties (Brindis de Amor and Ciruelas) that were recommended for compensation in addition to the ASETREK lands.

• "In the preceding paragraph, the words BIOLOGICAL RESERVE were highlighted to make the magistrates see that we are precisely before a protection area that has a category comparable to that of a National Park, which is of ABSOLUTE PROTECTION. It is not a protected zone or a wildlife refuge. It is a BIOLOGICAL RESERVE. Therefore, the type of Study to allow the removal of protection for a portion as large as 113 hectares must be technically very solid and complete, must be comprehensive and inclusive of all possible environmental impacts, and especially must be very rigorous regarding the study of the area to be compensated. That did not happen with the OET study contracted by SENARA with the terms of reference defined by that entity." Response: They are mistaken on several points. First, the compensation study and the environmental impact assessment (EIA) are different instruments. In this case, the former was conducted by us as an OET study; the latter was conducted by the ICE. Second, the terms of reference were previously consulted by SENARA with SINAC, meaning they had the endorsement of the authority on protected areas in the country.

• "To ratify what has been mentioned, it suffices to read some excerpts from the report of Dr. Jorge Lobo Segura, commissioned by the School of Biology of the University of Costa Rica to respond to an information request from the National Environmental Technical Secretariat (SETENA) related to the PAACUME project, which was designed based on a reservoir (they could have sought other options) that requires flooding 113 hectares of the RBLB. Dr. Lobo Segura points out a large number of flaws from the technical and scientific point of view in the OET study, as observed when reading section '1.1 Observations on the OET study for the compensation of the area floodable by the reservoir' in his report. These flaws clearly allow showing that the removal of protection for the 113 hectares of the RBLB does not meet the parameters established by the Constitutional Chamber to determine if a protected area can be reduced, especially when it concerns a biological reserve that has a level of absolute protection comparable to that of a national park." Response: It is not clear what is meant by "the parameters established by the Constitutional Chamber to determine if a protected area can be reduced." In the first place, the legislation is clear that a protected area cannot be reduced; what it authorizes is modifying its limits but without reducing its surface area.

· "Next, that section of Dr. Lobo's report is transcribed, highlighting in bold what is considered most relevant, as well as what Dr. Lobo points out in the cover letter for his report to the director of the School of Biology, M. Sc. Daniel Briceño. 'At your request, I attach my observations on the Environmental Impact Study for the PAACUME Irrigation Project (D1-21601-2017-SETENA), according to the request of the SETENA General Secretary, MSc. Sergio Bermúdez Muñoz, dated July 12 of this year. Although SETENA's original request was the presentation by the School of Biology of some specific restriction, limitation, or recommendation on this project, I preferred to deliver my observations as general observations on the Environmental Impact Study, particularly on the biological impact. The document develops some of the potential environmental impacts of the project that, in my view, have not been considered in the E.I.A., as well as a critique of the compensation criteria for the flooding of 113 hectares of the Lomas de Barbudal Biological Reserve by the Río Piedras Reservoir, a substantial part of the PAACUME irrigation project.'" Response: Here, reference is again made to the opinion of our colleague Dr. Jorge Lobo. It is clear that what SETENA requested from the School of Biology was regarding the Environmental Impact Assessment (EIA). Dr. Lobo confuses in his response aspects of that study with the compensation study conducted by us.

• "'It is evident that, in my opinion, the most important restriction that the School of Biology can present against this irrigation project is the impact on this protected area, as well as on the dry forests on private properties that will be flooded by an 850-hectare reservoir. The compensation proposal in the E.I.A., consisting of adding new areas to the RBLB as a substitution for the lands that will be flooded, is, in my opinion, an insufficient procedure in relation to the environmental damages that a reservoir of such dimensions will cause to the ecological integrity of this important protected area of dry forest in our country. Sincerely, Dr. Jorge Arturo Lobo Segura, School of Biology'." Response: Indeed, creating a reservoir would have a negative impact on the environment that would be flooded. That is why compensation would be needed. The question that should be posed is how to achieve that compensation in a way that is fair to the environment and even maximizes the environmental gain. Here, one criticism that could be made of Dr. Lobo and the School of Biology's response is that they make no effort to propose solutions to the problem.

• "'Biological consequences of the PAACUME reservoir: One of the most important environmental impacts of the PAACUME irrigation project will be the flooding of approximately 850 hectares for the formation of the reservoir. The reservoir area includes 113 hectares of the Lomas de Barbudal Biological Reserve. The E.I.A., in various chapters, mentions the study "Establishment of the biodiversity baseline for the Lomas de Barbudal Biological Reserve (RBLB) and adjacent property," prepared by the Organization for Tropical Studies (OET) in January 2017, as a basis for compensating the environmental damages to this Biological Reserve. The OET document proposes the incorporation of new areas belonging to private properties adjacent to the Reserve. This study is a substantial part of the E.I.A. for PAACUME and is included as Annex No. 8.2 of Volume II of the E.I.A. Following are some observations on the OET study, to subsequently develop some aspects that seem to me not to have been considered for the compensation or mitigation of the reservoir's effects.'" Response: Indeed, in the Environmental Impact Assessment (EIA) there is a reference to the compensation study conducted by us (OET). But, as has been mentioned, they are two different studies pursuing different objectives and covering different zones.

• "'Observations on the OET study for the compensation of the area floodable by the reservoir. 1.1.1 Theoretical framework. The study adopts, as a methodology for calculating the compensation area, the quantification of the relative value of different aspects of the ecosystems, assigning a numerical value to different ecosystem variables. This exercise is carried out for the floodable area of Lomas de Barbudal and its corresponding comparable ecosystem in the ASETREK property, property where the possible compensation areas are located. To perform the numerical comparison of habitat quality, the area of each site is divided into three main ecosystems: mature riparian forest, deciduous forest, and secondary forest. Scores are assigned based on the number of species from different taxonomic groups, or based on forest cover, number of strata, etc. The scores in each area are tallied, to subsequently obtain the totals. As in many cases the ASETREK property has a lower score than the corresponding ecosystem of Lomas de Barbudal, the necessary area of the compensation property is calculated to level the score of the affected area. This is how they arrive at the final calculation that 252 hectares (later 330 hectares are mentioned, there is some confusion at the end of the study regarding this) of a property like ASETREK would be required to compensate for the 113 flooded hectares of Lomas de Barbudal. My opinion is that this theoretical framework is a numerical exercise that leads to dangerous accounting, poorly substantiated biologically. The categories for defining the score, the aspects of the ecosystem that were compared, and the numerical values granted to each category are largely arbitrary, overvaluing some aspects and undervaluing others, as will be seen later with some examples. The main problem is establishing a compensation principle, supposedly quantitative, WHERE BY MODIFYING THE SIZE OF A COMPENSATION AREA, THE LOST AREA WITHIN A PROTECTED AREA CAN BE MATCHED. This is wrong, and the authors let doubts about this procedure slip in the final pages of the report. THE POPULATIONS OR SPECIES AFFECTED BY THE LOSS OF A PROTECTED AREA WILL NOT NECESSARILY APPEAR, IN THEIR ORIGINAL ABUNDANCE, IN A COMPENSATION AREA, EVEN IF ITS AREA IS INCREASED MANY TIMES OVER, SINCE THE HABITATS AND RESOURCES REQUIRED BY THIS SPECIES, OR THE POPULATION NUCLEI OR SOURCES FOR THE MIGRATION OF POPULATIONS THAT GUARANTEE THEIR REPOPULATION, DO NOT EXIST IN THE COMPENSATION AREA.'" Response: The summary of the methodology is correct, and as is well indicated in our report, like any other, this methodology has advantages and limitations. Now, Dr. Lobo confuses results of our procedure. In the case of the habitat structure analysis, compensation would be carried out with 330 hectares (the source of the 3:1 ratio mentioned earlier). In the case of the biotic composition analysis (which includes species identity and their comparison between sites), compensation would be carried out with a smaller area. Dr. Lobo clearly indicates that what follows is his opinion, and does not show evidence of concrete data to support it. Contrary to that, our study has solid and concrete databases on the species that exist in those areas to be compared. Moreover, from his comment, it seems that Dr. Lobo envisions compensation as a redress in terms of equality of species and conditions, when we have already explained that it is about finding equivalence between them. Where we do agree with Dr. Lobo is that indeed the issue of increasing area does not necessarily ensure the best ecological equivalence and that this is a topic that requires more study. However, and as we indicated in our considering clause #7 above, that was the methodology followed in our study because we considered that others would be more subjective.

• "'Drastic differences in habitat quality, especially in the degree of human alteration of the ecosystems, such as those detected between Lomas de Barbudal and the ASETREK property, are not balanced out by increasing the area of the latter. This inflation of the area to compensate for less biodiversity will not result in the affected species being restored in the compensation area, especially if in the compensation area we have habitats very different from the affected area within the National Park or Biological Reserve. In the area of Lomas de Barbudal that will be flooded, there are riparian forests, and possibly other habitats not quantified by the study, which are not represented in ASETREK.'" Response: The first part of this paragraph expresses doubt about whether the environmental difference between the sites can be balanced out by an increase in area. This idea is precisely the logic behind the Habitat/Hectare method followed in our study. We agree with Dr. Lobo that this idea can be better explored using research. But we remind the Chamber that the procedure followed here was previously approved by SINAC. On the other hand, Dr. Lobo continues to refer to habitats not quantified by the study, but does not indicate which ones they are. Asserting that there are environments that have not been covered by our efforts without presenting evidence of it does not seem to be an argument supported by evidence. Dr. Daniel Janzen, a renowned ecologist of the dry forest, visited the study site and recommended compensating with the maximum possible area. This is because a fundamental aspect that must be considered is that the recorded environments are not static but dynamic, meaning that, over time, positive modifications in the ecosystem can be achieved. For example, the coverage called "deciduous forest" in our study is an earlier stage of succession, which with sufficient protection would tend to transform into an environment similar to what was called "secondary forest" in our report.

• "'It would be a worrying precedent if the Legislative Assembly or SETENA considered this study valid, because this practice could lead to promoting the impact on the limits of more protected areas, based on compensation with private properties of a larger area, but with ecosystems much more altered than the protected ones. Ecosystem accounting, and the Habitat/Hectare method (section 1.1.3 of the OET Study), would endorse this type of compensation.'" Response: We believe that Dr. Lobo oversteps the scope and applications of the methodology used. No one has intended for the Habitat/Hectare method to be used in all situations. We agree with Dr. Lobo's fear that this particular case could be used as an example in the future to affect other protected areas. We even have our own questions about the PAACUME project. But as scientists, we must try to be objective in our judgments. A methodology was selected that we consider can be used to estimate the area to be compensated if the reservoir is built and ends up affecting 113 hectares on the southeastern boundary of the Lomas de Barbudal Reserve. We estimated the area and suggested that it be complemented with two more properties as well as the management of the reservoir. If this recommendation is followed, the reserve would benefit environmentally. We cannot base our judgment on hypothetical future situations in other areas of the country.

· "'1.1.2 Accounting for ecosystem services. One aspect of the environmental accounting in the OET study that generates doubts is the accounting for ecosystem services and the comparison of both areas in relation to these services. The accounting for ecosystem services was carried out by selecting those services that: "(1) are products or benefits clearly distinguishable and quantifiable on metric scales; (2) have no direct relationship with each other, to avoid redundancy of criteria; …" (page 99), among other criteria. This criterion leaves out highly important services that natural ecosystems provide to human and wild environments, but that are difficult to quantify, and that are related to each other, because at the end of the day forest cover, soil quality, and biodiversity are elements common to all ecosystem services. There will always be "redundancy of criteria". Due to these selection criteria, ecosystem services as important as pollination, soil protection, aquifer protection, pest control, and others did not enter into the comparative accounting of Lomas de Barbudal with ASETREK. I must emphasize that the pollination services of the floodable area of Lomas de Barbudal must be substantial, given the great diversity of bees that largely motivated its creation in 1986.'" Response: Indeed, the baseline study leaves out the quantification of many ecosystem services, as well as a great many taxonomic groups. To carry out environmental studies, the number of objects of study must be limited; otherwise, the exercise would be interminable and would not fulfill one of the basic requirements of a study on which to base management decisions: that of being completed within a reasonable timeframe. The indicated services were selected following a series of criteria mentioned on page 99 of our report. Dr. Lobo mentions that a relevant ecosystem service is that of pollinators. It is not clear whether it was an omission on his part or if he makes this observation with other intentions, but he seems to forget that one of the groups specifically addressed in this study is precisely that of pollinators, all identified by Dr. Paul Hanson of the School of Biology of the University of Costa Rica. Having clarified this point, the judgment issued lacks basis.

• "'1.1.3 Limitations of the field sampling. For a study that aims to evaluate the ecosystem and biological diversity of two somewhat extensive areas (on the scale of hundreds of hectares), 10 months of work seem insufficient to make a true assessment of the biological diversity of a site, despite the effort being very intensive. In some cases, such as the vegetation sampling, despite being based on a good number of plots, the species accumulation curve (page 125) shows that more sampling is still needed to stabilize the species diversity counts. Here I can express my doubts about the plant species tables presented in this chapter, where apparently all samples were identified to the species level, which in my opinion requires extensive work in the national herbaria.'" • "'Regarding the sampling of bird species, the number of counts conducted is not stated, although it is acknowledged that "Due to the short duration of this study, it was not possible to complete the information with sampling during the arrival season for migratory species from the northern hemisphere, which happens in the region during the months of August-May" (page 145). It must be pointed out that long-term studies of bird populations, conducted by Dr. Gary Stiles in Costa Rica and Colombia, show very strong annual and supra-annual temporal changes, causing new species to continue appearing during inventories lasting many years, while others disappear.'" Response: The observation is correct that in this, as in all short-term studies, the maximum point of the species saturation curve for fauna is not reached; therefore, the diversity estimates for each taxonomic group are restricted to the methodology and period used. However, this does not prevent comparisons between sites from being made. Dr. Lobo's suggestion in that sense, to require much longer sampling with more groups, would not necessarily alter the conclusions. We indicate here that this type of argument would prevent an approach using these groups in short- or medium-term environmental projects.

• "'A similar criticism could be applied to the sampling of entomofauna (insects), as these were limited to placing two permanent Malaise traps (traps made with curtains and jars) at each site, from which insects were collected over a year. Limiting this sampling to this technique is insufficient; many insects of great ecosystem importance are not efficiently collected with this method, such as much of the soil entomofauna, bees, ants, etc. An example is the limited number of captured individuals from the family Apidae (bees) (table 56, page 195). This table shows that within Lomas de Barbudal, not a single individual of this family was collected, and only 11 bees in ASETREK. This result is completely wrong. Detailed studies in the region show that on a single tree, during its flowering, 30-70 species of bees and thousands of individuals can be collected.'" Response: Exactly. Ours is an environmental study. It does not have the level of detail or intensity of research studies. The work on bees by Dr. Gordon Frankie, for example, has been carried out since the early eighties. We cannot compare short studies with the level of detail that a series of studies over more than 30 years can provide.

Nor can we expect to have long-term studies on which to base management decisions. • “1.1.4 Limitations of the scoring system. The subdivision (fraccionamiento) of ecosystems into habitats and individual elements, and the somewhat arbitrary distribution of points to each element and level of similarity between the affected area and the compensation area, causes us to lose, from my point of view, the overall perspective of each site, creating an accounting that lets important differences between Lomas de Barbudal and ASETREK slip away. An example of this problem is the difference in slopes between both sites. On page 52 of the report, it is acknowledged that the area within Lomas de Barbudal is between 10-80 meters above sea level in altitude, with slopes of less than 5%, while ASETREK shows elevations greater than 85 meters above sea level, including a plateau with an average elevation of 140 meters above sea level (page 53). The average slope of ASETREK is not reported. This difference is again highlighted on page 214 of the report, where the possibility of including another farm (Brindis de Amor) as part of the compensation is discussed, since ‘in contrast to ASETREK, the Brindis de Amor property has a slight slope.’ Slope differences are very important and should affect the final score according to the philosophy adopted by the consultants. However, on page 58, the consultants assign 4 points (out of a maximum of 5) to the geophysical attributes of ASETREK. The large difference in slope and altitude only meant one point less in the study’s accounting.” R/ As we noted in considerando #7, the weights of the indicators can alter the final rating, and this is one of the limitations of the methodology used. Dr. Lobo's concern is genuine, in the sense that the scoring system could obscure differences between environments. It is precisely for this reason that our study includes actions such as: (1) separating the analyses between the different cover types; (2) including biodiversity analyses in addition to habitat structure; (3) recommending other areas for compensation. To a large extent, obsessing over the methodology used causes the perspective of what is intended here to be lost: (1) To know if the environment of one area can be compensated with that of another; and (2) to determine how much of the area should be used in compensation. • “Another example of how the study's accounting let important elements slip away was the quantification of the importance of water sources. On page 105 of the study, in the ‘Water Sources’ section, it is stated that two water sources were identified at the study sites: Quebrada Viscoyol and an unnamed stream. Later, on the same page, they conclude: ‘From our field observations, it is concluded that, in terms of water sources, accessibility to them, and production, both sites are similar. Therefore, following the criteria indicated in table 16, ASETREK receives a score of 3 points for this indicator.’ However, on page 183 of the report, those responsible for the ichthyofauna analysis acknowledge, when trying to explain the lower number of fish species in ASETREK: ‘This notable difference in composition possibly reflects the differences in elevation and in the qualities of the aquatic microenvironments between the compared sites: the RBLB site has a greater number and deeper pools and backwaters, while in the stream system at the compensation site in ASETREK, the water flows shallower. This kind of observation is repeated at the end of the study (page 214), where it states ‘The compensation site in ASETREK does not have permanent streams…’. Although these differences were not quantified, it is clear that surface water prevails for a longer time in RBLB, an effect especially notable during the dry season months.’ The presence of a water source with greater permanence in the dry season is an extremely important element in the ecology of the dry forest, and should have affected the score to a greater proportion. However, outside of the ichthyofauna differences, the effect of this variable was indirect and was not directly accounted for.” R/ Let us remember that the Quebrada Viscoyol is the boundary between the ASETREK property and Lomas de Barbudal. The stream is not permanent, but rather temporary or intermittent depending on the year. Dr. Lobo rightly observes that there is a discrepancy between our quantification of surface water and the ichthyofauna results. However, let us remember that in our methodology, the weights of the indicators are established before carrying out the study. When we quantified water, we did not find major differences between sites. The assigned score is similar. In the case of ichthyofauna, we did observe differences. Here the assigned score differs, ‘penalizing’ the site with lower diversity. While it is true that, in our judgment, these differences must be due to the water bodies, re-scoring the scores for water bodies would not be appropriate. • “One more example of this problem: in chapter 4.2. ‘Other compensation alternatives,’ it is acknowledged that ASETREK has been subject to recurrent logging and fires, an observation that had not appeared and had not been quantified in the rest of the study.” R/ This assertion by Dr. Lobo is incorrect and denotes a certain intent. Both Lomas de Barbudal, at the study site, and ASETREK have been subject to recent fires, as indicated on pages 67, 81, 97 of our report. Figure 23B on page 98 of our report shows a burned trunk at the potential flood site in the reserve. Both environments are highly degraded by fire and by hunting, as the report also indicates. • “Finally, variables related to the landscape importance of Lomas de Barbudal were not considered, such as which ecosystems are protected and how much of these ecosystems remain in the province of Guanacaste. It would be possible to conclude that Lomas de Barbudal protects ‘ecosystems in extinction,’ based on the following statement from the study, in its conclusions: ‘The reserve is located within the Tempisque River Watershed and protects the remnants of natural environments that have practically disappeared from their surroundings, such as riparian forests and mature lowland dry forest.’ This categorization does not appear anywhere in the study. It would have been interesting to know how many ‘mature lowland dry forests’ and ‘riparian forests’ remain in the province of Guanacaste, to assess the site in its landscape context.” R/ Indeed, the RBLB fulfills an extremely important function in the protection of environments. It would be interesting to be able to quantify the types of forest cover (cobertura boscosa) remaining in Guanacaste, but that is not the objective of the study. • “1.1.5 The initial theoretical framework is abandoned to make final adjustments in the study's conclusions. Ultimately, the authors warn that the ASETREK farm proves insufficient to compensate for habitat losses in Lomas de Barbudal, a fact that could have been corroborated with more comprehensive analyses and not necessarily with tables. The authors do not seem satisfied with the Habitat/Hectare equation, despite it being the theoretical framework of the study. From this calculation originates the recommendation to buy 252 hectares (later the figure of 330 hectares is mentioned, page 208) of the ASETREK farm so that the final scores are leveled. However, the authors recognize that ASETREK does not have riparian forests, and therefore propose, without detailed studies, an additional compensation area that does contain this habitat. The doubt remains as to how the recommendation of 252 or 330 hectares of ASETREK is justified, given that an additional property is now being considered whose score was not calculated, much less subtracted from the balance of hectares originally proposed.” R/ Indeed, the habitat/hectare method applied concludes a compensation of approximately 330 hectares. The study could have ended there with the approved methodology. However, for the sake of maximizing the gain, we proposed incorporating Brindis de Amor for the reasons set forth above. This does not mean that we doubt the selected methodology, but rather that we are aware of its limitations. Let us remember that, if compensation is necessary, we must maximize the environmental gain. • “It should be highlighted that, despite these doubts, the authors maintain a categorical conclusion on the viability of the compensation ‘7. Despite the differences in environmental quality, it is possible to compensate for the losses at the potential flood site in RBLB through the incorporation of habitats evaluated in ASETREK (and other sites, as noted below).’ There is no justification for this conclusion, especially if the authors' own assessments cast doubt on the equivalence of areas.” R/ That interpretation of our conclusions is wrong. Both the flood site in the reserve and the site in ASETREK consist of degraded environments, dominated by an early-successional deciduous forest cover (cobertura boscosa) as indicated in Table 12 of our report (page 66). We used the Habitat/Hectare methodology, trying to maximize the contrast between sites. It results in a compensation of approximately 330 hectares. That is real and would be fair given the methodology followed. However, the principle of maximizing environmental gains leads us to resort to other criteria to select areas that could be added to that compensation proposal. Brindis de Amor and Ciruelas have characteristics that make them valuable from a conservation standpoint. Their incorporation into the compensation plan is recommended. We should not expect our Habitat/Hectare methodology to resolve that. The criteria are different, but equally valid. The fundamental problem of the detractors of our study is that they are obsessed with the methodology followed and lose perspective on what is being suggested. To the question, can the environment in RBLB that would be flooded by the reservoir be compensated? The answer is yes. But better compensation would come from adding other areas. • “At the end of the study, the possibility is presented of adding the ‘Brindis de Amor’ property, with a total extension of 86 hectares, for having 15.8 hectares of riparian forest, in the northern sector of the Lomas de Barbudal Reserve. This area would be added to the 252 hectares of ASETREK, as an additional area that would compensate for the loss of the riparian forest of Lomas de Barbudal due to flooding. This would add a strip of forest, like an isolated peninsula, in the north of the Reserve (Fig 51 of the study). The authors acknowledge that the analysis of this additional fragment was superficial (page 213), and the extensive physical and biological inventories practiced in ASETREK were not carried out. It can be observed that ‘Brindis de Amor’ would remain as an island isolated from the rest of the Reserve, creating a more elongated and narrow geometry of the northern sector of Barbudal, something not advisable due to the significant edge effect this section of the reserve would have.” R/ In fact, not creating that peninsula is what led us, together with SINAC, to request the incorporation of that area of the Hacienda Ciruelas. In our report, however, we recognize the efforts that have been made on this latter property to maintain the forest fragments, so that if it cannot be incorporated directly, an arrangement could be considered to continue maintaining the forest. • “1.1.6 The Río Piedras Reservoir as part of the compensation. At the end of the study, a new idea is added: the consideration of the Río Piedras Reservoir as part of the compensation for the flooded area of Lomas de Barbudal, since it could be declared a wetland under the category of Wildlife Refuge, constituting a new protected area that could be counted as part of the compensation. NO FURTHER DETAILS ARE GIVEN ON THE CHARACTERISTICS OF THE RESERVOIR AND ITS EFFECTS ON THE ENVIRONMENT. It would be an exchange between two totally different ecosystems (a forest ecosystem for a wetland). It is an underdeveloped idea in the study. Furthermore, this proposal ignores the environmental impacts of the reservoir, including those on the Río Piedras itself (see section 2. Environmental Impacts not addressed by the EIA).” R/ No. It is not intended to substitute an area with terrestrial environments with an area with aquatic environments. What is clearly suggested in our text is that, just as we have ASETREK+Brindis+Ciruelas, one could consider adding the reservoir as part of the compensation. • “1.1.7 Biological compensation or transfer of land to the state? From the information provided by the OET compensation study, it is observed that the area of the ASETREK, Brindis de Amor, and Ciruelas farms is mostly covered by different types of forest ecosystems (mature, secondary, or deciduous forests). These are areas of existing forests, representing remnants or regeneration of forests after the intense historical period of deforestation in the province of Guanacaste, during the years between the decades of 1950 to 1990, a process that has changed towards secondary regeneration in the last 10-20 years (see for example: Calvo-Alvarado et. al. 2009. 'Deforestation and forest restoration in Guanacaste, Costa Rica: Putting conservation policies in context.' Forest Ecology and Management, 258, 931-940). The owners of the ASETREK farm have expressed interest in selling their properties to the state, or in maintaining them under forest cover for tourism exploitation or protection (case of the Brindis de Amor property). It seems very likely that under a program of protection incentives (Pago de Servicios Ambientales, PSA, ecotourism projects) and under current forest legislation, those forests are not subject to imminent or immediate processes of land-use change (cambio de uso del suelo).” R/ As Dr. Lobo puts forward, one could suppose that the payment of environmental services (Pago de Servicios Ambientales) could be a stimulus to maintain the existing cover types on those properties. However, this is an assumption. PSAs are ephemeral, and it cannot be guaranteed over time that this resource will always be available. On the other hand, we ourselves evidenced the impact that the owner of ASETREK made on its forest cover once its PSA period ended (page 98, Figure 23A of our report), which shows that this strategy is not entirely effective. • “On the other hand, if the forest cover in the sector of the Río Piedras basin that will be affected by the PAACUME project is visualized, before and after the execution of the project, it could be accounted for that a drastic net reduction in forest cover will occur (loss of 450 hectares of forest cover, transformed into a body of water), without any foreseeable increase in forest cover in the coming years. Although 459 hectares of forests within private farms would pass into the hands of the state through the compensation program, this does not alter the panorama of net loss of forest cover. A real biological compensation is not occurring, only a transfer of land between different owners. This transfer would be acceptable as compensation if the private lands were under the threat of loss of cover, a situation that does not seem likely. In the end, the final situation for the species within the future reservoir is a drastic loss of habitat, with no possibilities for their present and future populations to occupy new areas of a dimension similar to those lost due to the reservoir flooding.” R/ Here we agree with Dr. Lobo. The impact on environments outside the RBLB must be evaluated and compensated. Totally agree with this point. But note that this must be part of the environmental impact assessment (evaluación de impacto ambiental, EIA), as it deals with the environments outside the reserve. • “It would seem more logical that a compensation program serve to add NEW forest areas to the RBLB, or to private farms, that would establish a balance between habitat loss and habitat gain. Compensating forest areas within a protected area with other forest areas outside the protected area does not seem like a trade that results in true ecological compensation for wild species, only a territorial compensation to a protected area, a laudable but insufficient objective.” R/ Agreed that the recompense for the losses that the project as a whole would cause must include compensating the losses in the Lomas de Barbudal Biological Reserve plus the losses outside of it. This must exist in the project's compensation plan. · “1.1.8 General conclusions on the OET study. The report provided by the OET is insufficient to define the boundary change of Lomas de Barbudal, and does not demonstrate that this change will be fully compensated by additional areas in other sectors of the Reserve. The ASETREK farm, studied in more detail by the consultants, is ultimately recognized as insufficient to justify the land swap, and other nearby farms are precipitously resorted to in order to balance the compensation, in my opinion a less than serious exercise because it is not properly founded. Furthermore, the lack of knowledge of the environmental impacts of the Río Piedras Reservoir on the Biological Reserve and on all the wetland ecosystems of the Bajo Tempisque must be known before accepting the flooding of a sector of the Lomas de Barbudal Reserve and, in general, of the ecosystems affected by the future PAACUME reservoir.” (See Anexos 5 A and 5 B of this acción de inconstitucionalidad).” R/ The reasoning for the annexation of the other properties has already been explained. And the insistence remains on mixing the compensation study with the environmental impact assessment. Perhaps what is less than serious is issuing judgments from a desk, without knowing the sites that make up this debate. We invite Dr. Lobo to visit the southern part of the Lomas de Barbudal Biological Reserve to see the real state of the environment there. “As could be observed from what was set forth in this section, the OET Study of June 2017 fails to demonstrate, through a scientific and individualized analysis, the degree of impact of the detaching of 113 hectares from the RBLB.” R/ As mentioned earlier and explained on repeated occasions, the Baseline Study is confused with the Environmental Impact Assessment. FINAL SUMMARY AND CONCLUSIONS. The OET study attempts to determine the losses at the Río Piedras reservoir flood site in the southeastern portion of the Lomas de Barbudal Biological Reserve and the potential environmental value of a property with similar cover types located adjacent to the site. The criticisms and observations of the study carried out by the OET are based mainly on objections to the method used to quantify the compensation area and a poor understanding of why other areas were annexed to remedy the damage. The detractors of the study clearly have a predetermined and prior position, and will find objections following that or any other methodology. This judgment is endorsed by the fact that there is no proposal whatsoever on how to carry out the compensation, what methodology to follow, or even what possible alternatives can be proposed to the project, from the staff of the School of Biology who so vehemently criticize our procedures. In the procedure followed in our report, which includes the application of the habitat/hectare method as well as weighing criteria of the importance of annexed properties to achieve a compensation plan that we consider satisfactory, the differences between the impact site in the reserve and the potential compensation sites are maximized. However, it is enough to see the cover types and the information coming from our fauna and flora analyses to realize that the bulk of the environment at these sites is relatively similar, which justifies their use to calculate the area to be compensated. If the reservoir project is carried out, our work will have provided information not only on the losses in the reserve but could also be used as a starting point for compensation upon them. The numbers we present in our report should not be interpreted as an absolute, but rather as the minimum that should be required to compensate for the losses due to the impact of flooding in this protected area. The discussion of whether the PAACUME project and its consequent reservoir on the Río Piedras is advisable for Guanacaste must be carried out in all its dimensions, and not be based on the possibility of substituting the boundaries of the biological reserve or the mechanism used to do so. Similarly, whether or not the boundaries of protected wild areas should be modified is an analysis and discussion that must take place independently of the methodological proposals of how to carry them out. Finally, our study presents scientific and objective work, which not only validates a compensation zone area but also provides a series of recommendations to be taken into account by decision-makers.” 27.- By brief incorporated into the digital case file at 10:12 a.m. on June 9, 2020, Mahmood Sasa Marín appears. He indicates that the requested email is [email protected].

28.- By brief incorporated into the digital case file at 6:40 a.m. on June 11, 2020, Mahmood Sasa Marín appears. He indicates that he has not received information to connect to the oral hearing.

29.- On June 11, 2020, the scheduled hearing was held.

30.- By brief received in the Secretariat of the Chamber at 3:55 p.m. on June 15, 2020, Patricia Quirós Quirós appears, in her capacity as general manager of the Servicio Nacional de Aguas Subterráneas. She indicates that, having concluded the hearing, she must make the following clarifications: “I. THE SITE KNOWN AS CRUCE RIO PIEDRAS IS THE ONLY PLACE WHERE THE RESERVOIR CAN TECHNICALLY BE BUILT. Since the 1970s, technical studies have been carried out with the idea of taking advantage of the level difference that was generated between the arrival and the exit of the Canal Oeste to the Río Piedras to build a reservoir; it has been under analysis for approximately forty years, being included as such in the Master Plan for the Irrigation Project of the Lower Tempisque River Basin in nineteen seventy-eight. In 1984, SENARA expanded the studies of the Río Piedras Reservoir, through the BEL-TAHAL Consortium, a study that reinforced the intention to use the reservoir for storage and regulation of waters coming from the Arenal Lagoon. Subsequently, a series of studies have been carried out on the availability of water resources in the Tempisque River Basin and the coastal zone of Guanacaste, such as: 1) 2002 Rural Development Study of the Tempisque River Basin, prepared by the Japan International Cooperation Agency (JICA); 2) 2008 Agreement between SENARA and the Instituto Costarricense de Acueductos y Alcantarillados, to prepare a pre-feasibility study called ‘Increase in the availability of water resources in the Tempisque River Basin and coastal zone of Guanacaste,’ 3) 2010 Feasibility Study and preliminary design for the construction of the Río Piedras Reservoir dam. In 2014, Decreto Ejecutivo N° 38665-MP-MIDEPLA-MINAE-MAG of November 12, 2014, was issued, through which a commission was created to lead the Water Project for Guanacaste (Northern Pacific) called PIAAG, which contained four fundamental axes: Water security for communities, Food security, Water needs for ecosystems, Sustainable use management. Within the framework of said project, SENARA proposed the creation of the PAACUME project, to drive the pre-investment process and subsequent execution of the project. Within the framework of the study carried out by the ICAA in 2006, where the objective was to identify and analyze alternatives that would allow supplying potable and irrigation water to communities, tourism projects, and agricultural zones located in the Tempisque River Basin and northern coastal zones of the Nicoya Peninsula, the following possible proposals were obtained: 1) Orosi Diversion, but it presented problems of values less than 100 l/s during most of the year and in the dry season the runoff of the rivers in that sector is less than 1 m3/s., 2) Dos Ríos Diversion. In this case, there were problems of contamination with toxic minerals limiting the use of the waters for human consumption and agriculture, 3) Santa María Diversion. The maximum contribution of the Jalapiedras River would be 1 m3/s, representing a high economic and environmental cost, having to pass through a park area with unstable soils and steep slopes, entailing a high maintenance cost of the works, 4) La Cueva Dam. This dam presents implementation problems as it requires flooding an important environmental protection area, relocating the town of Irigaray and a stretch of the inter-American highway, and environmental character problems in its operation, 5) PAACUME. In this case, waters coming from the Arenal Reservoir and surplus from the DRAT (Arenal Tempisque Irrigation District) will be taken, to carry them to the reservoir on the Río Piedras, subsequently conducting them along the right bank of the Tempisque River and distributing them in areas zoned for agriculture (18,639 hectares), irrigation in green zones for tourism projects from the Gulf of Papagayo to Pinilla, and aqueducts in the cantons of Carrillo, Santa Cruz, and Nicoya, providing potable water for about 500,000 people for the next 50 years, it will improve the socioeconomic development of the province of Guanacaste, making PAACUME the best solution option for the supply of water for various uses in a sustainable manner. (See pages 14 to 27 of the Feasibility Study) On the other hand, according to the technical studies carried out by the ICE under the inter-administrative contract signed between SENANA-ICE-MINAE 201600011 and its addenda, the Río Piedras has the ideal conditions for the construction of a large-capacity reservoir, given the topographic conditions of the area, the elevation of the first section of the Canal Oeste, and the lands that will be irrigated in the second section of the canal. (See pages 141 and following of the Feasibility Study) II. THE STUDY OF THE FARMS KNOWN AS HACIENDA CIRUELAS AND BRINDIS DE AMOR HAD THE SPECIFIC PURPOSE OF STUDYING THE FOREST THEME TO COMPENSATE FOR THE AREA OF RIPARIAN FOREST. The need to flood 113 hectares of the RBLB entailed carrying out a Biodiversity Baseline study for the Lomas de Barbudal Biological Reserve. This study was carried out by the Organization for Tropical Studies OET, to determine the ecological integrity, relevance, and fragility of the present ecosystems, as well as existing biodiversity in the RBLB area due to the impact of the Río Piedras reservoir, while also carrying out studies on the adjacent farm ASETREK TRES AZUL S.A., a farm selected for its connectivity with the reserve. Even though the proposed area of ASETREK of 444.04 hectares was to compensate for the 113 hectares to be flooded in the RBLB, it was determined in the OET study that it was necessary to resolve a deficiency in the riparian forest compensation area. Thus, together with officials from the OET and SINAC, a second potential farm to compensate located on the northwest boundary of the reserve was identified, registered under 3-101-734726 S.A. (Brindis de Amor), a farm on which it was diagnosed that it has 15.87 hectares of riparian forest. The compensation proposal (ASETREK, and 3-101-734726 S.A.) was referred to MINAE so that the procedure of the Reglamento to the Ley de Biodiversidad articles 71 and 72 could be processed; however, the CORAC considered that the riparian forest proposal was smaller, so they proposed to cover the difference with the Hacienda Ciruelas farm, thus the compensation proposal for the RBLB would consist of 444.04 hectares of ASETREK TRES AZUL S.A., 80.20 hectares of farm 3-101-734726 S.A., and 25 hectares of Hacienda Ciruelas SP S.A. (see pages 293 to 300 of the Feasibility Study) III. THE ENVIRONMENTAL IMPACT ON THE LOMAS DE BARBUDAL BIOLOGICAL RESERVE DUE TO THE CHANGE OF USE OF THE 113 HECTARES THAT WOULD BE FLOODED IS CONTEMPLATED IN THE ENVIRONMENTAL IMPACT ASSESSMENT OF THE PAACUME PROJECT THAT IS BEING ANALYZED BY SETENA. Between 2016 and 2017, work was done on the Environmental Impact Assessment, developed by ICE, under the inter-institutional contract SENANA-ICE-MINAE 201600011 and its addenda. The Environmental Impact Assessment was presented to the Secretaría Técnica Ambiental on December 7, 2017, case file number D1-21601-2017-SETENA. The study contains, among other things, the definition of the area of influence, project impacts, methodology for the identification and assessment of impacts, corrective or mitigation actions, management plan, environmental commitments. The environmental impact assessment is under study before SETENA, and on February 25, 2020, the ANEXO UNICO to the study was presented, complying with the SETENA requirements contained in resolution 1338-2019 SETENA. IV. THE LEGISLATIVE AUTHORIZATION FOR THE DETACHMENT OF THE LAND USE OF THE 113 HECTARES OF THE LOMAS DE BARBUDAL BIOLOGICAL RESERVE WAS A PREREQUISITE FOR THE APPROVAL OF THE ENVIRONMENTAL IMPACT ASSESSMENT OF THE PAACUME PROJECT.

The Environmental Impact Assessment (Estudio de Impacto Ambiental, EsIA) for the Paacume Project, submitted for approval by SETENA, includes within the project components the flooding of 113 hectares that form part of the Lomas de Barbudal Biological Reserve (Reserva Biológica Lomas de Barbudal). Consequently, for SETENA to approve this study, legislative authorization was necessary to remove these 113 hectares from the protection regime as a biological reserve and change their use to that of a reservoir (embalse). This reservoir, as provided in Law No. 9610 (Ley No. 9610), would become a reservoir, and SINAC would define its environmental protection; in any case, it would be under the administration and guardianship of SINAC regarding environmental matters. For this reason, Law No. 9610, which authorizes the removal of protection (desafectación), has as an indispensable prerequisite for its execution the approval of the EsIA, a necessary component for the comprehensive execution of the PAACUME Project, since the project could not be executed without the approval of the Environmental Impact Assessment, which contemplates as an indispensable requirement the legislative authorization for the land-use change (cambio de uso del suelo) of the aforementioned 113 hectares.

V.OFFER OF EVIDENCE FOR BETTER DECISION. As requested at the Hearing held on June 11, 2020, and for the corresponding purposes, the following are submitted at this time as evidence: the Feasibility Study (Estudio de Factibilidad) prepared by SENARA in October 2017, the Environmental Impact Assessment of October 2017, and the SINGLE ANNEX (sic) of February 2020."

31.- By resolution at 2:50 p.m. on June 17, 2020, the President of the Legislative Assembly was requested to provide a certified copy of legislative file No. 20.465 (expediente legislativo n.o 20.465), which gave rise to Law No. 20.465 (ley n.o 20.465).

32.- By a document received in the Secretariat of the Chamber at 2:11 p.m. on June 23, 2020, Eduardo Newton Cruickshank Smith appears in his capacity as President of the Legislative Assembly. He sends a certified copy of legislative file No. 20.465, which gave rise to Law No. 20.465.

33.- By a document incorporated into the digital file at 12:51 p.m. on July 2, 2020, the plaintiffs appear. They indicate that, after analyzing the evidence provided by the OET, the Legislative Assembly, and SENARA, as well as the participation of those who attended the oral hearing, they formulate the following observations:

"I- OBSERVATIONS ON THE TECHNICAL STUDY TO REMOVE PROTECTION FROM THE RBLB The jurisprudence of the Constitutional Chamber has extensively developed the principle of lifetime tenure (irreductibilidad) of protected wild areas, according to which these types of protected spaces cannot be reduced or modified unless the requirements established for this purpose are met. The foregoing is clearly related to the principles of non-regression in environmental matters, objectification of environmental protection, prevention, and precaution. One of the essential requirements is the following: That prior to the approval of the law, there must be sufficient technical studies justifying the measure. In its jurisprudence, the Constitutional Chamber has established that these technical studies must at least: 1- conduct a scientific and individualized analysis of the degree of environmental impact of the intended removal of protection from a protected wild area; 2- conduct a study of the lands adjacent to the protected area to be removed from protection to determine which land has the best conditions to compensate for the hectares to be removed from protection; 3- propose recommendations aimed at mitigating the negative impact on the environment; 4- demonstrate how the removal of protection from the hectares represents a development that meets the needs of the present without endangering the ability of future generations to meet their own needs; and 5- fulfill the requirement that the suppressed area be compensated with another of equal size and characteristics.

The questions we must answer, then, are the following: Is there sufficient technical studies justifying the measure to remove 113 hectares from the RBLB from protection, with the consequent impact on the Palo Verde Wetland, which has international protection under the RAMSAR Convention? Does the Study prepared by the OET, whose terms of reference were set by SENARA, an entity dedicated to Groundwater, Irrigation, and Drainage, comply with the criteria established by the Constitutional Chamber? Does this Study demonstrate, through a scientific and individualized analysis, the degree of environmental impact of removing these 113 hectares of the RBLB from protection? Does it propose recommendations aimed at mitigating the negative impact on the environment? Does it demonstrate how the removal of 113 hectares from protection represents a development that meets the needs of the present without endangering the ability of future generations to meet their own needs? Does it fulfill the requirement that the suppressed area of the RBLB be compensated with another of equal size and characteristics?

• CHARACTERISTICS OF THE OET STUDY The study contained in the legislative file, called "Establishment of the Biodiversity Baseline for the Lomas de Barbudal Biological Reserve and Adjacent Farm (Establecimiento de la Línea base de Biodiversidad para la Reserva Biológica Lomas de Barbudal y Finca Adyacente)", which was conducted by the Organization for Tropical Studies (OET), ACCORDING TO THE TERMS OF REFERENCE DEFINED BY SENARA (National Service for Groundwater, Irrigation, and Drainage - Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento) had the objective of determining the biological and geophysical characteristics of the area of the RBLB that would be replaced by the reservoir area and evaluating the biodiversity components on ONE ADJACENT FARM belonging to the corporation ASETREK Tres Azul S.A., chosen by SENARA without any technical criteria, in order to assess its potential to compensate for the affected area of the RBLB.

The study was not for searching the properties adjacent to the RBLB for an area to compensate that had environmental characteristics as similar as possible to the area to be flooded. That is, said study was intended to determine the possibility of compensating the area of the RBLB to be removed from protection with a particular farm, which is the one on which the studies were conducted. It should be noted that the studies were conducted on an area of 114 hectares of that farm, which measures more than 700 hectares. SENARA was the one that determined that the study should be done on that part of the ASETREK farm.

The OET study did NOT conduct a scientific and individualized analysis of the degree of environmental impact of removing the 113 hectares from that Biological Reserve from protection.

The OET study did NOT conduct a study of the lands adjacent to the RBLB to determine which land had the best conditions to compensate for the 113 hectares to be removed from protection from the Biological Reserve. SENARA should have conducted a technical study to identify which properties would be most similar in biological characteristics to the 113 hectares to be removed from the RBLB from protection. In our unconstitutionality action, we provided information on several of those properties. Even SENARA acknowledges this by providing official letter SINAC-CORACAT- SE-041 in its response brief, where it can be observed on page 47 of SENARA's brief, the recording of the statements of Mr. Wilfrán Murillo, who indicated that "the opportunity could be taken for the redefinition of Lomas' boundaries, with respect to another land that is not ASETREK, nor Brindis de Amor. It would be the opportunity to add those lands that INDER has transferred to SINAC." This issue is relevant, since as we indicated in our unconstitutionality action, compensating the area to be flooded by changing the category of lands of public entities adjacent to the RBLB, incorporating them within the limits of the Biological Reserve, could have been considered. It is very likely that those lands would have a better ecological condition than the private lands that have been insisted upon for incorporation into the RBLB, without having to disburse money for the expropriations intended.

The OET study does NOT propose recommendations aimed at mitigating the negative impact on the environment.

The OET study does NOT demonstrate how the removal of the 113 hectares from protection represents a development that meets the needs of the present without endangering the ability of future generations to meet their own needs.

That OET study finally determined that to compensate for the area of 113 hectares removed from the RBLB from protection, 332 hectares of the ASETREK farm should be included within the Biological Reserve, without conducting the study on that area, as the study was concentrated on 114 hectares. The OET study also mentions that, as compensation, the 86 hectares of the Brindis de Amor farm should also be incorporated, without conducting the corresponding study on the characteristics of that farm, and additionally, using the Río Piedras reservoir as part of the compensation, likewise, without any study. A portion of the Hacienda Ciruelas SP farm is also incorporated as compensation into the area of the RBLB, on which NO study was conducted.

The OET study recommended incorporating 332 hectares, and SENARA decided, without technical criteria, to incorporate 444 hectares from ASETREK. Additionally, the representative of SENARA acknowledged both in the hearing and in documentation provided to the file that the incorporation of the Brindis de Amor and Hacienda Ciruelas farms into the compensation proposal was done at the recommendation of Mr. Manrique Montes Obando, Administrator of Lomas de Barbudal, that is, without technical criteria.

That Study also does not fulfill the requirement that the suppressed area of the RBLB be compensated with another of equal size and characteristics.

• "A PARTY'S CONFESSION RELIEVES OF EVIDENCE": OPINION OF MAHMOOD SASA MARÍN, general coordinator of the Study prepared by the OET, through a document presented as evidence for a better decision, as well as his participation in the hearing The representative of the OET indicated the following at the beginning of his response to the Constitutional Chamber: "In Costa Rica, the issue of environmental compensation has not been sufficiently discussed, and there are no clear guidelines on when and how it should be carried out, what methodologies to employ, or how it should be evaluated. While it is true that we have some laws and regulations that tangentially touch upon the issue of compensation and refer to compensation measures, the references to environmental remediation in our legislation are very general, and the legal framework lacks the level of specificity regarding compensation. We state this in our report (p. 32-37). As a consequence of this situation, there is no substantial experience in environmental compensation, especially in that which involves protected wild areas. In that sense, our study should be considered a pioneering work on this subject." (underlining is not in the original) Note that the representative indicates that the OET study is a study conducted for the FIRST TIME in the country, and that it is solely about ENVIRONMENTAL COMPENSATION.

He continues, saying in his response to this Constitutional Court, the following: "The study carried out by our team from the Organization for Tropical Studies, the results and recommendations of which are presented in the report 'Establishment of the Biodiversity Baseline for the Lomas de Barbudal Biological Reserve and Adjacent Farm (Establecimiento de la línea base de biodiversidad para la Reserva Biológica Lomas de Barbudal y finca adyacente)', aimed to determine the biological and geophysical characteristics of an area within the protected zone of the Lomas de Barbudal Biological Reserve (RBLB) that would potentially be flooded if the reservoir is established on the Río Piedras as part of SENARA's PAACUME irrigation project. In addition to this characterization, it was requested to evaluate the compensation potential of an adjacent property if this impact were to occur, referred to in the report as ASETREK. To conduct this evaluation, our group opted for a methodology based on a scoring approach, called Habitat/Hectare. However, criteria other than those derived from this methodology were also used to arrive at a suggested compensation plan. Ours is a baseline and compensation study. The suggestions, observations, or criticisms of said study should be focused on its scope and dimensions. Our study does not contemplate, nor does it intend to, an assessment of the environmental impact of the Río Piedras reservoir project or the PAACUME Project. Nor does it constitute an assessment of the social approval of that project or its impacts. The study objectives followed the guidelines requested by SENARA in its 'terms of reference'" (underlining is not in the original) Regarding the incorporation of the BRINDIS DE AMOR and HACIENDA CIRUELAS properties, the representative of the OET clearly points out that, in the case of the BRINDIS DE AMOR property, there was only a vegetation assessment, which was even very superficial, and the fragment at HACIENDA CIRUELAS was effectively not evaluated. He even indicates that the BRINDIS DE AMOR property was effectively identified after the decision was made to compensate with ASETREK.

In the document that the representative of the OET presents to the Constitutional Chamber as evidence for a better decision, he concentrated on commenting on the observations made by co-adjuvant Lobo regarding the OET study. It is noteworthy that the OET representative even agrees with co-adjuvant Lobo on several of the observations he made, among which we cite the following, which are very relevant to confirming the limited scope of the technical study prepared by the OET. Let us see:

Dr. Lobo stated in his co-adjuvancy the following: "On the other hand, if one visualizes the forest cover (cobertura forestal) in the sector of the Río Piedras basin that will be affected by the PAACUME project, before and after the execution of the project, it could be accounted for that a drastic net reduction of forest cover will occur (loss of 450 has of forest cover, transformed into a body of water), without any foreseeable increase in forest cover in the coming years. Although 459 has of forests within private farms would pass to state hands through the compensation program, this does not alter the panorama of net loss of forest cover. True biological compensation is not occurring, only a transfer of land between different owners. This transfer would be acceptable as compensation if the private lands were under threat of cover loss, a situation that does not seem probable. In the end, the final situation for the species within the future reservoir is a drastic loss of habitat, without possibilities for their populations, present and future, to occupy new areas of a dimension similar to those lost (sic) by the flooding of the reservoir." The representative of the OET stated that he agrees with that observation by Dr. Lobo. In his document presented to this constitutional court, he indicated that effectively the impact on environments outside the RBLB must be evaluated and compensated, emphasizing also that this must be part of the Environmental Impact Assessment, as it concerns environments outside the reserve. In that assertion, the representative of the OET clearly points out what the scope of the study contracted by SENARA with the OET was, and that the environmental impact outside the RBLB should be carried out through another type of study.

In another section of his co-adjuvancy, Dr. Lobo indicates the following: "1.1.8 General conclusions on the OET study. The report provided by the OET is insufficient to define the boundary change of Lomas de Barbudal, and it does not demonstrate that this change will be fully compensated by additional areas in other sectors of the Reserve. The ASETREK farm, studied in more detail by the consultants, is ultimately recognized as insufficient to justify the land swap, and there is a hasty resort to other nearby farms to balance the compensation, in my opinion a not very serious exercise because it is not duly substantiated. Furthermore, the lack of knowledge of the environmental impacts of the Río Piedras reservoir on the Biological Reserve and on all the wetland ecosystems of the Lower Tempisque must be known before accepting the flooding of a sector of the Lomas de Barbudal Reserve and, in general, the ecosystems affected by the future PAACUME reservoir." Faced with this observation from the co-adjuvant, the representative of the OET stated the following: "The reasoning for the annexation of the other properties has already been explained. And there is insistence on mixing the compensation study with the environmental impact study." (underlining is not in the original) Another of Dr. Lobo's observations in his co-adjuvancy is the following: "As could be observed from what was stated in this section, the OET Study of June 2017, fails to demonstrate through a scientific and individualized analysis the degree of impact of removing 113 hectares of the RBLB from protection." Faced with this observation, the representative of the OET again responds by indicating that Dr. Lobo confuses the Baseline Study with the Environmental Impact Assessment. He points out in this way that the study conducted by the OET has a very limited scope, as it is a study solely to compensate the area of the RBLB to be flooded.

On the other hand, it seems important to us to highlight a response given by the representative of the OET to questions from the magistrates during the hearing held, regarding the limitations the study they conducted had related to the timeframe for doing the study. Precisely, this is one of the different questions Dr. Lobo raised in his co-adjuvancy and which the representative of the OET ratified in the hearing. He clearly indicated that the timeframe SENARA set for them to conduct the study was very short to be able to do an in-depth study on all the biodiversity that would be irreparably affected by the flooding.

Based on what is stated in the preceding paragraphs, we say that by a party's confession, we are relieved of evidence. The representative of the OET acknowledged that his work was not a study on the environmental impact of the consequences or the reasons for removing 113 hectares of the RBLB from protection. That his study was to compensate the area to be flooded with other areas. He also indicated that they had limitations regarding the timeframe to conduct the research and that no type of study was done on the HACIENDA CIRUELAS property, and that on the BRINDIS DE AMOR property only a very superficial vegetation study was conducted (the biodiversity of that property related to insects, birds, mammals, fish in the water bodies, etc., was not studied).

• PGR'S OPINION ON THE OET STUDY The Attorney General's Office stated that it cannot technically assess the OET study, nor the way in which the final compensation proposal for the area removed from protection from the RBLB was defined. However, the Attorney General's Office is clear in indicating that if it is determined that the OET study and the final compensation proposal for the protected wild area are technically insufficient, the challenged law would be unconstitutional due to a violation of the principle of objectification of environmental protection.

But the PGR also points out that even if the sufficiency of the OET study and the final compensation proposal were confirmed, it must be warned that this technical study would only justify the validity of the compensation carried out, and, as such, it is not a technical study that directly justifies the decision to remove a part of the RBLB from protection. In other words, one thing is a STUDY TO COMPENSATE AREAS, and another is the STUDY TO JUSTIFY THE DECISION TO REMOVE FROM PROTECTION. The Attorney General's Office is emphatic on this issue, when it points out that ... "in accordance with constitutional jurisprudence on the subject, the study required by Article 38 of the Organic Environmental Law (Ley Orgánica del Ambiente) to justify the reduction of a protected wild area should be a study that determines the necessity and advisability of adopting that type of measure." (underlining and highlighting are not in the original).

The Attorney General's Office points out that if the necessity and advisability of removing 113 hectares of the RBLB from protection is not confirmed, Law 9610 must be declared unconstitutional due to violation of the principles of lifetime tenure of protected wild areas, objectification of environmental protection, and non-regression.

THAT STUDY TO JUSTIFY THE DECISION TO REMOVE FROM PROTECTION, TO DETERMINE THE NECESSITY AND ADVISABILITY OF ADOPTING THAT MEASURE, WAS NOT DONE, AND THEREFORE IS NOT PART OF THE LEGISLATIVE FILE OF THE LAW WE ARE CHALLENGING.

Additionally, the PGR has been very clear in pointing out the following: 'If it is determined that the OET study and the final compensation proposal for the RBLB are technically insufficient, the challenged law would be unconstitutional due to violation of the principles of objectification of environmental protection, precaution, prevention, and lifetime tenure of protected wild areas, as it would not be guaranteed that the approved boundary variation does not affect the integrity of the RBLB and would not adequately mitigate the environmental impact generated by the removal of a part of said Biological Reserve from protection. Also, this would be contrary to the obligation established in Article 3 of the RAMSAR Convention to favor the conservation of wetlands included in the list of wetlands of international importance.' The PGR also points out that it must "... be assessed whether there is sufficient technical basis to justify the need to remove part of the RBLB from protection to be used in the execution of the PAACUME project. If this basis is not confirmed, Law 9610 must be declared unconstitutional due to violation of the principles of lifetime tenure of protected wild areas, objectification of environmental protection, and non-regression, and for not verifying the reason of urgent national interest to which the RAMSAR Convention subjects the possibility of modifying the area of sites of international importance." But we wish to place special emphasis on the observation made by the PGR in case the PAACUME project is not developed, at least, not under the terms currently proposed. If for some reason the project is not developed and the necessary expropriations to effect the proposed compensation are not executed either, Law 9610 would have removed the RBLB's protection in vain, without a valid justification and without having compensated and mitigated the effects generated by that reduction. This would constitute a violation of the principle of lifetime tenure of protected wild areas, precaution, prevention, and non-regression, and, even, a violation of the RAMSAR Convention since there would be no reason of urgent need to justify the reduction of the area of one of the sites of international importance.

• REVIEW OF THE LEGISLATIVE FILE REQUESTED AS EVIDENCE FOR A BETTER DECISION TO DETERMINE WHAT TYPE OF STUDIES WERE PRESENTED AS JUSTIFICATION FOR REMOVING THE 113 HECTARES FROM PROTECTION OF THE RBLB, AS WELL AS THE DEPUTIES' UNWILLINGNESS TO RECEIVE US IN HEARING OR AT LEAST CONSIDER THE OBSERVATIONS WE MADE TO THEM IN WRITING AND WHICH APPEAR IN THE LEGISLATIVE FILE.

From the review of the legislative file of more than 2,600 pages, it can be observed that the only studies contained in this voluminous file are precisely the Study prepared by the OET; a Profile Document for the PAACUME Project prepared by SENARA (visible from page 505); and a document also prepared by SENARA regarding a consultation conducted in June 2017 supposedly in the communities near the reservoir to be built in the Río Piedras area, which would flood 850 hectares, of which 113 hectares are from the RBLB. Note that only 51 people attended the only assembly held to explain this project. In other words, SENARA consulted 51 people about the dam project, the reservoir, and the compensation proposal. (visible from page 622 of the file).

It is powerfully striking that the neighbors of the RBLB were not consulted, among whom we are, as representatives of HACIENDA CIRUELAS and BRINDIS DE AMOR. It is intended to flood 113 hectares of the RBLB with which we adjoin, and they do not consult us. The other neighbors of the RBLB were also not consulted. Moreover, as can be observed in pages 1500 and 1501, the undersigned requested an audience with the Special Legislative Commission of Guanacaste that processed the file of the bill that became the law we are challenging. In that note requesting an audience, we pointed out to the deputies of the Commission that the coordinates registered in the project related to the BRINDIS DE AMOR farm were incomplete, as they were ignoring an easement (servidumbre) of passage through the 87 hectares to provide access to another property located in the center of the geographic area of the BRINDIS DE AMOR property. We also pointed out in the note that no type of study existed on the Hacienda Ciruelas property.

Subsequently, and before the vote in the second debate, we sent another note to all the deputies, the President of the Republic, and the ministers of MINAE, MAG, PRESIDENCIA, and HACIENDA, pointing out to them that the approval of the bill would incur an expense for expropriations that could be around TEN MILLION DOLLARS and that there were other, much less onerous options, including some State lands whose management category could be changed and made part of the RBLB, where the protection of those lands is total, comparable even to the management category of a National Park. Through that note, which can be observed in the legislative file between pages 1936 and 1955, we requested that the file be returned to the first debate to make the corresponding modifications. Unfortunately, both deputies and members of the Executive Branch ignored our request.

In relation to the requirement of environmental legislation and constitutional jurisprudence on the subject, the TECHNICAL STUDY REQUIRED TO ASSESS WHETHER OR NOT TO REMOVE A PROTECTED WILD AREA FROM PROTECTION DOES NOT EXIST IN THE LEGISLATIVE FILE. The study required, and which is not in the legislative file, must at least comply with the following guidelines established by this constitutional court and environmental legislation: 1.- conduct a scientific and individualized analysis of the degree of environmental impact of the intended removal of protection from a protected wild area; 2.- conduct a study of the lands adjacent to the protected area to be removed from protection to determine which land has the best conditions to compensate for the hectares to be removed from protection; 3.- propose recommendations aimed at mitigating the negative impact on the environment; 4.- demonstrate how the removal of protection from the hectares represents a development that meets the needs of the present without endangering the ability of future generations to meet their own needs; and 5.- fulfill the requirement that the suppressed area be compensated with another of equal size and characteristics.

Not only is it not in the legislative file, but it was also not provided to the Regional Council of the Tempisque Conservation Area (Consejo Regional del Área de Conservación Tempisque, CORACAT), which, after the bill was approved in the second debate, and after the Legislative Assembly did not extend the deadline for them to comment on the final version of the bill, indicated, through a note sent to the Secretariat of the Legislative Directorate to be incorporated into the file, that "it is necessary that there be sufficient technical environmental, legal, and financial studies that justify the adequate selection of both the area to be removed from protection and the areas that would serve as compensation. The existence of these studies within the file of this bill must be verified, since to date this Council does not have such information." (Official Letter No. SINAC-CORACAT-049-2018 of September 9, 2018, pages 2641-2644 of the legislative file). (The highlighting and underlining are not in the original) II.- OBSERVATIONS ON THE RESPONSES OF PATRICIA QUIRÓS, REPRESENTATIVE OF SENARA, DURING THE HEARING, AS WELL AS ON THE EVIDENCE FOR A BETTER DECISION PROVIDED BY SENARA Reviewing what the representative of SENARA indicated at the hearing, as well as the documents provided as evidence for a better decision, it is clear that SENARA was the one that contracted the OET. That SENARA was the one that set the deadline and terms of reference for the work that the OET was to do. That the Study for the removal of the 113 hectares from protection was not done. That what SENARA did was contract a study to compensate the 113 hectares intended to be flooded with other lands chosen by SENARA. That what SENARA has, and was not presented in the legislative file, is a FEASIBILITY STUDY ON THE RIO PIEDRAS DAM carried out by ICE, which has nothing to do with the Study required to assess the removal of a protected wild area from protection. That an Environmental Impact Assessment exists, also prepared by ICE, but for the PAACUME project, which also does not appear in the legislative file, but in any case does not deal with the type of study required to remove a protected wild area from protection.

The same Attorney General of the Republic, when answering some questions from the magistrates, was clear in pointing out that these types of studies prepared by the ICE are not the studies required to remove protection from a protected wilderness area (área silvestre protegida), and additionally, the ICE does not have those powers. Incidentally, there is a pronouncement from the PGR from about 5 years ago stating that the ICE does not have legal authority to carry out activities outside the scope of its constitutive law and its amendments, as well as the law for the strengthening of the ICE.

III.- OBSERVATIONS ON THE PARTICIPATION OF SUPPORTING PARTY JORGE LOBO SEGURA AT THE HEARING The supporting party Jorge Lobo Segura, a biologist expert in this area, again pointed out what he had indicated in his supporting brief, that "the OET report or study is insufficient, partial, and incorporates a compensation principle, supposedly quantitative, where by modifying the size of a compensation area, the area lost within a protected area can be equaled. This is erroneous, since the populations or species affected by the loss of a protected area will not necessarily appear in their original abundance in a compensation area, even if its area is increased many times over, since the compensation area lacks the habitats and resources required by this species, or the population nuclei or sources for population migration that guarantee its repopulation. Drastic differences in habitat quality, especially in the degree of human alteration of the ecosystems, such as those detected between Lomas de Barbudal and the ASETREK farm, are not balanced out by increasing the area of the latter. This inflation of the area to compensate for less biodiversity will not result in the affected species being restored in the compensation area, especially if the compensation area has habitats that are very different from the affected area within the National Park or Biological Reserve. In the area of Lomas de Barbudal that will be flooded, there are riparian forests and possibly other habitats not quantified by the study, which are not represented in ASETREK." For supporting party Lobo, after analyzing in depth the Study conducted by the OET, it is clear that said study used to justify the removal of protection (desafectación) of the 113 hectares of the RBLB did NOT carry out a scientific and individualized analysis of the degree of environmental impact of removing protection from the 113 hectares of that Biological Reserve; did NOT carry out a study of the adjacent lands to the RBLB to determine which land had the best conditions to compensate for the 113 hectares that would be removed from the Biological Reserve; did NOT present recommendations aimed at reducing the negative impact on the environment; did NOT demonstrate how the removal of protection from the 113 hectares implies a development that meets the needs of the present without endangering the capacity of future generations to meet their own needs; did NOT meet the requirement that the area removed from the RBLB be compensated with another of equal size and characteristics. The most relevant aspect of his participation at the hearing was his assertion that it would be a worrying precedent if the Legislative Assembly, SETENA, and the Constitutional Chamber considered this study to be valid. If that were the case, a small opening, or rather a large gate, could be opened, leading to the promotion of boundary changes for more protected areas, based on compensation with larger private farms, but with ecosystems that are much more altered than those protected. Ecosystem accounting and the Habitat per Hectare method would endorse this type of compensation.

It is evident, then, that the OET study and the final compensation proposal are insufficient and have technical flaws, so the challenged law would clearly violate the principle of lifetime tenure (principio de irreductibilidad) of protected wilderness areas, as it would not be guaranteed that the approved boundary variation does not affect the integrity of the RBLB, and the environmental impact generated by removing protection from a part of said Biological Reserve would not be adequately mitigated. Consequently, the precautionary principle (principio precautorio) and the preventive principle (principio preventivo) would be violated, and there would be no technical backing that the adopted legislative measure does not affect the right to a healthy and ecologically balanced environment.

IV.- OBSERVATIONS ON THE PARTICIPATION OF THE PRESIDENT OF THE REPUBLIC, THE MINISTER OF MINAE, AND THE MINISTER OF AGRICULTURE AND LIVESTOCK The President of the Republic and his ministers stated that water for Guanacaste depends on this project, stating that without the PAACUME project there will be no water for human consumption, nor water for agriculture, nor for residential, commercial, and tourism real estate developments in the middle Tempisque basin and the coastal towns of Carrillo, Santa Cruz, and Nicoya, WHICH IS ABSOLUTELY FALSE. We consider that through this assertion they intend to exert psychological and social pressure on the magistrates hearing this unconstitutionality action, trying to place them in a situation where, if they rule in favor of the unconstitutionality action, they would be leaving those cantons of the province of Guanacaste without water, seriously affecting their development. Let us see why what they state is not true. On one hand, the PAACUME project itself indicates that only 10% of the water production will have the purpose of satisfying drinking water consumption needs. This point is very relevant since, in the arguments of SENARA and especially in those of SINAC of MINAE, they speak of two public purposes of equal value, such as the conservation and environmental protection of the RBLB on one hand, and access to drinking water on the other. From the analysis of all the documentation supporting the PAACUME project, it is concluded that of the 20 cubic meters per second that would be transferred to the right bank of the Tempisque River to bring water to the cantons of Carrillo, Santa Cruz, and Nicoya, ONLY 10%, THAT IS 2 CUBIC METERS PER SECOND, ARE FOR HUMAN CONSUMPTION OF DRINKING WATER. On the other hand, it has been widely publicized that PAACUME will favor tourism; however, only 7.5% of the water quantity is supposedly destined for that purpose. But, a clarification must be made on the use of that water, since that water is for IRRIGATION of properties linked to tourism, not for human consumption, which would be included within the 10% mentioned in the previous paragraph. That means that 82.5% of the water production of the PAACUME project will be destined for irrigation for agriculture, especially monocultures of large producers. Thus, what they affirm is false, but additionally, the information is completely taken out of context, since the reality of the drinking water requirements for the cantons of Nicoya, Santa Cruz, and Guanacaste is very different today from when that project was conceived by SENARA more than 10 years ago. When SENARA conceived the PAACUME project, there were drinking water supply problems in Carrillo and Santa Cruz, BUT, those problems have already been resolved through aqueducts that took the ICAA many years to build. We refer to the SARDINAL- EL COCO- OCOTAL aqueducts in the canton of Carrillo, and the NIMBOYORES aqueduct in the canton of Santa Cruz. Between both aqueducts, drinking water will be supplied to 80,000 people for the next 50 years, apart from the 140,000 people who already receive drinking water through ASADAS. That covers the entire population of those cantons. Additionally, the operation of a desalination plant in Playa Conchal has already been authorized to supply water for the requirements of real estate and tourism development in that area of the canton of Santa Cruz. The cost of both wells and aqueducts was a fraction of the cost of the PAACUME megaproject, which is estimated to exceed the projected $500 million dollars for the development of the PAACUME project, contemplating the construction of a dam to impound water and then channel it through 350 kilometers of canals. On the other hand, it is worth bringing up again the statements made by the organization called "Frente por las Áreas Silvestres Protegidas de Costa Rica," which points out that the PAACUME project is "sold" as a saving project for Guanacaste because of the reservoir that would be built inside the Biological Reserve, but it is not pointed out that the water is already impounded in Lake Arenal, the largest reservoir in the country, which has that as one of its purposes, that already supplies water to the left bank of the Tempisque River basin, and nothing prevents it from supplying water to the rest of the Guanacaste province. Why is it not used directly? That would mean changing the design of the PAACUME project, as the same SENARA officials well recognize, in the sense that if they cannot dispose of the 113 hectares of the RBLB to flood them, they would then have to change the project to impound a smaller amount of water and supplement it with other measures. As we see, it is indeed possible to bring drinking water and irrigation water to the right bank of the Tempisque without needing to cut off 113 hectares of great ecological value from the RBLB. Moreover, it is worth reviewing what supporting party Lobo opportunely pointed out on this subject, indicating that "...there are no studies that have been presented in the legislative file contemplating other options such as completing the construction of the pending irrigation canals to take advantage of the water from the Arenal reservoir, nor studies on the water capacity of the available aquifers for exploitation in the cantons of Nicoya, Santa Cruz, and Carrillo." It is therefore not acceptable to make the Constitutional Chamber and public opinion believe that we are facing two public purposes of equal rank (access to drinking water, which in any case would be 10% of the total water of the PAACUME project, and environmental protection through a Biological Reserve unique in the country that even has international protection). If one wants to contrast public purposes, it should then be WATER FOR IRRIGATION, OR ENVIRONMENTAL PROTECTION, specifically, the protection of a UNIQUE BIOLOGICAL RESERVE IN COSTA RICA with a protection category equivalent to a NATIONAL PARK, and additionally, it is part of the Palo Verde Wetland, which also gives it international protection.

• ARE THERE OTHER OPTIONS TO BRING WATER FOR IRRIGATION TO THE MIDDLE TEMPISQUE RIVER BASIN AND DRINKING WATER TO THE CANTONS OF NICOYA, SANTA CRUZ, AND CARRILLO, OR IS THE PAACUME PROJECT THE ONLY OPTION? From what is recorded in the legislative file and in the documents contributed to this unconstitutionality action, SENARA itself, on page 8 of its response to our unconstitutionality action, indicates that there is no possibility of relocating or reducing the volume of the reservoir without significantly affecting the scope of the PAACUME. What does this mean? It means that there are indeed other ways to bring water to the right bank of the Tempisque River, but the project would have to be reconsidered. In fact, one of the most effective justifications for PAACUME was the issue of access to drinking water for the inhabitants of the cantons of Santa Cruz, Nicoya, and Carrillo. Even on page 9 of its response, they dramatically point out that PAACUME will serve to bring water to SARDINAL de Carrillo, demonstrating that SENARA officials are outdated on that subject, since, as we have previously pointed out, that water scarcity was resolved by the ICAA. The other justification, which is water for irrigation of coastal tourism projects, is also already being resolved by the ICAA, which authorized one of those tourism projects to use seawater by desalinating it. As can be seen, the needs have changed. PAACUME is therefore not about drinking water. That issue, which in any case represents 10% of the total PAACUME water, was already resolved by the ICAA. So everything comes down to affecting the RBLB to allow the development of that project to irrigate lands of tourism developments (which could be irrigated by desalinating seawater), and the use of water for agricultural projects. Clearly, there was no study to determine if there was another option to bring water to the right bank of the Tempisque River. In the document called "Mandatory Consultation with Local Communities. Compensation Proposal for the Lomas Barbudal Biological Reserve" (visible at Folios 622-726 of the legislative file), in response to one of the questions posed by one of the participants, the SENARA representative at that activity indicated that "if the 113 hectares of the RBLB cannot be obtained, the project changes completely, since without these 113 hectares of the RBLB, the dam conditions, the amount of water to be impounded, the project cost, and the design would have to change completely." (see Folio 661 of the legislative file). WHAT DOES THAT MEAN? That it is indeed possible to bring water to the middle Tempisque River basin and to coastal communities, but the design of the PAACUME project would have to change. That is the study that is missing! This makes Law #9610 unconstitutional for violating the principles of lifetime tenure of protected wilderness areas, objectification of environmental protection (objetivación a la tutela ambiental), and non-regression in environmental matters (no regresión en materia ambiental). On the other hand, it is worth remembering what the PGR has stated in relation to the OET Study. For the PGR, even if the sufficiency of the OET study and the final compensation proposal is verified, it must be noted that this technical study would only justify the validity of the compensation practiced, and, as such, it is not a technical study that directly justifies the decision to remove protection from a part of the RBLB. The Attorney General's Office is emphatic on this subject, when it indicates that ... "in accordance with the constitutional jurisprudence on the subject, the study required by Article 38 of the Organic Environmental Law (Ley Orgánica del Ambiente) to justify the reduction of a protected wilderness area should be a study that determines the need and advisability of adopting that type of measure" (the underlining and highlighting are not from the original). In this case, a study in that sense would be one that technically substantiates the need and advisability of removing protection from part of the RBLB. That is, a study that determines that the only alternative for developing the PAACUME project and the Río Piedras reservoir is by removing protection from part of the Biological Reserve. Incidentally, said study has not been carried out. The Attorney General's Office points out that if the need and advisability of removing protection from 113 hectares of the RBLB is not verified, Law 9610 must be declared unconstitutional for violation of the principles of lifetime tenure of protected wilderness areas, objectification of environmental protection, and non-regression.

V.- CONCLUSION Therefore, based on all the foregoing, as well as the arguments presented in our unconstitutionality action and in the response we made to the arguments presented in the file by the active supporting parties, the passive supporting party, the Attorney General's Office of the Republic, the National Groundwater, Irrigation and Drainage Service, and the Ministry of Environment and Energy, we respectfully request this Court to declare the unconstitutionality of Law #9610, "MODIFICATION OF THE LIMITS OF THE LOMAS BARBUDAL BIOLOGICAL RESERVE FOR THE DEVELOPMENT OF THE WATER SUPPLY PROJECT FOR THE MIDDLE TEMPISQUE RIVER BASIN AND COASTAL COMMUNITIES," published in Supplement #199 of La Gaceta on November 23, 2018, for violating Articles 7, 11, 45, 50, and 176 of the Political Constitution; the procedure established in Article 208 bis of the Regulation of Order, Direction, and Internal Discipline of the Legislative Assembly for the law-making process, which is a parameter of constitutionality; and the constitutional principles of non-regression in environmental matters, in dubio pro natura, reasonableness (razonabilidad) and proportionality (proporcionalidad), economy, and efficiency, and budgetary balance.

34.- The legal requirements have been met in the proceedings.

Drafted by Magistrate Castillo Víquez; and,

Considering:

I.- Purpose of the action. The petitioners challenge the constitutionality of Law No. 9610 of October 17, 2018, called "Modifies limits of the Lomas de Barbudal Biological Reserve for the development of the water supply project for the middle Tempisque river basin and coastal communities," considering it contrary to Articles 7, 11, 45, 50, and 176 of the Political Constitution, as well as to the constitutional principles of non-regression in environmental matters, in dubio pro natura, reasonableness and proportionality, economy and efficiency, budgetary balance, and legal certainty. They also add that in the processing of the law, Article 208 bis of the Regulation of the Legislative Assembly was violated, for having been applied improperly.

II.- On the admissibility of the action and the standing of the petitioners. The unconstitutionality action is a process with certain formalities, which must be satisfied so that the Chamber can validly hear the merits of the challenge. Article 75 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional) establishes the admissibility requirements for the unconstitutionality action. In the first place, a prior pending matter must exist, either in judicial or administrative channels (in the procedure to exhaust it), in which the unconstitutionality has been invoked as a reasonable means to protect the right or interest considered injured. In the second and third paragraphs, the law establishes, exceptionally, circumstances where the prior matter is not required, such as: the non-existence of individual and direct harm due to the nature of the matter, the defense of diffuse or collective interests, or when it is filed directly by the Comptroller General of the Republic, the Attorney General of the Republic, the Attorney General of the Republic, and the Ombudsman. Now, regarding the need for a prior pending matter to be resolved in an administrative venue, it is necessary that this involves the procedure that exhausts the administrative channel, which, in accordance with Article 126 of the General Public Administration Law (Ley General de la Administración Pública), occurs from the moment ordinary appeals are filed before the hierarchical superior of the body that issued the final act, otherwise the action would be inadmissible. Likewise, there are other formalities that must be fulfilled, namely, the explicit identification of the challenged regulations, duly substantiated, with specific citation of the constitutional norms and principles that are considered infringed, the authentication by a lawyer of the document in which the action is filed, the accreditation of the standing conditions (powers of attorney and certifications), as well as the literal certification of the document in which the unconstitutionality of the norms was invoked in the underlying matter, all requirements that, in case of not being provided by the petitioner, can be ordered for compliance by the Presidency of the Chamber. In this particular case, to substantiate their standing, the petitioners allege the defense of an interest that concerns the community as a whole, such as the right to enjoy a healthy environment. However, they formulate various types of arguments, so it is necessary to analyze their admissibility separately for each one of them: 1) Regarding the alleged violation of Articles 7, 11, and 50 of the Political Constitution and the constitutional principles of non-regression in environmental matters and in dubio pro natura, the action is admissible, since the arguments formulated are directly related to the protection and safeguarding of the environment; a circumstance in which the Chamber has recognized in its jurisprudence the existence of a diffuse interest to seek its protection. 2) Regarding the claimed transgression of Article 176 of the Political Constitution and the principles of budgetary balance, reasonableness and proportionality, and economy and efficiency, this Court considers the action admissible, since, in essence, the disposition and proper management of public funds are questioned, which, being related to the financial activity of the State and the fulfillment of economy and efficiency criteria, has been accepted by the Chamber as a presupposition for standing. 3) In relation to the alleged violation of Article 45 of the Political Constitution, Article 208 bis of the Regulation of the Legislative Assembly, and the principle of legal certainty, the action is declared inadmissible. On this point, the petitioners argue that Law No. 9610 violates Article 45 of the Political Constitution, since three legal entities are deprived of private property, without prior compensation, in order to incorporate almost 500 hectares of private properties into the RBLB as compensation. They claim that the approval of the law imposing such limitations requires 38 votes and, in this specific case, although that number was surpassed, a good part of the parliamentary procedure was carried out through an abbreviated procedure based on Article 208 bis of the Regulation of the Legislative Assembly, which implies the unconstitutionality of the law for violation of parliamentary procedure, since that abbreviated procedure is prohibited for bills that require a qualified majority vote of deputies for their approval. They mention that, due to the way it was decided to expropriate the property of Brindis de Amor to incorporate it into the RBLB, a property of approximately 14 hectares belonging to the company Inversiones y Desarrollos Costa Rica Pacífico del Mar CMP S.A. is left outside and enclaved within the reserve. They accuse that there is a note that the National Geographic Institute (IGN) sent to the Legislative Assembly (official letter DIG-0388-2018) in response to the consultation made through official letter AL-DSDI-OFI-0313-2018, from which a violation of the principle of legal certainty is derived; the foregoing, as the existence of inconsistencies and errors in the coordinates included in the law finally approved is verified, which prevents certainty about how many hectares must be expropriated and what the true limits of the reserve are. They also question that the affected private properties have not been previously compensated. In this regard, the Chamber dismisses the existence of any type of diffuse or collective interest in those arguments of the petitioners. All those arguments are related in one way or another to the right to private property and its eventual transgression, which would require the existence of an underlying matter in which the unconstitutionality had been invoked as a means to protect the claimed right or interest, which is lacking in this case. Consequently, such arguments are not susceptible to being analyzed on their merits. Furthermore, specifically regarding the alleged inconsistencies and errors concerning the proper definition or delimitation of the RBLB boundaries, it must also be taken into consideration that both the president of the Legislative Assembly and SENARA argue that the delimitation coordinates of the biological reserve indicated in the challenged law are correct. It is alleged, in particular, that in a joint effort between MINAE and SENARA, the necessary field topographic studies and re-plotting were carried out, which allowed for adequate geographic precision in the location and real delimitation of the area of the reserve of interest, through the use of technological instruments of geographic precision. It is verified from the foregoing, that in the case at hand, a strictly technical discussion is raised about the proper location and geographic delimitation of such boundaries. In which case, resolving such a controversy, after reviewing and weighing the various technical parameters that govern the matter and, even, presenting and evaluating the pertinent evidence, involves a discussion that far exceeds the purpose and nature of constitutional review, under the terms of Article 10 of the Political Constitution and Article 73 and following of the Law of Constitutional Jurisdiction. On the contrary, such a discussion is appropriate to be aired in ordinary channels, with the respective evidentiary breadth.

III.- On the support interventions. Article 83 of the Law of Constitutional Jurisdiction establishes that within 15 days following the first publication of the edict referred to in the second paragraph of Article 81, the parties involved in the matters pending as of the date of the filing of the action, or those with a legitimate interest, may appear to support the arguments that could justify its appropriateness or inappropriateness, or to expand, if applicable, the grounds for unconstitutionality in relation to the matter that interests them. In the present case, through a resolution issued at 3:23 p.m. on March 21, 2019, the Presidency of the Chamber accepted the active support interventions of Mario Andrés Boza Loría and Jorge Arturo Lobo Segura and the passive support intervention of Luis Renato Alvarado Rivera, Minister of Agriculture and Livestock; furthermore, it rejected the support intervention formulated by Juan Carlos Peralta, who claimed to appear on behalf of the Asociación para el Bienestar y Amparo de los Animales del Cantón de San José, for failing to provide the legal documentation accrediting his status, despite being ordered to do so. At this time, the request for support intervention filed by Henry José Picado Cerdas is rejected, since he appeared untimely. The first publication of the resolution commencing this action in the Judicial Bulletin was made on February 19, 2019; however, Mr. Picado submitted his brief on November 2, 2019.

IV.- On the statement of motives for legislative bill No. 20.465 that later gave rise to Law No. 9610. Before deciding on the substantive arguments, it is considered pertinent to set out the reasons that supported that legislative initiative, in legislative bill No. 20.465: "Guanacaste is an area of vital importance for the social and economic development of the country. In recent years it has experienced exponential growth in the tourism sector with significant real estate development; besides being an agricultural zone with special characteristics, where climatic and topographic conditions allow for crop rotation according to the time of year, varying from rice and sugarcane production to intensive melon and watermelon production, without neglecting livestock and aquaculture production. These conditions have led to an increase in water demand, both due to the vegetative growth of the population and to meet the needs of all productive activities, in the driest climatic region of the country and one greatly affected by increasingly frequent droughts produced by the El Niño phenomenon. Given the above, efficient water management becomes key in the development planning of said region. The National Strategy for Integrated Water Resources Management (Egirh, 2005) pointed out that competition for the use of water resources in this area (and others in the country) could lead to conflicts between users if the necessary corrective measures were not applied. In this regard, emphasis is placed on the need for significant investment in water infrastructure, which the province urgently requires. The delay in sustained investment in water infrastructure for several years has already led to the manifestation of several conflicts over water use, such as, for example, those related to intended water extractions from the Sardinal and Nimboyores aquifers, with the Sardinal – El Coco – Ocotal Aqueduct and the current Coastal Communities of Santa Cruz Supply Aqueduct, respectively. This situation forces us to prioritize, and execute with promptness, public policies for the integrated management of water resources and to guarantee water security in the province. This type of policy must establish controlled and sustainable use through regulation infrastructure that contributes to reducing the impacts derived from stress on water availability, in residential homes, productive sectors, and real estate development areas. Management must be focused on administering the water supply in the months of greatest rainfall to improve the condition in the dry season. The National Plan for Integrated Water Resources Management (PNGIRH, 2008) ordered as an immediate action the implementation of the so-called Water Supply Plan for Guanacaste under strategic line 8.3.3.2, with the objective of 'Regulating the water supply to allow its availability throughout the year and addressing vulnerability to climate change.' As a result of the working group for Guanacaste: Water and Water Infrastructure, implemented by the Solís Rivera Administration, the execution of this project is retaken and ordered." This Administration has taken a comprehensive approach to the water problem in Guanacaste, with the aim of ensuring integrated water management in the country and, in particular, in this province, and to address long-term water and food security.

Given its importance, this strategic line of action was included in the "Alberto Cañas Escalante" National Development Plan 2015-2018, under programmatic line 1.9 of the environment sector, and under the stewardship of the environment, energy, seas, and land-use planning sector, the development and implementation of the Integrated Water Supply Program for Guanacaste - North Pacific (Programa Integral de Abastecimiento de Agua para Guanacaste - Pacífico Norte, Piaag) is contemplated, which integrates activities, works, and projects in the immediate, short, medium, and long terms.

The Piaag integrates a series of strategic actions for the development of hydraulic infrastructure projects for water regulation and control to meet the water demand for populations and irrigation use in the Tempisque plains. It also includes groundwater monitoring and research actions, as well as the promotion and development of technologically novel alternatives, water conservation and efficient use actions, and adaptation to climate change.

The Piaag's objective is to ensure the optimal use of water resources in the province of Guanacaste to meet the water demands of communities and various productive activities, improving access to water in adequate quantity and quality. To this end, it contemplates four strategic axes:

I- Water security for communities (human right to water access - AyA systems and communal aqueducts - asadas). II- Food security (increase in food production with irrigation systems). III- Water needs of ecosystems (promote the sustainability of ecosystems). IV- Sustainable use management (improve the use of available water, with priority on groundwater).

In accordance with axes I and II, the National Groundwater, Irrigation and Drainage Service (Servicio Nacional de Agua Subterránea, Riego y Avenamiento, Senara) is developing the Water Supply Project for the Middle Basin of the Tempisque River and Coastal Communities (Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras, Paacume), which constitutes, due to its scope and extent of benefits, the most robust and strategic project.

WATER SUPPLY PROJECT FOR THE MIDDLE BASIN OF THE TEMPISQUE RIVER AND COASTAL COMMUNITIES (PAACUME) The Paacume aims to boost the socioeconomic development of the province of Guanacaste through better use of the water resources coming from the Arenal-Dengo-Sandillal Hydroelectric System (Sistema Hidroeléctrico Arenal-Dengo-Sandillal, Ardesa) and other available sources, as climate change adaptation measures within a framework of sustainability and equity.

The project consists of generating the technical and technological conditions for a better use of water in the Arenal Tempisque Irrigation District (Distrito de Riego Arenal Tempisque, DRAT), which comes from hydroelectric generation by the Costa Rican Electricity Institute (Instituto Costarricense de Electricidad, ICE) in the Arenal, Dengo, Sandillal Hydroelectric System (Ardesa).

It includes the automation of the Miguel Pablo Dengo B Diversion Dam and West Canal Section I up to the Río Piedras reservoir, contemplating the construction of a storage reservoir on the Piedras River, expansion and construction of West Canal Sections II and III from there to the Tempisque River. In addition, the secondary and tertiary conveyance lines for agricultural irrigation and tourism development areas, water delivery works for populations to be administered by the Costa Rican Institute of Aqueducts and Sewers, all from the Tempisque River plain to the coastal zone. Likewise, the project integrates the construction of a powerhouse for electricity generation at the dam site.

The fundamental objective is the provision of water, accessible in quantity, quality, and timeliness—20 cubic meters per second—for different potential uses. It is projected to benefit at least 204 thousand people and cover at least 17 thousand hectares under irrigation. Of this flow, 2 cubic meters per second will be available for the long-term supply of communities in the cantons of Santa Cruz, Nicoya, and Carrillo and will be administered by the Costa Rican Institute of Aqueducts and Sewers. Furthermore, the project contemplates at least 1.5 cubic meters per second of water for irrigation to support tourism activity in the coastal zone, thereby benefiting coastal communities with the release of groundwater currently used for irrigation.

This project will not only allow sustainable access to water for communities and the productive sector but also aims to harmonize and regulate the rational exploitation of the main underground resources in aquifers on the right bank of the middle basin of the Tempisque River, as it will allow the State to regulate the maximum use of wells for these activities. The construction of the dam on the Piedras River implies a reservoir with a water surface area of approximately 850 hectares, of which, according to the field survey conducted by Senara, 113 hectares are within the Lomas Barbudal Biological Reserve (Reserva Biológica Lomas Barbudal, RBLB). The dam site will be located in a natural narrowing of the riverbed between coordinates west longitude 358930, north latitude 1163180 and west longitude 359690, north latitude 1155330 at a maximum water level elevation of 50.50 meters above sea level. This dam will function to create an impoundment for water storage, which will be captured by Senara at the Miguel Pablo Dengo dam located on the Santa Rosa River. From this site, the water will be conveyed through the West Canal, Section I, which has a length of 21 km and a hydraulic capacity of 55 cubic meters per second. It is important to note that before West Canal Section I intersects with the Piedras River, there is a natural drop; it is precisely this drop that allows for conceiving a storage site. The project will be located in the Chorotega region, province of Guanacaste. Its area of influence includes the cantons of Bagaces, Carrillo, Santa Cruz, and Nicoya. However, the irrigation area only covers some districts of the cantons of Carrillo, Santa Cruz, and Nicoya. Location:

Thus, the location of the dam on the Piedras River is due to a unique topographic condition that does not allow it to be moved to another site; therefore, this location and the elevation difference between the inlet of the canal that supplies it and the outlet of the canal that will carry the water to the Tempisque River determine the maximum reservoir level and its capacity to supply 20 cubic meters per second to the Paacume.

At one point, the possibility of building a dike to prevent the flooding of this area of the Lomas Barbudal Biological Reserve and a tunnel of more than 2 kilometers to evacuate the waters was evaluated; however, it turned out that the dike site coincides with a geological fault that would make its construction impossible due to the high risk it poses to the work.

There is no possibility of relocating or reducing the reservoir volume without significantly affecting the scope of the Paacume and thereby the benefits for the Guanacastecan population, whereby the need for 113 hectares of the Lomas de Barbudal Biological Reserve to be flooded was determined.

It is of vital importance that this reservoir be developed to its full extent, for which it is essential to have this area as floodable. Senara has demonstrated that this reservoir extent, including the area within the Lomas de Barbudal Reserve (113 hectares), is the only way to do so in order to meet the water demand within the project scope sustainably.

Project Beneficiaries With Paacume, three cantons of the province of Guanacaste will be benefited with irrigation, namely: Carrillo, Santa Cruz, and Nicoya. Additionally, Paacume will allocate 2 cubic meters per second of water for human consumption (the treatment and distribution of which will be the responsibility of AyA), which implies solving the deficit with a 50-year horizon for approximately 500,000 people. In addition, with hydroelectric generation at the dam site, 7 MW will be produced per year, and in terms of irrigation, it will cover an estimated area of 1,875 ha in the tourism sector in the coastal zone, releasing groundwater currently used for this purpose. This is in addition to the water provided for productive irrigation.

Table 1. Population projection for the period 2016-2020 By canton and district

Source: INEC, 2016.

The potential beneficiaries of the project are composed of the general population of the province of Guanacaste. This province has a population projected by the National Institute of Statistics and Censuses (Instituto Nacional de Estadística y Censos, INEC) of 371,375 inhabitants for 2016, plus the floating population composed of national and foreign tourism, estimated at more than one million people per year. Added to this is another population composed of workers from various companies, including tourism, who are continuously entering and leaving the area.

The National Institute of Aqueducts and Sewers (AyA) has estimated that by 2025 there will be a population within the project area equivalent to more than 220,000 inhabitants as users of the main aqueducts in the zone (Senara, 2006).

In the year 2002, the entry of 1,113,359 tourists was recorded. The growth trend is constant, as the number of visits to the country doubled by 2014.

Contrary to the poverty scenario in the Chorotega region, this is one of the areas that has experienced the greatest tourism development. The main hotel complexes in the country are located on its coasts. It was estimated in 2005 that the installed capacity in the hotels of the project area was for 140,812 people in high season, and it was projected that by 2025 it would reach 230,900 people (Senara, 2006).

It should be noted that the most threatened resource at present is water, mainly due to the overexploitation of aquifers for human consumption, an aspect that is further aggravated in tourist areas by the threat of salinization of wells. With the installed capacity in 2005, the average drinking water demand was estimated at 570 l/s, and with sustained growth by 2025, it would reach 935 l/s.

The agricultural irrigation area is estimated at 17,000 ha, where 1,067 agricultural producers, including large, medium, and small, could benefit. The distribution of owners is presented in table 2.

Table 2. Distribution of producers by canton

Source: Senara, 2017 Table 3. Distribution of current land use (uso actual del suelo) in the area of influence of the PAACUME. By canton in hectares

Source: Senara. 2016. Field work conducted in February 2016.

This table 3 reflects the total coverage area of the project, which corresponds to 41,477 hectares, and the irrigable area, from which protection areas, protected areas, forest, scrubland, forestry, industry, and the urban zone are excluded for the three cantons, totaling 33,900 potentially irrigable hectares.

Proposed land use Based on the water supply introduced by the Paacume, the area that will actually be irrigated is identified. For areas that cannot be supplied by the project, the option that proves feasible and viable among potential solution alternatives must be sought and analyzed later. In the case of water supply for human consumption, what is being proposed is a future reserve for a use that is a priority.

Based on the determination of crops located within the irrigable area of the project and considering that the potential irrigation area exceeds the area that can be irrigated with the available water, a proposal of crops to be irrigated will be determined based on land use, which will be used as a reference for determining water demand and for the financial and economic assessment of the project.

Table 4 presents the proposed land use adjusted according to the availability of water supply for agricultural use.

According to the available flow, water demand may vary depending on the proposed planting seasons, irrigation method efficiency, and water availability.

Table 4. Proposed land use, planting and harvest seasons according to available water supply

Potential land use The potential land use table reflects a crop proposal within an estimated timeframe of three years after the start of the irrigation system operation, in which the same crops and planting seasons are maintained. There is an increase in production area because it is considered that the irrigation system operation is optimized and the efficiency of the irrigation methods used increases. Table 5 breaks down the planting area for each of the different production systems, and it is observed that the planted areas of sugar cane, fruit trees, bales (pacas), roots and tubers, and watermelon increase.

Table 5. Potential crops, planting and harvest seasons, and potentially irrigable areas

The 18,800 hectares have their maximum demand in the month of April with a total of 16.35 m3/s.

Bearing in mind the foregoing, we are facing an obligatory decision to carry out the disaffection of a protected wilderness area (área silvestre protegida), which, as stipulated by the Organic Environmental Law, can only be reduced by means of a law of the Republic, after conducting the technical studies that justify this measure. In this regard, the Constitutional Chamber has issued extensive jurisprudence regarding Article 38 of the cited law, establishing that two essential requirements are needed for the reduction of protected wilderness areas: a disaffection law and the prior completion of sufficient technical studies justifying the measure…

…In that sense, the proposal put forward is considered not to contravene the principle of lifetime tenure (irreductibilidad) and non-regression contained in international instruments such as the Convention on Biological Diversity and the Washington Convention, since the territorial or spatial disaffection of the protected area is an exceptional and reinforced act that meets the technical and legal requirements aimed at preventing any type of regression in this matter.

The technical studies and the need to disaffect the protected area have been known by the regional and national bodies and have the approval in the first instance of the Regional Council of the Conservation Area (Consejo Regional del Área de Conservación, Corac), according to agreement number 01 in an extraordinary session held on July 5, 2017, and subsequently by the National Council of Conservation Areas (Consejo Nacional de Áreas de Conservación, Conac), in extraordinary session number 3-2017 of July 11, 2017, which have evaluated said studies and made observations of important consideration.

By virtue of the foregoing, the Regional Council of the Arenal Tempisque Conservation Area of the National System of Conservation Areas assessed the respective technical studies in accordance with the recommendation given by the Technical Committee, in light of the provisions of Article 38 of the Organic Environmental Law No. 7554 (and the jurisprudential development -Vote 2014-0121287 Constitutional Chamber- and background analysis on the matter -Official Communication No. 09082 CGR and the Technical Services Report of the Legislative Assembly AL-DEST-IJU-117-2016) and given that through Executive Decree 16849-MAG, of January 23, 1986, published in La Gaceta No. 45 of March 5, 1986, the Lomas Barbudal Biological Reserve was created, identifying in the recital body of said decree the following conservation objects: 1) Flora and fauna of the lowland wooded dry savanna. 2) Lowland riparian forest. 3) Lowland deciduous forest. 4) At least 10 springs and part of the Cabuyo River basin. 5) Unique entomological fauna.

This body proceeded to analyze, in accordance with the study presented, the possible impacts that could be generated on these conservation objects according to the study presented by the Organization for Tropical Studies. In addition, such conservation objects have been homologated to the current focal management elements (elementos focales de manejo) of the protected area, established in the General Management Plan issued through resolution R-Sinac-Conac-24-2016 in force as of November 3, 2016, with said collegiate body reaching the following conclusions summarized in table 6:

Table 6. Conclusions of Corac Arenal-Tempisque

| Likewise, as read in the same agreement of the Regional Council (agreement 01 of the extraordinary session of July 5, 2017), said body has verified that the technical report sent to this body for its consideration has complied with the content required by numerals 71 and 72 of Executive Decree 34433-Minae, Regulation to the Biodiversity Law, and concludes that, except for the considerations made regarding the conservation object called riparian forest, it can technically be affirmed that: a) The conservation objects that underpin the creation of the Lomas Barbudal Biological Reserve are not being affected, and b) The area is compensated by another of equal size that fulfills the same purposes and similar ecosystem conditions.

Finally, they point out that by means of a law of the Republic, the disaffection of the area of the Lomas de Barbudal Biological Reserve be authorized and consequently the compensation be given with the purchase of the corresponding area, as defined by the technical studies.

Likewise, as Costa Rica is part of the Ramsar Convention, the Ministry of Environment and Energy (Minae) must make the respective communication to the Secretariat of the Ramsar Convention, since the area to be disaffected is both a protected wilderness area and a Ramsar Site so designated in December 1991 within the Palo Verde Ramsar Site…

…In compliance with the foregoing, in accordance with the Organic Environmental Law, the environmental impact assessment (estudio de impacto ambiental) to be developed for the eventual construction of the work shall establish the necessary measures to minimize as much as possible the effects on the environment generated by the construction of the water supply system for the middle basin of the Tempisque River and coastal communities…

…In January 2016, Senara signed the agreement between the Organization for Tropical Studies (OET) and Senara to conduct the study for establishing the biodiversity baseline for the RBLB and adjacent property.

The objective of the study was to develop and define the baseline that allows determining the ecological integrity, relevance, and fragility of the ecosystems present, as well as the existing biodiversity in the area of the Lomas de Barbudal Biological Reserve to be directly impacted by the Embalse Río Piedras. At the same time, a comparative analysis is carried out between an area of the RBLB and previously selected surrounding lands to determine the similarity conditions and feasibility of being used as a replacement zone that is ecologically equivalent.

Compensation area The lands evaluated for the compensation area are owned in the name of Asetrek Tres Azul S.A., legal ID No. 3-101-370259, whose representative is Mr. Ramón Aguilar Facio, identity card No. 9-0001-0541, cadastral map No. 5-666-1976, real estate folio No. 034932-000, located in the first district of Bagaces, of the fourth canton of Bagaces, of the province of Guanacaste, with a registered area of 751 hectares.

The procedure carried out by OET for the evaluation of compensation is based on a methodology called: Habitat/Hectare, a scoring system, developed by Australian researchers, which identifies a series of environmental quality indicators and assigns values to each of the habitat factors to be evaluated. Two independent compensation evaluations were carried out, one based on habitat quality indicators and the other based on community diversity and composition, both adapted to the tropical dry forest. Additionally, the methodology used by OET was modified to include other indicators (geophysical, ecosystem services, among others).

The final score results from the sum of the values determined for each indicator and represents habitat quality or community composition in relation to the reference habitat (RBLB). From the result obtained in the study, it was possible to estimate the number of hectares required to achieve a quality level like that of the reference and thus compensate the 113 hectares to be flooded in the RBLB. It is important to note that the study conducted by OET considered an area in the RBLB of 131.07 hectares, as it was during its execution that Senara carried out the field topography work to prepare the final map on the effective area required for the reservoir, which resulted in the 113 hectares, all included within the 131.07 hectares studied by OET.

The study conducted by OET (on 131.07 hectares), when considering the established area, determined that this sector of the RBLB has three types of forest cover (cobertura forestal): deciduous forest over 96.05 hectares, secondary forest over 9.13 hectares, and mature forest over 24.71 hectares. The latter will henceforth be called riparian forest, because it is related to the watercourses in the zone and composed of remnants of vegetation that subsist on the banks of rivers and streams, consisting of evergreen species.

Furthermore, the farm has 1.18 hectares in non-forest area and pastures.

The riparian forest (bosque ripario) area in Asetrek consists of small fragmented areas, a situation that led to its existence not being considered for scoring purposes in the evaluation conducted in the study to determine the required compensation (compensación) area.

The study's conclusions reveal, based on habitat quality (calidad de hábitat), that an equivalent area between 290 and 332 hectares is necessary to compensate for the area to be flooded in the RBLB, because the farm studied represents between 34.00% and 51.20% of the reference site, which corresponds to the 113 hectares of the RBLB. These differences indicate that the Asetrek Tres Azul S.A. farm has been more disturbed, and lacking riparian forest cover (cobertura de bosque ripario), 332 hectares will be required for compensation, considering the maximum probable value resulting from the applied methodology.

On the other hand, applying the methodology for diversity and community composition (diversidad y composición de comunidades), Asetrek contains 30.90% of the reference (113 hectares of the RBLB), meaning the reserve has a greater species richness (riqueza de especies) of the taxonomic groups studied, so 290 hectares are needed to compensate for the loss in the RBLB.

In conclusion, considering the result obtained by applying the methodology for both habitat quality and diversity and community composition, the compensation site Asetrek Tres Azul S.A. is inferior in environmental quality, composition, and biodiversity to the RBLB site that would be flooded by the Embalse Río Piedras. For this reason, when considering the most suitable condition for the RBLB, the OET recommended that a minimum of 332 hectares of the Asetrek Tres Azul S.A. Farm be acquired to offset the RBLB's losses.

The Asetrek Tres Azul S.A. farm, as an extension for compensation and studied by the OET, has a total area of 751 hectares, a significant portion of which is dedicated to agricultural and livestock production.

When considering the proposed compensation area resulting from the study, an analysis of the site was conducted to assess the extension that should be proposed for the compensation of the 113 hectares of the RBLB to be flooded, based on the following fundamental parameters:

1- Fulfill the minimum required area for compensation obtained from the study, which corresponds to 332 hectares. 2- Consider that the area to be acquired for compensation has a sufficient amount of forest, according to the types of cover (tipos de cobertura) found in the area of the RBLB to be flooded. 3- That the area to be purchased includes the 189.30 hectares that were studied by the OET for the respective comparisons between the potential compensation site and the reference site (RBLB). 4- That the area can be properly integrated into the rest of the RBLB, respecting the highest possible percentage of shared boundaries (colindancia) between them. 5- That the area proposed for compensation allows for the connectivity of the RBLB with the protection areas expected to be left around the future Embalse Río Piedras as a protection buffer ring, mainly on its left bank. 6- That the boundary (lindero) of the proposed area with areas of non-forest cover, pasturelands, or pastures is limited as much as possible, since these can increase and facilitate the risk of fires within the RBLB. 7- Standardize the property boundary, so that the compensation area allows for proper management by the Sinac administration in the RBLB.

Once the previous parameters were analyzed, the result obtained indicates that the area that should be purchased from the Asetrek Tres Azul S.A. Farm is 444.04 hectares. Of these, an estimated presence of deciduous forest (bosque deciduo) on 286.67 hectares, secondary forest (bosque secundario) on 59.50 hectares, pastures (pastizales) on 73.23 hectares, and a non-forest area, that is, a pasture area with other native grasses of 18.50 hectares, is estimated. It is important to note that the selected area of the farm also has a riparian forest area of 6.14 hectares, distributed in small sections that, due to their lack of connectivity or because they are located in the reservoir's direct impact zone, were not considered for the application of the methodology used in the study to determine the compensation area.

While it is true that the proposed area of 444.04 hectares as compensation for the 113 hectares of the RBLB that would be flooded meets the requirements established based on the results of the habitat quality methodology applied in the study by the OET, the reality is that this area only has 2.2 hectares of mature or riparian forest with characteristics similar to that found in the area to be flooded in the RBLB.

Under these circumstances, it was deemed pertinent to search for an additional area that could resolve this deficiency in riparian forest in the compensation area of the Asetrek Tres Azul S.A. Farm, complying with the parameters mentioned above. Following joint fieldwork by experts from the OET, Sinac's RBLB officials, and Senara, two potential farms for compensation, located on the northwest boundary of the RBLB, were identified.

These properties are registered under the names Brindis de Amor en Liberia S.A. and Hacienda Ciruelas SP S.A. In this regard, and according to field inspections jointly conducted by experts from the OET, Sinac, and Senara, supported by aerial images taken with a drone flying at low altitude, it was determined that the Brindis de Amor properties have an initial estimate of 16.41 hectares of riparian forest, and Hacienda Ciruelas SP S.A. has an estimated 8.49 hectares of riparian forest, consisting of a forest cover made up of evergreen species and comparable in quality to that found at the potential flood site in the RBLB.

The riparian forest area in Brindis de Amor represents 7.40% of the area covered by that type of forest within the RBLB currently; hence the importance of incorporating this area into the RBLB.

Another important aspect is that the riparian forest area on this farm could become a core area (área núcleo) of species for repopulating other riparian environments on the property. Although this situation is not chronologically corresponding to the loss in the RBLB, according to the OET, it is a considerable advantage since this core area allows for the short-term restoration and incorporation of new riparian forests, a situation that would not be occurring on the Asetrek Tres Azul S.A. property.

The deciduous forest (45.74 hectares), as well as the secondary forest (6.63 hectares) in Brindis de Amor have been protected for at least twenty years, and there are no records of recent logging or fires, meaning they are in a better condition of structure and composition than those found at the potential impact site in the RBLB or on the Asetrek Tres Azul S.A. property. Although not the primary objective, the annexation of this type of forest from Brindis de Amor to the RBLB implies a significant gain in these forest covers as well.

The baseline biodiversity study for the RBLB showed an increase in the diversity of different taxonomic groups in response to more permanent water sources, a condition that is highly favored on the Brindis de Amor Farm, which has several permanent water sources, including the Cabuyo River and its tributaries, giving this farm added value.

There are studies by Dr. Susan Perry (University of California, Los Angeles) indicating that troops of white-faced capuchin monkeys (Cebus capuccinus) from the RBLB use the forests within Brindis de Amor as feeding and resting sites, meaning there is evidence of a constant flow of animals between the RBLB and Brindis de Amor as a foraging site, demonstrating the biological importance of this property for incorporation into the RBLB.

Finally, it is important to mention that the study conducted by the OET establishes a compensation area that considers the current condition of the land being assessed, without referring to the improvements they will have in the future when incorporated into a protection regime such as the reserve.

In light of this, a riparian forest area was identified to compensate for the deficit in hectares for this type of ecosystem, while maintaining the protected area's ecosystem connectivity. It was concluded that the Hacienda Ciruelas SP S.A. property presents such conditions and allows compensating for an area of 8.49 hectares of riparian forest.

Additionally, it is concluded that the best option to complete the compensation for the riparian forest is to acquire an area of 40.00 hectares owned by Hacienda Ciruelas SP S.A., which contains 8.49 hectares of riparian forest.

According to the cover layers (capas de cobertura) mentioned above, this farm has a total of 33.64 hectares of riparian forest, where the majority of this type of forest borders the Quebrada Amores. The area selected for compensation possesses 8.49 hectares of riparian forest, 2.44 hectares of secondary forest, 26.91 hectares of deciduous forest, and 2.16 hectares of pastures.

For its part, it is expected that among the future benefits of the regeneration of pastures on Asetrek Tres Azul S.A. will be the contribution to the establishment of secondary forest, carbon fixation (CO2), soil protection, cover gain, protection of biodiversity and scenic beauty of the place, protection of water sources, while also contributing to increasing its ecological, economic, and social value. That is, the new area established under the protection regime will tend to improve its current condition, both in habitat quality and in diversity and community composition.

As Quesada, R. (2008) indicates in his Manual para promover la regeneración natural en pastos degradados en el Pacífico central y norte de Costa Rica, "to revert pasture areas into forests through natural regeneration methods, they must have a strategic location near seed sources and proximity to forest patches," conditions presented by the proposed area on the Asetrek Tres Azul S.A. and Brindis de Amor en Liberia S.A. farms.

These conditions predict that while currently the 91.74 hectares (a pasture zone of 73.23 hectares and a non-forest area of 18.51 hectares) in Asetrek Tres Azul S.A., 18.18 hectares of pastures in Brindis de Amor, and 2.16 hectares in Hacienda Ciruelas SP S.A. are in pastures, in a few years, under a protection regime like that of the RBLB and controlled fire management, these areas will be able to incorporate into the different succession stages of secondary forests.

Thus, according to the results presented in the study conducted by the OET and what was raised in the high-level commission of the Piaag, the definitive compensation proposal is: 1.- From the Asetrek Tres Azul S.A. farm, a total of 444.04 hectares, according to the map of the proposed area. 2.- The entirety of the Brindis de Amor en Liberia S.A. Farm, with a registered area of 86.96 hectares according to the map. 3.- An area of 40.00 hectares from the Hacienda Ciruelas SP S.A. farm. In total, the purchase of 571 hectares, representing a factor of 5 times the area that will be affected in the RBLB, with a direct equivalence in forest types, as indicated in table 7.

Tabla 7. Comparación de área por tipo de bosque entre el área afectada de la RBLB y el área propuesta para compensación

¹A pesar de que el área requerida de la RBLB es de 113 hectáreas, la OET realizó el estudio sobre 130,64 hectáreas, razón por la cual se usa este valor para realizar la comparación.

With the proposed compensation measures, the conservation objective is achieved, and therefore, it can be affirmed: 1.- That the conservation objects (objetos de conservación) that underpin the creation of the "protected area" are not being affected. 2.- That the area is compensated for by another of equal size that serves the same purposes and similar ecosystem conditions.

Thus, based on all the foregoing, we submit the attached bill to the Legislative Assembly of the Republic of Costa Rica for its respective approval." V.- On the challenged regulation. Law No. 9610, "Modifica límites de la Reserva Biológica Lomas de Barbudal para el desarrollo del proyecto de abastecimiento de agua para la cuenca media del río tempisque y comunidades costeras," challenged here, provides as follows:

"ARTICLE 1- The area of the Reserva Biológica Lomas de Barbudal, created by Decreto Ejecutivo N.° 16849-MAG of January 23, 1986, is rectified and delimited for the development of the Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras (Paacume). The protected area starts from a point located on the Cabuyo River at coordinates in the CRTM05 System X 350792,224 and Y 1163050,33 and continues along the boundary with the property of Inversiones y Desarrollos Costa del Pacífico del Mar CPM S.A. with the following coordinates:

Until reaching coordinates X 350776,31 and Y 1163485,43 and continues along the boundary with the properties of parcels belonging to the Instituto de Desarrollo Rural (Inder) to coordinates X 350768,00 and Y 1164185,00 with a public road, continuing along this boundary with the following coordinates X351032, 34 - Y 1164082,68, until reaching coordinates X 351196,45 and Y 1164006,78 to continue along the boundary with the property of Brindis de Amor de Liberia S.A. with the following coordinates:

Until reaching coordinates X 351206,67 and Y 1163648,75 and continues along the boundary with the property of Pijije Land & Catlle S.A. along this boundary with the following coordinates:

Until reaching coordinates X 351302,12 and Y 1162871,48 and continues along the boundary with the property of Hacienda Ciruelas SP S.A. with the following coordinates:

Until reaching coordinates X 351515,21 and Y 1161744,31 on the right bank of the Quebrada Amores and continues along the right bank of the Quebrada Amores downstream, until reaching the shared boundary (colindancia) with the Reserva Biológica Lomas de Barbudal and Hacienda Ciruelas at coordinates X 350789,57 and Y 1161768,04 and continue along this shared boundary through the following coordinates:

Until reaching coordinates X 351682,28 and Y 1159583,24 and continues along the boundary with the property of Pecuaria Burro Blanco S.A. with the following coordinates:

Until reaching coordinates X 353204,48 and Y 1157684,37 on the boundary with a public road and continues along the boundary with the properties of parcels belonging to the Instituto de Desarrollo Rural (Inder) with the following coordinates:

Until reaching coordinates X 355186,96 and Y 1157380,57 and continues along the boundary with the property of Asetrek Tres Azul S.A. with the following coordinates:

Until reaching coordinates X 355640,83 and Y 1157053,32 and continues along the boundary with the Embalse Piedras area with the following coordinates:

Until reaching coordinates X 358468,82 and Y 1155324,64 and continues along the boundary with the property of Martillos del Pacífico S.A. and Inversiones Campos Bastos S.A.

with the following coordinates:

Until reaching coordinates X 358003,37 and Y 1152867,19 at the boundary of the West Canal and continues along this boundary with the following coordinates:

Until reaching coordinates X 350773,38 and Y 1156507,46 and continues with the boundary of parcels of the Rural Development Institute (Instituto de Desarrollo Rural, Inder) with the following coordinates:

Until reaching coordinates X 349929,76 and Y 1157901,11 at the boundary of the West Canal and continues along this boundary with the following coordinates:

Until reaching coordinates X 348956,78 and Y 1160688,89 at the boundary of the public road that connects the town of San Ramón de Bagaces and continues along this boundary with the following coordinates:

Until reaching coordinates X 349384,50 and Y 1161343,08 at the parcel boundary of the Rural Development Institute (Instituto de Desarrollo Rural, Inder) and continues along this boundary with the following coordinates:

Until reaching coordinates X 349752,43 and Y 1161825,58 at the Cabuyo River, continuing upstream until reaching the initial coordinates X 350792,224 and Y 1163050,33.

ARTICLE 2- The land-use change (cambio de uso del suelo) and the release from the provisions of Articles 13 and 33 of Law No. 7575, Ley Forestal, of February 13, 1996, is authorized for the Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras (Paacume), including the released area that is comprised within the limits described below: It begins at a point located on the boundary between Asetrek Tres Azul S.A. and the Reserva Biológica Lomas de Barbudal at coordinates X 356819,57 and Y 1155441,85 and continues along the boundary of the Piedras Reservoir (Embalse Piedras) with the following coordinates:

Until reaching coordinates X 358468,82 and Y 1155324,64 at the boundary with the property of Martillos del Pacífico S.A. and continuing in a straight line in a northerly direction, along the boundary with Martillos del Pacífico S.A., to coordinates X 358653,97 and Y 1156392,64. From those coordinates, it continues along the boundary with Asetrek Tres Azul S.A. and the unnamed stream upstream by the following coordinates:

Until reaching the initial coordinates X 356819,57 and Y 1155441,85 located on the boundary between Asetrek Tres Azul S.A. and the Reserva Biológica Lomas de Barbudal.

ARTICLE 3- The National System of Conservation Areas (Sistema Nacional de Áreas de Conservación, Sinac) is authorized to use, for its own purposes, the usable timber extracted from the area of the Piedras River storage reservoir of the Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras (Paacume). Likewise, it may authorize donation to ministries, their decentralized bodies, autonomous and semi-autonomous institutions, local governments, or comprehensive development associations, upon written request to the Arenal Tempisque Conservation Area (Área de Conservación Arenal Tempisque).

ARTICLE 4- The National Groundwater, Irrigation and Drainage Service (Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento, Senara) shall be the entity responsible for carrying out the environmental study for the Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras (Paacume), which must include the prevention, mitigation, and compensation measures for the released area affected in Article 2 of this law, which must be implemented by the developer. The environmental impact study (estudio de impacto ambiental) must consider the baseline approved by the entities and endorsed by the Regional Council of Conservation Areas of the National System of Conservation Areas (Sistema Nacional de Áreas de Conservación, Sinac), without prejudice to the terms of reference issued by the National Environmental Technical Secretariat (Secretaría Técnica Nacional Ambiental, Setena), in accordance with the corresponding legal framework.

ARTICLE 5- The Piedras River Reservoir area, which includes the protection ring, is an integral part of the Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras (Paacume) to be developed by the National Groundwater, Irrigation and Drainage Service (Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento, Senara), which will allow for the storage and regulation of water coming from the Arenal Dengo Sandillal Hydroelectric Complex (Complejo Hidroeléctrico Arenal Dengo Sandillal, Ardesa) with subsequent conveyance and equitable distribution to supply agricultural productive consumption needs, hydroelectric generation, tourism promotion, and population supply, the latter through the Costa Rican Institute of Aqueducts and Sewers (Instituto Costarricense de Acueductos y Alcantarillados, AyA), in addition to those other activities that are necessary for the fulfillment of the objectives proposed by Paacume. Of the fee charged by the Ministry of Environment and Energy (Ministerio de Ambiente y Energía, Minae) to users for water use and utilization, fifty percent (50%) shall be allocated to the National System of Conservation Areas (Sistema Nacional de Áreas de Conservación, Sinac) for the implementation of the General Plan for Sustainable and Rational Use Management (Plan General de Manejo de Uso Sostenible y Racional).

ARTICLE 6- Once the construction works are completed and the Piedras River Reservoir is put into operation by the National Groundwater, Irrigation and Drainage Service (Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento, Senara), the reservoir area, which includes the protection ring, shall constitute a wetland ecosystem administered by the National System of Conservation Areas (Sistema Nacional de Áreas de Conservación, Sinac) and in accordance with the provisions of Article 33 of Law No. 7575, Ley Forestal, of February 13, 1996. There must be strict coordination with Senara for the use of water according to the various required uses. The Executive Branch, through Sinac, shall carry out the necessary studies to grant said space a management category, which must not conflict with the use given to the water resulting from the Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras (Paacume). For the preparation of the General Plan for Sustainable and Rational Use Management (Plan General de Manejo de Uso Sostenible y Racional), a commission shall be formed with representation from Sinac, Senara, and the Municipality of Bagaces.

SOLE TRANSITORY PROVISION- The Executive Branch shall make the modifications to the General Management Plan of the Lomas Barbudal Biological Reserve (Reserva Biológica Lomas Barbudal), and shall issue the necessary regulations for the authorization of ecosystem rehabilitation and adaptive management actions in the compensation areas that require actions of this nature, within a period of one year from the registration in the name of the Ministry of Environment and Energy (Ministerio de Ambiente y Energía, Minae). It shall take effect upon its publication. Given at the Presidency of the Republic, San José, on the seventeenth day of the month of October of the year two thousand eighteen.” VI.- Regarding the allegations of unconstitutionality. For the purpose of resolving the questions raised, the admissible allegations of the plaintiffs will be grouped as follows:

A.- Regarding the alleged violation of Articles 7 and 50 of the Political Constitution and the principles of non-regression in environmental matters, objectification of environmental protection, precautionary or in dubio pro natura, and legality. As was proven in this process, the release (desafectación) of the area under discussion is not for the purposes of leaving that land environmentally unprotected, but rather to give it a land-use change that equally seeks its protection, with greater extension, and at the same time, to procure sustainable utilization from it. This aspect is essential, given that many of the pronouncements of this Tribunal in relation to a release have been limited to compensation for a release, in the sense of detaching a land, absolutely, from its special environmental protection to allocate it to any other diverse and conflicting purpose other than environmental protection. Hence, the jurisprudence of this Tribunal has been incisive on the need for the Legislative Branch to have a prior technical study that justifies why, environmentally, that protection is no longer necessary and, subsequently also ordered, its compensation, as environmental retribution. In the sub examine, it is not possible for State authorities to alter the habitat of a protected area except within the limits accepted by its own protection regime. Hence, even though the area required to be altered will always be protected, but the alteration falls outside those limits authorized by law, given its nature of use, it was equally required to resort to a legal release process that authorizes them to make such modifications. This is the case of the law under study. Note the content of Article 6 of the challenged norm, in which that released land is equally granted special environmental protection:

"ARTICLE 6- Once the construction works are completed and the Piedras River Reservoir is put into operation by the National Groundwater, Irrigation and Drainage Service (Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento, Senara), the reservoir area, which includes the protection ring, shall constitute a wetland ecosystem administered by the National System of Conservation Areas (Sistema Nacional de Áreas de Conservación, Sinac) and in accordance with the provisions of Article 33 of Law No. 7575, Ley Forestal, of February 13, 1996. There must be strict coordination with Senara for the use of water according to the various required uses. The Executive Branch, through Sinac, shall carry out the necessary studies to grant said space a management category, which must not conflict with the use given to the water resulting from the Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras (Paacume). For the preparation of the General Plan for Sustainable and Rational Use Management, a commission shall be formed with representation from Sinac, Senara, and the Municipality of Bagaces." Certainly, the construction of that project, even though its final result will be intended for environmental protection, will imply an impact on the area, given the modification of the habitat of the zone to be flooded for the reservoir, hence it must be previously verified whether the same is indispensable and compensable. As was proven from the statement of reasons for the bill that culminated in the challenged regulation, the situation of water resource shortage in the province of Guanacaste is a palpable fact that has existed for several years. Hence, different administrations have sought solutions to this situation. Let us see:

"The potential beneficiaries of the project are composed of the general population of the province of Guanacaste. This province has a population projected by the National Institute of Statistics and Censuses (INEC) of 371,375 inhabitants for 2016, plus the floating population which is composed of national and foreign tourism estimated at more than one million people per year, to which is added another population composed of workers from the different companies that tourism includes and who remain entering and leaving the area. The National Institute of Aqueducts and Sewers (Instituto Nacional de Acueductos y Alcantarillados, AyA) has estimated that by 2025 there will be a population, within the project area, equivalent to more than 220,000 inhabitants as users of the main aqueducts of the zone (Senara, 2006). In the year 2002, the entry of 1,113,359 tourists was recorded. The growth trend is constant, since by 2014 the number of visitors to the country had doubled. Contrary to the poverty outlook of the Chorotega region, this is one of the zones that has experienced the greatest tourism development. The main hotel complexes that exist in the country are located on its coasts. It was estimated, in the year 2005, that the installed capacity in the hotels of the project zone was for 140,812 people in high season and it was projected that by the year 2025 it will reach 230,900 people (Senara, 2006). It should be noted that the most threatened resource at present is water, mainly due to the overexploitation of aquifers for human consumption, an aspect that is further aggravated in tourist areas by the threat of salinization of wells. With the installed capacity in 2005, the average potable water demand was estimated at 570 l/s and with sustained growth by 2025 it would reach 935 l/s. The agricultural irrigation area is estimated at 17,000 ha where 1,067 agricultural producers, large, medium, and small, could benefit… The National Strategy for Integrated Water Resources Management (Estrategia Nacional para la Gestión Integrada de los Recursos Hídricos, Egirh, 2005) pointed out that competition for the use of the water resource in this zone (and others in the country) could lead to conflicts among users if the necessary corrective measures were not applied. The National Plan for Integrated Water Resources Management (PNGIRH, 2008) ordered as an immediate action to implement the so-called Water Supply Plan for Guanacaste in strategic line 8.3.3.2, under the objective of 'Regulating the water supply to allow its availability throughout the year and address vulnerability to climate change'... As a result of the working group for Guanacaste: Water and Water Infrastructure, implemented by the Solís Rivera Administration, the execution of this project is retaken and ordered.." Due to its importance, this strategic action line was included in the 2015-2018 National Development Plan "Alberto Cañas Escalante," under programmatic line 1.9 of the environment sector, given that under the stewardship of the environment, energy, seas, and land-use planning (ordenamiento territorial) sector, the development and implementation of the Comprehensive Water Supply Program for Guanacaste - North Pacific (Programa Integral de Abastecimiento de Agua para Guanacaste - Pacífico Norte, Piaag) is contemplated, integrating activities, works, and projects in the immediate, short, medium, and long terms… In accordance with Axes I and II, the National Groundwater, Irrigation, and Drainage Service (Servicio Nacional de Agua Subterránea, Riego y Avenamiento, Senara) is developing the Water Supply Project for the Middle Basin of the Tempisque River and Coastal Communities (Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras, Paacume), which constitutes, by its scope and reach in benefits, the most robust and strategic project." That is to say, the need to address this problem had been the subject of study for several years by the competent authorities. Precisely, by Executive Decree No. 38642-MP-MAG of November 30, 2014, a drought emergency declaration was required in some sectors of the country, among them the Chorotega region due to the impact on 11 of its cantons. That area presents more than 5 months of water deficit per year, given the impact of the El Niño phenomenon and climate change. This situation has not been foreign to this Court either. In judgment No. 2018-7758 at 9:15 a.m. on May 18, 2018, for example, given the lack of potable water supply for days, from catchment sources in Nicoya, and due to the salinization problem in that area, this Chamber ordered the Costa Rican Institute of Aqueducts and Sewers (Instituto Costarricense de Acueductos y Alcantarillados), within a period of 6 months from the notification of that judgment, to carry out the hydrogeological study in the influence zone, suggested by the Cantonal Office of Nicoya of the ICAA, with the purpose of seeking sustainable sources over time that would allow the execution of a project to satisfy the present and future demand of the communities of Cuesta Grande, Maquenco, and Terciopelo. After that, they had to propose some temporary or permanent solution and execute it within the period of 12 months following that previous period. In the interim, they had to distribute quality potable water to the community of Maquenco by means of tanker trucks or another alternative mechanism, if there was a shortage of liquid, until a definitive solution to the facts that gave rise to that amparo was achieved. Likewise, the situation of the Sardinal aqueduct has been known, which already had the study "Analysis of the Impact of the Drought on the Sardinal Aquifer 2015" (see in that regard judgments 2016-6417 and 2017-1163). The various previous studies and the fieldwork carried out by several authorities precisely led to the proposal of the Water Supply Project for the Middle Basin of the Tempisque River and Coastal Communities (Paacume), and this was presented and justified to the legislators. The explanatory memorandum indicates in this regard:

"…the National Groundwater, Irrigation, and Drainage Service (Senara) is developing the Water Supply Project for the Middle Basin of the Tempisque River and Coastal Communities (Paacume), which constitutes, by its scope and reach in benefits, the most robust and strategic project.

WATER SUPPLY PROJECT FOR THE MIDDLE BASIN OF THE TEMPISQUE RIVER AND COASTAL COMMUNITIES (PAACUME) The Paacume aims to enhance the socioeconomic development of the province of Guanacaste through a better use of the water resources coming from the Arenal-Dengo-Sandillal Hydroelectric System (Ardesa) and other available sources, as adaptation measures to climate change within a framework of sustainability and equity.

The project consists of generating the technical and technological conditions for a better use of the waters in the Arenal Tempisque Irrigation District (DRAT), which come from the hydroelectric generation of the Costa Rican Electricity Institute (ICE) in the Arenal, Dengo, Sandillal Hydroelectric System (Ardesa).

It includes the automation of the Miguel Pablo Dengo B Diversion Dam and the West Canal Section I up to the Río Piedras reservoir, contemplating the construction of a storage reservoir on the Piedras River, expansion and construction of the West Canal Sections II and III from there to the Tempisque River. In addition, the secondary and tertiary conduction lines for agricultural irrigation and tourism development areas, water delivery works for the populations that will be administered by the Costa Rican Institute of Aqueducts and Sewers, all from the Tempisque River plain to the coastal zone. Likewise, the project integrates the construction of a powerhouse for electricity generation at the dam point.

The fundamental objective is the provision of water, accessible in quantity, quality, and timeliness—20 cubic meters per second—for different potential uses. It is projected to benefit at least 204 thousand people and cover at least 17 thousand hectares under irrigation. From this flow, 2 cubic meters per second will be available for the long-term supply of communities in the cantons of Santa Cruz, Nicoya, and Carrillo and will be administered by the Costa Rican Institute of Aqueducts and Sewers. Furthermore, the project contemplates at least 1.5 cubic meters per second of water for irrigation as support for tourist activity in the coastal zone and thereby benefit coastal communities with the release of groundwater currently used for irrigation.

This project will not only allow sustainable access to water for communities and the productive sector, but also aims to harmonize and regulate the rational exploitation of the main underground resources in aquifers on the right bank of the middle basin of the Tempisque River, as it will allow the State to regulate the maximum use of wells for these activities. The construction of the dam on the Piedras River implies a reservoir with a water surface of approximately 850 hectares, of which, according to the field survey carried out by Senara, 113 hectares are within the Lomas Barbudal Biological Reserve (RBLB). The dam site will be located in a natural narrowing of the riverbed of this river between the coordinates west longitude 358930, north latitude 1163180 and west longitude 359690, north latitude 1155330 at a maximum water level elevation of 50.50 meters above sea level. This dam will have the function of creating a impoundment for water storage, which will be captured by Senara at the Miguel Pablo Dengo dam located on the Santa Rosa River…" It is a project constituted by four components: the Río Piedras reservoir (which includes the automation of the system, the powerhouse, and the dam and reservoir proper), the expansion of the West Canal from the Piedras River to the Tempisque River with a length of approximately 55 kilometers, the construction of the distribution network on the right bank of the Tempisque River (approximately 300 kilometers in length), and the proposal for the implementation of a Regional Development Plan for the area directly and indirectly affected by the project, a process that is in the conceptualization and formulation stage.

It is important to note that, from the explanatory memorandum itself, the imperative need to carry out this project specifically in that area was clearly established, when the legislators were warned of the following:

"…As matters stand, the location of the dam on the Piedras River is due to a unique topographical condition that does not allow it to be moved to another site; therefore, this location and the difference in level between the inlet of the canal that supplies it and the outlet of the canal that will allow the water to be carried to the Tempisque River determine the maximum reservoir level and its capacity to supply 20 cubic meters per second to the Paacume.

At some point, the possibility of building a dike to prevent the flooding of this area of the Lomas Barbudal Biological Reserve and a tunnel of more than 2 kilometers to evacuate the waters was evaluated; however, it turned out that the dike site coincides with a geological fault that would make its construction impossible due to the high risk it generates for the work.

There is no possibility of relocating or reducing the reservoir volume without significantly affecting the scope of the Paacume and with it the benefits for the Guanacastecan population, whereby the need to use 113 hectares of the Lomas de Barbudal Biological Reserve for flooding was determined.

It is vitally important that this reservoir be developed fully, for which it is indispensable to have this extent as a floodable area. Senara has demonstrated that this reservoir extent, including the area within the Lomas de Barbudal Reserve (113 hectares), is the only way to do so in order to meet the water demand within the project's scope sustainably. Project beneficiaries.

With the Paacume, three cantons of the province of Guanacaste will benefit from irrigation, namely: Carrillo, Santa Cruz, and Nicoya. Additionally, the Paacume will allocate 2 cubic meters per second of water for human consumption (whose treatment and distribution will be the responsibility of AyA), which implies solving the deficit for a 50-year horizon for approximately 500,000 people, besides the fact that the hydroelectric generation at the dam site will produce 7 MW per year and in terms of irrigation it will cover an estimated area of 1,875 ha in the tourism sector in the coastal zone, freeing up groundwater currently used for this purpose. This is in addition to the water allocated for productive irrigation." (The highlighting is not from the original).

That is to say, the basis for carrying out the removal of protection status (desafectación) in question was provided in the explanatory memorandum itself. Certainly, the Organic Law of the Environment establishes the following:

"Article 38.- Reduction of protected wild areas. The area of protected wild areas, natural patrimony of the State, whatever their management category, may only be reduced by Law of the Republic, after carrying out the technical studies that justify this measure." In the sub examine, precisely because of the particularity that this removal of protection status has for the establishment of other protection management plans, it is appropriate to require a technical study, but not to justify that this area does not require environmental protection, since, in reality, it is not intended to remove its protection status to environmentally deprotect it and give it any diverse use, but rather to modify its condition of guardianship and sustainable environmental use, regarding which an evident impact on it is recognized, and therefore what is provided is a compensation study, which guarantees this and gives back to the environment for a situation of necessity.

The final report of the study "Establishment of the biodiversity baseline for the Lomas de Barbudal Biological Reserve and adjacent farm," was carried out by the Organization for Tropical Studies, at the request of SENARA, to address the specifications of Article 72 of the Regulation to the Biodiversity Law (see the official communication of June 14, 2017, attached to the record). That regulation, in articles 71, 72, and 73, provides the following:

"Article 71. —Declaration, modification, or change of management category of protected wild areas. For the declaration, modification, or change of management category of protected wild areas (Áreas Silvestres Protegidas, ASP), a technical report must be prepared, which will be coordinated by the respective instance of SINAC.

Article 72.—On the technical report. The technical report for the purposes of the preceding article must contain the objectives for the creation of the proposed area and recommendations on the most appropriate management category, with the corresponding technical justifications. Among the criteria used to prepare this report, define the objectives, and issue such recommendations, at least the following shall be considered:

• a)Relevance and fragility of the ecosystems, wild populations, geological or geomorphological attributes that the proposed area includes. b) Estimated dimensions of the most relevant ecosystems, geological or geomorphological attributes contained in the proposed area. c) Conservation status of said ecosystems, most relevant wild populations, geological or geomorphological attributes, and proven potential for the ecological recovery of degraded sites within the proposed area. d) Relevance and nature of the environmental goods and services that the proposed area provides to the surrounding local communities. e) Proven potential of the proposed area for those uses that are compatible with the recommended management category. f) Land tenure regime (state, private, or mixed) in the proposed area. g) Existence of sufficient financial resources to acquire the lands of the proposed area and ensure their adequate protection and management in the long term. h) Mandatory consultation with indigenous populations or local communities that may be affected or impacted by the creation or modification of protected wild areas.

Said report with the pertinent documents must be sent to the Regional Council of the Conservation Area (CORAC), for its consideration and, if appropriate, sent to the National Council of Conservation Areas (CONAC) for what corresponds.

When the modification implies raising the existing management category, the presentation of the specific reasons motivating the proposed change in the management category must also be considered within the respective technical report.

Article 73.—Restoration, recovery, and rehabilitation of ecosystems, species, and their environmental services. SINAC must define, develop, and promote management actions to achieve the conservation, restoration, recovery, and rehabilitation of ecosystems and their components, based on scientific studies, management plans, or other planning instruments for protected wild areas, in accordance with the objectives of their declaration, including management and/or eradication of invasive exotic species, recovery of soils and vegetation cover (cobertura vegetal), control and prevention of forest fires, mitigation of natural disasters, and control of populations of opportunistic native species, and regulation of hydrological cycles." It is for this reason that this study was submitted for the knowledge of the Regional Council of the Arenal Tempisque Conservation Area (CONAC), which approved it under the conditions set forth by the technical criterion given by the ACAT, and expressly establishing that this study is not equivalent to nor does it substitute the environmental impact assessment (Estudio de Impacto Ambiental) that must be carried out for the PAACUME project. Precisely for this reason, the challenged regulation incorporates other provisions and in Article 4 specifically establishes its preparation:

"ARTICLE 4- The National Groundwater, Irrigation, and Drainage Service (Senara) shall be the entity responsible for carrying out the environmental study of the Water Supply Project for the Middle Basin of the Tempisque River and Coastal Communities (Paacume), which must include the prevention, mitigation, and compensation measures for the area removed from protection status affected in Article 2 of this law, which must be implemented by the developer.

The environmental impact assessment must consider the baseline approved by the entities and endorsed by the Regional Council of Conservation Areas of the National System of Conservation Areas (Sinac), without prejudice to the terms of reference issued by the National Environmental Technical Secretariat (Setena), in accordance with the corresponding legal framework." Based on the foregoing, contrary to what was indicated by the plaintiffs, it is shown that the bill did not lack technical support, as it is based on the results of various studies that denote the need to provide water to that community, the limitation of sources for its obtainment, and the study "Establishment of the biodiversity baseline for the Lomas de Barbudal Biological Reserve and adjacent farm," carried out by the Organization for Tropical Studies, in order to guarantee due compensation in the modification of the management category for the protection of that particular area, technically grounded according to the methodology chosen for its preparation. In addition to this, the result of the mandatory consultation was provided to the legislative record, as well as the compensation proposal prepared by SENARA, SINAC, and the PIAAG in a complementary study, prepared in March 2018, prior to the issuance by the Special Legislative Commission of the unanimous affirmative opinion (July 17, 2018) that culminated in this law, in which, based on the OET study and the assessment they made of the three properties in question (ASETREK, BRINDIS DE AMOR, and HACIENDA CIRUELAS), the reasons for implementing this project and modifying the use of the zone in question were reinforced, as well as the manner in which it would be compensated. In that study, it was determined, after a field analysis, that from the Hacienda Ciruelas farm it was viable to acquire 25.00 ha, of which 7.16 represent riparian forest, 2.42 ha of secondary forest, 13.13 ha of deciduous forest, and 2.28 ha of pastures, complementing the information from the Brindis de Amor farm, which had been assessed by the OET.

The report "Establishment of the biodiversity baseline for the Lomas de Barbudal Biological Reserve and adjacent farm" determined the biological and geophysical characteristics of the area within the protected zone Lomas de Barbudal Biological Reserve (RBLB) that would potentially be flooded if the reservoir on the Río Piedras were established as part of the SENARA PAACUME irrigation project. Furthermore, it evaluated the compensation potential that an adjacent property would have if this impact were to occur, named in the report ASETREK, applying a methodology based on a scoring approach, called Habitat/Hectare.

Now then, the plaintiffs' and some coadjuvants' questioning is that the standards used by the cited study are insufficient to authorize a removal of protection status of the area in question and its impacts; however, as indicated, the study in question was limited to assessing the conditions that had to be compensated, for the purposes of evaluating the impacts that modifying the use plan of that zone would entail. On the other hand, the execution of the PAACUME project is also conditioned on the completion and approval of other technical-scientific studies, such as the environmental impact assessment contemplated in article 4 of the challenged regulation. In this way, it is not only inappropriate for this Court to review the expertise with which a technical study was carried out, which would merit a legality discussion in which different experts have ample opportunity to sustain their criteria and debate them, which is not proper to a constitutionality process, but, most importantly, this law equally subjects the construction and execution of the project in question to the completion of the complementary technical study. Otherwise, that area cannot be intervened. The foregoing, because it is reiterated, this law did not remove the protection status of that area to be used for any purpose by stripping it of its environmental guardianship, but rather did so solely for the purposes of subjecting it to another type of environmental protection management and subjected that project to the prior completion of the environmental impact assessment, in which all impacts, mitigation measures, and verification of adequate compensation must be provided for. As matters stand, even though that environmental impact assessment was not carried out prior to the approval of the law, the fact is that, given the particularity of this project and the conditions under which the removal of protection status of that land was approved to modify its use and environmental protection, maintaining its guardianship outside of any use other than that justified, and conditioning it to the result that the environmental impact assessment eventually yields, the principle of objectification of environmental law is not considered violated.

The technical necessity of supplying water to the Chorotega region to implement that project was justified to the legislators from its explanatory memorandum. There are executive decrees declaring the drought emergency in that area since 2014, and for years prior, the competent authorities have sought different options to address that problem, even though this may not have been written in a single, unique document, as the plaintiffs allege.

That is to say, the public interest in addressing that situation is an evident and manifest issue. Likewise, in the coadjuvancy brief presented by the Minister of Agriculture, the benefits of the project are summarized as: a) a positive impact in favor of some 500,000 farmers (mostly small and medium-sized); b) recovery of aquifer layers in the zone; c) an increase in irrigation capacity on some 18,000 hectares currently affected by droughts and climate change; d) creation of an 850-hectare body of water; e) reduction of the water deficit in the zone.

It is also observed during the legislative process that it was explained to the legislators that this particular site was the only one suitable for carrying out the project in question, so, precisely starting from the impacts that a habitat change will evidently have, an environmental compensation for that area was processed (see, by way of example, appearances from folios 1326, 1327 et seq., 1332, 1334, 1335, 1342, 1351 et seq., 1357 et seq.). Certainly, a compensation is not sufficient by just increasing the size of the land being substituted, since it is necessary to seek similar conditions of vegetation and fauna. However, it does not imply that identical conditions must be required, since over time, even greater environmental benefits could be obtained. According to the doctrine, the fundamental principle on which environmental compensation is based is that the reparation should not be less than the environmental cost of the impact that will be produced. Its intention is to compensate for the environmental services that were provided by the ecosystems affected by the land-use change (cambio de uso del suelo). For this, there is no single measurement methodology, and the most relevant thing is that the maximization of that environmental gain must be sought. The study carried out by the OET underpinned that condition. They started from the premise that compensation should maximize the gain to the environment, so initially they counted on the fact that an area of 332 hectares of an environment similar to that found in ASETREK would work to compensate for what would be lost at the impact site in the RBLB. That is the reason for the 3:1 ratio indicated in the report. However, in order to maximize that environmental gain that a compensation plan must seek, it was noted that it could be convenient to also use other properties that had important elements for conservation, additional to the area in ASETREK, likewise due to the type of riparian forest. On page 217 of that study, the reasons why they considered that the reservoir that would form in the flood zone should be part of the same compensation were set forth. Likewise, although other areas were not analyzed with the depth that they did in ASETREK, they suggested other adjacent properties to improve the compensation proposal. One of those properties is Brindis de Amor, whose selection was not casual, but rather valued because it is located at the northwest end of the RBLB, which crosses one of the few permanent streams in the area (Cabuyo River) and maintains a brief riparian cover. The vegetation at this site was indeed evaluated, as indicated on pages 210–216 of the report. Furthermore, they took into consideration in the report the uninterrupted studies for more than 25 years in the area by Dr. Susan Perry (University of California, Los Angeles), which indicate that troops of white-faced capuchin monkeys (Cebus capuccinus) from the Lomas de Barbudal Biological Reserve use the forests within Brindis de Amor as feeding and resting sites. That is to say, there is evidence of a constant flow of animals to and from the reserve. Therefore, the use of the Brindis de Amor property as a foraging site demonstrates the biological importance of this property and how right it would be to protect it. The decision to annex a fraction of Hacienda Ciruelas was made to avoid leaving a peninsula on the contour of the RBLB by annexing Brindis de Amor, which would contravene the basic notions of reserve design, which tries to minimize the edge effect and its impact on the species one wishes to protect. Additionally, that fraction also contains a fragment of riparian cover. Thus, it is a technical criterion of maximizing environmental benefit, which was not taken into account only for the extent of the land, but for the added and maximized resource that would imply greater and better equivalent compensation conditions. Consequently, for the professionals, such an initial assessment was sufficient, taking into consideration that they are complementary annexes, not the main farm ASETREK, and that, in any case, they will be equally assessed in the subsequent environmental impact assessment. In the study, it was accredited that the impact area in the southeastern part of the Lomas de Barbudal Reserve is not a wetland, nor is it connected to the wetlands of the Palo Verde National Park. Furthermore, Lomas de Barbudal, the Palo Verde National Park, and the additionally suggested properties are not in the Guanacaste Conservation Area (UNESCO World Heritage), but in the Arenal-Tempisque Conservation Area (ACAT). It is for this reason that, in the report, such a suggestion was made without diminishing the compensation already provided for. The OET stated it as follows: "…Following this methodology we conclude that: (1) It is possible to make an ecological equivalence between the two sites (RBLB and ASETREK); (2) That the compensation in area is a ratio of 3:1. However, as we specified in our report, our recommendation was to request even more to compensate for the losses in the reserve, in order to improve the compensation in terms of the environment. The incorporation of these two properties in our final recommendation did not require further evaluation since they constitute a complementary annexation, not essential given the outlined methodology. While it is true that the Ciruelas property was not evaluated, it is important to clarify that on the Brindis de Amor property we carried out a survey of the structure and composition of the vegetation as specified in our report." Likewise, the incorporation of the Ciruelas property was justified for reasons of location and corridor for the species, which was indeed verified by that study group, upon conducting the investigation of the area surrounding the main farm. The controversy regarding the sufficiency of the study period and the methodology used, it is reiterated, is a technical issue that is not to be resolved in this jurisdiction. In any case, even though it was verified that the completion of this study was scheduled to be executed within a period of ten months and not two years, this does not in itself constitute a shortcoming that disqualifies it, since, following the methodology designed therein, the same conclusion would necessarily be reached, regardless of the time taken to complete it. In the evidence received by this Court in the oral hearing, Mr. Mahmood Sasa Marín, coordinator of the OET study, in relation to this aspect, pointed out that the results should not change given a longer period. In any event and for the purposes of ensuring environmental protection, the removal of protection status of the area in question is equally subject to the approval of an environmental impact assessment, which must be reviewed and subsequently approved by SETENA.

The study "Establishment of the biodiversity baseline for the Lomas de Barbudal Biological Reserve and adjacent farm," assessed in its time by the legislators, was prepared, at the request of SENARA, by the Organization for Tropical Studies, which has had a scientific presence in the country and in that area since 1970, when the Palo Verde Biological Station was created, what is now the Palo Verde National Park, in which duly identified professionals participated and used a specific scientific methodology. Furthermore, it was endorsed by SINAC and SENARA, and registered with the Vice-Rectory for Research of the University of Costa Rica and approved by the Research Council of the Clodomiro Picado Institute, also of the same university, without the School of Biology having expressed its reservations in a timely manner to its preparers. As matters stand, it is not unreasonable that the legislators adopted the law in question taking into consideration the technical criterion expressed therein, just as this Court does currently, as we are not technical instances to question and review its scope, or to determine compliance with each of its legal requirements. Note that there is not even evidence of the filing of a judicial legality process subsequent to this law, in which that study has been questioned and annulled, to suggest that its provided technical value should be diminished.

Similarly, although it is argued that the referenced study was not coordinated by the relevant SINAC office, the fact is that it was indeed endorsed by it, as already indicated. Finally, the compensation offered in this law was 5 to 1 to improve environmental redress, since in exchange for the use of the current 113 hectares, the reserve will receive more than 500 hectares, which would become part of it, including those same 113 ha, but with a different aquatic and protective habitat. In that sense, not only does environmental protection come into consideration, but also the need to secure the supply, for a large part of the Guanacastecan population, of a liquid that is vital for human beings, such as providing water. Hence, all possible scenarios must be assessed and the least harmful measures adopted for all parties and the rights involved, in accordance with what sustainable development seeks. Nor does it violate the principle of environmental non-regression of the Lomas de Barbudal Biological Reserve; on the contrary, the challenged legislation is guaranteeing a strengthening in environmental protection and administration matters, since the area of the reserve is increased, areas with natural wetlands (Río Cabuyo and Quebrada Amores) are protected and incorporated, financial resources are allocated for the administration and management of natural resources, coordination between institutions is integrated for the management and development of corresponding environmental plans, and, finally, it incorporates a new wetland ecosystem, which, besides being a new destination for aquatic birds, will be an ecosystem that will contribute to climate change adaptation throughout the province of Guanacaste. Beyond what was suggested in the OET study of acquiring at least 332 ha, the legislative proposal that was finally approved and endorsed by national technical bodies such as SENARA and SINAC, incorporated many more hectares into this project's compensation proposal, to facilitate fire management and control. Likewise, by incorporating the Brindis de Amor and Hacienda Ciruelas properties, it allowed for having riparian forest in adequate conservation conditions, and also for being able to conserve, by being within the project area, the main springs (nacientes) of the Río Cabuyo and Quebrada Amores, which are located on those farms. On the other hand, the development of the General Plan for Sustainable and Rational Use Management of this project would be in charge of a commission that would have representation from SINAC, SENARA, and the Municipality of Bagaces, and which, as SINAC explained, would contemplate important criteria regarding the special management category of that reservoir and its ecosystem benefits: "• The competencies of each institution would be defined more clearly and the mechanisms and procedures for the ordering and use of resources would be better defined. • Under the official Wetland category, there would be greater opportunities to order use so that local, national, and international society could have quality goods and services produced by the well-conserved resource, including: education, research, water, recreation, and tourism. • It will allow for the prevention and control, with greater efficiency and rigor, of various illicit activities such as land invasion and illegal logging, poaching and fishing, and forest fires. • By assigning a management category to the Reservoir and incorporating it as a Ramsar site, the country would be responsibly complying with international commitments as a signatory country to the Convention on Wetlands of International Importance; Ramsar Convention approved by Law No. 7224 of April 2, 1991. • Granting official status as a Wetland will facilitate the process of ordering tourist activity where local groups and micro-entrepreneurs of the area could integrate to develop sustainable rural tourism, as a socio-economic alternative. • With the creation of this protected area, an important zone that serves as a Biological Corridor between the Lomas Barbudal Biological Reserve, Palo Verde National Park, and the Nambiral Biological Corridor would be strengthened. • Local civil society and related local institutions would be integrated to coordinate and carry out comprehensive environmental planning and management through the Local Wetland Council, efficiently taking advantage of the resources and installed capacity of each of the related institutions. • The Wetland category will allow for planning, ordering, and carrying out a harmonious and sustainable use of natural resources with a low level of friction or conflict, as might possibly occur if a National Park or Biological Reserve category were assigned. • Having a core wilderness area will serve as justification and motivation for local, regional instances and international entities to cooperate technically and financially to promote the development of actions aimed at conservation and sustainable socio-productive activities in the territory of the basin in general. • Assigning a management category for the ordering and sustainable use of the Reservoir would contribute significantly to the conservation of the ecosystems and species of the Lomas Barbudal Biological Reserve, since in addition to favoring connectivity and movement of species, it will also act as a buffer zone and reduce pressure on the Reserve's resources." It must be remembered that the recorded environments of a given area are not static, but dynamic, so over time modifications, even more positive ones, can be achieved in the ecosystem. Consequently, the challenged law is not unconstitutional; it had prior studies and technical criteria expressed by the competent authorities throughout the legislative hearings, including those from SENARA, SINAC, MINAE, SETENA, MAG, and OET, and, in addition, it establishes the obligation to carry out an environmental impact assessment (estudio de impacto ambiental), which must contemplate, in advance, all impacts and applicable mitigation measures to guarantee that the environment is not effectively harmed, as well as to determine that a compensation will be produced, not only in size, but of an ecological nature to the extent reasonably possible in this latter case. In this Court's opinion, it is a conditioned law, whose effectiveness is contingent upon the pending environmental impact assessment (estudio de impacto ambiental) for the PAACUME project confirming the previous results, and conforming to the principles of reasonableness and proportionality, the demands of sustainable development, ecological balance and a healthy environment, and the general well-being of the population, which serves to justify the measure, as well as to determine that the compensation for the area contemplates both the quantitative and qualitative elements; therefore, they are not correct in stating that the precautionary principle is violated. On the other hand, the plaintiffs question that RAMSAR was not notified of the disaffectation of the RBLB area, nor of the change in the limits of that biological reserve, which constitutes an omission that infringes our country's international commitments and, therefore, a violation of Article 7 of the Political Constitution. In this regard, it is pertinent to indicate that, although the "Technical sheet for the extension of the Palo Verde Ramsar Site, Costa Rica" shows that the RBLB forms part of that site, subsection 2 of Article 4 of the mentioned international instrument empowers States to withdraw or reduce wetlands for urgent reasons of national interest, in which case the loss of resources must be compensated, to the extent possible, and, in particular, new natural reserves must be created for aquatic birds and for the protection of an adequate portion of their original habitat, in the same region or elsewhere. Precisely, it corresponds to each State to determine the "urgent reasons of national interest," so it is not considered unreasonable for the Legislative Assembly to issue a law that has as part of its purposes providing water resources to part of the province of Guanacaste and thus ensuring its sustainable use. Likewise, from a reading of the referenced convention, no obligation is apparent (that would imply any defect of unconstitutionality) to communicate the disaffectation of the protected area to RAMSAR in advance, and, in any case, it would suffice to make the corresponding notification, since the State, as long as it fulfills the international commitments it acquired and the internal parameters (such as those established by this jurisdiction), has the authority to do so. Consequently, the plaintiffs' allegations are dismissed. B.- Regarding the alleged transgression of Article 176 of the Political Constitution and the principles of budgetary balance, reasonableness and proportionality, economy, and efficiency. The plaintiffs argue that no socioeconomic studies were conducted to justify, on the one hand, the disaffectation, and on the other, the increase of the RBLB by almost 500 hectares of private land. They reproach that there was no minimum financing to acquire the area, protect it, and manage it; and that there was not even an appraisal of the properties. They state that the requirement to verify the existence of sufficient financial resources to acquire the lands of the proposed area was not met, and that section 36 of the Environment Law establishes that to create new State-owned protected wilderness areas, whatever the management category it establishes, the minimum financing to acquire the area, protect it, and manage it must be previously complied with, among other requirements. They maintain that this requirement was not met in the case of Law No. 9610. They indicate that the ordinary budget of 2018, in effect when Law No. 9610 was approved, did not contain a budget allocation to pay for the expropriations of the private properties that were incorporated into the RBLB. They add that this non-compliance violates the principle of budgetary balance (Article 176 of the Political Constitution), since through that law new payment obligations were assumed without them being provided for in the budget law, which is a requirement to expand protected areas. They add that, to make this disaffectation, it is compensated with more than 500 hectares of private lands; however, the question arises as to why these properties and not others adjacent to the RBLB were chosen, including lands of lesser value or lands already belonging to the State adjacent to the Lomas de Barbudal biological reserve and that have a much lower protection category than a biological reserve (more than 300 hectares). For this reason, they allege the violation of the principle of reasonableness, proportionality, economy, and efficiency, since an expenditure of billions of colones is not justified to compensate 113 hectares of the RBLB that are disaffected by this challenged law, when there are options at no cost or much lower cost to the State. Even less so, when the law compels the expropriation of more than 500 hectares to compensate 113 hectares that are being disaffected, when more than 300 hectares of the State that have a management and protection category lower than a national park or biological reserve could perfectly be incorporated into the RBLB, at no cost to the public treasury. They warn that not all properties adjacent to the RBLB were reviewed to find a way to compensate at the lowest possible cost. Finally, they state that the cost-benefit analysis was not done with all the properties adjacent to the RBLB. Based on the foregoing, it is important to clarify that this Court's competence, in relation to the principle of Budgetary Balance derived from section 176 of the Political Constitution, is limited to a macro-level analysis, and not to a particular situation such as the one under study. As indicated by the Office of the Attorney General of the Republic, the discussion about whether the specific allocation destined to cover the expropriations required for the compensation of the RBLB has been included in the ordinary budget does not refer to the violation of this principle. Moreover, what has already been stated in this judgment cannot be ignored, in the sense that this is a conditioned law, whose effectiveness is contingent upon the pending environmental impact assessment (estudio de impacto ambiental) for the PAACUME project confirming the previous results, and conforming to the principles of reasonableness and proportionality, the demands of sustainable development, ecological balance, and a healthy environment, and the general well-being of the population, which serves to justify the measure, as well as to determine that the compensation for the area contemplates both the quantitative and qualitative elements. Therefore, if the referenced environmental impact assessment (estudio de impacto ambiental) is lacking, which conditions—as indicated—the effectiveness of the challenged law and the eventual start of the project's execution phase, then the demand for an effective determination and provision of the necessary financial resources to execute a future expropriation is premature, since a process aimed at expropriating a property does not yet exist. Additionally, with regard to the adequate protection and administration of the RBLB, it must be taken into account that the challenged legislation itself is guaranteeing its strengthening, since, among other aspects, financial resources are allocated for the administration and management of natural resources. Ergo, it is also not confirmed that, on this point, an environmental impact or harm is configured. On the other hand, the alleged disagreement over the supposed high economic cost to the country of disaffecting and compensating that area with those properties and not others also does not configure an argument susceptible to constitutional analysis, but rather one of discretion, a matter in which the legislator has a broad margin—free configuration—in this case, logically following technical criteria, convenience, and opportunity for the selection of a land when duly proven reasons of public interest so require, as occurs in the present case; besides that the reduction in the area of a protected wilderness area and its compensation should not respond solely to an economic criterion, but also to the ecological attributes of the land, so that it meets environmental conditions equivalent to the disaffected area. Thus, this would also imply a technical analysis that is not proper to be verified in this jurisdiction. VII.- Conclusion. The corollary of the foregoing is that this Court considers the action inadmissible in relation to the alleged violation of Article 45 of the Political Constitution, section 208 bis of the Regulations of the Legislative Assembly, and the principle of legal certainty, due to the plaintiffs' lack of standing. As for the rest, the alleged unconstitutionalities are not observed, as long as what is authorized in the challenged legislation has the prior environmental impact assessment (estudio de impacto ambiental), which determines the impacts, the respective mitigation measures, guarantees environmental protection, and the proper environmental understanding. VIII.- Documentation provided to the file. The parties are warned that, if they have provided any paper document, as well as objects or evidence contained in any additional electronic, computer, magnetic, optical, telematic, or new technology-produced device, these must be withdrawn 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, according to 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 Boletín Judicial number 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. Therefore: In relation to the alleged violation of Article 45 of the Political Constitution, section 208 bis of the Regulations of the Legislative Assembly, and the principle of legal certainty, the action is unanimously declared inadmissible, because, on the one hand, no type of diffuse or collective interest is observed, and, on the other, there is no prior matter in which unconstitutionality has been invoked as a means to protect the right or interest claimed. Likewise, the action is unanimously declared without merit regarding the argued infringement of sections 7 and 176 of the Political Constitution and the constitutional principles of budgetary balance, reasonableness and proportionality, and economy and efficiency. Regarding the alleged injury to the right to a healthy and ecologically balanced environment, contemplated in Article 50 of the Political Constitution, the action is declared without merit by majority. Judges Cruz Castro, Rueda Leal, and Garro Vargas dissent and declare the action with merit for violation of the precautionary, non-regression in environmental matters, lifetime tenure (irreductibilidad), and objectification of environmental protection principles. Judge Garro Vargas gives different reasons and adds a note. Judge Hernández López and Judge Salazar Alvarado add separate notes. Let this ruling be notified to the plaintiffs, to the Procurador General de la República, to the President of the Asamblea Legislativa, to the Minister of Environment and Energy, to the Minister of Agriculture and Livestock, to the General Manager of the National Service for Groundwater, Irrigation, and Drainage, and to the coadjuvants.

Fernando Castillo V.

Fernando Cruz C. Paul Rueda L.

Nancy Hernández L. Luis Fdo. Salazar A.

Jorge Araya G. Anamari Garro V.

Separate note from Judge Hernández López In the discussion of this matter, I had reserved the drafting of a separate note. However, I forgo it, as the observations I had on the subject are comprehensively reflected in the drafting of the judgment.

Nancy Hernández López Judge Note from Judge Salazar Alvarado:

Having seen the comprehensive drafting of the Judgment rendered in this matter, I forgo the note that I at one point considered opportune during the discussion and voting of this unconstitutionality action.- Luis Fdo. Salazar A. Judge Dissenting vote of Judges Cruz Castro and Rueda Leal, with drafting by the latter. We respectfully dissent from the Majority's opinion and declare unconstitutional Law No. 9610 of October 17, 2018, named "Modification of the Limits of the Lomas de Barbudal Biological Reserve for the Development of the Water Supply Project for the Middle Basin of the Río Tempisque and Coastal Communities," for violation of the precautionary, non-regression in environmental matters, lifetime tenure (irreductibilidad), and objectification of environmental protection principles. In the sub examine, the challenged law was mainly based, as observed in the statement of purposes of the corresponding bill, on the study by the Organization for Tropical Studies (hereinafter OET) entitled "Establecimiento de la línea Base de Biodiversidad para la Reserva Biológica Lomas de Barbudal (RBLB) y finca adyacente" of June 2017. Although, in principle, it is not for the Chamber to technically evaluate the quality of the studies or define which professional criterion should prevail, it is no less true that this Court does intervene when there are evident and manifest inconsistencies or shortcomings (for example, judgments No. 2012013367 of 11:33 a.m. on September 21, 2012, and 2013010540 of 3:50 p.m. on August 7, 2013). In the sub iudice, after analyzing the OET study, we verified a series of problems that are obvious from its simple reading and that manifestly demonstrate the non-compliance with the constitutional requirements that this Court has established for the disaffectation of protected areas. Regarding the reduction of protected areas, this Court, in judgment No. 2019000673 of 12:00 noon on January 16, 2019, ordered: " V.- Jurisprudence on the reduction of protected areas, the sufficiency of technical reports, and due compensation.- On the reduction of protected areas, the jurisprudence of this Chamber provides the following: 1. Constitutional requirements for the reduction of a protected wilderness area (legal reserve and technical studies): In support of Article 38 of the Organic Environmental Law ("the surface of protected wilderness areas, natural heritage of the State, whatever their management category, may only be reduced by Law of the Republic, after carrying out the technical studies that justify this measure"), there has been a solid jurisprudential line, in the sense that for the reduction of a protected wilderness area, in any of its management categories (including national wildlife refuges), two essential requirements must be met: "by means of law and prior realization of sufficient technical studies that justify the measure." (Sala Constitucional, votes number 13367-2012 and 010158-2013. In a similar sense, judgments number 7294-1998, 11155-2007, 1056-2009, 18702-2010 and 14772-2010, among others). As stated in the mentioned resolution of 1998: "(...) once a specific area has been declared a protected zone by a State act, the State cannot, simply, disaffect it in whole or in part, to protect other interests—public or private—to the detriment of the enjoyment of a healthy environment, in accordance with the provisions of Article 50 of the Constitution. However, the fact that a norm, of whatever rank, has declared a specific area a protected zone does not imply the establishment of a petrified zone, in the sense that its area can in no way be reduced by subsequent legislation. Nevertheless, it must be kept in mind that the declaration and delimitation of a protected zone, in compliance with what is mandated in Article 50 of the Constitution, implies a defense of the fundamental right to the environment and, therefore, the reduction of the area must not imply a detriment to that right, a situation that must be established in each specific case. The fact that through a subsequent law the area of a protected zone, a forest reserve, a National Park, or any other site of environmental interest is reduced is not necessarily unconstitutional, as long as this is justified insofar as it does not imply a violation of the right to the environment. It might be that, due to various circumstances, a specific site has lost, at least in part, the environmental interest that, at the time, prompted it, which, having conducted the relevant studies, would justify its modification or reduction, all in application of the principle of constitutional reasonableness..." (vote No. 7294-1998). Specifically on the legal reserve in this matter, vote No. 14772-2010 stated: (...) the public purpose of a public domain asset cannot be modified without a legislative act, that is, the reduction of the area of a protected zone is under the guarantee provided by the principle of legal reserve. Although, in accordance with Article 36 of the Organic Environmental Law, the Executive Branch is authorized to establish Protected Wilderness Areas by fulfilling the requirements set forth in that norm, thus, Corcovado National Park was established by Executive Decrees No. 5357-A of October 24, 1975 and 1148-A of February 5, 1980, its modification may only be made in accordance with the provisions of Article 38 of the Organic Environmental Law, prior technical and scientific studies, and through a legislative act. (highlighting not in original). Likewise, in judgment No. 1056-2009 it was indicated that reduction is only possible via legal means: "when dealing with the expansion of the limits of the protective zones of the State's forest heritage, it is possible to do so via regulation, but when dealing with their reduction, it can only be done via legal means, of course, provided there is a prior criterion that justifies the measure." (Sentencia de la Sala Constitucional No. 1056-2009) Which was applied when the Chamber declared unconstitutional the regulatory norm (Decreto Ejecutivo No. 32753-MINAE) through which the Executive Branch decreased the territory of the Gandoca-Manzanillo Refuge, subtracting the urban area of the Refuge from the area and the protection regime. In addition, regarding the studies, they must be prior, sufficient, necessary, and individualized—as indicated in the following section. This was stated in that same resolution of 1998: "In accordance with the aforementioned, mutatis mutandi, if for the creation of a protected wilderness area the Legislative Assembly, by means of a law, established the fulfillment of specific requirements, to determine if the affectation in question is justified, the logical thing is that, for its partial or total disaffectation, certain requirements must also be met—such as the conduct of technical environmental studies—to determine that with the disaffectation the content of Article 50 of the Constitution is not transgressed. In this sense, we can speak of levels of disaffectation. Thus, not all disaffectation of a protected zone is unconstitutional, as long as it implies impairment of or a threat to the right to the environment. Hence, to reduce any protected wilderness area, the Legislative Assembly must do so based on sufficient and necessary technical studies to determine that no harm will be caused to the environment or that it will not be endangered and, consequently, that the content of Article 50 of the Constitution is not violated. The principle of reasonableness, in relation to the fundamental right to the environment, requires that the norms dictated regarding this matter be duly motivated by serious technical studies, even if no other legal norm expressly established it. In this Constitucinal (sic) Court's opinion, the requirement contained in Article 38 of the Organic Environmental Law No. 7554, in the sense that to reduce a protected wilderness area by formal law, the technical studies that justify the measure must be carried out beforehand, is nothing other than the objectification of the principle of reasonableness in environmental protection matters." (highlighting not in original). 2. Technical study as a scientific and individualized analysis: The Chamber has referred to the sufficiency of the technical study, when through several resolutions it has established that said study must be a scientific and individualized analysis. The following was stated: "the requirement of technical studies is not a mere formality, but is a material requirement, that is, it must be materially demonstrated, through a scientific and individualized analysis, the degree of impact of the corresponding measure on the environment, to put forward recommendations aimed at lessening the negative impact on it, and to demonstrate how such a measure implies development that meets the needs of the present without endangering the capacity of future generations to meet their own needs." (Vote No. 13367-2012. See also No. 10158-2013). From which it follows that the technical study required by Article 38 of the Organic Environmental Law, which is the objectification of the constitutional principle of reasonableness in environmental protection matters, requires a technical analysis that implies an individualized analysis, which must contain at least the following measures: The degree of impact of the corresponding measure on the environment; The recommendations aimed at lessening the negative impact on the environment; The demonstration of how the measure taken implies development that meets the needs of the present without endangering the capacity of future generations to meet their own needs. In summary, said prior study must demonstrate that the disaffectation is in accordance with the constitutional protection of the right to the environment, since, as stated in vote No. 18702-2010, "it cannot be allowed that areas of this nature are titled indiscriminately, since this would go against the very conservationist environmental policies that the State has sought by virtue of the duties ordered by the Political Constitution and the International Conventions it has signed." 3. Compensation measures: A protected area can only be reduced if it is done by law, if there are technical and scientific studies that rule out environmental damage, and if a compensation for the suppressed area is provided with another of equal size.

There is no doubt that all regulations involving the reduction of protected areas without the support of technical studies or any compensation are unconstitutional” (voto Nos. 12887-2014, 2773-2014, 2012-13367 and 2009-1056).

VI.- On the challenged regulations.- As observed, both the Law to regulate the creation and development of the Las Tablillas border post, Law No. 8803, and its Regulations, are challenged in their entirety, basically for two reasons: for lacking the technical study supporting the reduction of a protected area (in this case a national wildlife refuge), and for failing to establish compensation measures. Each of these allegations is examined separately. REGARDING THE TECHNICAL STUDY: The petitioner indicates that the challenged Law and its regulations are segregating and reducing several hectares of the National Wildlife Refuge in the border zone, without any environmental studies justifying that action. He indicates that the legislators took a simple recommendation that can never be considered a serious, thorough, and comprehensive study that would allow what was done. The Office of the Attorney General of the Republic, in its report, indicates that, in its Legal Opinion No. O.J.-98-2009, issued on October 14, 2009, at the request of Legislators during the processing of the bill that culminated in Law No. 8803, it analyzed the technical study incorporated into the legislative record at that time, deeming it insufficient to justify it: “…it must respectfully be noted that said technical report does not meet the necessary requirements to support the bill under consultation. Note that it studies the 236 hectares initially proposed and concludes that the project is not viable from an environmental and social standpoint. However, said study does not explain in any way why that negative impact would not occur on the 13 hectares proposed, or in other words, to date, there is no technical criterion addressing the reasons why the segregation of the 12.3 hectares established in the consulted bill is viable…”. The Minister of Environment and Energy indicates that there is no unconstitutionality. He adds that the challenged law was not intended to remove the area in question from the public domain (desafectación del dominio público), but rather to authorize the use of a portion of the area for another purpose of public interest, which is the installation of a border and customs post, with the understanding that these are State constructions and not private ones. Thus, on September 28, 2007, the technical report prepared by the Tablillas case commission was issued, called “Request for reduction of the area of the Corredor Fronterizo National Refuge,” which proposed an area to be degazetted (desafectar) of 13 ha bordering the boundary line, because the officials of the Arenal Huetar Norte Conservation Area deemed the segregation of the indicated area of 236 ha unviable, the report concluding that: “13 hectares would be a more viable proposal from the standpoint of impact on the ecosystems present at the site and surroundings.” Said report considered biophysical, socioeconomic, and security aspects. It concludes that the cost-benefit balance of establishing posts that carry out migrant entry control and management in that sector contributes to regulating entry through the demanial strip coinciding with the Protected Wild Area. The Ministers of the Presidency and of Foreign Trade indicate that, on folios 76 to 94 of the legislative file, there is the technical report prepared in September 2007 by MINAE. The identified site meets the suitable conditions for the development of a Border Post project since it had already been impacted by human action, a fact verified by the non-existence of important or fragile ecosystems, the absence of primary or secondary forest cover (cobertura boscosa), wetlands, or watercourses, but only natural pastures and cleared land ready for cultivation or sowing. Furthermore, the area is technically strategic for the location of the Border Post due to its proximity to the boundary line and the existence of access routes for internal movement (roads) and a national highway connected to the road on the Nicaraguan side of the border. In this regard, this Chamber concludes that, indeed, the Office of the Attorney General of the Republic is correct in its report; there is no technical study that addresses the viability of this project, since the one that was carried out referred to a larger area, concluding that it was not viable from an environmental and social standpoint. Therefore, it was necessary to justify why the new proposal would not create problems in the wetlands, in the species of the area, in the aquifers, and would not produce a social problem, as was detected in the initial proposal. The technical study referred to by the Ministers is evidently insufficient, as it does not explain in any way why that negative impact would not occur on the 13 hectares proposed, the degree of environmental impact (impacto) of the corresponding measure, the recommendations aimed at reducing the negative environmental impact, nor the demonstration of how the adopted measure implies development that meets the needs of the present without jeopardizing the capacity of future generations to meet their own needs. On the other hand, while it may be true, as the Ministers say in their report, that the property is not leaving the public domain, the fact is that it is being degazetted, environmentally speaking. It may also be true, as the Ministers say in their report, that besides the environmental interest in the border zone, there may be other relevant interests such as migratory security and others. However, this is precisely what the foundation of the technical report should have contained. Note that, as the Ministers indicate, it may be true that certain environmental measures were being taken; this does not negate the fact of the lack of a technical report that the law should have included, which leaves those environmental measures without the required technical support. Thus, the alleged unconstitutionality of the challenged law –and by extension its regulations– is evidenced, due to the lack of a sufficient technical report supporting the reduction of the National Wildlife Refuge in the border zone. REGARDING COMPENSATION MEASURES: The petitioner indicates that the law did not establish timely compensation measures for the ordered segregation. The Office of the Attorney General of the Republic indicates in its report that an unconstitutionality due to violation of this principle is not necessarily resolved by annulling the Law; if classified as an unconstitutionality by omission, it would suffice for the Constitutional Chamber to order in its judgment the addition to the Refuge of the portion or portions that compensate for the suppressed area, which could even be done by regulatory means. The Ministers of the Presidency and of Foreign Trade indicate that the intention to demolish the public infrastructure would cause the immediate lack of protection for order, peace, health, sustainable development, life, and human dignity. They further consider that there is no obligation of the State to compensate an already deforested and impacted area with another, since there was never a reduction of forest or an environmental impact (afectación al ambiente) that would justify the compensation measure. In this regard, this Chamber concludes that, indeed, the challenged regulations are also silent regarding compensation measures. The segregation of around 13 hectares, as indicated in Article 1 of the challenged law, being evident, and even though these do not leave the public domain, they did leave an environmental management category, which obligated the establishment of legal compensation measures, which were not adopted or guaranteed, as observed from reading the entire law. Thus, the alleged unconstitutionality of the challenged law –and by extension its regulations– is evidenced, due to the lack of compensation measures for the reduction of the National Wildlife Refuge in the border zone.

VII.- In conclusion.- From the reiterated case law of this Chamber, it is established that any reduction of a protected wild area, in any of its management categories (including national wildlife refuges), must meet three essential requirements: legal reserve (meaning, it can only be done by law), prior completion of sufficient technical studies justifying the measure, and the establishment of compensation measures. In this case, it was evidenced that the Law to regulate the creation and development of the Las Tablillas border post (Law No. 8803) and its Regulations proceeded with the segregation, and consequent reduction, of the National Wildlife Refuge in the border zone. However, although it was done by means of a law, a sufficient prior study was not carried out that: justified the measure, established the degree of environmental impact (impacto) of the corresponding measure, the recommendations aimed at reducing the negative environmental impact, nor demonstrated how the adopted measure implies development that meets the needs of the present without jeopardizing the capacity of future generations to meet their own needs, or established, concretely and in detail, compensation measures. All of which evidences unconstitutionality by omission. Proceeding in this case to declare the action with merit, with a particular framing of this judgment’s effects (dimensionamiento), as indicated.” Based on the cited precedent, we consider that the requirements that must be met for the degazetting (desafectación) of protected areas to be constitutionally viable are the following:

• 1)The declaration and delimitation of a protective zone, in compliance with Article 50 of the Constitution, implies a defense of the fundamental right to the environment and, therefore, the reduction of its area should not entail a detriment to that right (causing damage or endangering it), a situation that must be established in each specific case.
• 2)The reduction of a protected area, whatever its management category, can only be done by law, after technical and scientific studies (prior, sufficient, necessary, and individualized) that, in consideration of the principle of reasonableness, justify the measure.
• 3)The study must materially demonstrate, through a scientific and individualized analysis, the degree of environmental impact (impacto) of the corresponding measure, propose recommendations aimed at reducing the negative impact on the environment, and demonstrate how such a measure implies development that meets the needs of the present without jeopardizing the capacity of future generations to meet their own needs.
• 4)The reduction of a protected area implies compensation for the suppressed area with at least another area of equal size and equivalent conditions.

Now, in relation to the problems detected in the study in question, OET itself pointed out that at least two years of execution should be considered for the baseline, compensation, and impact studies. In that sense, it explicitly stated: “The recommendation is that at least two years of execution be considered for the baseline, compensation, and impact studies, and that they effectively be considered an essential component of the project.” The foregoing is transcendental for the purposes of this constitutional proceeding, since, without having been able to demonstrate any scientific or technical justification, the sampling period of the OET study was only 10 months, which was calculated based on the time limit available for the project, without any technically supported criterion being observed to support that figure.

In this regard, Mr. Mahmood Sasa Marín, coordinator of the OET study, mentioned at the hearing held in this action that, in his opinion, the major conclusions would not change with a longer timeframe and that: “the recommendation (…) was in the sense of having true support (…) obviously the more data we have the better, but I believe that the broad conclusions, let's say that ratio of more or less three to one, would hold.” However, such a situation produces uncertainty and generates doubt, since the consultant himself had previously stated: “that many of those groups (…) in reality do not provide sufficient information, many of the taxonomic groups (…), many of the indicators if you will, (…) we had that timeframe, it was analyzed, we have that data, and with that data we weave that conclusion.” Hence, we consider that the 10-month execution period of the study does not provide sufficient scientific certainty to understand the real conditions of the RBLB and the area proposed to compensate for its degazetting, which is unacceptable due to the impact on a protected area. In other words, if it is indicated that the timeframe for baseline studies should be at least two years (that is, a minimum is imposed) and there is no scientific or technical justification for reducing it, the reliability of the results is manifestly uncertain.

On the other hand, the aforementioned study initially aimed to analyze only two sites: “the Lomas Barbudal Biological Reserve (RBLB) and the potential swap zone to compensate for potential losses, located at the western end of the farm ASETREK Tres azul S.A.” Likewise, Chapters II (Habitat Quality) and III (Community Composition) focus on comparing the conditions of the RBLB with the farm ASETREK Tres Azul S.A. It was not until Chapter IV (Considerations on Compensation) that the acquisition of a property called Brindis de Amor was proposed, based on these considerations:

“4.2. Other compensation alternatives. Our evaluations reveal that the site selected in ASE TREK to compensate for losses in the Lomas de Barbudal Biological Reserve possesses environments of lower biological quality. The compensation estimation method we have followed here ‘penalizes’ those lower-quality habitats by assigning them lower scores, which translates into the allocation of a larger surface area to mitigate the deficit. The compensation proposal at ASETREK is that the portion of the property possessing forest cover be segregated and annexed to the Biological Reserve.

However, this procedure in itself does not resolve the need to obtain habitat quality comparable to the affected habitat, which is currently vulnerable and protected by the Biological Reserve. Thus, following the habitat-hectare method, our results indicate that it is possible to compensate for some of the losses at Lomas de Barbudal from a specific area of the habitat available at ASETREK; but it does not ensure the gain of all the elements or characteristics that will be affected by the reservoir. The best example is provided by the riparian forest cover (bosque ripario) that will be lost at RBLB and which has no counterpart in the environment available at ASETREK.

Another drawback is that ASETREK, despite containing the most extensive forest fragment adjacent to the Biological Reserve, does not have the number of hectares with forest cover necessary to meet the minimum 330 hectares requested by our analysis. Figure 46 shows the patches of deciduous and secondary forest available in the area with forest cover within ASETREK (sites 3 and 4). These forest covers correspond to 292 Ha, although to unite them, it will be necessary to segregate an area of approximately 444 Ha. Furthermore, because they are flammable and prone to fire expansion, the existence of pasture areas and non-forest use within the ASETREK property is considered a threat to the forest fragments that still remain on that property.

These considerations suggest that other compensation options should be analyzed as a complement to the contribution that would be made by annexing the ASETREK property to the Biological Reserve.

Northeast of the Lomas de Barbudal Biological Reserve, there are private properties with fragments of riparian and secondary forests. In fact, a quick examination reveals that near the Quebrada Amores there are forested conditions that could be of protection interest. One of them is Brindis de Amor, a property of about 86 Ha bordering the Lomas de Barbudal Reserve, whose forest cover has been protected by its owner Carlos Jiménez for the last twenty years (Figure 47).

(…)

4.2.1. Brindis de Amor as a complement to compensation Brindis De Amor has 15.87 Ha of riparian forest (bosque ripario), 8.4 Ha of secondary forest, and 45.2 Ha of deciduous forest. The rest of the property is pastureland showing early stages of deciduous forest succession. The property is traversed by the Río Cabuyo, which is permanent and is the same river that irrigates the adjacent Biological Reserve (Figure 48).

(…)

Based on these observations, the following are the arguments we consider justify the use of Brindis de Amor as part of the compensation to offset the losses at RBLB due to the project’s effects.

1. The results of our study, both in habitat quality (sic) and community composition, reveal the need to compensate for the loss at Lomas de Barbudal with at least 332 Ha of forested habitat. However, to achieve that number of hectares at ASETREK, it is necessary to include part of the deciduous forest on the eastern slope of the property, the quality of which is inferior (due to greater slope) to that of the western side. Furthermore, there is no fragment of mature riparian forest, which undoubtedly constitutes a shortcoming in the compensation capacity of the ASETREK property evaluated in our study.

2. The Brindis de Amor property has 15.87 ha of mature riparian forest. Although the analysis of this fragment’s composition was preliminary, our field observations indicate that it is constituted by evergreen species similar to those found in the same cover in RBLB and that it is comparable in basal area (Figure 49) to that of the fragment found at the potential flooding site in Lomas de Barbudal. While it is true that the extent of the riparian forest in Brindis de Amor is less than what would be lost in Lomas de Barbudal, it represents a significant fraction of what remains in the entire region. In fact, the area of riparian forest in Brindis de Amor represents 7.4% of the area covered by that type of forest within the Biological Reserve currently.

(…)

6.1. Final recommendations. 6.2. RECOMMENDATIONS ON THE COMPENSATION TO BE FOLLOWED. 1. Compensation area at ASETREK. Both in terms of habitat quality attributes and in aspects of species diversity and composition, our results demonstrate that the compensation site at ASETREK represents between 30% and 45% of the reference qualities, which translates into compensation of 252 or 332 hectares (estimates taking into account species composition or the minimum possible habitat quality value, respectively). To unify criteria, our suggestion is to use the estimate of 332 hectares as the measure of the area needed to compensate for the loss due to the impact on the Biological Reserve.

2. Compensation must be carried out by additionally incorporating other properties and systems. An important consideration is that the quantity of hectares of the evaluated habitat required for our compensation estimates is not available at ASETREK. Moreover, as mentioned in this report, said property does not have riparian forest available for compensation. Thus, we recommend the incorporation of the Brindis de Amor property as part of the compensation. The proposal is summarized in Figure 51, and would involve the annexation of 530 Ha (444 Ha from ASETREK and 86 Ha from Brindis de Amor) to Lomas de Barbudal in compensation for the losses due to flooding in the terrestrial environment.” In the above sense, the study also concluded:

“The procedure for evaluating compensation was designed to compare sites with the same type of habitat. However, in the present study, the heterogeneity found at the potential impact site in the Biological Reserve forced the averaging of the values assigned to each of the forest covers found for each indicator. An additional difficulty was that the riparian forest (bosque ripario) has no counterpart in ASETREK, so it was decided to assign a minimum value to this cover in each indicator.” As observed, OET acknowledged that the ASETREK Tres Azul S.A. property possesses environments of lower biological quality and that the compensation estimation method (habitat-hectare) did not ensure the gain of all the elements or characteristics that would be affected. Additionally, it also expressly accepted that the proposal to acquire the property called Brindis de Amor (as a complement to compensation) was made by means of a preliminary analysis.

In that sense, the coordinator of the OET study stated at the aforementioned hearing that, although, methodologically, the ASETREK property should be sufficient –since that difference in environmental quality had been ‘penalized’–, in his own opinion, it was not. Furthermore, the aforementioned professional admits that Brindis de Amor was evaluated through a series of vegetation samplings, but not of fauna. He adds that the study was preliminary, in the sense that it does not have the entire fauna component, and in that sense, he asserted: “it is clearly different from what was done at ASETREK, yes.” The foregoing, a priori, allows the conclusion that the study carried out for the compensation of potential losses did not demonstrate the sufficiency or the ecological equivalence of the proposed area and that, without the same rigor or thoroughness, the incorporation of another property was recommended. It suffices to contrast the quantity of indicators (of habitat quality and diversity, among them: geophysical attributes, landscape quality, vegetation structure, and ecosystem services; and of community composition, among them: vascular plants, avifauna, mammals, herpetofauna, ichthyofauna, and understory insect diversity) that were studied in the RBLB and in ASETREK, with the preliminary analysis carried out at Brindis de Amor. Note that the study itself stated that adding the Brindis de Amor property contravened the basic notions of reserve design by not contributing to the formation of a compact block, despite which it was recommended to add it to the compensation, without any additional formal recommendation or consideration.

Now, even with the above inclusion, the Technical Committee of the Arena Tempisque Conservation Area, according to minute No. 5-2017 of the meeting held on June 30, 2017, concluded that the proposal was still insufficient: “The riparian forest (bosque ripario) cover type is of utmost concern regarding its scarce representativeness at the RBLB level. This cover is represented only in 8.0% (216.17 ha) of the total area of the RBLB. The studies determined that the riparian forest within the flood zone in the reserve corresponds to 11.4% (24.64 ha) of the total area of that cover in the RBLB. The area of riparian forest on the Brindis de Amor farm represents 7.40% (15.87 ha). This, added to the 2.2 ha of ASETREK, totals 18.07 ha of riparian forest as a compensation proposal. Presenting a difference of approximately 6.57 ha of riparian forest to compensate for this type of ecosystem.” It also recommended to the regional council: “1. Identify an area of riparian forest that allows compensating for the shortfall in hectares for this type of ecosystem. Since the studies determined that the riparian forest within the flood zone in the Reserve corresponds to 11.4% (24.64 ha) of the total area of that cover in the RBLB, the area of riparian forest on the Brindis de Amor farm represents 7.40% (15.87 ha). This, added to the 2.2 ha of ASETREK, totals 18.07 ha of riparian forest as a compensation proposal, meaning that approximately 6.57 ha of riparian forest would be lacking to compensate for this type of ecosystem. According to maps and knowledge of the site, there are other properties adjacent to the Lomas Barbudal Biological Reserve with those characteristics.” In that sense, the Regional Council of the Arenal Tempisque Conservation Area (CORACAT), according to agreement No. 1 adopted at the extraordinary session held on July 5, 2017, and subsequently, the National Council of Conservation Areas (CONAC), at extraordinary session No. 3 of July 11, 2017, considered that the total proposed areas of riparian forest amounted to 18.07 hectares, that is, an area smaller than the fragment that would be lost in the flood zone of the RBLB (24.71 hectares). Therefore, they proposed the identification of an additional area for the compensation proposal that included riparian forest and thus allowed compensating for the shortfall in hectares for this type of ecosystem; hence, after analyzing the proposals for possible compensation areas for the missing riparian forest and jointly with SINAC officials, it was considered to add a part of the farm Hacienda Ciruelas SP S.A.

Regarding this, CORACAT, in official letter No. SINAC- CORACAT-SE-041, stated: “There are some official letters sent by SENARA, for example, SENARA-GG-0374-2017, SENARA-GG-0257-2017 and SENARA-INDER-172-2017 indicating that within the ASETREK property there are 6.14 ha (sic) of riparian forest. However, this figure is not mentioned in the study carried out by OET, or supported by any study in this regard, with the same characteristics as the initial study. Regarding the Brindis de Amor farm, this Council also considers that the studies were not carried out with the same depth of analysis as the initial study, nor for sufficient time that technically supports the quality of the components addressed from the beginning of the research. It is necessary to further deepen the studies on this property or any other considered as a compensation proposal, so that this Council can issue a well-founded opinion.” Furthermore, the final compensation proposal was defined in official letter No. SENARA-INDEP-441-2017 of July 17, 2017, which provided that to compensate for the degazetted area and cover the riparian forest shortfall, 444.04 hectares of the farm ASETREK Tres Azul S.A., the entirety of the Finca Brindis de Amor in Liberia S.A. with an area of 86.96 hectares, and an area of 40 hectares of the farm Hacienda Ciruelas SP S.A. would be included.

Thus, after analyzing official letter No. SENARA-INDEP-441-2017, it is observed that several properties were compared to propose the additional compensation area; however, no detailed analysis was carried out of the biological and geophysical characteristics of the Hacienda Ciruelas SP S.A. property. Furthermore, although SENARA reported that during the processing of Law No. 9610, the document called “Compensation Proposal for the Lomas de Barbudal Biological Reserve” had been considered, in the section corresponding to the Hacienda Ciruelas property, it was also expressly recorded that only a “preliminary” analysis had been performed on it.

In another vein, there is no evidence in the record that there was any complete technical study justifying the decision to degazette the Lomas de Barbudal Biological Reserve for the purposes of issuing the questioned law. In this regard, Patricia Quirós, general manager of SENARA, was asked at the hearing: Was there any technical study that determined the need to degazette the Lomas de Barbudal Biological Reserve for the PAACUME Project, any technical study that stated it is precisely that biological reserve that needs to be impacted so that the PAACUME project can be developed? In response to the above, she stated: “we directly contracted ICE for the feasibility of the dam and reservoir on the Río Piedras, and according to the analysis that was carried out, it was determined that the only site that exists for the construction of the reservoir is indeed on the Río Piedras, because there is a depression, a drop there that allows that existing level difference in the area to make it possible to carry the water to the right bank of the Río Tempisque. So, in the region, it is the only possible site to be able to build the reservoir and to be able to carry the water to the right bank.” Then, before concluding the hearing, the following was asked: “you mention that there is a technical study that justified the degazetting of the Lomas de Barbudal Biological Reserve and determined the construction of the reservoir at that location was necessary; specifically, which study are you referring to, and can you provide it to the record?” In that regard, she answered: “the technical study I am referring to is the study carried out specifically by the OET; when I refer to the consultation, I am referring to the fact that the study carried out by ICE refers specifically to the engineering study, the feasibility study for the dam and reservoir.” Similarly, she was further questioned: “you indicate that there was a study that said the project could only be carried out by affecting the Lomas de Barbudal Biological Reserve; is that study the ICE one, then?” To which she responded: “No, there is a feasibility study for the entire project carried out by SENARA, where that situation is established.” She also mentioned that she would provide a copy of said study for the case file.

In relation to the above, after reviewing the OET study, it is noted that it does not properly analyze the need to disaffect the RBLB for the construction of the reservoir, but rather it merely constitutes a study to establish the Biodiversity Baseline of the area to be disaffected and the potential compensation site. Likewise, the Feasibility Study provided by SENARA after the hearing expressly states that it is from October 2018, a time by which the bill had already been approved in the second debate (extraordinary plenary session No. 11 of September 6, 2018), and therefore it could not even have been the subject of discussion in the Legislative Assembly. Hence, even if this feasibility study had developed the need to disaffect the RBLB, chronologically it could not have served as a basis for such purpose, for the purposes of the law in question.

Now, it is worth clarifying that the study referring to the disaffection of protected areas does not exclude the Environmental Impact Assessment (Evaluación de Impacto Ambiental, EIA) to which the PAACUME project must be subjected in its entirety. Precisely, before SETENA, the various direct or indirect impacts of the project on the surrounding areas can be analyzed, as well as the possible violation of the UNESCO Convention for the Protection of the World Cultural and Natural Heritage and the possible effects of the PAACUME project on the site declared a World Heritage Site in the Guanacaste Conservation Area. In this latter case, if the Environmental Impact Assessment establishes mitigation and prevention measures for the impacts within the protected wild area or its surroundings, the corresponding provisions must be taken to comply with those requirements.

In conclusion, since a study was conducted on the Lomas del Barbudal Biological Reserve and on the property of ASETREK Tres Azul S.A. for a period shorter than that recommended by the Organization for Tropical Studies itself, there is no scientific or technical certainty of the results obtained. Furthermore, the study failed to reliably and substantively demonstrate that the ASETREK Tres Azul S.A. property, as a compensation proposal, was environmentally equivalent to the disaffected area, because, specifically, the study mentioned that the habitat was not comparable, there was no correspondence with the reserve's environment (the greatest example of this is the deficiency in riparian forest detected), and the recovery of all the elements or characteristics affected by the reservoir was not ensured. The foregoing is relevant because the OET study itself, in its conclusions on the impact site and its compensation, stated that the RBLB is one of the few state-owned wild areas that protect natural resources in the Tropical Dry Forest life zone of our country and that, given such a significant impact with the direct effect of the project, environmental compensation became an essential measure. In addition, since only a preliminary analysis was carried out on the Brindis de Amor property, we consider that the Chamber cannot even consider it a priori, since to disaffect a biological reserve and propose the respective compensation, at least complete and sufficient studies must be carried out. The foregoing reasoning applies even more forcefully to the Hacienda Ciruelas property, which was not even included in the OET study and for which the analysis carried out was also preliminary. In this regard, we consider that a preliminary study can never be sufficient to support a decision with environmental implications of this magnitude, as occurs in the sub lite case. Finally, it is not observed that the law in question had any support in a scientific and technical study regarding the justification for the need to disaffect the RBLB, since the OET report did not cover this aspect and the PAACUME feasibility study prepared by SENARA was, in any case, dated after the approval of that normative body.

Allowing the disaffection of a biological reserve based on this OET study (clearly insufficient as stated supra), on other analyses of a preliminary nature, and on a feasibility study that could not even be discussed during the legislative process, represents a serious setback for environmental protection (tutela ambiental), formerly widely recognized by this Constitutional Chamber. Such a setback is even more regrettable in light of the recent evolution of the jurisprudence of the Inter-American Court of Human Rights, which, in its judgment of February 6, 2020 (Indigenous Communities Members of the Lhaka Honhat (Our Land) Association Vs. Argentina), fully incorporates Advisory Opinion OC-23/17 of November 15, 2017, thus converting the legal considerations of the latter into binding jurisprudence for the countries subject to the jurisdiction of that international court. In this regard, the IACHR Court highlights that “in environmental law, the principle of prevention is applicable with respect to activities carried out in the territory or under the jurisdiction of a State that cause damage to the environment of another State, or with respect to damage that may occur in areas that are not part of the territory of any particular State, such as, for example, the high seas.” Precisely, the IACHR Court recalls that “the International Court of Justice has indicated that the obligation of prevention arises when there is a risk of significant damage. According to said court, the significant nature of a risk can be determined by taking into account the nature and magnitude of the project and the context where it will be carried out.” Consistent with this perspective, the IACHR Court emphasizes, as an essential element of the human right to a healthy and ecologically balanced environment, the duty of regulation, from which, given “the relationship between environmental protection and human rights (supra paras. 47 to 55), States must regulate this matter and adopt other similar measures to prevent significant damage to the environment.” (Highlighting does not correspond to the original). In order to achieve the foregoing, the requirement for sufficient and prior technical studies for the purposes of approving bills that impact the environment, habitually applied by constitutional jurisprudence in obedience to the principle of objectification of environmental protection, absolutely clearly constitutes one of those appropriate “similar measures,” which rises to the level of a requirement of international human rights law, thanks to the jurisprudence of the IACHR Court.

Based on the considerations presented, a transgression is proven against Article 50 of the Political Constitution, the precautionary principle (due to doubt about the real conditions of the RBLB and the compensation proposal generated by the deficiencies detected in the OET study, as well as the lack of certainty that the healthy and ecologically balanced environment will not be harmed), the principle of non-regression in environmental matters (since it was not proven that the proposed compensation was at least equivalent to the disaffection), the principle of lifetime tenure (irreductibilidad) (by reducing a biological reserve without meeting the respective constitutional requirements), and the principle of objectification of environmental protection (by using merely preliminary studies to support compensation proposals and because the law in question was not supported by technical and scientific studies (prior, sufficient, necessary, and individualized) that justify the reduction of the protected area).

Fernando Cruz C. Paul Rueda L.

File: 19-000257-0007-CO Res. No. 2020-0013836 DISSENTING VOTE OF MAGISTRATE GARRO VARGAS

I. Preliminary Considerations

II. Grievances of the Plaintiffs under Review in this Vote

III. Jurisprudential Framework. The Technical Justification of Laws in Environmental Matters

IV. On the Disaffection of a Protected Area

A. Normative and Jurisprudential Framework on the Disaffection of Protected Areas B. Analysis of the Technical Justification for the Challenged Disaffection 1. Environmental Importance of the Lomas de Barbudal Biological Reserve 2. Examination of the Existence of Technical Studies on the Disaffection a. Statement of Motives for the Law in Question b. Reports from SENARA and the Regional Council of the Conservation Area 3. The Report of the Attorney General's Office C. Conclusions on the Matter

V. On the Compensation Studies

A. The Grievances Raised by the Plaintiffs B. The International Obligation to Conduct Compensation Studies C. Reports from Authorities Contained in this Case File 1. Report of the Attorney General's Office.

2. Report of the President of the Board of Directors of the Legislative Assembly 3. Report of the National Service for Groundwater, Irrigation, and Drainage 4. Organization for Tropical Studies D. Conclusions on the Matter

VI. Conclusions

Preliminary Considerations As a Costa Rican and as a Magistrate of this Chamber, I share the concern about the extremely serious problem of access to water resources suffered by an important area of the province of Guanacaste. I understand that the law challenged here is intended as a means to solve it. However, to my deep regret, I cannot help but notice that it contains serious defects of constitutionality. Therefore, based on the arguments I will explain, I have decided to dissent regarding the alleged violation of the right to a healthy environment and to uphold the action for violation of the precautionary, non-regression in environmental matters, lifetime tenure (irreductibilidad), and objectification of environmental protection principles.

Grievances of the Plaintiffs under Review in this Vote Therefore, in this dissenting vote, I will refer only to the grievances related to environmental issues. On the one hand, to the legislative decision to disaffect 113 hectares of the Lomas Barbudal Biological Reserve (RBLB) without any disaffection study to justify it, and on the other, to the purported justification for the reduction of that reserve through a compensation study that is incomplete and biased.

To analyze both points, it is first necessary to specify what this Chamber's jurisprudential line has been on the justification of bills related to environmental matters. Thus, once each of the grievances has been examined, it will be possible to arrive at duly substantiated conclusions.

Jurisprudential Framework. The Technical Justification of Laws in Environmental Matters In the exercise of its legislative power, Parliament is bound by the Constitution and by the treaties duly incorporated into our legal system. Furthermore, the legislative function – not only the administrative function of the State – has a limit: the content established by Article 16 of the General Law of Public Administration (Ley General de la Administración Pública, LGAP):

“Under no circumstances may acts contrary to unequivocal rules of science or technique, or to elementary principles of justice, logic, or convenience be dictated.” That norm embodies the principle of the prohibition of arbitrariness, which is an essential tenet of the Rule of Law, and which entails the prohibition of making decisions lacking a basis. When examining the origin of this principle, this Chamber stated:

“It was conceived by the German jurist Leibholz in 1928 as a criterion to weigh the legislator's respect for the principle of equality. According to this formulation, the principle of the prohibition of arbitrariness entails the prohibition of arbitrariness, that is, of any difference lacking a sufficient and just reason. The principle is taken up by Spanish doctrine, specifically, by García de Enterría in the late fifties (1959) with a broader meaning – not limited to the principle of equality – than that proposed by Leibholz. Subsequently, the principle with that broader meaning was adopted by the Spanish Constitution of 1978 in its Article 9.3, at the proposal of Senator Lorenzo Martín-Retortillo, who justified his initiative on the need to have the principle of the prohibition of arbitrariness as another technique or mechanism for controlling or supervising public powers inherent to the Rule of Law.” (Judgment 11155-2007).

In a previous judgment, the Chamber had already clarified that, although it is located in the LGAP, its origin and ultimate foundation lie in Article 11 of the Political Constitution, which states:

“Public officials are mere custodians of authority. They are obliged to fulfill the duties the law imposes on them and cannot arrogate powers not granted to them therein.” (see judgment 2004-14421).

That is, it is a principle that, although formally expressed at the legal level, has materially constitutional content and governs the exercise of public function in its entirety. Therefore, it is possible to conclude that this principle also applies to parliamentary work. In that sense, the Chamber in judgment 2003-5090 expressly stated the following:

“The freedom of legislative configuration is not unrestricted, since it has as its limit the Law of the Constitution, that is, the block of constitutionality formed by constitutional precepts and customs, values and principles – among which those of proportionality, prohibition of arbitrariness, non-discrimination, due process, and defense stand out – of that nature, and the jurisprudence issued by this Court for similar cases.” (The highlighting is not from the original).

Precisely, this Court has established as a jurisprudential line that the principle of the prohibition of arbitrariness requires that decisions that impact the environment be duly supported by technical and scientific criteria. From this has emerged the principle of the objectification of environmental protection or the principle of being bound by science and technique.

This principle was introduced into this Chamber's jurisprudential line starting with judgment 2005-14293, in which it was affirmed:

“[The] environmental principle 'of being bound by science and technique' that governs environmental matters, insofar as administrative decisions that may affect the environment require technical support to back them, and in such condition, they limit and condition the Administration's discretion in its actions.” This was expanded upon in judgment 2006-17126, in which it was noted that this principle translates into the need to support decision-making in this matter with technical studies, in relation to both acts and general provisions – both legal and regulatory. It is understood that the requirement of “being bound by science and technique” conditions the discretion not only of the Administration, but of the legislator itself.

All of the foregoing was reiterated in judgment 2012-12716, in which the following considerations were made:

“The Chamber adopts the opinion that the Attorney General's Office has provided on the case, in the sense that, as a constitutional principle that conditions the State's actions in environmental protection, the principle of the objectification of environmental protection or the principle of being bound by science and technique is recognized:

'it translates into the need to support decision-making in this matter with technical studies, both in relation to acts and general provisions –both legal and regulatory–, from which the requirement of 'being bound by science and technique' is derived, thus conditioning the Administration's discretion in this matter.' (Resolution No. 17126-2006).

'environmental principle 'of being bound by science and technique' that governs environmental matters, insofar as administrative decisions that may affect the environment require technical support to back them, and in such condition, they limit and condition the Administration's discretion in its actions.' (vote No. 14293-2005 reiterated by 11562-2006).

'It is based on the principle that environmental norms must have technical support, since their application must be based on limits that determine the conditions under which the use and exploitation of natural resources must be subjected.' (Vote No. 6322-2003).

In turn, it is related to the principle of reasonableness as a parameter of constitutionality:

'The principle of reasonableness, in relation to the fundamental right to the environment, requires that the norms issued regarding this matter be duly motivated by serious technical studies, even if there were no other legal norm that expressly established it.' (Vote No. 7294-1998, the highlighting is ours).

'Thus, the application of this environmental principle is directly linked to a parameter of constitutionality of the conduct –administrative and of individuals– and of the norms governing the matter, such as reasonableness –according to the development of our Constitutional Court's jurisprudence– insofar as its purpose is to tend towards the sustainability of the use of natural resources and the elements that make up the environment, through their 'appropriate use'; and by virtue of which it is clear that environmental protection must be directed towards the appropriate and intelligent use of its elements and in their natural, sociocultural, technological, and political relationships, in order to safeguard the heritage to which present and future generations have a right; insofar as through the production and use of technology, it should be promoted that not only economic gains (freedom of enterprise) are obtained, but above all a favorable development and evolution of the environment and natural resources with the human being, that is, without causing damage or harm to them, as our Constitutional Court has considered, in its extensive jurisprudence, including from its origins, thus in the aforementioned judgments number 3705-93 and number 2006-17126.' (Vote No. 2410-2007).

And it is also closely related to the principle of prohibition of arbitrariness:

'Arbitrary action is that which is contrary to justice, reason, or laws, which obeys the mere whim or will of the public agent. The prohibition of arbitrariness condemns the lack of objective legal support or foundation for an administrative conduct and, consequently, the violation of the material order of the principles and values inherent to the Rule of Law. (...) With regard to the application of the principle of the prohibition of arbitrariness in the scope of regulatory power, it must be indicated that since this is, naturally, discretionary, the prohibitive principle of arbitrariness plays a paramount role.' (The highlighting corresponds to the original judgment).

From said resolution, it is worth highlighting the precedent it invokes:

'The principle of reasonableness, in relation to the fundamental right to the environment, requires that the norms issued regarding this matter be duly motivated by serious technical studies, even if there were no other legal norm that expressly established it.' (The highlighting corresponds to the original judgment).

It is evident that the principles of objectification of environmental protection or being bound by science and technique, as well as that of the prohibition of arbitrariness, are mandatory for the Legislative Assembly in the processing of bills, since otherwise the principle of reasonableness as a parameter of constitutionality would be violated.

On the Disaffection of a Protected Area The challenged law establishes a disaffection of the Lomas Barbudal Biological Reserve (RBLB). This reserve has an absolute level of protection, similar to that of a national park. By disaffecting it, the aim is to change its use to proceed with flooding that large amount of land, in order to eventually carry out the water supply project called Paacume. The plaintiffs point out that there is no study concerning the disaffection and, in subsequent statements, such as those made at the oral hearing, they insisted that the authorities involved, specifically, the National Service for Groundwater, Irrigation, and Drainage (Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento, SENARA) only has a feasibility study on the construction of the dam on the Río Piedras, executed by the Costa Rican Electricity Institute (Instituto Costarricense de Electricidad, ICE). They argue that this is not the study that environmental regulations require to determine if the disaffection of a protected wild area is justified and that, furthermore, it was not presented during the legislative process.

To analyze this point, it is absolutely necessary to specify the applicable regulations and jurisprudence.

Normative and Jurisprudential Framework on the Disaffection of Protected Areas The Organic Law of the Environment, in this regard, states the following:

“Article 38.- Reduction of protected wild areas. The surface area of protected wild areas, natural heritage of the State, whatever their management category, may only be reduced by Law of the Republic, after carrying out the technical studies that justify this measure.” (The highlighting is not from the original).

That is, it establishes that prior to the disaffection of a protected area, technical studies must be carried out that justify that decision.

For its part, this Court has established a solid doctrine on this matter, that is, namely, the need to have technical studies that justify a decision to disaffect an area that was previously declared a protected area. Thus, in judgment 7294-1998, the Constitutional Chamber upheld the action in which the modification of the boundaries of the Tivives protective zone was challenged. In said resolution, the following was considered:

“From the transcribed judgment, it is clear that once a certain area has been declared a protective zone by an act of the State, the latter cannot simply, in whole or in part, to protect other interests - public or private - to the detriment of the enjoyment of a healthy environment, in accordance with the provisions of Article 50 of the Constitution. However, the fact that a norm, of whatever rank, has declared an area a protective zone does not imply the constitution of an immutable area, in the sense that its area can in no way be reduced by a subsequent regulation. However, it must be borne in mind that the declaration and delimitation of a protective zone, in compliance with the provisions of Article 50 of the Constitution, implies a defense of the fundamental right to the environment and, therefore, the reduction of its area must not imply a detriment to that right, a situation that must be established in each specific case.” “In accordance with the transcribed provisions, and taking into consideration the specific case submitted for a ruling, the Legislative Assembly cannot validly approve the reduction of the surface area of a protective zone without first having a technical study that justifies its decision. Such action is contrary to the Political Constitution for violation of the constitutional principle in relation to Article 121, subsection 1), and 129 of the Political Charter. On this subject, there is a precedent of the Chamber that is pertinent, both due to the similarity of the infringement invoked, and because it concerns a hypothesis in which the non-observance of certain requirements results in the violation of substantive norms or principles of constitutional rank.” (The highlighting is not from the original). (See, in a similar vein, votes 1999-02988, 2008-008075).

Subsequently, in judgment 2012-013367, this Chamber affirmed:

“It is evident that these two requirements are in absolute conformity with the fundamental right to a healthy and ecologically balanced environment. In the first place, in this matter, the legal regime requires that any restriction or limitation of the right must be imposed by law; on the contrary, any benefit or expansion of the protection of the right can be established by a sub-legal norm. In the second place, the requirement for prior technical studies responds to the principle of subjecting decisions related to the environment to criteria of science and technique, in order to protect the ecological balance of the system and the healthiness of the environment. In this sense, the requirement for technical studies that justify the approval of bills aimed at the reduction or disaffection of an environmentally protected area must be satisfied before or during the development of the legislative procedure. Furthermore, the requirement for technical studies is not a mere formality, but rather a material requirement, that is, it must materially demonstrate, through a scientific and individualized analysis, the degree of impact of the corresponding measure on the environment, propose recommendations aimed at lessening the negative impact on it, and demonstrate how such a measure implies development that meets the needs of the present without compromising the ability of future generations to meet their own needs.” In that judgment, the Chamber also developed the principle of progressivity and non-regression in environmental protection matters. According to this Court, from the principle of progressivity of human rights and the principle of non-retroactivity of norms to the detriment of acquired rights and consolidated legal situations, embodied in Article 34 of the Political Constitution, the principle of non-regression or irreversibility of the benefits or protection achieved is derived. The Chamber considered that this principle stands as a substantive guarantee of rights, in this case, of the right to a healthy and ecologically balanced environment, by virtue of which the State is obliged not to adopt measures, policies, or approve legal norms that worsen, without reasonable and proportionate justification, the situation of the rights achieved until then. This principle does not imply absolute irreversibility, since all States may be subjected to circumstances of an economic, political, social, or climatic nature that could force a rethinking of the obligation to maintain the achieved levels of protection. In those cases, the reduction of protection levels must be justified in light of the constitutional parameters of reasonableness and proportionality. In consideration of these principles, the Chamber stated the following:

“Consequently, in application of these two principles, the Constitutional Chamber has established that it is constitutionally valid to expand by executive decree the physical extension of protection areas (principle of progressivity); however, the reduction can only be done by law and after carrying out a technical study adjusted to the principles of reasonableness and proportionality, to the demands of ecological balance and a healthy environment, and to the general welfare of the population, which serves to justify the measure. A right is worth what its guarantees are worth, therefore a violation of these principles occurs when the technical study fails to meet the required constitutional and technical requirements. If such guarantee is transgressed, so will the fundamental right that the guarantee protects, and it is to that extent that the reduction of protected areas would be unconstitutional.” (The highlighting is not from the original).

These constitutional principles are binding on the legislator. The Chamber concluded this by affirming the following:

“Within the framework of the Constitution, the legislator has the power and competence to reduce the physical dimensions of environmentally protected areas. However, based on Article 50 of the Constitution, legislative decisions in this matter must respect the unequivocal rules of science and technique, in order to guarantee a 'healthy' and 'ecologically balanced' environment and the 'greatest well-being of all inhabitants'.” The technical study required by Article 38 of the Organic Law of the Environment must respond to these purposes, for which a formal compliance is insufficient because it is a material requirement, meaning it must materially demonstrate, through a technical and individualized analysis, the degree of impact of the corresponding measure on the environment, propose recommendations aimed at lessening the negative impact on it, and demonstrate how such measure entails development that satisfies the needs of the present without endangering the capacity of future generations to meet their own needs". (Emphasis not in original).

Subsequently, this Court added that for the removal of protected status (desafectación) of protected areas, in addition to the concrete and particularized technical studies required by Article 38 of the Organic Law of the Environment, compensation measures are required, in order to safeguard the fundamental right to a healthy and ecologically balanced environment. In judgment 2019-663 the Chamber brought together its jurisprudential lines and stated the following:

"1. Constitutional requirements for the reduction of protected wildland (reserva legal and technical studies): In support of Article 38 of the Organic Law of the Environment ("the surface area of protected wildlands, natural heritage of the State, whatever their management category, may only be reduced by Law of the Republic, after carrying out the technical studies that justify this measure"), there has been a solid jurisprudential line, to the effect that for the reduction of a protected wildland, in any of its management categories (including national wildlife refuges), two essential requirements must be met: "by means of law and prior completion of sufficient technical studies that justify the measure." (Constitutional Chamber, votes numbers 13367-2012 and 010158-2013. In a similar sense, judgments numbers 7294-1998, 11155-2007, 1056-2009, 18702-2010 and 14772-2010, among others). As stated in the aforementioned resolution of 1998:

"(…) once a certain area has been declared a protective zone by an act of the State, the latter cannot simply remove its protected status (desafectarlo) in whole or in part, to protect other interests -public or private- to the detriment of the enjoyment of a healthy environment, in accordance with the provisions of Article 50 of the Constitution. However, the fact that a norm, of whatever rank, has declared a certain area as a protective zone, does not imply the constitution of a petrified zone, in the sense that, in no way, its size can be reduced by a later regulation. However, it must be borne in mind that the declaration and delimitation of a protective zone, in compliance with the provisions of Article 50 of the Constitution, implies a defense of the fundamental right to the environment and, therefore, the reduction in size must not imply a detriment to that right, a situation that must be established in each specific case. The fact that by means of a subsequent law the size of a protective zone, a forest reserve, a National Park or any other sites of environmental interest is reduced is not necessarily unconstitutional, as long as it is justified insofar as it does not imply a violation of the right to the environment. It could be that, due to various circumstances, a certain site has lost, at least in part, the environmental interest that, at the time, prompted it, which, once the case studies have been carried out, would justify its modification or reduction, all in application of the principle of constitutional reasonableness…" (vote No. 7294-1998).

Specifically regarding the legal reserve (reserva legal) in this matter, in vote No. 14772-2010 it was stated:

(…) the public purpose of a public domain asset cannot be modified without a legislative act, that is, the reduction of the area of a protected zone is under the guarantee provided by the principle of legal reserve (reserva de ley). Although, in accordance with Article 36 of the Organic Law of the Environment, the Executive Branch is authorized to establish Protected Wildlands by fulfilling the requirements established in that norm, thus, Corcovado National Park was established through Executive Decrees No. 5357-A of October 24, 1975 and 1148-A of February 5, 1980, its modification can only be made in accordance with the provisions of Article 38 of the Organic Law of the Environment, following technical and scientific studies, and by means of a legislative act.

Likewise, in judgment No. 1056-2009 it was indicated that reduction is only possible via law:

"when it comes to the expansion of the limits of the protective zones of the State's forest heritage, it is possible to do so via regulation, but when it comes to their reduction, it can only be done via law, of course, provided there is a prior criterion that justifies the measure." (Judgment of the Constitutional Chamber No. 1056-2009) Which was applied when the Chamber declared unconstitutional the regulatory norm (Executive Decree No. 32753-MINAE) through which the Executive Branch reduced the territory of the Gandoca-Manzanillo Refuge, subtracting the urban zone of the Refuge from the area and the protection regime.

Furthermore, regarding the studies, these must be prior, sufficient, necessary, and individualized –as indicated in the following section-. Thus it was stated in that same 1998 resolution:

"In accordance with the aforementioned, mutatis mutandis, if for the creation of a protective wildland the Legislative Assembly, by means of a law, established the fulfillment of specific requirements, in order to determine if the land-use restriction (afectación) in question is justified, the logical thing is that, for its total or partial removal of protected status (desafectación), certain requirements must also be fulfilled -such as carrying out environmental technical studies- to determine that the removal of protected status does not violate the content of Article 50 of the Constitution. In this sense, we can speak of levels of removal of protected status. Thus, not every removal of protected status of a protected zone is unconstitutional, insofar as it implies a detriment to the right to the environment or a threat to it. Hence, to reduce any protected wildland, the Legislative Assembly must do so based on sufficient and necessary technical studies to determine that no damage will be caused to the environment or that it will be put in danger and, therefore, that the content of Article 50 of the Constitution is not violated. The principle of reasonableness, in relation to the fundamental right to the environment, obliges that the norms issued with respect to this matter be duly grounded in serious technical studies, even if there were no other legal norm that expressly so established. In the judgment of this Constitutional Court, the requirement contained in Article 38 of the Organic Law of the Environment No. 7554, to the effect that to reduce a protected wildland by formal law, prior technical studies must be carried out that justify the measure, is nothing other than the objectification of the principle of reasonableness in matters of environmental protection." 2. Technical study as a scientific and individualized analysis: The Chamber has referred to the sufficiency of the technical study, when through various resolutions it has established that said study must be a scientific and individualized analysis. Thus the following was stated:

"the requirement for technical studies is not a mere formality, but rather is a material requirement, that is, it must materially be demonstrated, through a scientific and individualized analysis, the degree of impact of the corresponding measure on the environment, propose recommendations aimed at lessening the negative impact on it, and demonstrate how such measure entails development that satisfies the needs of the present without endangering the capacity of future generations to meet their own needs." (Vote No. 13367-2012. See also No. 10158-2013).

From which it follows that, the technical study required by Article 38 of the Organic Law of the Environment and which is the objectification of the constitutional principle of reasonableness in matters of environmental protection, requires a technical analysis that implies an individualized analysis, which must contain at minimum the following measures:

• The degree of impact of the corresponding measure on the environment; • The recommendations aimed at lessening the negative impact on the environment; • The demonstration of how the measure being taken implies development that satisfies the needs of the present without endangering the capacity of future generations to meet their own needs.

In summary, said prior study must demonstrate that the removal of protected status is in accordance with the constitutional protection of the right to the environment, because as stated in vote No. 18702-2010 "it cannot be permitted that areas of this nature be titled indiscriminately, since this would go against the very environmental conservation policies that the State has pursued by virtue of the duties ordered by the Political Constitution and the International Agreements it has signed".

3. Compensation measures (medidas de compensación): A protected area can only be reduced if it is done by law, if there are technical and scientific studies that rule out environmental damage, and if compensation is provided for the suppressed area with another of equal size. There is no doubt that all those norms in which there is a reduction of protected areas without the backing of technical studies nor any compensation, are unconstitutional" (vote Nos. 12887-2014, 2773-2014, 2012-13367 and 2009-1056)." (Emphasis not in original).

The foregoing was reiterated in judgment 2019-012745 in which the Chamber's position was summarized as follows:

"Based on the foregoing, a protected area can only be reduced if it is done by Law, if there are technical and scientific studies that rule out environmental damage, and if compensation is provided for the suppressed area with another of equal size or to the extent possible".

From these jurisprudential lines, the principle of lifetime tenure (irreductibilidad) of protected wildlands is evidenced, according to which, it is not legitimate to reduce these protected spaces unless both the provisions of Article 38 of the Organic Law of the Environment and the principles consolidated in the jurisprudence of this Court are concurrently fulfilled, namely, non-regression in environmental matters, objectification of environmental protection, and precautionary.

Analysis of the technical justification for the challenged removal of protected status In the following sections, an attempt will be made to gauge the importance of the removal of protected status (desafectación) approved by the law that is challenged here and to verify the omission of the technical studies that would justify that measure. Environmental importance of the Lomas de Barbudal Biological Reserve To contextualize the analysis of the question, it should be explained that the zone whose protected status was removed belongs to the RBLB, which was created by executive decree No. 16849-MAG of January 23, 1986. The importance of said specific reserve is due to the fact that it is practically the only one safeguarding the environments of the tropical dry forest and its biological diversity, presenting types of fauna unique in the country and containing dry savannas that are not included in another conservation unit. This can be deduced from the recitals (parte considerativa) of the decree in question, which states the following:

"1.—That it is an essential function of the State to ensure the conservation, protection, administration, and promotion of the country's natural resources.

2.—That the Lomas Barbudal zone, in the province of Guanacaste, conserves very valuable samples of the flora and fauna of the lowland wooded dry savanna, the lowland riparian forest, and the lowland deciduous forest, which in the past covered extensive areas of that province.

3.—That this zone contains at least 10 springs (nacientes) and part of the basin of the Cabuyo River, of importance for the agricultural and livestock production of the region, 4.—That the soil type of Lomas Barbudal does not present conditions for sustained agricultural development but that, from the point of view of research and tourism, the area is important for presenting a unique entomological fauna and for containing dry savannas that are not found protected in another conservation unit". (Emphasis not in original).

The decree under analysis ordered that the zone in question would, from that moment on, be a biological reserve, which is one of the categories of protected wildlands, specifically established in subsection d) of Article 32 of the Organic Law of the Environment. Likewise, by application of numerals 13 and 14 of the current Forestry Law (Ley Forestal), it is a member of the Natural Heritage of the State (PNE). The latter characterizes these properties as public domain assets: "Article 14.- Unseizable and inalienable condition of the natural heritage. The forest lands and forests that constitute the natural heritage of the State, detailed in the preceding article, shall be unseizable and inalienable; their possession by private individuals shall not cause any right in their favor and the State's action for recovery of these lands is imprescriptible. Consequently, they cannot be registered in the Public Registry through possessory information and both the invasion and occupation thereof shall be sanctioned in accordance with the provisions of this law". The Biodiversity Law defines protected wildlands as follows:

"Article 58. Protected wildlands Protected wildlands are delimited geographical zones, constituted by lands, wetlands, and portions of sea. They have been declared as such because they represent special significance for their ecosystems, the existence of threatened species, the repercussion on reproduction and other needs, and for their historical and cultural significance. These areas shall be dedicated to conservation and to protecting biodiversity, soil, water resources, cultural resources, and ecosystem services in general. The objectives, classification, requirements, and mechanisms to establish or reduce these areas are determined in the Organic Law of the Environment, No. 7554, of October 4, 1995. The prohibitions that affect natural and legal persons within national parks and biological reserves are determined in the Law for the Creation of the National Parks Service, No. 6084, of August 24, 1977. During the process of fulfilling requirements to establish state protected wildlands, the respective technical reports must include the pertinent recommendations and justifications to determine the most appropriate management category to which the proposed area must be submitted. In any case, the establishment of areas and categories shall take very into account the rights previously acquired by indigenous or peasant populations and other natural or legal persons, underlying or adjacent to it". (Highlighting not in original).

The regulation to the Biodiversity Law, No. 34433 defines biological reserves and establishes the technical management category as follows:

"Article 70 (…) d). Geographical areas that possess terrestrial, marine, marine-coastal, freshwater ecosystems, or a combination of these and species of particular interest for conservation. Their main purposes shall be the conservation and protection of biodiversity, as well as research".

Consequently, they have a very limited management category, since only conservation, protection, and research are permitted. It is necessary to highlight that the RBLB is not strictly a wetland, but, as the authorities reported, it does form part of the Palo Verde Ramsar site, that is, it forms part of a wetland of international importance (Ramsar site). As is known, the Convention on Wetlands of International Importance, especially as Waterfowl Habitat (known in abbreviated form as the Ramsar Convention, duly approved by Law No. 7224) states that wetlands of international importance must maintain their designation and their initial extension and only in truly exceptional circumstances should changing them be considered (Articles 2 and 4 of the Convention cited infra). And, furthermore, when defining Ramsar sites, not only are the ecosystems considered by themselves, but also the existing interrelationships that impact the wetlands. Palo Verde National Park was created by executive decree No. 11541 of May 30, 1980, whose recitals (parte considerativa) recorded the following:

"1—That the zone comprising the Catalina ridge, the Pedregosa ridge, the Bocana hill, the El Roble hill, and the Alvarado hill, in Guanacaste, is one of the last in the entire province that conserves tropical dry forests, a very scarce ecological formation in the country.

2—That the Nicaragua, El Roble, Los Aromos, and Corralillos lagoons, and the El Tieso, Piñuela, Cristina, and other sites, constitute places of particular importance for the conservation of migratory and resident birds, and are at the same time the richest areas in avifauna in the country.

3—That the zone in general is particularly diverse in wildlife, and is one of the last refuges for animals that still exist without protection in the province of Guanacaste.

4—That there are also various ecosystems of great diversity and richness of floristic species, such as forests on limestone deposits, herbaceous lagoons, mixed lowland forests, and palo verde forests on vertisols".

This was ratified by Law No. 6794 of August 25, 1982, "Law for the Creation of National Parks and Biological Reserves. Ratifies as Laws Decrees Creating National Parks and Biological Reserves". Subsequently, by executive decree 27345-MINAE, "Establishes Active Management for Palo Verde National Park in its Wetlands and Pasture Areas and Creates Advisory Committee", the following was highlighted in its recitals (parte considerativa):

"III.—That among the fundamental objectives of Palo Verde National Park is to protect, manage, conserve, and restore both wetland ecosystems and tropical dry forest, to maintain wildlife diversity and populations.

IV.—That the Convention on Wetlands of International Importance, known as the Ramsar Convention, was ratified by Costa Rica by Law 7224 of April 2, 1991, and that as an international legal instrument, it has a value superior to Law. That Costa Rica, as a contracting party, must promote the conservation of wetlands and waterfowl, creating natural wetland reserves and adequately attending to their management and care. Likewise, it commits to promoting research and the exchange of data related to wetlands in order to favor conditions to increase waterfowl populations". (Emphasis not in original).

Furthermore, the General Management Plan of Palo Verde National Park, from the National System of Conservation Areas, clearly establishes the inclusion of the RBLB within Palo Verde National Park (see Agreement No. 20 of Ordinary Session No. 03-2016 of March 28, 2016, issued by the National Council of Conservation Areas, available on the Costa Rican Legal Information System page – SCIJ). By executive decree No. 39786-MINAE of April 22, 2016, the management, conservation, and rehabilitation activities of this park were declared of public and national interest:

"Article 3.- Declaration of Public Interest. Declare of public and national interest the active management activities for the conservation and rehabilitation of the ecosystems of Palo Verde National Park, in order to count on the support of the State and other public agencies, non-governmental organizations, and public and private international bodies for their implementation".

Upon examining in detail the preceding regulatory framework, it is possible to notice the great importance that the zone in question has for environmental protection. Hence, the decisions made regarding the reduction of the size of these zones or the change in their purpose must be duly reasoned in technical studies that appropriately justify such determination. Examination of the existence of technical studies on the removal of protected status Based on the foregoing, it is clear that both national legislation and the constitutional principles examined and the constitutional jurisprudence demand, as a first element, that a law ordering the removal of protected status (desafectación) of a protected wildland, integrated into the PNE, must be reasonably grounded in a technical study that justifies, in a concrete manner, the reason why a zone in particular must have its protected status removed and its nature changed. Therefore, it is now necessary to examine whether the challenged law had such a study. Statement of motives (Exposición de motivos) of the challenged law As has been seen, the original purpose of safeguarding these lands is the protection of a very particular type of forest, almost unique in our country, namely, the tropical dry forest and its biological diversity, which is not included in another specific category of protection. In contrast, although the challenged regulation provides environmental protection and orders that it will be recognized as a wetland ecosystem administered by the National System of Conservation Areas (SINAC) (Article 6 of Law No. 9610 that "Modifies limits of the Lomas de Barbudal Biological Reserve for the development of the water supply project for the middle basin of the Tempisque River and coastal communities"), the truth is that its nature is completely changed. This is because, precisely, the ultimate purpose of the removal of protected status is to make the Paacume project possible, which entails flooding the spaces of these primary forests. In the study by the Organization for Tropical Studies (OTS) itself, the change in the nature of the property was demonstrated:

"Due to its geographical position and the relief of the zone, the Rio Piedras reservoir would directly affect a site within the Lomas de Barbudal Biological Reserve, a protected wildland created in 1986 for the purpose of safeguarding the environments of the tropical dry forest and its biological diversity. The area in conflict has been estimated at almost 113 hectares below the 50 m elevation contour, which would be flooded once the reservoir is built". (Highlighting not in original).

Regarding the purpose of the Paacume project, the statement of motives of the bill detailed the following:

"The fundamental objective is the provision of water, accessible in quantity, quality, and timeliness -of 20 cubic meters per second- for different potential uses. It is projected to benefit at least 204 thousand people and cover at least 17 thousand hectares under irrigation. Of this flow, 2 cubic meters per second will be available for the long-term supply to communities in the cantons of Santa Cruz, Nicoya, and Carrillo and will be administered by the Costa Rican Institute of Aqueducts and Sewers. In addition, the project contemplates at least 1.5 cubic meters per second of water for irrigation as support for tourism activity in the coastal zone and thereby benefit coastal communities with the release of groundwater currently used in irrigation.

This project will not only allow sustainable access to water by the communities and the productive sector, but also aims to harmonize and regulate the rational exploitation of the main underground resources in aquifers on the right bank of the middle basin of the Tempisque River, as it will allow the State to regulate the maximum use of wells for these activities".

In this way, and keeping in mind what was said by the authorities in the unconstitutionality action proceedings, there is no doubt about the urgency and importance of enabling access to potable water service and addressing other problems of drought, shortage, desalination of aquifers, among others (see statements from the Presidency of the Legislative Assembly, SENARA, Ministry of Environment and Energy (MINAE), Ministry of Agriculture and Livestock (MAG)). It is noted that the water supply in the zone will be carried out through the construction of a dam on the Río Piedras, which will require a reservoir with a water surface of approximately 850 hectares, of which 113 hectares are located within the RBLB, according to the design carried out by SENARA. However, upon reviewing the statement of motives of the bill, the legislative record, and the record of this unconstitutionality action, it was not possible to discern compliance with this requirement of capital importance, namely, that of carrying out a study that specifically justifies the need to address said severe problem through the removal of protected status of an especially protected area. The only reference in the statement of motives is the following:

"Thus, the location of the dam on the Río Piedras is due to a unique topographical condition that does not allow it to be moved to another site; therefore, this location and difference in level between the entrance of the canal that supplies it and the exit of the canal that will allow water to be taken to the Tempisque River determine the maximum reservoir level and its capacity to supply Paacume with 20 cubic meters per second.

At some point, the possibility of building a dike to prevent the flooding of this area of the Lomas Barbudal Biological Reserve and a tunnel of more than 2 kilometers to evacuate the waters was evaluated; however, it turned out that the dike site coincides with a geological fault that would make its construction impossible due to the high risk it generates for the work". (Emphasis not in original).

These assessments, while they may be valuable to illustrate the situation, do not, in any way, demonstrate that the necessary study that concretely justifies the removal of protected status has been completed. Reports from SENARA and the Regional Council of the Conservation Area In the report from the SENARA authorities rendered after the oral hearing held in the proceedings of this unconstitutionality action, reference was made to a Feasibility Study for the Water Supply Project for the Middle Basin of the Tempisque River and Coastal Communities. This study is from October 2018, that is, it is parallel to the date on which the legislation under analysis was approved, namely, October 17, 2018. Therefore, it could not have been evaluated by the parliamentary body. Likewise, both in the oral hearing and in the subsequent report, the General Manager of SENARA refers to the fact that the zone has the ideal conditions to carry out the work and bases her statements on a technical study carried out by the Costa Rican Electricity Institute (ICE) –in accordance with the inter-administrative contract signed between SENARA-ICE-MINAE 201600011 and its addenda– according to which, given the topographical conditions of the area, the zone in question has the ideal conditions for the construction of a large-capacity reservoir (see report rendered before the Chamber on June 15, 2020). However, it is clear that there is no specific study that justifies the removal of protected status as such. In the legislative record, there are statements from the Regional Council of the Arenal Tempisque Conservation Area itself from July 2017, in which it is concluded as follows:

"Based on the aforementioned study (Mandatory consultation of local communities, compensation proposal for the Lomas Barbudal Biological Reserve) and the documents provided to date, this body considers that it has not yet been demonstrated that other alternatives for the PACUUME project exist, without necessarily having to remove the protected status of an area of the current RBLB. If these alternatives are indeed not viable, it will be necessary to evaluate the third measure, which is compensation". (Official letter SINAC-CORACAT-SE-041, visible on folios 126 and 1492 of the copy of the legislative record).

Additionally, official letter SINAC-CORACAT-049-2018 of September 9, 2018, was sent to the legislative proceedings, in which the Executive Secretary of the Regional Council of the Arenal Tempisque Conservation Area emphasizes the following:

"Based on the General Law of Public Administration and the jurisprudential line of the Constitutional Chamber, it is necessary that there be sufficient environmental, legal, and financial technical studies that justify the adequate selection, both of the area to have its protected status removed, and of the areas that would serve as compensation. The existence of these studies must be verified within the record of this bill, since to date this Council does not have such information". (Folio 2641 of the copy of the legislative record. The emphasis corresponds to the original official letter).

From these statements, it can be deduced that for these authorities, the compensation study must be subsequent to the technical studies that justify the need to remove the protected status of the zones in question and radically change their purpose. That is, they would go from being a tropical dry forest to becoming –due to flooding– a wetland, thus losing the original richness of the zone.

The authorities of the Conservation Area themselves emphasize that the initial determination to remove protection (desafectar) is not properly supported by a study that appropriately justifies it. Indeed, the governing authority of the conservation area in question stated during the legislative process that “it has not yet been demonstrated that other alternatives for the PACUUME project exist, without necessarily having to remove protection from an area of the current RBLB” (folios 126 and 1494). Furthermore, it drew the legislators’ attention to the need for sufficient environmental, legal, and financial technical studies justifying “the adequate selection (…) of the area to be removed from protection.” At a later stage, after the technical determination on the need to remove protection from a specific protected wilderness area, compensation studies are required. These are studies that seek a form of environmental reparation for the suppressed area, with another area of equal size and similar biological characteristics. On this matter, the OET representatives stated the following:

“Environmental compensation for an environmental impact is a last-resort measure, to be undertaken only if the impact cannot be avoided or adequately mitigated. Consequently, when a project’s impacts require compensation, one is facing a situation where it is unavoidable to make reparation for a potential impact. Under these circumstances, the discussion should not focus on whether or not compensation is possible, but on how to achieve it in a way that results in environmental gains.” (The highlighting does not correspond to the original).

From the above, one could conclude that even the OET itself recognizes that it must first be determined with certainty, based on technical studies, that removal of protection (desafectación) is the last possible solution, and then the study of compensation measures should be carried out.

The report of the Attorney General’s Office (Procuraduría General de la República) It is of great relevance to the specific case to transcribe, in the pertinent parts, certain passages from the report issued by the Attorney General’s Office (PGR) in the unconstitutionality action. Regarding the need for a prior study justifying the removal of protection (desafectación) of portions of the RBLB, it stated the following:

“On the other hand, even if the sufficiency of the OET study and the final compensation proposal were verified, it should be noted that this technical study would only justify the validity of the compensation carried out, and, as such, it is not a technical study that directly justifies the decision to remove protection from a part of the RBLB.

In accordance with constitutional jurisprudence on the matter, the study required by Article 38 of the Organic Environmental Law (Ley Orgánica del Ambiente) to justify the reduction of a protected wilderness area should be a study that determines the necessity and advisability of adopting that type of measure.

In this case, a study in that sense would be one that technically substantiates the need to remove protection from part of the RBLB. That is, a study that determines that the only alternative for developing the PAACUME project and the Río Piedras reservoir is by removing protection from part of the Biological Reserve.

In this regard, the Regional Council of the Tempisque Conservation Area, when referring to the OET study, indicated that “this body considers that it has not yet been demonstrated that other alternatives for the PAACUME project exist, without necessarily having to remove protection from an area of the current RBLB. If these alternatives are indeed not viable, it will be necessary to assess the third measure, which is compensation.” (Official Letter No. SINAC-CORACAT-SE-041 of July 7, 2017, folios 1492-1497 of the legislative file). And, that same Council, after the bill was approved in the second debate, indicated that “it is necessary for there to be sufficient environmental, legal, and financial technical studies justifying the adequate selection of both the area to be removed from protection and the areas that would serve as compensation. The existence of these studies within the file of this bill must be verified, since as of this date, this Council does not have such information.” (Official Letter No. SINAC-CORACAT-049-2018 of September 9, 2018, folios 2641-2644).

In the “PAACUME Project Profile Document” prepared by SENARA (Folios 505-621), it is assumed that “one of the properties within the reservoir area belongs to the Lomas Barbudal Biological Reserve, with an approximate area of 112 ha.” And it is indicated that the “area must be compensated with an adjacent area of similar ecological characteristics, for which the elaboration of a biodiversity baseline study is required to demonstrate the equivalence of the compensation areas,” and it is indicated that said study was prepared by the OET. (see folio 557). Some of the officials who appeared at the sessions of the Legislative Commission that processed the project indicated that technically the PAACUME project could not be developed without removing protection from and flooding part of the RBLB, and in the document entitled “Mandatory Consultation with Local Communities. Compensation Proposal for the Lomas Barbudal Biological Reserve” (Folios 622-726), in response to one of the questions asked by a participant, it was indicated that “if the 113 hectares of the RBLB cannot be obtained, the project changes completely, since without these 113 hectares of the RBLB, the dam conditions, the amount of water to be stored, the project cost, and the design would have to change completely.” (Folio 661).

Thus, based on the opinion of the institutions that were granted a hearing on this unconstitutionality action, it must be assessed whether there is sufficient technical support to justify the need to remove protection from part of the RBLB for use in the execution of the PAACUME project.

If this basis is not verified, Law 9610 must be declared unconstitutional for violating the principles of lifetime tenure (irreductibilidad) of protected wilderness areas, objectivization of environmental protection, and non-regression.

In that scenario, the norm could be contrary to the Ramsar Convention, because although it is true that it does not obligate States to previously communicate the decision to modify the area of sites of international importance, its Article 4 subjects that possibility to the existence of a reason of urgent national need, which would not be duly justified in this particular case.” (The highlighting is not from the original).

It is observed that the PGR was emphatic in pointing out the need to address the allegations of the plaintiffs regarding this first grievance, namely, the mandatory obligation to assess whether there is a technical study that justifies the removal of protection (desafectación) of a particular protected area such as the RBLB.

Conclusions on this matter It is verified that the project’s proposing authorities have insistently argued that the existence of the compensation study justifies the need for removal of protection (desafectación). The foregoing reflects, at the very least, a serious confusion between the respective purpose of a study for the removal of protection of a specially protected area that has been integrated into the PNE and that of a compensation study. This confusion—or attempt to equate two categories of study that are of a different nature—renders the decision to remove protection unjustified. Furthermore, it should be added that both studies are distinct from the technical study required for the assessment of the infrastructure intended to be developed, that is, an environmental impact assessment (evaluación de impacto ambiental) study. This, in the terms of the Organic Environmental Law, is specific to human activities that alter or destroy elements of the environment or generate hazardous waste and is an indispensable prerequisite prior to the start of activities, works, or projects:

“Article 17. Human activities that alter or destroy elements of the environment or generate toxic or hazardous waste or materials shall require an environmental impact assessment (evaluación de impacto ambiental) by the National Environmental Technical Secretariat (Secretaría Técnica Nacional Ambiental) created in this law. Its prior approval by this body shall be an indispensable requirement to initiate the activities, works, or projects. The laws and regulations shall indicate which activities, works, or projects shall require the environmental impact assessment.” Thus, based on the regulatory framework and jurisprudence, it must be concluded that the technical studies justifying the removal of protection (desafectación) and the subsequent compensation studies must be prior to the legislative decision, precisely because it is required that the decision be based on them. Therefore, I consider that the PGR is correct in the sense that the challenged law is unconstitutional for lacking a study that technically supports the need to remove protection from part of the RBLB. This omission is harmful to the precautionary principle, the principle of non-regression in environmental matters, lifetime tenure (irreductibilidad), and objectivization of environmental protection.

On the compensation studies We will now examine the grievances, the regulatory framework, and reports on the obligation to carry out compensation studies.

• The grievances raised by the plaintiffs The plaintiffs challenged the attempt to justify the reduction of the RBLB area through an incomplete and biased study conducted by the Organization for Tropical Studies (Organización de Estudios Tropicales, OET). They accuse that the intention is to compensate the area removed from protection that is intended to be flooded with private lands adjacent to the biological reserve, incorporating two properties defined by SENARA. One on which no study was conducted (property belonging to the company Hacienda Ciruelas SP S.A.) and another on which a very superficial study was conducted (property belonging to the company known as Brindis de Amor). Thus, they argue that Law No. 9610 violates Article 50 of the Political Constitution, since, in their view, it does not incorporate a serious, comprehensive, and objective study of the consequences of the removal of protection (desafectación) of 113 hectares of the RBLB and the substitution or compensation with approximately 500 hectares of private properties intended to be incorporated into the biological reserve. On this point, they question the solidity of the study conducted by the Organization for Tropical Studies (OET), through which the attempt was made to justify the removal of protection (desafectación) and compensation. They reference other studies that cast doubt on the consistency of that study and conclude that it is “insufficient to define the boundary change of Lomas de Barbudal, and it does not demonstrate that this change will be fully compensated by additional areas in other sectors of the Reserve. The ASETREK farm, studied in greater detail by the consultants, is ultimately recognized as insufficient to justify the land swap, and other nearby farms are hastily resorted to in order to balance the compensation.” They insist that the study conducted by the OET is not complete, objective, scientific, or technical, as it suffers from many omissions and weaknesses. They reiterate that such a study focuses practically on a portion of one of the three private properties with which they intend to compensate the 113 hectares removed from protection by law; but it omits incorporating studies on the biological conditions of the other two properties, such that it cannot be scientifically determined that these are properties that indeed have environmental characteristics that would replace the ecosystem functions of the area to be removed from protection.

The international obligation to carry out compensation studies Regarding the need to adopt compensation measures when dealing with the removal of protection (desafectación) of protected wilderness areas that are wetlands or are integrated into them, there is an international obligation established in the Ramsar Convention, Law No. 7224 of April 9, 1991, which provides the following:

“Article 2.5. The Contracting Parties shall have the right to add to the ‘List’ other wetlands situated in their territory, to extend those already included, or, for urgent reasons of national interest, to withdraw from the ‘List’ or reduce the wetlands already included, and shall inform these modifications as quickly as possible to the organization or government responsible for the permanent Office functions specified in Article 8.” “Article 4. 1. Each Contracting Party shall promote the conservation of wetlands and waterfowl by establishing nature reserves in wetlands, whether or not they are included in the ‘List’, and shall adequately attend to their management and care.

2. Where a Contracting Party, for urgent reasons of national interest, withdraws or reduces a wetland included in the ‘List’, it shall compensate, as far as possible, any loss of wetland resources and, in particular, shall create new nature reserves for waterfowl and for the protection, in the same region or elsewhere, of an adequate portion of their former habitat. 3. The Contracting Parties shall encourage research and the exchange of data and publications concerning wetlands and their flora and fauna.” (The highlighting does not correspond to the original).

From these norms emerges the State's obligation to carry out compensation that, as far as possible, remedies the loss of wetland resources and creates new nature reserves for protection in the same region.

Reports from authorities that appear in the present case file 1- Report of the Attorney General’s Office (Procuraduría General de la República). The PGR stated in its report that if the OET study and the final compensation proposal for the RBLB were determined to be technically insufficient, the challenged law would be unconstitutional for violating the principles of objectivization of environmental protection, precautionary, preventive, and lifetime tenure (irreductibilidad) of protected wilderness areas. Indeed, it would not be guaranteed that the approved boundary variation does not affect the integrity of the RBLB, and the environmental impact generated by the removal of protection (desafectación) of a part of said biological reserve would not be adequately mitigated. Also, this would be contrary to the obligation established in Article 3 of the Ramsar Convention to promote the conservation of the wetlands included in the list of wetlands of international importance. Report of the President of the Legislative Assembly Board of Directors The President of the Legislative Assembly in her report indicates that the legislative file contains the study entitled “Establishment of a Biodiversity Baseline for the Lomas de Barbudal Biological Reserve (RBLB) and adjacent farm” conducted by the OET, which performed a comparative analysis between the reserve and previously selected adjacent lands to determine the similarity conditions and feasibility of using them as an ecologically equivalent replacement. She explains that the OET conducted the corresponding study based on the guidelines established by SENARA and explained that the OET was able to verify that the area of the RBLB intended to be removed from protection was in better ecological condition than the areas proposed for compensation, in a ratio of 3 to 1, meaning that for each hectare removed from protection, 3 hectares should be compensated. She asserts that, upon detailed review, it was determined that one of the objects for the creation of the RBLB, precisely the conservation and protection of riparian forest (bosque ripario), was not represented within the ASETREK farm, which was the proposal to compensate the 113 hectares to be removed from protection. She justifies that this is why the need arose to seek other adjacent lands that had riparian forest to compensate for the lack of that ecosystem in the compensation proposal. She points out that because the only requirement was to find riparian forest, the studies on the Brindis de Amor and Hacienda Ciruelas farms did not go into the same detail as the studies on ASETREK; however, she says that even so, the OET did conduct a characterization study of the Brindis de Amor Farm, as a compensation supplement, which is visible on folios 209 to 215 of the study. Report of the National Groundwater, Irrigation, and Drainage Service (Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento) These authorities explained that the study was conducted by the OET and provides that the compensation for the area consists of incorporating 556 hectares for the removal of protection (desafectación) of 113 hectares. It argues that the OET recommends acquiring at least 332 hectares of the ASETREK farm; however, to facilitate management and fire control, the decision was made to incorporate 444 hectares of ASETREK, thus compensating for all the different ecosystems found within the 113 hectares of RBLB, with the exception of the riparian forest. Consequently, it clarifies that the incorporation of the Brindis de Amor and Hacienda Ciruelas farms into the compensation proposal was done upon the recommendation of the administrator of Lomas Barbudal, based on the fact that they have riparian forest (bosque ripario) lands in adequate conservation conditions, as well as the main springs (nacientes) of the Cabuyo River and Amores stream. Organization for Tropical Studies Due to its importance, relevant passages from the report prepared by the OET, which was the technical input for the compensation carried out in the specific case, are transcribed in pertinent parts. This report indicates in its executive summary the following:

“The affected site in Lomas de Barbudal has three types of environments, each corresponding to a distinct forest cover (cobertura boscosa): deciduous forest, secondary forest, and mature forest associated with the streams on the site, and therefore, called here riparian forest (bosque ripario). The deciduous forest represents 70% of the forest cover on that site, and corresponds to an early successional stage characterized by being open and consisting of pioneer species and presenting a low tree density. The secondary forest has greater structure and corresponds to a more advanced stage where dominant trees persist. Finally, the riparian forest, composed mainly of evergreen species with dominant trees, is one of the most threatened plant associations in the region. Approximately 30 hectares exist on the affected site, representing about 11% of the cover of that type of association in the Biological Reserve. The compensation site is also heterogeneous in forest cover and has deciduous forest, secondary forest, and pasture and non-forest areas. This site lacks riparian forest.

Thus, the site in the Biological Reserve produced estimates of species richness greater than the estimates at the potential compensation site in ASETREK. Furthermore, the species found in the Biological Reserve are not the same as those found in ASETREK: the greatest similarities in composition were found in the amphibian community, arthropod families, and birds, with 79%, 76%, and 62% shared species, respectively, while for woody plants and mammals, the sites share only 55% and 50% of their species. For reptiles, fish, and herbaceous plants, the sites in Lomas de Barbudal and ASETREK share 39%, 34%, and 33% of species. These discrepancies mean that the species composition in ASETREK represents about 45% of that quantified at the reference site. Our analyses reveal that, in general, the potential flood site in Lomas de Barbudal has greater structure, more dominant trees, biomass, and carbon sequestration potential. The contribution of the riparian forest to these indicators is undeniable, but differences were also observed between the secondary forest covers of Lomas de Barbudal and that of ASETREK, the latter showing the lowest values. These differences indicate that the environment at the compensation site in ASETREK has been more disturbed than the site in Lomas de Barbudal. In terms of structure and habitat quality, the habitat in ASETREK obtained a lower score than the reference, equivalent to 51.2% of its quality. The uncertainty derived from the heterogeneity of the environments present reduces the estimated environment quality score, so the minimum possible environment quality value estimated from our data results in 34 points. As it is a lower quality environment, approximately 332 hectares of a habitat like that observed in ASETREK would be required to compensate for the loss of the 113 hectares of the reference site. Therefore, the potential compensation site in ASETREK is inferior in environment quality, composition, and biodiversity to the site that would be directly impacted by the Río Piedras Reservoir within the Lomas de Barbudal Biological Reserve. Following the procedure for estimating the area necessary to compensate for losses derived from the impact, we recommend annexing at least 332 Ha of the habitat type observed at the potential compensation site to compensate for the losses that the Lomas de Barbudal Biological Reserve will suffer from the Piedras Reservoir. One proposal is to allocate the forested part of ASETREK as a compensation area. To do this, 444 Ha of said property need to be segregated, in order to unite the available forest fragments. Even so, this land does not include the riparian forest cover, therefore it is suggested to additionally annex Brindis de Amor, an 86 Ha property adjacent to the northern end of the Biological Reserve and which has almost 16 hectares of riparian forest. The incorporation of both properties (segregated ASETREK and Brindis de Amor) implies the annexation of 530 hectares in compensation for the 113 Ha that would be lost in the Lomas de Barbudal Reserve.” Regarding the grievance raised by the plaintiffs, in the sense that the OET study was conducted carelessly and that, subsequently, some farms were added without a study similar to the one conducted on the ASETREK farm, they stated the following:

“Northeast of the Lomas de Barbudal Biological Reserve, there are private properties with fragments of riparian and secondary forests. In fact, a quick examination reveals that in the vicinity of the Quebrada Amores, there are forested conditions that could be of protection interest. One of these is Brindis de Amor, a property of about 86 Ha that borders the Lomas de Barbudal Reserve and whose forest cover has been protected by its owner Carlos Jiménez for the last twenty years (Figure 47). (…)

1. The results of our study, both in habitat quality and community composition, reveal the need to compensate for the loss in Lomas de Barbudal using at least 332 Ha of forested habitat. However, to achieve that number of hectares in ASETREK, it is necessary to include part of the deciduous forest on the eastern slope of the property, whose quality is inferior (due to being steeper) to that of the western side. Furthermore, there is no fragment of mature-riparian forest available, which undoubtedly constitutes a shortcoming in the compensation capacity of the ASETREK property evaluated in our study. 2. The Brindis de Amor property has 15.87 ha of mature-riparian forest. Although the analysis of this fragment's composition was preliminary, our field observations indicate that it is composed of evergreen species similar to those found in the same cover in the RBLB and that it is comparable in basal area (Figure 49) to that of the fragment found at the potential flood site in Lomas de Barbudal. While it is true that the extent of riparian forest in Brindis de Amor is less than that which would be lost in Lomas de Barbudal, (…)

In fact, the riparian forest area in Brindis de Amor represents 7.4% of the area covered by that forest type within the Biological Reserve currently. 3. The riparian forest area in Brindis de Amor can become a core area of species to repopulate other riparian environments on the property. Although this situation does not chronologically correspond to the loss in Lomas, it is a considerable advantage over the ASETREK property, which lacks such a core. Our observations at the site show significant recruitment of tree species typical of riparian forests, such as the espavel Anacardium excelsum and the terciopelo Sloanea terniflora. 4. Both the deciduous and secondary forest have been protected in Brindis de Amor for at least twenty years. In contrast to ASETREK, the Brindis de Amor property has a gentle slope and the forest cover is in a better condition of structure and composition than those found on the ASETREK property. Unlike ASETREK, there are no records of logging or recurrent fires, although there is evidence of fire entering the property from the south side. 5. Although this study did not include an analysis of species composition in its secondary or deciduous forest, the protection that has been given to these covers in Brindis de Amor could mean that these covers are in better condition than their namesakes in ASETREK. (…)

To the south of Brindis de Amor is Rancho Wilson, which has a protected forest fragment that could be of protection interest by reducing the aforementioned peninsula (Figure 50). However, we argue that precisely because of the protection currently provided to that fragment at Rancho Wilson, the annexation of Brindis de Amor could be a more suitable alternative to consolidate the riparian forest block in the north of the Reserve. In our view, this annexation would allow negotiation with Rancho Wilson for the future incorporation of the remaining forest fragment on that property. Furthermore, the protection of a segment of the Cabuyo River would be achieved through the protection of the area currently occupied by Brindis de Amor.” (In the report submitted to the Court, they clarified that where it says Rancho Wilson, it actually refers to Hacienda Ciruelas).

Thus, the technical study itself highlights what was later reported in the unconstitutionality action by the person in charge of conducting the baseline study. In the report submitted to the Court, it was acknowledged that the integration of these two farms was done to improve the original compensation proposal, but “these areas were not analyzed with the depth that we did at ASETREK.” In the report submitted to this Court, in the relevant part, it states the following:

“The use of Brindis de Amor as a foraging site demonstrates the biological importance of this property and how right it would be to protect it. Annexing a fraction of Hacienda Ciruelas is done to avoid leaving a peninsula in the contour of the RBLB if Brindis de Amor was annexed, which would contravene the basic notions of reserve design, which tries to minimize the edge effect and its impact on the species intended to be protected. Furthermore, that fraction also contains a fragment of riparian cover. In our own report, we indicate that, if one had to choose between one of those two properties, it is suggested that Brindis de Amor be acquired, since Ciruelas is already maintaining some protection in that area of its property. Our detractors indicate that the study did not evaluate those properties. This is not entirely correct, since as mentioned above, there was an evaluation of vegetation on the Brindis de Amor property. The reason why other taxonomic groups (fauna) were not evaluated is that: (1) there is already evidence of the importance of that place for the RBLB fauna; (2) including this property complements the ASETREK property; (3) Brindis de Amor was effectively identified after the decision was made to compensate with ASETREK. The fragment in Hacienda Ciruelas (mistakenly called Rancho Wilson in our report) was effectively not evaluated. However, I reiterate that assuming the protection of both this property and Brindis de Amor would provide a better service to the environment that the RBLB aims to conserve.” (Report provided by Dr. Mahmood Sasa Marín by virtue of the hearing granted as evidence for better resolution).

Conclusions on this matter Based on the statements made by the authorities themselves, which appear in the file of the unconstitutionality action, it is possible to conclude that the compensation study carried out for the specific case was not executed with identical rigor in the incorporation of the ASETREK farm, compared to the subsequent integration of two other farms called Brindis de Amor and Hacienda Ciruelas. As noted supra, the plaintiffs’ objection is that the final report “Establishment of the Biodiversity Baseline for the Lomas de Barbudal Biological Reserve (RBLB) and adjacent farm” omits incorporating studies on the biological conditions of the other two properties, such that it cannot be scientifically determined that these are properties that indeed have the environmental characteristics that would replace the ecosystem functions of the area to be removed from protection. The PGR insisted on the need for the solidity of that study, because otherwise, there is a danger that the environmental impact generated by the removal of protection (desafectación) of a part of said biological reserve would not be adequately mitigated. The Presidency of the Legislative Assembly showed that indeed the studies on the Brindis de Amor and Hacienda Ciruelas farms were not carried out with the same detail and rigor as the study conducted on the ASETREK farm.

The rest of the authorities agreed that the comprehensive evaluation of the referenced property resulted in a lack of compensation for riparian forest, a priority in environmental protection because it is almost unique in the country. This led to the adoption of recommendations from the authorities of the Conservation Area (Área de Conservación) themselves to integrate two other properties. However, with respect to these two properties that were subsequently integrated into the compensation, no biological study or biodiversity equivalence study was conducted with similar parameters of rigor and discipline. Furthermore, according to OET’s own considerations, as the entity responsible for the study, the analysis regarding the Brindis de Amor Property was merely preliminary, did not include an analysis of species composition in its secondary or deciduous forest, and no fauna study was conducted. Likewise, the final decision to include Hacienda Ciruelas, although it denotes an eagerness to ensure adequate compensation, was not supported by any scientific study demonstrating the equivalence and the required compensation of natural resources. The person responsible for the study acknowledged that “the fragment at Hacienda Ciruelas (erroneously called Rancho Wilson in our report) was indeed not evaluated.” To the above, it is fitting to add that, based on a ten-month study in which fauna, flora, habitat structure, ecosystem services, and physical attributes were assessed, and which included sampling in both the dry season and the rainy season, it was concluded that the ASETREK property was not sufficient to compensate for the areas of forest removed from protection (bosques desafectados) in RBLB. Therefore, with even more reason, the basis for making inclusions, at the last moment, that can truly meet the compensation requirements demanded in terms of fauna species, forests, and carbon fixation is not discernible.

Therefore, I consider that the deficiencies detected in the studies, which were recognized by the authorities who intervened in this constitutional process, are harmful to the constitutional principles already indicated and which, in general terms, oblige the State to adopt decisions related to the reduction of protected wild areas based on a duly substantiated technical study.

Conclusions

The considerations made allow us to conclude that there are four types of studies in this matter that are not equivalent: 1) the study justifying the removal of protection (desafectación) from a protected area, 2) the compensation study for the removal of protection from a protected area, 3) the environmental impact assessment (estudio de impacto ambiental) of an infrastructure project. Separately, there is the feasibility study for carrying out an infrastructure project. In the case of the law under review, the first was omitted, the second was done deficiently, and the third is yet to be done (as would be appropriate after having the first two, and upon enactment of the law). The project feasibility study does not partially or totally substitute any of the three aforementioned studies. For this reason, I believe that those who argue that the questioned regulation is unconstitutional due to the infringement of the precautionary, non-regression in environmental matters, lifetime tenure (irreductibilidad), and objectification of environmental protection principles, which must govern decision-making in this matter, are correct.

Anamari Garro Vargas Magistrate (Magistrada) Res. Nº 2020-0013836 NOTE FROM MAGISTRATE GARRO VARGAS On compliance with international obligations The plaintiffs challenged that, given that the Lomas de Barbudal Biological Reserve (LBLB) is part of the Palo Verde wetland, the Regional Council of the Arenal Tempisque Conservation Area (Consejo Regional del Área de Conservación Arenal Tempisque) warned, at the time, the Legislative Assembly that it was necessary to notify the Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar Convention) of the intention to carry out this project and to activate any other procedure to comply with the country's commitments. They accuse that, despite the above, the State has not notified Ramsar of the removal of protection (desafectación) of the area of the RBLB, nor of the change in the boundaries of that biological reserve, which constitutes an omission that infringes our country's international commitments and, therefore, a violation of Article 7 of the Political Constitution. It is necessary to cite in this note, again, the relevant provisions of the Ramsar Convention, which states in Article 2.5 the following:

“ The Contracting Parties shall have the right to add to the “List” other wetlands situated within their territory, to extend the boundaries of those already included, or, for urgent reasons of national interest, to withdraw from the “List” or to reduce the boundaries of wetlands already included and they shall inform these modifications, as rapidly as possible, to the organization or government responsible for the permanent office functions specified in Article 8”. (Emphasis not in original).

Additionally, Article 4 states:

“1. Each Contracting Party shall promote the conservation of wetlands and waterfowl by establishing nature reserves on wetlands, whether or not they are included in the "List", and shall adequately provide for their management and care.

2. Where a Contracting Party, for urgent reasons of national interest, withdraws or reduces the boundaries of a wetland included in the "List", it shall compensate, insofar as possible, any loss of wetland resources and, in particular, shall create new nature reserves for waterfowl and for the protection, in the same region or elsewhere, of an adequate portion of their former habitat. 3. The Contracting Parties shall encourage research and the exchange of data and publications regarding wetlands, their flora and fauna”. (Emphasis not in original).

That is, this norm reiterates that when a Party, for urgent reasons of national interest, withdraws or reduces the boundaries of a wetland included in the “List”, it shall compensate, insofar as possible, any loss of wetland resources and, in particular, shall create new nature reserves for waterfowl and for protection in the same region or elsewhere. Based on the normative text itself, it is necessary to conclude that the Costa Rican State has not incurred an infringement of its international obligations, pursuant to the provisions of Article 7 of the Political Constitution. The foregoing, because the international instrument under analysis itself does not specify the exact moment when the compensation and the respective communication to the Permanent Office created by Article 8 of the same instrument must be carried out. On the other hand, it is necessary to point out that, although reasons of public interest have been detailed for carrying out a project that seeks to solve the long-term water shortage in the province of Guanacaste, it has not been verified that, to date, there has properly been a formal declaration of urgent national interest reasons for the questioned removal of protection (desafectación) of RBLB as part of Palo Verde National Park. It is worth recalling what the Attorney General's Office (Procuraduría General de la República, PGR) reported in this particular matter, which pointed out the following in the relevant part:

“In that scenario, the norm could be contrary to the Ramsar Convention, because although it is true that it does not oblige States to communicate in advance the decision to modify the area of sites of international importance, its Article 4 subjects that possibility to the existence of a reason of urgent national need, which would not be duly justified in this particular case”. (Emphasis not in original).

From which it is necessary to conclude that, although there is no deadline for notifying the competent Ramsar office, the Costa Rican State does have the obligation to justify the decision based on “a reason of urgent national need”; all of which must be calibrated by the Costa Rican State to avoid incurring international responsibility for non-compliance with sovereignly accepted obligations.

On the dimensioning of the effects of the questioned legislation In relation to the effects of the challenged legislation, it is necessary to transcribe, in the relevant part, what was stated by the PGR in the report on this action of unconstitutionality:

“Law 9610 presents certain particularities with respect to other legal norms that seek to reduce the extent of protected wild areas, since, in this case, the decision to remove protection (desafectar) from part of the RBLB is not motivated by the loss of environmental value or the need to protect the zone, but exclusively by the need to develop an infrastructure work as part of the execution of the PAACUME project. That is, the authorized removal of protection is of interest only for the development of that project.

Based on the foregoing, the Attorney General's Office considers that, apart from the observations noted in the previous segment, a defect of the Law that could cause its unconstitutionality is that no provision was contemplated to dimension the effects of the removal of protection carried out until the moment the project is executed, because the decision to remove protection only makes sense and has justification if that project is carried out. If for some reason the project is not developed, the removal of protection carried out would be senseless, and therefore, it would have no justification whatsoever.

The justification for the removal of protection depends on the eventual execution of the project, which could be impeded for various reasons. For example, because—as the plaintiffs argue—environmental viability is not granted to the project, because the necessary financing does not exist, because interest in developing it is lost, or because, for some other reason, it is impossible to execute it.

Furthermore, it must be taken into account that the guarantee of non-affectation to the RBLB lies in the proposed compensation measure. However, the truth is that, with the challenged law, a part of the Reserve was removed from protection and, despite the fact that the compensation area was included within its boundaries, those lands are private properties that have not been expropriated. Based on the provisions of Article 37 of the Organic Law of the Environment, until those properties are expropriated or purchased, they cannot become part of the protected wild area, and therefore, the proposed compensation has not materialized. In other words, with the issuance of Law 9610, the area of the RBLB was reduced and the affectation generated by that reduction has not been compensated, in contravention of the provisions of the precautionary and preventive principle.

If for some reason the project is not developed and the necessary expropriations to effect the proposed compensation are also not executed, Law 9610 would have removed protection from the RBLB in vain, without a valid justification and without having compensated and mitigated the effects generated by that reduction. This would constitute a violation of the principle of irreducibility (principio de irreductibilidad) of protected wild areas, of non-regression, precautionary and preventive, and even a violation of the Ramsar Convention, as there would be no reason of urgent need to justify the reduction of the area of one of the sites of international importance.

Therefore, without prejudice to what is verified regarding the sufficiency of the studies and technical criteria previously indicated, the Attorney General's Office considers that, for what has just been indicated, Law 9610 could be unconstitutional, unless it is interpreted that the removal of protection it authorizes will take effect only when the project is executed and the necessary lands are expropriated so that the proposed compensation operates”. (Emphasis not in original).

These statements are extremely relevant and reveal that the competent legislator did not introduce any dimensioning regarding the effects of the legislation examined in this action of unconstitutionality. Likewise, in light of the PGR's statements, it is necessary to point out that although there was agreement with the majority vote in the sense that there was no standing to hear a possible infringement of the right to private property, enshrined in Article 45 of the Political Constitution, it is true that it is noted that the effectiveness of the proposed compensation is contingent upon the expropriation of the lands contemplated for those purposes and the corresponding indemnification to the plaintiffs. That is, the materialization of the compensation is conditioned on the effective expropriation of the lands subject to the compensation study. At this moment, as long as the expropriation has not been perfected, the lands are not subject to an environmental protection regime (a kind of precautionary measure) nor has the compensation offered been consolidated as a parameter of legitimacy for the norm removing protection. The lack of dimensioning by the legislator himself makes the legitimacy of this compensation rest on an expropriation that has not been finalized and which compromises the constitutionality of the regulation under analysis. It even reveals that the coordinate change removing protection from RBLB has already been carried out, but no resolutory condition was introduced, nor provisions regarding the consequences if the project is not carried out. That is, the question arises as to what happens with the removal of protection of this important biological reserve in the event that the infrastructure project cannot be executed. With all respect, I consider that the solution offered by the majority of this Chamber, in the sense that it is a conditional law, is not sufficient on this particular point, because the truth is that the corresponding coordinate change has already been made, without offering clarity on the effects if the infrastructure project intended to be carried out is not executed.

Anamari Garro V. Magistrate (Magistrada) Observations of the CONSTITUTIONAL CHAMBER voted by ballot Classification prepared by the CONSTITUTIONAL CHAMBER of the Judicial Branch. Its reproduction and/or distribution for profit is prohibited.

It is a faithful copy of the original - Taken from Nexus.PJ on: 09-05-2026 01:11:02.

Sala Constitucional Clase de asunto: Acción de inconstitucionalidad Control constitucional: Sentencia desestimatoria Analizado por: SALA CONSTITUCIONAL Sentencia con Voto Salvado Sentencia con nota separada Indicadores de Relevancia Sentencia relevante Sentencia clave Sentencias Relacionadas Sentencias del mismo expediente Sentencia con datos protegidos, de conformidad con la normativa vigente Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Tema: AMBIENTE Subtemas:

NO APLICA.

Tema: ACCIÓN DE INCONSTITUCIONALIDAD Subtemas:

NO APLICA.

013836-20. AMBIENTE. MODIFICACIÓN DE LIMITES DE LA RESERVA BIOLÓGICA LOMAS DE BARBUDAL. Acción de inconstitucionalidad contra la Ley No. 9610. Modificación de límites de la Reserva Biológica Lomas de Barbudal para el Desarrollo del Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras. Publicada en al Alcance No. 199 de La Gaceta del 23/11/2018. En relación con la acusada violación al artículo 45 de la Constitución Política, al numeral 208 bis del Reglamento de la Asamblea Legislativa y al principio de seguridad jurídica, por unanimidad se declara inadmisible la acción, porque, por un lado, no se observa algún tipo de interés difuso o colectivo, y, por otro, no existe algún asunto previo en el que se haya invocado la inconstitucionalidad como medio para amparar el derecho o interés reclamado. Igualmente, por unanimidad se declara sin lugar la acción respecto de la argüida vulneración a los ordinales 7 y 176 de la Constitución Política y a los principios constitucionales de equilibrio presupuestario, razonabilidad y proporcionalidad, y economía y eficiencia.

En cuanto a la alegada lesión al derecho a un ambiente sano y ecológicamente equilibrado, contemplado en el artículo 50 de la Constitución Política, por mayoría se declara sin lugar la acción. Los Magistrados Cruz Castro, Rueda Leal y Garro Vargas salvan el voto y declaran con lugar la acción por violación a los principios precautorio, no regresión en material ambiental, irreductibilidad y objetivación de la tutela ambiental. La Magistrada Garro Vargas da razones diferentes y pone nota.

La Magistrada Hernández López y el Magistrado Salazar Alvarado ponen notas separadas.

Notifíquese este pronunciamiento a la parte accionante, al Procurador General de la República, al Presidente de la Asamblea Legislativa, al Ministro de Ambiente y Energía, al Ministro de Agricultura y Ganadería, al Gerente General del Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento, y a los coadyuvantes.

“…Por consiguiente, la l ey cuestionada no resulta inconstitucional, contó con estudios previos y criterios técnicos expresados por las autoridades competentes a lo largo de las comparecencias legislativas, entre estos S ENARA, SINAC , MINAE, S ETENA, MAG y OET y, además, dispone la obligación de realizar un estudio de impacto ambiental, el cual deberá contemplar de previo, todos los impactos y medidas de mitigación que procedan para garantizar que, efectivamente, no sea lesionado el ambiente, así como también, determine que se producirá una compensación, no solo en tamaño, sino de naturaleza ecológica hasta donde razonablemente sea posible en este último supuesto. En criterio de este Tribunal, se trata de una ley condicionada, cuya eficacia queda supeditada a que el estudio de impacto ambiental pendiente del proyecto PAACUME, confirme los resultados previos, y se ajuste a los principios de razonabilidad y proporcionalidad, a las exigencias de un desarrollo sostenible, de equilibrio ecológico y de un ambiente sano, y al bienestar general de la población, que sirva para justificar la medida, así como para determinar que la compensación del área contemple tanto el elemento cuantitativo como el cualitativo , por lo que no llevan razón al indicar que se violenta el principio precautorio…” VII.- Conclusión . Corolario de lo expuesto, este Tribunal considera que la acción resulta inadmisible, en relación con la acusada violación al artículo 45 de la Constitución Política, al numeral 208 bis del Reglamento de la Asamblea Legislativa y al principio de seguridad jurídica, por carecer de legitimación los accionantes. En lo demás, no se advierten las inconstitucionalidades alegadas, en el tanto lo autorizado en la normativa impugnada cuente con el estudio de impacto ambiental previo, que determine los impactos, las medidas de mitigación respectivas, garantice la protección ambiental y la debida comprensión ambiental.

CO12/20 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 176- Presupuesto Nacional Subtemas:

NO APLICA.

ARTÍCULO 176 DE LA CONSTITUCIÓN POLÍTICA. “…es importante precisar, que la competencia de este Tribunal, en relación con el principio del Equilibrio Presupuestario derivado del numeral 176 de la Constitución Política, se ciñe a un análisis de nivel macro, y no de una situación en particular como la de estudio. Tal y como lo señal a la Procuraduría General de la República, la discusión acerca de si se ha incluido en el presupuesto ordinario la partida específica destinada a cubrir las expropiaciones que se requieren para la compensación de la RBLB , no está referida a la violación de este principio…

De otra parte , la alegada inconformidad por el supuesto alto costo económico para el país que significa desafectar y compensar esa área con esas propiedades y no otras diferentes, tampoco configura un argumento susceptible de análisis de constitucionalidad, sino de discrecionalidad, cuestión en la que el legislador cuenta con amplio margen -libre configuración-, en este caso, siguiendo, lógicamente, criterios técnicos, de conveniencia y oportunidad para la escogencia de un terreno cuando así lo impongan razón de interés público debidamente comprobado, tal y como se da en el presente caso; amén que la disminución de la cabida de un área silvestre protegida y su compensación, no debe responder únicamente a un criterio económico, sino también a los atributos ecológicos del terreno, a fin de que reúna condiciones ambientales equivalentes al área desafectada. De manera que ello implicaría igualmente un análisis técnico que no es propio de ser verificado en esta jurisdicción…” CO12/20 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 6. LEY DE LA JURISDICCIÓN CONSTITUCIONAL ANOTADA CON JURISPRUDENCIA Tema: 075- Asunto previo en vía judicial o administrativa pendiente de resolución Subtemas:

NO APLICA.

ARTÍCULO 75 DE LE LEY DE LA JURISDICCIÓN CONSTITUCIONAL. “…Al respecto, la Sala descarta la existencia de algún tipo de interés difuso o colectivo en esos alegatos de los accionantes. Todos esos argumentos se encuentran relacionados de una u otra forma con el derecho de propiedad privada y su eventual transgresión, lo que requeriría de la existencia de un asunto base en el que se hubiera invocado la inconstitucionalidad como medio para amparar el derecho o interés reclamado, lo que se echa de menos en este caso. Por consiguiente, tales alegatos, no son susceptibles de ser analizados por el fondo.

A mayor abundamiento, en lo referente específicamente a las acusadas inconsistencias y errores en cuanto a la debida definición o delimitación de los linderos de la RBLB, también debe tomarse en consideración que tanto la presidenta de la Asamblea Legislativa como SENARA argumentan que las coordenadas de delimitación de la reserva biológica señaladas en la ley cuestionada son correctas. Se alega, en particular, que en un trabajo conjunto entre el MINAE y el SENARA se realizaron los estudios y replanteamientos topográficos de campo necesarios, lo que permitió una adecuada precisión geográfica de ubicación y delimitación real del área de la reserva de interés, mediante el uso de instrumentos tecnológicos de precisión geográfica. Se constata con lo anterior, que en el sub lite se plantea una discusión eminentemente técnica sobre la debida ubicación y delimitación geográfica de tales linderos. En cuyo caso, resolver tal controversia, previa revisión y ponderación de los diversos parámetros técnicos que rigen la materia e, incluso, evacuar y valorar el pertinente material probatorio, supone una discusión que excede, sobradamente, el propósito y la naturaleza del control de constitucionalidad, en los términos de los artículos 10 de la Constitución Política y 73 y siguientes de la Ley de la Jurisdicción Constitucional. Por el contrario, tal discusión en propia de ventilarse en las vías ordinarias, con la respectiva amplitud probatoria…” CO12/20 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 6. LEY DE LA JURISDICCIÓN CONSTITUCIONAL ANOTADA CON JURISPRUDENCIA Tema: 083- Coadyuvancias Subtemas:

NO APLICA.

ARTÍCULO 83 DE LA LEY DE LA JURISDICCIÓN CONSTITUCIONAL. “…El artículo 83 de la Ley de la Jurisdicción Constitucional establece que en el plazo de 15 días posteriores a la primera publicación del edicto a que se refiere el párrafo segundo del artículo 81, las partes que figuren en los asuntos pendientes a la fecha de la interposición de la acción, o aquellos con interés legítimo, podrán apersonarse a fin de coadyuvar en las alegaciones que pudieren justificar su procedencia o improcedencia, o para ampliar, en su caso, los motivos de inconstitucionalidad en relación con el asunto que les interesa.

En la especie, mediante resolución de las 15:23 horas de 21 marzo de 2019, la Presidencia de la Sala aceptó las coadyuvancias activas de… Mario Andrés Boza Loría y Jorge Arturo Lobo Segura y la coadyuvancia pasiva de Luis Renato Alvarado Rivera, Ministro de Agricultura y Ganadería; además, rechazó la coadyuvancia formulada por Juan Carlos Peralta, quien manifestó a personarse en representación de la Asociación para el Bienestar y Amparo de los Animales del Cantón de San José, por no aportar la personería jurídica que acreditara su condición, a pesar de que se le previno .

En este acto, se rechaza la solicitud de coadyuvancia planteada por Henry José Picado Cerdas, toda vez que se apersonó extemporáneamente. La primera publicación de la resolución de curso de esta acción en el Boletín Judicial se efectuó el 19 de febrero de 2019; sin embargo, el señor Picado remitió su escrito el 2 de noviembre de 2019...” CO12/20 ... Ver más Contenido de Interés:

Tipo de contenido: Nota separada Rama del Derecho: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Tema: AMBIENTE Subtemas:

NO APLICA.

Nota separada de la Magistrada Hernández López En la discusión del presente asunto, me había reservado la redacción de una nota separada. Sin embargo, prescindo de la misma, por cuanto se reflejan de manera integral las observaciones que tenía sobre el tema, en la redacción de la sentencia.

Nancy Hernández López CO12/20 ... Ver más Contenido de Interés:

Tipo de contenido: Nota separada Rama del Derecho: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Tema: AMBIENTE Subtemas:

NO APLICA.

Nota del Magistrado Salazar Alvarado:

Vista la redacción integral de la Sentencia dictada en este asunto, prescindo de la nota que, en su momento, consideré oportuna durante la discusión y votación de esta acción de inconstitucionalidad.- Luis Fdo. Salazar A.

CO12/20 ... Ver más Contenido de Interés:

Tipo de contenido: Voto salvado Rama del Derecho: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Tema: AMBIENTE Subtemas:

NO APLICA.

Voto salvado de los Magistrados Cruz Castro y Rueda Leal, con redacción del segundo.

Con el respeto acostumbrado nos separamos del criterio de Mayoría y declaramos inconstitucional la ley n.º 9610 de 17 de octubre de 2018 denominada “Modificació n de límites de la Reserva Biológica Lomas de Bar budal para el desarrollo del Proyecto de Abastecimiento de Agua para la Cuenca Media del Rí o Tempisque y Comunidades Costeras ”, por violación a los principios precautorio, no regresión en material ambiental, irreductibilidad y objetivación de la tutela ambiental.

En el sub e xamine, la ley cuestionada se sustentó en mayor medida, tal y como se observa en la exposición de motivos del proyecto de ley correspondiente, en el estudio de la Organización para Estudios Tropicales (en adelante OET) denominado “Establecimiento de la línea Base de Biodiversidad para la Reserva Biológica Lomas de Barbudal (RBLB) y finca adyacente” de junio de 2017. Si bien, en principio, no corresponde a la Sala evaluar técnicamente la calidad de los estudios ni definir si cuál criterio profesional debe prevalecer, no menos cierto es que este Tribunal sí interviene cuando se está ante evidentes y manifiestas inconsistencias o falencias (por ejemplo, las sentencias n 2012013367 de las 11:33 horas del 21 de setiembre de 2012 y 2013010540 de las 15:50 horas del 7 de agosto de 2013). En el sub iudice, luego de analizar el estudio de la OET, constatamos una serie de problemas que saltan a la vista a partir de su simple lectura y que evidencian de manera palmaria el incumplimiento de los requisitos constitucionales que ha establecido este Tribunal para la desafectación de áreas protegidas.

Atinente a la reducció n de á reas protegidas , este Tribunal, en la sentencia n.º 2019000673 de las 12:00 horas de 16 de enero de 2019, dispuso:

“ V.- Jurisprudencia sobre la reducción de áreas protegidas, la suficiencia de los informes técnicos y la debida compensación.- Sobre la reducción de zonas protegidas, de la jurisprudencia de esta Sala se tiene lo siguiente:

1. Requisitos constitucionales para la reducción de área silvestre protegida (reserva legal y estudios técnicos): En apoyo del artículo 38 de la Ley Orgánica del Ambiente (“la superficie de las áreas silvestres protegidas, patrimonio natural del Estado, cualquiera sea su categoría de manejo, sólo podrá reducirse por Ley de la República, después de realizar los estudios técnicos que justifiquen esta medida”), ha habido una sólida línea jurisprudencial, en el sentido de que para la reducción de un área silvestre protegida, en cualquiera de sus categorías de manejo (en cuenta los refugios nacionales de vida silvestre), deben cumplirse dos requisitos esenciales: “por medio de ley y previa realización de estudios técnicos suficientes que justifiquen la medida.” (Sala Constitucional, votos números 13367-2012 y 010158-2013. En similar sentido, las sentencias números 7294-1998, 11155-2007, 1056-2009, 18702-2010 y 14772-2010, entre otras). Tal como se dijo en la resolución mencionada de 1998:

““(…) una vez declarada una determinada área como zona protectora por un acto del Estado, no puede éste, simplemente, desafectarlo en todo o en parte, para proteger otros intereses -públicos o privados- en menoscabo del disfrute de un ambiente sano, de conformidad con lo dispuesto en el artículo 50 constitucional. Ahora bien, el hecho de que una norma, del rango que sea, haya declarado como zona protectora una determianda (sic) área, no implica la constitución de una zona pétrea, en el sentido de que, de manera alguna, su cabida pueda ser reducida por una normativa posterior. Sin embargo, se debe tener presente que la declaratoria y delimitación de una zona protectora, en cumplimiento de lo preceptuado en el artículo 50 constitucional, implica una defensa del derecho fundamental al ambiente y, por ello, la reducción de cabida no debe implicar un detrimento de ese derecho, situación que debe establecerse en cada caso concreto. No resulta necesariamente inconstitucional el hecho de que por medio de una ley posterior se reduzca la cabida de una zona protectora, una reserva forestal, un Parque Nacional o cualesquiera otros sitio de interés ambiental, siempre y cuando ello esté justificado en el tanto no implique vulneración al derecho al ambiente. Podría ser que, por diversas circunstancias, un determinado sitio haya perdido, al menos en parte, el interés ambiental que, en su momento, provocó, lo que, hechos los estudios del caso, justificaría su modificación o reducción, todo en aplicación del principio de razonabilidad constitucional…” (voto No. 7294-1998).

Concretamente sobre la reserva legal en esta materia, en el voto No.14772-2010 se dijo:

(…) no se puede modificar el destino público de un bien del demanio público sin un acto legislativo, es decir, la reducción de área de una zona protegida se encuentra bajo la garantía que proporciona el principio de reserva de ley. Si bien, de conformidad con el artículo 36 de la Ley Orgánica del Ambiente, el Poder Ejecutivo se encuentra autorizado para constituir las Áreas Silvestre Protegidas mediante el cumplimiento de los requisitos establecidos en esa norma, así, el Parque Nacional Corcovado se constituyó mediante los Decretos Ejecutivos No. 5357-A del 24 de octubre de 1975 y 1148-A del 5 de febrero de 1980, su modificación solo podrá hacerse de conformidad con lo dispuesto en el artículo 38 de la Ley Orgánica del Ambiente, previo estudios técnicos y científicos, y mediante un acto legislativo . (resaltado no corresponde al original).

Asimismo, en sentencia no.1056-2009 se indicó que la reducción únicamente es posible vía legal:

“cuando de la ampliación de los límites de las zonas protectoras del patrimonio forestal del Estado se trata es posible hacerlo vía reglamento, pero cuando de su reducción se trata, únicamente se puede hacer vía legal , claro está, siempre y cuando exista un criterio previo que justifique la medida.” (Sentencia de la Sala Constitucional Nº 1056-2009) Lo cual fue aplicado cuando la Sala declaró inconstitucional la norma reglamentaria (Decreto Ejecutivo Nº 32753-MINAE) mediante la cual el Poder Ejecutivo disminuyó el territorio del Refugio Gandoca-Manzanillo, sustrayendo del área y del régimen de protección, la zona urbana del Refugio.

Además, en cuanto a los estudios, estos deben ser previos, suficientes, necesarios e individualizados –como se indica en el apartado siguiente-. Así se dijo en esa misma resolución de 1998:

“De acuerdo con lo citado, mutatis mutandi, si para la creación de un área silvestre protectora la Asamblea Legislativa, por medio de una ley, estableció el cumplimiento de unos requisitos específicos, a fin de determinar si la afectación en cuestión es justificada, lo lógico es que, para su desafectación parcial o total, también se deban cumplir determinados requisitos -como la realización de estudios técnicos ambientales- para determinar que con la desafectación no se transgrede el contenido del artículo 50 constitucional. En este sentido, podemos hablar de niveles de desafectación. Así, no toda desafectación de una zona protegida es inconstitucional, en el tanto implique menoscabo al derecho al ambiente o amenaza a éste. De allí que, para reducir un área silvestre protegida cualquiera, la Asamblea Legislativa debe hacerlo con base en estudios técnicos suficientes y necesarios para determinar que no se causará daño al ambiente o se le pondrá en peligro y, por ende, que no se vulnera el contenido del artículo 50 constitucional. El principio de razonabilidad, en relación con el derecho fundamental al ambiente, obliga a que las normas que se dicten con respecto a esta materia estén debidamente motivadas en estudios técnicos serios, aún cuando no existiera otra normativa legal que así lo estableciera expresamente. A juicio de este Tribunal Constitucinal (sic), la exigencia que contiene el artículo 38 de la Ley Orgánica del Ambiente No. 7554, en el sentido de que para reducir un área silvestre protegida por ley formal deben realizarse, de previo, los estudios técnicos que justifiquen la medida , no es sino la objetivación del principio de razonabilidad en materia de protección al ambiente.” (resaltado no corresponde al original).

2. Estudio técnico como un análisis científico e individualizado: La Sala se ha referido a la suficiencia del estudio técnico, cuando mediante varias resoluciones ha establecido que dicho estudio debe ser un análisis científico e individualizado. Así se dijo lo siguiente:

“el requerimiento de estudios técnicos no es una mera formalidad, sino que se trata de un requisito material, es decir materialmente se tiene que demostrar, mediante un análisis científico e individualizado, el grado de impacto de la medida correspondiente en el ambiente, plantear recomendaciones orientadas a menguar el impacto negativo en este, y demostrar cómo tal medida implica un desarrollo que satisface las necesidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades.” (Voto No. 13367-2012. Véase además el No. 10158-2013).

De lo cual se desprende que, el estudio técnico que exige el artículo 38 de la Ley Orgánica del Ambiente y que es la objetivación del principio constitucional de razonabilidad en materia de protección al ambiente, requiere de un análisis técnico que implica un análisis individualizado, el cual debe contener como mínimo las siguientes medidas:

El grado de impacto de la medida correspondiente en el ambiente; Las recomendaciones orientadas a menguar el impacto negativo en el ambiente; La demostración de cómo la medida que se toma, implica un desarrollo que satisface las necesidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades.

En síntesis, dicho estudio previo debe demostrar que la desafectación es conforme con la protección constitucional al derecho al ambiente, pues como se dijo en el voto no. 18702-2010 “no se puede permitir que se titulen áreas de esta naturaleza en forma indiscriminada, ya que esto iría contra las mismas políticas conservacionistas del ambiente que ha procurado el Estado en virtud de los cometidos ordenados por la Constitución Política y los Convenios Internacionales que ha suscrito".

3. Medidas de compensación: Un área protegida solo se puede reducir si se hace mediante ley, si hay estudios técnicos y científicos que descarten el daño ambiental y si se da una compensación del área suprimida con otra de igual tamaño. No cabe duda que todas aquellas normas en los cuales hay reducción de las áreas protegidas sin el respaldo de estudios técnicos ni compensación alguna, son inconstitucionales” (voto Nos. 12887-2014, 2773-2014, 2012-13367 y 2009-1056).

VI.- Sobre la normativa impugnada.- Tal como se observa, tanto la Ley para regular la creación y el desarrollo del puesto fronterizo Las Tablillas, Ley No. 8803, como su Reglamento, son impugnados en su totalidad, básicamente por dos razones: por no contar con el estudio técnico que sustente la reducción de un área protegida (en este caso un refugio nacional de vida silvestres), y por no establecer medidas de compensación. Cada uno de estos alegatos se examina por separado. SOBRE EL ESTUDIO TECNICO: El accionante indica que la Ley impugnada y su reglamento, están segregando y reduciendo varias hectáreas del Refugio Nacional de Vida Silvestres de la zona fronteriza, sin que existan estudios ambientales que justificaran esa acción. Indica que los diputados tomaron una simple recomendación que nunca puede ser considerado un estudio serio, profundo y amplio que permitiera hacer lo que se hizo. La Procuraduría General de la República en su informe indica que, ya en la Opinión Jurídica de esta Procuraduría No. O.J.-98-2009, emitida el 14 de octubre del 2009 por consulta de los Diputados, durante la tramitación del proyecto que culminó en la Ley No. 8803, analizó el estudio técnico incorporado al expediente en ese momento, considerándolo insuficiente para justificarla: “…respetuosamente debe señalarse que dicho informe técnico no reúne los requerimientos necesarios para fundamentar el proyecto que se consulta. Nótese que el mismo hace un estudio sobre las 236 hectáreas que se proponían inicialmente y concluye que el proyecto no es viable desde el punto de vista ambiental y social. Sin embargo, dicho estudio no explica en forma alguna, por qué motivo ese impacto negativo no se produce sobre las 13 hectáreas que se proponen, o en otras palabras, no existe a la fecha, un criterio técnico que se refiera a los motivos por los cuales sí es viable la segregación de las 12.3 hectáreas que se establecen en el proyecto de ley consultado…”. El Ministro de Ambiente y Energía indica que no hay inconstitucionalidad. Agrega que, no se pretendía con la ley impugnada la desafectación del dominio público de la zona en cuestión, sino autorizar la utilización de una porción del área para otro destino de interés público, que es la instalación de un puesto fronterizo y aduanal, en el entendido que se trata de construcciones del Estado y no privadas. Así el 28 de setiembre del 2007 se emite el informe técnico elaborado por la comisión caso Tablillas, denominado “Solicitud de reducción del área del Refugio Nacional Corredor Fronterizo” que propone un área a desafectar de 13 ha limítrofes con la línea fronteriza, por cuanto los funcionarios del Área de Conservación Arenal Huetar Norte consideraron inviable la segregación del área indicada de 236 ha, concluyendo el informe que: “13 hectáreas, sería una propuesta más viable desde el punto de vista de impacto a los ecosistemas presentes en el sitio y alrededores.” Dicho informe consideró aspectos biofísicos, socioeconómicos, seguridad. Concluye que, el balance del costo beneficio de establecer puestos que realicen control y ordenamiento del ingreso migratorio en dicho sector, contribuye a regular el ingreso por la franja demanial coincidente con el Área Silvestre Protegida. Los Ministros de la Presidencia y de Comercio Exterior indican que, en los folios del 76 al 94 del expediente legislativo consta el informe técnico elaborado en setiembre del 2007 por el MINAE. El sitio identificado reúne las condiciones aptas para el desarrollo del proyecto de un Puesto Fronterizo por cuanto ya había sido impactada por la acción humana, hecho que se comprueba con la no existencia de ecosistemas de importancia o frágiles, la no presencia de cobertura boscosa primera o secundaria, ni de humedales o cursos de agua, sino únicamente de pastos naturales y terreno limpio para cultivo o listo para siembra. Además el área es técnicamente estratégica para la ubicación del Puesto Fronterizo por la cercanía con la línea limítrofe y la existencia de vías de comunicación para el desplazamiento interno (caminos) y una carretera nacional conectada a la vía del lado nicaragüense de la frontera. Al respecto, esta Sala concluye que, en efecto, la Procuraduría General de la República lleva razón en su informe, no existe un estudio técnico que se refiera a la viabilidad de este proyecto, pues el que se realizó se refería a una zona de mayores dimensiones, concluyendo que no resultaba viable desde el punto de vista ambiental y social. Por ello, debía justificarse por qué la nueva propuesta no generaría problema en los humedales, en las especies de la zona, en los mantos acuíferos y no produce una problemática social, tal como se detectó en la propuesta inicial. El estudio técnico que refieren los Ministros, resulta evidentemente insuficiente, pues no explica en forma alguna, por qué motivo ese impacto negativo no se produce sobre las 13 hectáreas que se proponen, el grado de impacto de la medida correspondiente en el ambiente, las recomendaciones orientadas a menguar el impacto negativo en el ambiente, ni tampoco la demostración de cómo la medida que se toma, implica un desarrollo que satisface las necesidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades. Por otro lado, si bien puede ser cierto, como dicen los Ministros en su informe, la propiedad no está saliendo del dominio público, es lo cierto que sí está siendo desafectada, ambientalmente hablando. También puede ser cierto, como dicen los Ministros en su informe, que además del interés ambiental en la zona fronteriza, pueda haber otros intereses relevantes como la seguridad migratoria y otros. Sin embargo, ello justamente es lo que debió haber contenido el informe técnico en su fundamentación. Nótese que, como indican los Ministros, puede ser cierto que se hayan estado tomando ciertas medidas ambientales, ello no enerva el hecho de la carencia de informe técnico con el que debió contar la ley, que dejan esas medidas ambientales sin sustento técnico requerido. Así entonces, se evidencia la inconstitucionalidad alegada, de la ley impugnada –y por conexidad de su reglamento-, por la carencia de informe técnico suficiente que sustentara la reducción del Refugio Nacional de Vida Silvestre de la zona fronteriza. SOBRE LAS MEDIDAS DE COMPENSACIÓN: El accionante indica que no se estableció en la ley medidas de compensación oportunas, ante la segregación ordenada. La Procuraduría General de la República en su informe indica que, una inconstitucionalidad por violación a este principio, no se resuelve necesariamente con la anulación de la Ley, si se califica como una inconstitucionalidad por omisión, bastaría que la Sala Constitucional dispusiera en sentencia adicionar al Refugio la porción o porciones que compensen el área suprimida, lo cual podría hacerse incluso por vía reglamentaria. Los Ministros de la Presidencia y de Comercio Exterior indican que, la pretensión de demolición de la infraestructura pública causaría la inmediata desprotección del orden, la paz, la salud, el desarrollo sostenible, la vida y la dignidad humana. Además consideran que no existe una obligación del Estado de compensar un área ya deforestada e impactada con otra, toda vez que nunca se dio una reducción del bosque ni una afectación al ambiente que justificare la medida de la compensación. Al respecto, esta Sala concluye que, en efecto, también las normas impugnadas son omisas en cuanto a las medidas de compensación. Siendo evidente la segregación de alrededor de 13 hectáreas, conforme lo indica el artículo 1° de la ley impugnada, y aunque éstas no salgan del dominio público, si salieron de una categoría de manejo ambiental, lo cual obligaba a establecer medidas de compensación legales, que no fueron adoptadas, ni garantizadas, según se observa de la lectura de toda la ley. Así entonces, se evidencia la inconstitucionalidad alegada, de la ley impugnada –y por conexidad de su reglamento-, por la carencia de medidas de compensación a la reducción del Refugio Nacional de Vida Silvestre de la zona fronteriza.

VII.- En conclusión.- De la jurisprudencia reiterada de esta Sala se tiene que, toda reducción de un área silvestre protegida, en cualquiera de sus categorías de manejo (en cuenta los refugios nacionales de vida silvestre), deben cumplirse tres requisitos esenciales: reserva legal (es decir, sólo por ley puede hacerse), previa realización de estudios técnicos suficientes que justifiquen la medida y establecer medidas de compensación. En este caso se evidenció que la Ley para regular la creación y el desarrollo del puesto fronterizo Las Tablillas (Ley No. 8803) y su Reglamento, procedieron a la segregación, y consecuente reducción, del Refugio Nacional de Vida Silvestre de la zona fronteriza. Sin embargo, aunque se hizo por medio de una ley, no se realizó un estudio previo suficiente que: justificara la medida, estableciera el grado de impacto de la medida correspondiente en el ambiente, las recomendaciones orientadas a menguar el impacto negativo en el ambiente, ni tampoco que demostrara cómo la medida que se toma implica un desarrollo que satisface las necesidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades, o estableciera en concreto y detalle medidas de compensación. De todo lo cual se evidencia la inconstitucionalidad por omisión. Procediéndose en este caso a declarar con lugar la acción, con un dimensionamiento de esta sentencia, tal como se indica”.

Con base en el precedente de cita, consideramos que los requisitos que se deben cumplir para que resulte constitucionalmente viable la desafectación de áreas protegidas, son los siguientes:

1)La declaratoria y delimitación de una zona protectora, en cumplimiento de lo preceptuado en el artículo 50 constitucional, implica una defensa del derecho fundamental al ambiente y, por ello, la reducción de cabida no debe conllevar un detrimento de ese derecho (causar daño o ponerlo en peligro), situación que debe establecerse en cada caso concreto.

2)La reducción de un área protegida, cualquiera que sea su categoría de manejo, solo puede darse por ley, luego de estudios técnicos y científicos (previos, suficientes, necesarios e individualizados) que, en atención al principio de razonabilidad, justifiquen la medida.

3)El estudio debe demostrar materialmente, mediante un análisis científico e individualizado, el grado de impacto de la medida correspondiente en el ambiente, plantear recomendaciones orientadas a menguar el impacto negativo en este, y demostrar cómo tal medida implica un desarrollo que satisface las necesidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades.

4)La reducción de un área protegida implica una compensación del área suprimida con al menos otra de tamaño igual y condiciones equivalentes.

Ahora, en relación con los problemas detectados en el estudio de marras, la propia OET señaló que para los estudios de línea base, compensación e impacto, deben ser considerados al menos dos años de ejecución. En ese sentido, indicó de modo explícito: “La recomendación es que para los estudios de línea base, compensación e impacto sean considerados al menos dos años de ejecución y que efectivamente sean considerados un componente imprescindible del proyecto”. Lo anterior resulta trascendental a los efectos de esta vía constitucional, ya que, sin que se haya logrado acreditar alguna justificación científica o técnica, el periodo de muestreo del estudio de la OET fue únicamente de 10 meses, lo cual se calculó con base en el límite de tiempo que había para el proyecto, sin que para llegar a tal cifra se advierte algún criterio técnicamente sustentado que la respalde.

Al respecto, el señor Mahmood Sasa Marín, coordinador del estudio de la OET, mencionó en la audiencia celebrada en esta acción, que, en su opinión, las conclusiones mayores no cambiarían ante un plazo más largo y que: “la recomendación (…) iba en el sentido de tener soporte verdad (…) obviamente entre más datos tengamos mejor, pero yo creo que las conclusiones gruesas, digamos esa proporción de más o menos tres uno, se mantendría n”. Sin embargo, tal situación produce incertidumbre y genera duda, toda vez que el propio consultor antes había afirmado: “que muchos de esos grupos (…) en realidad no proveen suficiente información, muchos de los grupos taxonómicos (…) , muchos de los indicadores si quisiera, (…) se tenía ese plazo, se analizó, se tienen esos datos y con esos datos tejemos esa conclusión”.

De ahí que, estimamos que el plazo de 10 meses de la ejecución del estudio no proporciona certeza científica suficiente como para conocer las condiciones reales de la RBLB y del área propuesta para compensar su desafectación, lo que resulta inaceptable debido al impacto a un área protegida. En otras palabras, si se indica que el plazo para los estudios de línea base debe ser de al menos dos años (es decir, se impone un mínimo) y no existe alguna justificación científica o técnica para reducirlo, la confiabilidad de los resultados es manifiestamente incierta.

Por otra parte, el estudio supra mencionado tuvo como objeto inicial analizar únicamente dos sitios: “la Reserva Biológica Lomas Barbudal (RBLB) y la zona potencial de canje para compensar las potenciales pérdidas, ubicada en el extremo occidental de la finca ASETREK Tres azul S.A”. Asimismo, los capítulos II (Calidad de Hábitat) y III (Composición de Comunidades) se centran en comparar las condiciones de la RBLB con la finca ASETREK Tres Azul S.A. No fue sino hasta en el capítulo IV (Consideraciones sobre la Compensación), donde se propuso la adquisición de una propiedad denominada Brindis de Amor, con base en estas consideraciones:

“4.2. Otras alternativas de compensación.

Nuestras evaluaciones revelan que el sitio seleccionado en ASE TREK para compensar por las pérdidas en la Reserva Biológica Lomas de Barbudal posee ambientes de menor calidad biológica. El método de estimación de compensación que hemos seguido aquí “castiga” esos há bitats de menor calidad asignándoles puntajes más bajos, lo que se traduce en una consignación de un área superficial mayor con la que atenuar el défic it. La propuesta de compensación en ASETREK es que se segregue la porción de la propiedad que posee las coberturas de bosque y que esta sea anexada a la Reserva Bioló gica.

Sin embargo, este procedimiento en sí mismo no resuelve la necesidad de obtener un h ábitat de calidad equiparable al hábitat afectado, que es actualmente vulnerable y protegi do por la Reserva Biológica. Así, siguiendo el mé todo hábitat-hectá rea, nuestros resultados apuntan a que es posible resarcir algunas de las pérdidas en Lomas de Barbudal a partir de un á rea determinada del hábitat disponible en ASETREK; pero no asegura la ganancia de todos los elementos o características que se verán afectados por el embalse. El mejor ejemplo lo proporciona la cobertura de bosque ripario que se perderá en RB LB y que no tiene correspondencia en el ambiente disponible en ASETREK.

Otro inconv eniente es que ASETREK, pese a contener el fragmento boscoso má s extenso adyacente a la Reserva Biológica, no dispone de la cantidad de hectá reas con cobertura boscosa necesaria para cubrir l as 330 hectáreas mínimas solicitadas con nuestro análisis. La Figura 46 muestra los parches de bosque deciduo y secundario disponible s en el área con cobertura boscosa dentro de ASETREK (sitios 3 y 4). Estas coberturas boscosas corresponden a 292 Ha, pese a que para unirlas se requerirá segregar un área de aproximadamen te 444 Ha. Aún más, por ser inflamables y propensos a la explansión de incendios, la existencia de zonas de pastos y de uso no forestal dentro de la propiedad de ASETREK es considerada una am enaza a los fragmentos de bosque que aún quedan en esa propiedad.

Estas consideraciones sugieren que otras opciones de compensación d eban analizarse como complemento al aporte que haría anexar la propiedad de ASETREK a la Reserva Biológica.

En el noreste de la Reserva Bioló gica Lomas de Barbudal, existen propiedades privadas con fragmentos de bosques riparios y secundarios. De hecho, un examen rápido revela que en las cercanías de la Quebrada Amores existen condiciones boscosas que podrían se r de interés de protección. Una de ellas es Brindis de Amor , una propiedad de cerca de 86 Ha que limita con la Reserva Lomas de Barbud al y cuya cobertura boscosa ha sido protegida por su propietario Carlos Jimé nez en los últimos veinte años (Figura 47 ).

(…)

4.2.1. Brindis de Amor como complemento de la co mpensación Brindis De Amor posee 15.87 Ha de bosque ripario, 8.4 Ha de bosque secundario y 45.2 Ha de bosque deciduo. El resto de la propiedad son pastizales que muestran estadios tempranos de sucesió n de bosque deciduo. La propiedad es atravesada por el río Cabuyo, que es permanente y que es la misma que irriga la Reserva Biológica adyac ente (Figura 48 ).

(…)

A partir de estas observaciones, los siguientes son los argumentos que consideramos justifican el empleo de Brindis de Amor como parte de la compensación para resarcir las pérdidas en RBLB por efectos del proyecto.

1. Los resultados de nuestro estudio, tanto en calida d de habitat (sic) como en composición de comunidades, revelan la necesidad de resarc ir la pérdida en Lomas de Barbudal a partir de al menos 332 Ha de hábitat boscoso. Sin embargo, para lograr ese número de hectáreas en AS ETREK, se requiere incluir parte del bosque deciduo en la ladera este de la propiedad, cuya calidad es inferior (por tener mayor pendiente) a la del lado oeste. Además no se cuenta con ningú n fragmento de bosque ripario-maduro, lo que sin duda constituye u n desacierto en la capacidad de compensación de la propiedad ASETREK evaluada en nuestro estudio.

2. La propiedad de Brindis de Amor posee 15.87 ha de bosque ripario-maduro. Aunque el análisis de la composició n de este fragmento fue preliminar, nuestras observaciones de campo indican que está constituido por especies siempreverdes similares a las encontradas en la misma cobertura en RBLB y que es comparable en área basal (Fi gura 49) a la del fragmento encontrado en el sitio potencial de inundación en Lomas de Barbudal. S i bien es cierto que la extensión del bosque ripario en Brindis de Amor es menor a la que se perdería en Lomas de Barbudal, representa una importante fracción de lo que queda en toda la región. De hecho, el á rea de bosque ripario en Brindis de Amor representa un 7.4 % del área cubierta por ese tipo de bosque dentro la Reserva Biológica actualmente.

(…)

6.1. Recomendaciones finales.

6.2. RECOMENDACIONES SOBRE LA COMPENSACIÓN A SEGUIR.

1. Área de compensación en ASETREK. Tanto en término de atri butos de calidad de hábitat como e n aspectos de diversidad y composición de especies, nuestros resultados demues tran que el sitio de compensación en ASETREK representa entre el 30% y el 45 % de las calidades de la referencia, lo que se traduce en una compensación de 252 o 332 hectáreas (es timaciones tomando en cuenta composición de especies o el valor mínimo posible de calidad de hábitat, respectivamente). Para unificar criterios, nuestra sugerencia es q ue se emplee el estimado de 332 hectáreas como la medi da del área necesaria para compensar por la pé rdida debido al impacto en la Reserva Biológica.

2. Compensación debe realizarse incorporando además otras propiedades y sistemas. Una importante consideración es que la cantidad de hectá reas del hábitat evaluado requerido para nuestras estimaciones de compensación no está disponible en ASETREK. Además, como se menciona en este reporte, dicha propiedad no dispone bosque ripario para la compensación. Así las cosas, recomendamos la incorporación de la propiedad Br indis de Amor como parte de la compensación. La propuesta se resume en la Figura 51, y contemplaría al anexión de 530 Ha (444 Ha de ASETREK y 86 Ha de Brindis de Amor) a Lomas de Barbudal en compensación por las pé rdidas debidas a la inundación en el ambiente terrestr e”.

En el sentido anterior, el estudio también se concluyó:

“ El procedimiento para evaluación de compensa ción fue diseñado para comparar sitios con el mismo tipo de hábitat. Sin embargo, en el presente estudio la heterogeneidad encontrada en el sitio potenc ial de afectación en la Reserva Biológica obligó a promediar los valores asignados a cada una de las coberturas forestales encontradas para cada indicador. Una dificultad adicional fue el que el bosque ripario no tiene contraparte en ASETREK, por lo que se optó por asignarle un valor mí nimo a esta cobertura en cada indicador”.

Como se observa, la OET reconoció que la propiedad ASETREK Tres Azul S.A. posee ambientes de menor calidad biológica y que el método de estimación de compensación (hábitat hectárea) no aseguraba la ganancia de todos los elementos o características que se verían afectados. Además, también aceptó de manera expresa que la propuesta de adquirir la propiedad denominada Brindis de Amor (como complemento de compensación) se dio por medio de un análisis preliminar.

En ese sentido, el coordinador del estudio de la OET manifestó en la audiencia supra citada, que si bien, metodológicamente, la propie dad de ASETREK debería ser suficiente -pues se habí a “castigado” esa diferencia en calidad del ambiente-, en su propio criterio no lo era . Además, el mencionado profesional admite que Brindis de Amor fue e valuada a través de una serie de muestreos de vegetació n, pero no de fauna. Añ ade que el estudio fue preliminar, en el sentido de que no tiene todo el componente de fauna y en ese sentido aseveró : “a todas luces es diferente a lo que se hizo en ASETREK sí”.

Lo anterior a priori permite concluir que el estudio que se efectuó para la com pensación de las potenciales pérdidas no demostró la suficiencia ni la equivalencia ecológica del área propuesta y que, sin la misma rigurosidad o minuciosidad, se recomendó la incorporación de otra propiedad. Basta contrastar la cantidad de indicadores (de calidad de hábitat y diversidad, entre ellos: atribu tos geofísicos, calidad del paisaje, estructura de la vegetación y servicios ecosistémicos; y de composición de comunidades, entre ellos: plantas vasculares, avifauna, mamíferos, herpetofauna, ictiofauna y diversidad de insectos del sotobosque) que se estudiaron en la R BLB y en ASETREK, co n el análisis preliminar efectuado en Brind is de Amor. Nótese que el propio estudio afirmó que añadir el inmueble Brindis de Amor contravenía las nociones bá sicas del diseño de reservas al no contribuir a la formación de un bloque compa cto, pese a lo cual se recomendó agregarl o a la compensació n, sin ninguna recomendación o consideración adicional formal.

Ahora, aun con la inclusión anterior, el Comité Técnico del Área Conservación Arena Tempisque, de acuerdo con la minuta n.o 5-2017 de la reunión efectuada el 30 de junio de 2017, concluyó que la propuesta todavía era insuficiente: “El tipo de cobertura bosque ripario es de suma preocupación en tema de escasa representatividad a nivel de la RBLB. Esta cobertura está representada únicamente en un 8.0% (216,17 has) de área total de la RBLB. Los estudios determinaron que el boque ripario dentro del sitio de inundación en la reserva corresponde a un 11,4% (24,64 has) del área total de esa cobertura en la RBLB. El área de bosque ripario en la finca Brindis de Amor representa un 7,40% (15,87 has). Esto sumado a las 2,2 has de ASETREK suman 18.07 has de bosque ripario como propuesta de compensación. Presentándose una diferencia de aproximadamente 6,57 has de bosque ripario para compensar este tipo de ecosistema”. Incluso, también recomendó al consejo regional: “ 1. Identificar un área de bosque ripario que permita compensar el faltante en hectáreas para este tipo de ecosistema. Ya que los estudios determinaron que el boque ripario dentro del sitio de inundación en la Reserva corresponde a un 11.4% (24,64 has) del área total de esa cobertura en la RBLB, el área de boque ripario en la finca Brindis de Amor representa un 7,40% (15,87 has). Esto sumado a las 2,2 has de ASETREK suman 18.07 has de bosque ripario como propuesta de compensación, por lo que estarían faltando cerca de 6,57 has de bosque ripario para compensar este tipo de ecosistema. Según los mapas y el conocimiento del sitio, existen otras propiedades aledañas a la Reserva Biológica Lomas Barbudal con esas características”.

En ese sentido, el Consejo Regional del Área de Conservación Arenal Tempisque (CORACAT), según acuerdo n.° 1 tomado en la sesión extraordinaria celebrada el 5 de julio de 2017 y, con posterioridad, el Consejo Nacional de Áreas de Conservación (CONAC), en sesión extraordinaria n.° 3 de 11 de julio de 2017, consideraron que la suma de áreas propuestas de bosque ripario era de 18,07 hectáreas, es decir, un área menor que el fragmento que se perdería en el sitio de inundación de la RBLB (24,71 hectáreas), por lo que plantearon la identificación de un área adicional para la propuesta de compensación que contemplara bosque ripario y permitiera, así, resarcir el faltante en hectáreas para este tipo de ecosistema; de ahí que, después de analizar las propuestas de posibles áreas de compensación del bosque ripario faltante y en conjunto con los funcionarios del SINAC, se consideró adicionar una parte de la finca Hacienda Ciruelas SP S.A.

Sobre ello, el CORACAT, en el oficio n.º SINAC- CORACAT-SE-041, refirió : “ Existen algunos oficios enviados por SENARA, por ejemplo, SENARA-GG-0374-2017, SENARA-GG-0257-2017 y SENARA-INDER-172-2017 que indican que dentro de la propiedad de ASETREK existen 6,14 has (sic) de bosque ripario. N o obstante, este dato no es mencionado en el estudio realizado por la OET, o respaldo por algún estudio al respecto, con las mismas características del estudio inicial. Respecto a la finca Brindis de Amor, tambié n este Consejo estima que los estudios no se realizaron con la misma profundidad de análisis con respecto al estudio inicial, ni en el tiempo suficiente que sustente técni camente la calidad de los componentes abordados desde el inicio de la inves tigación. Es necesario que se profundice más los estudios en esta propiedad o cualquier otra que se considere como propuesta de compensació n, para que este Consejo pueda emitir un criterio fundamentado”. Además, la propuesta final de compensació n se definió en el oficio n.º SENARA-INDEP-441-2017 de 17 de julio de 2017, en el que se dispuso que para compensar el área desafectada y cubrir el faltante de bosque ripario se incluirían 444,04 hectáreas de la finca ASETREK Tres Azul S.A., la totalidad de la Finca Brindis de Amor en Liberia S.A. con un área de 86,96 hectáreas y un área de 40 hectáreas de la finca Hacienda Ciruelas SP S.A.

Así, luego de analizar el oficio n.º SENARA-INDEP-441-2017, se observa que se compararon varias p ropiedades para proponer el ár ea de compensación adicional; sin embargo, no se efectuó un aná lisis detallado de las características biológicas y geofísicas de la pr opiedad Hacienda Ciruelas SP S.A. Además, si bien SENARA informó que en la tramitación de la ley n.º 9610 se había considerado el documento denominado " Propuesta de Compensación para la Reserva Biológica Lomas de Barbudal”, en el apartado correspondiente a la propiedad Hacienda Ciruelas también se consignó de forma expresa que sobre ella tan solo se había efectuado un análisis “preliminar”.

En otro orden de ideas, no consta en el expediente que haya existido algún estudio técnico completo que justifique la decisión de desafectar la Reserva Biológica Lomas de Barbudal a los efectos de la emisión de la ley cuestionada. Al respecto, a Patricia Quirós, gerenta general de SENARA, en la audiencia se le preguntó: ¿Hubo algún estudio técnico que determinara la necesidad de desafectar la Reserva Biológica Lomas de Barbudal para el Proyecto PAACUME, algún estudio técnico que dijera es necesario precisamente esa reserva biológica afectarla para que se pueda desarrollar el proyecto PAACUME? En razón de lo anterior, ella manifestó: “ nosotros realizados una contratación directamente con el ICE para lo que fue la factibilidad de la presa y el embalse sobre el río Piedras y de acuerdo al análisis que se realizó, se determinó que el único sitio que existe para la construcción del embalse es efectivamente en el río Piedras, porque ahí se cuenta hay una depresión, una caída que permite que esa diferencia de nivel existente en la zona haga posible llevar el agua hasta la margen derecha del río Tempisque. Entonces, en la región es el único sitio posible para poder construir el embalse y para poder llevar el agua a la margen derecha”.

Luego, antes de finalizar la vista, se le consultó lo siguiente: “menciona que hay un estudio técnico que justificó la desafectación de la Reserva Biológica Lomas de Barbudal y determinó necesaria la construcción del embalse en ese lugar, concretamente ¿a cuál estudio se refiere y si lo puede hacer llegar al expediente? En ese sentido, ella contestó: “el estudio técnico al que me refiero es al estudio realizado específicamente por la OET, cuando se hace la consulta yo me refiero a que el estudio realizado por el ICE se refiere específicamente al estudio ingenieril, al estudio de factibilidad de la presa y el embalse”.

De igual forma, se le repreguntó: “ usted indica que hubo un estudio que dijo que solo afectando la Reserva Biológica Lomas de Barbudal se podía realizar el proyecto ¿ese estudio es el del ICE entonces? ”. Ante lo cual, ella respondió: “No, hay un estudio de factibilidad que realizó SENARA de todo el proyecto, donde se establece esa situación”. Asimismo, refirió que haría llegar una copia de tal estudio al expediente.

En relación con lo anterior, luego de la revisión del estudio de la OET se observa que en él no se ha analizado propiamente la necesidad de desafectar la RBLB para la construcción del embalse, sino que tan solo constituye un estudio para establecer la línea Base de Biodiversidad de la zona por desafectar y el sitio de potencial compensación. Asimismo, el Estudio de Factibilidad que aportó SENARA luego de la audiencia, consigna expresamente que es de octubre de 2018, momento para el cual incluso ya que el proyecto de ley había sido aprobado en segundo debate (sesión plenaria extraordinaria n.o11 de 6 de setiembre de 2018), por lo que ni siquiera pudo haber sido objeto de discusión en la Asamblea Legislativa. De ahí que, aun cuando este estudio de factibilidad desarrollara la necesidad de desafectar la RBLB, cronológicamente no pudo haber servido de base para tal propósito, a los efectos de la ley cuestionada.

Ahora, no está de más aclarar que el estudio referido a la desafectación de áreas protegidas no es excluyente del Estudio de Impacto Ambiental al que debe ser sometido el proyecto de PAACUME en su totalidad. Precisamente, ante SETENA se podrán analizar los diversos impactos directos o indirectos del proyecto en las áreas aledañas, así como la posible violación de la Convención para la Protección del Patrimonio Mundial Cultural y Natural de la UNESCO y los posibles efectos del proyecto PAACUME sobre el sitio declarado como Patrimonio Mundial en el Área de Conservación Guanacaste. En este último caso, si el Estudio de Impacto Ambiental establece medidas de mitigación y prevención de los impactos dentro del área silvestre protegida o su entorno, deberán tomarse las previsiones correspondientes para cumplir con esas exigencias.

En conclusión, al haberse hecho un estudio sobre la Reserva Biológica Lomas del Barbudal y sobre la propiedad de ASETREK Tres Azul S.A. por un periodo menor al recomendado por la propia Organización de Estudios Tropicales, no existe certeza científica ni técnica de los resultados obtenidos. Además, el estudio no logró demostrar de forma fehaciente y sustentada, que la propiedad ASETREK Tres Azul S.A., como propuesta de compensación, fuera equivalente a la zona desafectada desde un punto de vista ambiental, pues, puntualmente, en el estudio se mencionó, que el hábitat no era equiparable, no había correspondencia con ambiente de la reserva (el mayor ejemplo de ello es la deficiencia en bosque ripario detectada) y no se aseguraba la ganancia de todos los elementos o características afectadas por el embalse. Lo anterior resulta relevante, por cuanto el propio estudio de la OET, en las conclusiones sobre el sitio de impacto y su compensación, expuso que la RBLB es una de las pocas áreas silvestres estatales que protegen los recursos naturales en la zona de vida Bosque Tropical Seco de nuestro país y que, ante semejante afectación con el impacto directo del proyecto, la compensación ambiental se volvía una medida imprescindible. En adición, como en el caso del inmueble Brindis de Amor tan solo se efectuó un análisis preliminar, consideramos que la Sala a priori no puede siquiera considerarlo, toda vez que para desafectar una reserva biológica y proponer la respectiva compensación, se deben efectuar, al menos, estudios completos y suficientes. El razonamiento anterior aplica con mucha más razón sobre la propiedad Hacienda Ciruelas, que ni siquiera fue incluida en el estudio de la OET y respecto de la cual el análisis efectuado también fue preliminar. En este sentido, consideramos que nunca podrá ser suficiente un estudio preliminar para sustentar una decisión con implicaciones ambientales de esta envergadura, como sucede en el sub lite. Finalmente, no se observa que la ley cuestionada haya tenido sustento en algún estudio científico y técnico en cuanto a la justificación de la necesidad de desafectar la RBLB, toda vez que el informe de la OET no abarcó tal aspecto y la factibilidad de PAACUME elaborada por SENARA, en todo caso, fue de fecha posterior a la aprobación de ese cuerpo normativo.

Permitir la desafectación de una reserva biológica con sustento en este estudio de la OET (claramente insuficiente según se expuso supra) , en otros análisis de naturaleza preliminar, y en un estudio de factibilidad que ni siquiera pudo ser discutido en el trámite legislativo, significa un grave retroceso a la tutela ambiental, antaño ampliamente reconocida por esta Sala Constitucional. Tal retroceso resulta aún más lamentable a la luz de la reciente evolución de la jurisprudencia de la Corte Interamericana de Derechos Humanos, que en sentencia de 6 de febrero de 2020 (Comunidades indígenas miembros de la Asociación Lhaka Honhat (Nuestra Tierra) Vs. Argentina) viene a recoger de modo íntegro la Opinión Consultiva OC-23/17 de 15 de noviembre de 2017, convirtiendo así las consideraciones jurídicas de la última en jurisprudencia vinculante para los países sujetos a la jurisdicción de ese tribunal internacional. En tal sentido, resalta la Corte-IDH que “en el derecho ambiental, el principio de prevención es aplicable respecto de actividades que se lleven a cabo en el territorio o bajo la jurisdicción de un Estado que causen daños al medio ambiente de otro Estado, o respecto de daños que puedan ocurrir en zonas no sean parte del territorio de ningún Estado en particular, como por ejemplo, alta mar.” Justamente, recuerda la Corte-IDH que la “Corte Internacional de Justicia ha señalado que la obligación de prevención surge cuando hay riesgo de un daño significativo. De acuerdo a (sic) dicho tribunal, el carácter significativo de un riesgo se puede determinar tomando en cuenta la naturaleza y magnitud del proyecto y el contexto donde será llevado a cabo”. Consecuente con esta perspectiva, la Corte-IDH destaca, como elemento esencial del derecho humano a un ambiente sano y ecológicamente equilibrado, el deber de regulación, a partir del cual dada “la relación entre la protección del medio ambiente y los derechos humanos (supra párrs. 47 a 55) los Estados deben regular esta materia y adoptar otras medidas similares para prevenir daños significativos al medio ambiente.” (Destacado no corresponde al original). En aras de procurar lo antedicho, el requerimiento de estudios técnicos suficientes y previos a los efectos de la aprobación de proyectos de ley que impactan el ambiente, aplicado por la jurisprudencia constitucional de forma usual en obediencia al principio de objetivación de la tutela ambiental, con absoluta claridad configura una de esas adecuadas “medidas similares”, que se eleva a la jerarquía de exigencia del derecho internacional de los derechos humanos, merced a la jurisprudencia de la Corte-IDH.

Por las consideraciones expuestas, se acredita una transgresión al numeral 50 de la Constitución Política, al principio precautorio (por la duda sobre las condiciones reales de la RBLB y de la propuesta de compensación generada por las falencias detectadas en el estudio de la OET, así como la falta de certeza en cuanto a que el ambiente sano y ecológicamente equilibrado no se vea lesionado), al principio de no regresión en material ambiental (al no acreditarse que la compensación propuesta al menos fuera equivalente a la desafectación), al principio de irreductibilidad (al reducirse una reserva biológica sin cumplir los requisitos constitucionales respectivos) y al principio de objetivación de la tutela ambiental (al utilizarse estudios meramente preliminares para sustentar propuestas de compensación y al no estar sustentada la ley cuestionada en estudios técnicos y científicos (previos, suficientes, necesarios e individualizados) que justifiquen la reducción del área protegida).

Fernando Cruz C. Paul Rueda L.

CO12/20 ... Ver más Contenido de Interés:

Tipo de contenido: Voto salvado Rama del Derecho: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Tema: AMBIENTE Subtemas:

NO APLICA.

Res. Nº 2020-0013836 VOTO SALVADO DE LA MAGISTRADA GARRO VARGAS

I. Consideraciones preliminares

II. Agravios de los accionantes bajo examen en el presente voto

III. Marco jurisprudencial. La justificación técnica de leyes en materia ambiental

IV. Sobre la desafectación de un área protegida

A. Marco normativo y jurisprudencial sobre la desafe ctación de áreas protegidas B. Análisis sobre la justificación técnica de la desafectación cuestionada 1. Importancia ambiental de la Reserva Bioló gica Lomas de Barbudal 2. Examen sobre la existencia de los estudios técnicos sobre la desafectación a. Exposición de motivos de la ley cuestionada b. Informes de SENARA y del Consejo Regional del Área de Conservación 3. El informe de la Procuraduría General de la República C. Conclusiones sobre el particular

V. Sobre los estudios de compensación

A. Los agravios planteados por los accionantes B. La obligación internacional de realizar estudios de compensación C. Informes de las autoridades que constan en el presente expediente 1. Informe de la Procuraduría General de la República.

2. Informe de la presidenta del Directorio de la Asamblea Legislativa 3. Informe del Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento 4. Organización de Estudios Tropicales D. Conclusiones sobre el particular

VI. Conclusiones

Consideraciones preliminares Como costarricense y como Magistrada de esta Sala comparto la preocupación sobre el gravísimo problema de acceso al recurso hídrico que sufre una importante zona de la provincia de Guanacaste. Comprendo que la ley aquí impugnada pretende ser un medio para solucionarlo. Sin embargo, muy a mi pesar, no puedo dejar de advertir que esta contiene serios vicios de constitucionalidad. Por eso, con fundamento en los argumentos que explicaré, he decidido salvar el voto respecto de la alegada lesión al derecho a un ambiente sano y declarar con lugar la acción por violación a los principios precautorio, no regresión en materia ambiental, irreductibilidad y objetivación de la tutela ambiental.

Agravios de los accionantes bajo examen en el presente voto Por lo dicho, en este voto salvado me referiré sólo a los agravios relacionados con cuestiones ambientales. Por un lado, a la decisión legislativa de desafectar 113 hectáreas de la Reserva Biológica Lomas Barbudal (RBLB) sin estudio de desafectación alguno que lo justifique y, por otro, a la pretendida justificación de la reducción de esa reserva mediante un estudio de compensación que es incompleto y sesgado.

Para analizar ambos extremos es necesario de previo precisar cuál ha sido la línea de la jurisprudencia de esta Sala sobre la justificación de los proyectos de ley relacionados con la materia ambiental. Así, una vez examinados cada uno de los agravios será posible arribar a unas conclusiones debidamente fundamentadas.

Marco jurisprudencial. La justificación técnica de leyes en materia ambiental En el ejercicio de su potestad legislativa, el Parlamento está vinculado a la Constitución y a los tratados debidamente incorporados a nuestro ordenamiento. Además, la función legislativa –no sólo función administrativa del Estado- tiene un límite: el contenido de lo que establece el artículo 16 de la Ley General de la Administración Pública (LGAP):

“En ningún caso podrán dictarse actos contrarios a reglas unívocas de la ciencia o de la técnica, o a principios elementales de justicia, lógica o conveniencia”.

Esa norma recoge el principio de la interdicción de la arbitrariedad, que es un enunciado esencial del Estado de Derecho, y que supone la prohibición de tomar decisiones carentes de fundamento. Al examinar el origen de este principio, esta Sala dijo:

“Fue concebido por el jurista alemán Leibholz en 1928 como un criterio para ponderar el respeto del principio de igualdad por el legislador. Según esta formulación, el principio de interdicción de la arbitrariedad supone la prohibición de la arbitrariedad, esto es, de toda diferencia carente de una razón suficiente y justa. El principio es retomado por la doctrina española, concretamente, por García de Enterría a finales de la década de los cincuenta (1959) con un sentido más extenso –no circunscrito al principio de igualdad- al propuesto por Leibholz. Ulteriormente, el principio con ese sentido más amplio, fue acogido por la Constitución Española de 1978 en su artículo 9.3, a propuesta del senador Lorenzo Martín-Retortillo, quien justifico su iniciativa en la necesidad de tener el principio de interdicción de la arbitrariedad como una técnica o mecanismo más de control o fiscalización de los poderes públicos inherente al Estado de Derecho”. (Sentencia 11155-2007).

Ya en una sentencia anterior, la Sala había aclarado que, si bien se encuentra ubicado en la LGAP, su origen y fundamento último se encuentra en el artículo 11 de la Constitución Política que señala:

“Los funcionarios públicos son simples depositarios de la autoridad. Están obligados a cumplir los deberes que la ley les impone y no pueden arrogarse facultades no concedidas en ella” (ver sentencia 2004-14421).

Es decir, se trata de un principio que, aunque formalmente está expresado a nivel legal, tiene un contenido materialmente constitucional y rige para el ejercicio de la función pública en toda su amplitud. Por lo tanto, es posible concluir que dicho principio es de aplicación también para la labor parlamentaria. En ese sentido, la Sala en la sentencia 2003-5090 expresamente señaló lo siguiente:

“La libertad de configuración legislativa no es irrestricta, puesto que, tiene como límite el Derecho de la Constitución, esto es, el bloque de constitucionalidad conformado por los preceptos y costumbres constitucionales, los valores y principios -dentro de los que destacan los de proporcionalidad, interdicción de la arbitrariedad , no discriminación, debido proceso y defensa- de esa índole y la jurisprudencia vertida por este Tribunal para casos similares ”. (Lo destacado no es del original).

Justamente, este Tribunal ha sentado como línea jurisprudencial que el principio de la interdicción de la arbitrariedad exige que las decisiones que impactan sobre el medio ambiente estén debidamente apoyadas en criterios técnicos y científicos. De ahí ha surgido el principio de la objetivación de la tutela ambiental o principio de la vinculación a la ciencia y a la técnica.

Este principio se introdujo en la línea jurisprudencial de esta Sala a partir de la sentencia 2005-14293, en la que se afirmó:

“[ El] principio ambiental "de la vinculación a la ciencia y a la técnica" que rige la materia ambiental, en tanto las decisiones administrativas que pueden tener incidencia en el ambiente requieren de un sustento técnico que las respalde, y en tal condición, limitan y condicionan la discrecionalidad de la Administración en su actuación”.

Esto fue ampliado en la sentencia 2006-17126, en la que se señaló que este principio se traduce en la necesidad de acreditar con estudios técnicos la toma de decisiones en esta materia, en relación con los actos como de las disposiciones de carácter general – tanto legales como reglamentarias–. Se entiende que la exigencia de la “ vinculación a la ciencia y a la técnica” condiciona la discrecionalidad no sólo de la Administración, sino del propio legislador.

Todo lo anterior fue retomado en la sentencia 2012-12716, en la que se hicieron las siguientes consideraciones:

“La Sala hace propia opinión (sic) que sobre el caso ha brindado la Procuraduría General de la República, en el sentido de que, como principio constitucional que condiciona la actuación del Estado en la protección del ambiente, se reconoce, el principio de la objetivación de la tutela ambiental o principio de la vinculación a la ciencia y a la técnica:

“se traduce en la necesidad de acreditar con estudios técnicos la toma de decisiones en esta materia, tanto en relación con actos como de las disposiciones de carácter general –tanto legales como reglamentarias–, de donde se deriva la exigencia de la "vinculación a la ciencia y a la técnica", con lo cual, se condiciona la discrecionalidad de la Administración en esta materia.” (resolución No. 17126-2006).

“principio ambiental "de la vinculación a la ciencia y a la técnica" que rige la materia ambiental, en tanto las decisiones administrativas que pueden tener incidencia en el ambiente requieren de un sustento técnico que las respalde, y en tal condición, limitan y condicionan la discrecionalidad de la Administración en su actuación.” (voto No. 14293-2005 reiterado por el 11562-2006).

“Se parte del principio de que las normas ambientales deben tener un sustento técnico, pues su aplicación tiene que partir de límites que determinen las condiciones en las cuales debe sujetarse el uso y aprovechamiento de los recursos naturales .” (Voto No. 6322-2003).

A su vez, se relaciona con el principio de razonabilidad como parámetro de constitucionalidad:

“El principio de razonabilidad, en relación con el derecho fundamental al ambiente, obliga a que las normas que se dicten con respecto a esta materia estén debidamente motivadas en estudios técnicos serios , aun cuando no existiera otra normativa legal que así lo estableciera expresamente.” (Voto No. 7294-1998, el destacado es nuestro).

“Así, la aplicación de este principio ambiental está directamente vinculada con un parámetro de constitucionalidad de la conducta –administrativa y de los particulares– y de la normativa que rige la materia, como lo es la razonabilidad –según desarrollo de la jurisprudencia de nuestro Tribunal Constitucional– en tanto su finalidad es tender a la sostenibilidad del el [sic] uso de los recursos naturales y de los elementos que conforman el ambiente , a través de su "uso adecuado"; y en virtud de los cuales queda claro que la protección al ambiente debe encaminarse a la utilización adecuada e inteligente de sus elementos y en sus relaciones naturales, socioculturales, tecnológicos y de orden político, para con ello salvaguardar el patrimonio al que tienen derecho las generaciones presentes y futuras; en tanto a través de la producción y uso de la tecnología es que debe de promoverse que se obtengan, no sólo ganancias económicas (libertad de empresa) sino sobre todo un desarrollo y evolución favorable del medio ambiente y los recursos naturales con el ser humano, esto es, sin que se cause a éstos daño o perjuicio, como lo ha considerado nuestro Tribunal Constitucional, en su amplia jurisprudencia, inclusive desde sus orígenes, así en las sentencias supra citadas número 3705-93 y número 2006- 17126.” (Voto No. 2410-2007).

Y guarda estrecha relación también con el principio de interdicción de la arbitrariedad:

“La actuación arbitraria es la contraria a la justicia, a la razón o las leyes, que obedece al mero capricho o voluntad del agente público. La prohibición de la arbitrariedad lo que condena es la falta de sustento o fundamento jurídico objetivo de una conducta administrativa y, por consiguiente, la infracción del orden material de los principios y valores propios del Estado de Derecho. (…) En lo que se refiere a la aplicación del principio de interdicción de la arbitrariedad en el ámbito de la potestad reglamentaria, debe indicarse que al ser ésta, naturalmente, discrecional, el principio prohibitivo de la arbitrariedad cumple un papel de primer orden.” (Lo destacado corresponde a la sentencia original).

De dicha resolución conviene resaltar el precedente que invoca:

“El principio de razonabilidad, en relación con el derecho fundamental al ambiente, obliga a que las normas que se dicten con respecto a esta materia estén debidamente motivadas en estudios técnicos serios , aun cuando no existiera otra normativa legal que así lo estableciera expresamente”. (Lo destacado corresponde a la sentencia original).

Resulta evidente que los principios de objetivación de la tutela ambiental o vinculación a la ciencia y a la técnica, así como el de interdicción de la arbitrariedad, son de observancia obligatoria para la Asamblea Legislativa en la tramitación de los proyectos de ley, pues de lo contrario se violentaría el principio de la razonabilidad como parámetro de constitucionalidad.

Sobre la desafectación de un área protegida La ley impugnada establece una desafectación de la Reserva Biológica Lomas Barbudal (RBLB). Esta reserva tiene un nivel de protección absoluta, similar a la de un parque nacional. Al desafectarla se busca cambiar su uso para proceder a inundar esa gran cantidad de terreno, con el fin de realizar eventualmente el proyecto de dotación de agua denominado Paacume. Los accionantes señalan que no existe un estudio relativo a la desafectación y, en manifestaciones posteriores, como las realizadas en la vista oral, insistieron en que las autoridades involucradas, concretamente, el Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento (SENARA) lo que tiene es un estudio de factibilidad sobre la realización de la represa en el Río Piedras, ejecutado por el Instituto Costarricense de Electricidad (ICE). Arguyen que este no es el estudio que la normativa ambiental exige para determinar si se justifica la desafectación de un área silvestre protegida y que, además, no fue presentado en el expediente legislativo.

Para analizar este extremo es del todo necesario precisar la normativa y la jurisprudencia aplicables.

Marco normativo y jurisprudencial sobre la desafectación de áreas protegidas La Ley Orgánica del Ambiente, al respecto, señala lo siguiente:

“Artículo 38.- Reducción de las áreas silvestres protegidas. La superficie de las áreas silvestres protegidas, patrimonio natural del Estado, cualquiera sea su categoría de manejo, sólo podrá reducirse por Ley de la República, después de realizar los estudios técnicos que justifiquen esta medida” . (Lo destacado no es del original).

Es decir, establece que de previo a la desafectación de un área protegida se lleven a cabo estudios técnicos que justifiquen esa decisión.

Por su parte, este Tribunal ha sentado una sólida doctrina en esta materia, es decir, a saber, la necesidad de contar con estudios técnicos que justifiquen una decisión de desafectar una zona que, previamente, fue declarada zona protegida. Así, en la sentencia 7294-1998, la Sala Constitucional declaró con lugar la acción en la que se cuestionó la modificación de los límites de la zona protectora de Tivives. En dicha resolución se consideró lo siguiente:

“De la sentencia transcrita queda claro que una vez declarada una determinada área como zona protectora por un acto del Estado, no puede éste, simplemente, en todo o en parte, para proteger otros intereses -públicos o privados- en menoscabo del disfrute de un ambiente sano, de conformidad con lo dispuesto en el artículo 50 constitucional. Ahora bien, el hecho de que una norma, del rango que sea, haya declarado como zona protectora una área, no implica la constitución de una zona pétrea, en el sentido de que, de manera alguna, su cabida pueda ser reducida por una normativa posterior. Sin embargo, se debe tener presente que la declaratoria y delimitación de una zona protectora, en cumplimiento de lo preceptuado en el artículo 50 constitucional, implica una defensa del derecho fundamental al ambiente y, por ello, la reducción de cabida no debe implicar un detrimento de ese derecho, situación que debe establecerse en cada caso concreto” “De conformidad con las disposiciones transcritas, y tomando en consideración el caso concreto que se somete a pronunciamiento, la Asamblea Legislativa no puede aprobar válidamente la reducción de la superficie de una zona protectora, sin contar antes con estudio técnico que justifique su decisión . Dicha actuación deviene contraria a la Constitución Política por violación del principio de constitucional en relación con artículo 121, inciso 1), y 129 de la Carta Política. Sobre este tema existe un precedente de la Sala que resulta atinente, tanto por la similitud de la infracción que se invoca, como por tratarse de una hipótesis en que la no observancia de determinados requisitos tiene como efecto la de normas o principios sustanciales de rango constitucional”. (Lo destacado no es del original). (Ver, en similar sentido, los votos 1999-02988, 2008-008075).

Posteriormente, en la sentencia 2012-013367 esta Sala afirmó:

“Resulta evidente que estos dos requisitos guardan absoluta conformidad con el derecho fundamental a un ambiente sano y ecológicamente equilibrado. En primer lugar, en esta materia, el régimen jurídico exige que cualquier restricción o limitación del derecho tiene que venir impuesta por ley; por el contrario, cualquier beneficio o ampliación de la protección del derecho puede ser establecida por norma infralegal. En segundo lugar, la exigencia de estudios técnicos previos responde al principio de sometimiento de las decisiones relacionadas con el ambiente a criterios de la ciencia y la técnica, a fin de proteger el equilibrio ecológico del sistema y la sanidad del ambiente. En este sentido, la exigencia de estudios técnicos que justifiquen la aprobación de los proyectos de ley tendientes a la reducción o desafectación de un área ambientalmente protegida, debe ser satisfecha con anterioridad o durante el desarrollo del procedimiento legislativo. Además, el requerimiento de estudios técnicos no es una mera formalidad, sino que se trata de un requisito material, es decir materialmente se tiene que demostrar, mediante un análisis científico e individualizado, el grado de impacto de la medida correspondiente en el ambiente, plantear recomendaciones orientadas a menguar el impacto negativo en este, y demostrar cómo tal medida implica un desarrollo que satisface las necesidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades”.

En esa sentencia, la Sala desarrolló, además, el principio de progresividad y no regresión en materia de tutela medio ambiental. Según este Tribunal, del principio de progresividad de los derechos humanos y del principio de irretroactividad de las normas en perjuicio de derechos adquiridos y situaciones jurídicas consolidadas, recogido en el numeral 34 de la Constitución Política, se deriva el principio de no regresividad o de irreversibilidad de los beneficios o protección alcanzada. La Sala consideró que dicho principio se erige como garantía sustantiva de los derechos, en este caso, del derecho a un ambiente sano y ecológicamente equilibrado, en virtud del cual el Estado se ve obligado a no adoptar medidas, políticas, ni aprobar normas jurídicas que empeoren, sin justificación razonable y proporcionada, la situación de los derechos alcanzada hasta entonces. Este principio no supone una irreversibilidad absoluta, pues todos los Estados pueden verse sometidos a circunstancias de naturaleza económica, política, social o climática que podrían obligar a replantear la obligación de mantener los niveles de protección alcanzados. En esos casos, la reducción de los niveles de protección deberá ser justificado a la luz de los parámetros constitucionales de razonabilidad y proporcionalidad. En atención a estos principios, la Sala dijo lo siguiente:

“En consecuencia, en aplicación de estos dos principios, la Sala Constitucional ha establecido que es constitucionalmente válido ampliar por decreto ejecutivo la extensión física de las áreas de protección (principio de progresividad); sin embargo, la reducción solo se puede dar por ley y previa realización de un estudio técnico ajustado a los principios razonabilidad y proporcionalidad, a las exigencias de equilibrio ecológico y de un ambiente sano, y al bienestar general de la población, que sirva para justificar la medida. El derecho vale lo que valen sus garantías, por ello se produce una violación de estos principios cuando el estudio técnico incumple las exigencias constitucionales y técnicas requeridas. Si tal garantía resulta transgredida, también lo será el derecho fundamental que la garantía protege y es en esa medida, que la reducción de las áreas protegidas sería inconstitucional”. (Lo destacado no es del original).

Dichos principios de orden constitucional son vinculantes para el legislador. Así lo concluyó la Sala al afirmar lo siguiente:

“Dentro del marco de la Constitución, el legislador tiene la potestad y competencia para reducir las dimensiones físicas de las áreas ambientalmente protegidas. Sin embargo, con fundamento en el artículo 50 constitucional, las decisiones legislativas en esta materia deben respetar las reglas unívocas de la ciencia y la técnica, en aras de garantizar un ambiente “sano” y “ecológicamente equilibrado” y el “mayor bienestar de todos los habitantes”. El estudio técnico que exige el artículo 38 de la Ley Orgánica del Ambiente tiene que responder a estos propósitos, para cuyo efecto no basta un cumplimiento formal porque se trata de un requerimiento material, es decir que debe materialmente demostrar, mediante un análisis técnico e individualizado, el grado de impacto de la medida correspondiente en el ambiente, plantear recomendaciones orientadas a menguar el impacto negativo en este, y demostrar cómo tal medida implica un desarrollo que satisface las necesidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades”. (Lo destacado no es del original).

Posteriormente, este Tribunal agregó que para la desafectación de áreas protegidas, además de los estudios técnicos, concretos y particularizados exigidos por el artículo 38 de la Ley Orgánica del Ambiente, se requieren medidas de compensación, en aras de resguardar el derecho fundamental a un medio ambiente sano y ecológicamente equilibrado. En la sentencia 2019-663 la Sala conjuntó sus líneas jurisprudenciales y señaló lo siguiente:

“1. Requisitos constitucionales para la reducción de área silvestre protegida (reserva legal y estudios técnicos): En apoyo del artículo 38 de la Ley Orgánica del Ambiente (“la superficie de las áreas silvestres protegidas, patrimonio natural del Estado, cualquiera sea su categoría de manejo, sólo podrá reducirse por Ley de la República, después de realizar los estudios técnicos que justifiquen esta medida”), ha habido una sólida línea jurisprudencial, en el sentido de que para la reducción de un área silvestre protegida, en cualquiera de sus categorías de manejo (en cuenta los refugios nacionales de vida silvestre), deben cumplirse dos requisitos esenciales: “por medio de ley y previa realización de estudios técnicos suficientes que justifiquen la medida .” (Sala Constitucional, votos números 13367-2012 y 010158-2013. En similar sentido, las sentencias números 7294-1998, 11155-2007, 1056-2009, 18702-2010 y 14772-2010, entre otras). Tal como se dijo en la resolución mencionada de 1998:

““(…) una vez declarada una determinada área como zona protectora por un acto del Estado, no puede éste, simplemente, desafectarlo en todo o en parte, para proteger otros intereses -públicos o privados- en menoscabo del disfrute de un ambiente sano, de conformidad con lo dispuesto en el artículo 50 constitucional. Ahora bien, el hecho de que una norma, del rango que sea, haya declarado como zona protectora una determianda (sic) área, no implica la constitución de una zona pétrea, en el sentido de que, de manera alguna, su cabida pueda ser reducida por una normativa posterior. Sin embargo, se debe tener presente que la declaratoria y delimitación de una zona protectora, en cumplimiento de lo preceptuado en el artículo 50 constitucional, implica una defensa del derecho fundamental al ambiente y, por ello, la reducción de cabida no debe implicar un detrimento de ese derecho, situación que debe establecerse en cada caso concreto. No resulta necesariamente inconstitucional el hecho de que por medio de una ley posterior se reduzca la cabida de una zona protectora, una reserva forestal, un Parque Nacional o cualesquiera otros sitios de interés ambiental, siempre y cuando ello esté justificado en el tanto no implique vulneración al derecho al ambiente. Podría ser que, por diversas circunstancias, un determinado sitio haya perdido, al menos en parte, el interés ambiental que, en su momento, provocó, lo que, hechos los estudios del caso, justificaría su modificación o reducción, todo en aplicación del principio de razonabilidad constitucional…” (voto No. 7294-1998).

Concretamente sobre la reserva legal en esta materia, en el voto No.14772-2010 se dijo:

(…) no se puede modificar el destino público de un bien del demanio público sin un acto legislativo, es decir, la reducción de área de una zona protegida se encuentra bajo la garantía que proporciona el principio de reserva de ley. Si bien, de conformidad con el artículo 36 de la Ley Orgánica del Ambiente, el Poder Ejecutivo se encuentra autorizado para constituir las Áreas Silvestre Protegidas mediante el cumplimiento de los requisitos establecidos en esa norma, así, el Parque Nacional Corcovado se constituyó mediante los Decretos Ejecutivos No. 5357-A del 24 de octubre de 1975 y 1148-A del 5 de febrero de 1980, su modificación solo podrá hacerse de conformidad con lo dispuesto en el artículo 38 de la Ley Orgánica del Ambiente, previo estudios técnicos y científicos, y mediante un acto legislativo.

Asimismo, en sentencia no.1056-2009 se indicó que la reducción únicamente es posible vía legal:

“cuando de la ampliación de los límites de las zonas protectoras del patrimonio forestal del Estado se trata es posible hacerlo vía reglamento, pero cuando de su reducción se trata, únicamente se puede hacer vía legal, claro está, siempre y cuando exista un criterio previo que justifique la medida.” (Sentencia de la Sala Constitucional Nº 1056-2009) Lo cual fue aplicado cuando la Sala declaró inconstitucional la norma reglamentaria (Decreto Ejecutivo Nº 32753-MINAE) mediante la cual el Poder Ejecutivo disminuyó el territorio del Refugio Gandoca-Manzanillo, sustrayendo del área y del régimen de protección, la zona urbana del Refugio.

Además, en cuanto a los estudios, estos deben ser previos, suficientes, necesarios e individualizados –como se indica en el apartado siguiente-. Así se dijo en esa misma resolución de 1998:

“De acuerdo con lo citado, mutatis mutandis, si para la creación de un área silvestre protectora la Asamblea Legislativa, por medio de una ley, estableció el cumplimiento de unos requisitos específicos, a fin de determinar si la afectación en cuestión es justificada, lo lógico es que, para su desafectación parcial o total, también se deban cumplir determinados requisitos -como la realización de estudios técnicos ambientales- para determinar que con la desafectación no se transgrede el contenido del artículo 50 constitucional. En este sentido, podemos hablar de niveles de desafectación. Así, no toda desafectación de una zona protegida es inconstitucional, en el tanto implique menoscabo al derecho al ambiente o amenaza a éste. De allí que, para reducir un área silvestre protegida cualquiera, la Asamblea Legislativa debe hacerlo con base en estudios técnicos suficientes y necesarios para determinar que no se causará daño al ambiente o se le pondrá en peligro y, por ende, que no se vulnera el contenido del artículo 50 constitucional. El principio de razonabilidad, en relación con el derecho fundamental al ambiente, obliga a que las normas que se dicten con respecto a esta materia estén debidamente motivadas en estudios técnicos serios, aun cuando no existiera otra normativa legal que así lo estableciera expresamente. A juicio de este Tribunal Constitucional, la exigencia que contiene el artículo 38 de la Ley Orgánica del Ambiente No. 7554, en el sentido de que para reducir un área silvestre protegida por ley formal deben realizarse, de previo, los estudios técnicos que justifiquen la medida, no es sino la objetivación del principio de razonabilidad en materia de protección al ambiente.” 2. Estudio técnico como un análisis científico e individualizado: La Sala se ha referido a la suficiencia del estudio técnico, cuando mediante varias resoluciones ha establecido que dicho estudio debe ser un análisis científico e individualizado. Así se dijo lo siguiente:

“el requerimiento de estudios técnicos no es una mera formalidad, sino que se trata de un requisito material, es decir materialmente se tiene que demostrar, mediante un análisis científico e individualizado, el grado de impacto de la medida correspondiente en el ambiente, plantear recomendaciones orientadas a menguar el impacto negativo en este, y demostrar cómo tal medida implica un desarrollo que satisface las necesidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades.” (Voto No. 13367-2012. Véase además el No. 10158-2013).

De lo cual se desprende que, el estudio técnico que exige el artículo 38 de la Ley Orgánica del Ambiente y que es la objetivación del principio constitucional de razonabilidad en materia de protección al ambiente, requiere de un análisis técnico que implica un análisis individualizado, el cual debe contener como mínimo las siguientes medidas:

• El grado de impacto de la medida correspondiente en el ambiente; • Las recomendaciones orientadas a menguar el impacto negativo en el ambiente; • La demostración de cómo la medida que se toma, implica un desarrollo que satisface las necesidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades.

En síntesis, dicho estudio previo debe demostrar que la desafectación es conforme con la protección constitucional al derecho al ambiente, pues como se dijo en el voto no. 18702-2010 “no se puede permitir que se titulen áreas de esta naturaleza en forma indiscriminada, ya que esto iría contra las mismas políticas conservacionistas del ambiente que ha procurado el Estado en virtud de los cometidos ordenados por la Constitución Política y los Convenios Internacionales que ha suscrito".

3. Medidas de compensación: Un área protegida solo se puede reducir si se hace mediante ley, si hay estudios técnicos y científicos que descarten el daño ambiental y si se da una compensación del área suprimida con otra de igual tamaño. No cabe duda que todas aquellas normas en los cuales hay reducción de las áreas protegidas sin el respaldo de estudios técnicos ni compensación alguna, son inconstitucionales” (voto Nos. 12887-2014, 2773-2014, 2012-13367 y 2009-1056).” (Lo destacado no es del original).

Lo anterior fue reiterado en la sentencia 2019-012745 en la que se resumió la postura de la Sala de la siguiente forma:

“Con base en lo anterior, un área protegida solo se puede reducir si se hace mediante Ley, si hay estudios técnicos y científicos que descarten el daño ambiental y si se da una compensación del área suprimida con otra de igual tamaño o en la medida de lo posible”.

A partir de estas líneas jurisprudenciales queda evidenciado el principio de irreductibilidad de las áreas silvestres protegidas, según el cual, no resulta legítimo reducir estos espacios protegidos sino se cumplen, paralelamente, tanto lo dispuesto en el artículo 38 de la Ley Orgánica del Ambiente como los principios consolidados en la jurisprudencia de este Tribunal, a saber, de no regresión en materia ambiental, de objetivación de la tutela ambiental y precautorio.

Análisis sobre la justificación técnica de la desafectación cuestionada En los siguientes epígrafes se procurará calibrar la importancia de la desafectación aprobada mediante la ley que aquí se impugna y constatar la omisión de los estudios técnicos que justificaran esa medida.

1. I mportancia ambiental de la Reserva Biológica Lomas de Barbudal Para contextualizar el análisis de la cuestión conviene explicar que la zona que se desafectó pertenece a la RBLB, la cual fue creada mediante decreto ejecutivo n.°16849-MAG de 23 de enero de 1986. La importancia de dicha reserva específica obedece a que es prácticamente la única en resguardar los ambientes del bosque seco tropical y su diversidad biológica, presentando tipos de fauna únicos en el país y contener sabanas secas que no están incluidas en otra unidad de conservación. Así se desprende de la parte considerativa del decreto en cuestión, que señala lo siguiente:

“1°.-Que es función esencial del Estado velar por la conservación, protección, administración y fomento de los recursos naturales del país.

2°.-Que la zona de Lomas Barbudal, en la provincia de Guanacaste, conserva muestras muy valiosas de la flora y fauna de la sabana seca arbolada de bajura, del bosque ripario de tierras bajas y del bosque caducifolio de tierras bajas, que en el pasado cubrieron extensas áreas de aquella provincia.

3°.-Que esta zona contiene al menos 10 nacientes y parte de la cuenca del río Cabuyo, de importancia para la producción agrícola y ganadera de la región, 4°.-Que el tipo de suelo de Lomas Barbudal no presenta condiciones para un desarrollo agropecuario sostenido pero que, desde el punto de vista de la investigación y del turismo, el área es importante por presentar una fauna entomológica única y por contener sabanas secas que no se encuentran protegidas en otra unidad de conservación”. (Lo destacado no es del original).

En el decreto de análisis se dispuso que la zona en cuestión sería, a partir de ese momento, una reserva biológica, que es una de las categorías de áreas silvestres protegidas, establecida concretamente en el inciso d) del artículo 32 de la Ley Orgánica del Ambiente. Asimismo, por aplicación de los numerales 13 y 14 de la Ley Forestal vigente, es integrante del patrimonio natural del Estado (PNE). Ese último caracteriza estos inmuebles como bienes de dominio público:

“Artículo 14.- Condición inembargable e inalienable del patrimonio natural.

Los terrenos forestales y bosques que constituyen el patrimonio natural del Estado, detallados en el artículo anterior, serán inembargables e inalienables; su posesión por los particulares no causará derecho alguno a su favor y la acción reivindicatoria del Estado por estos terrenos es imprescriptible. En consecuencia, no pueden inscribirse en el Registro Público mediante información posesoria y tanto la invasión como la ocupación de ellos será sancionada conforme a lo dispuesto en esta ley”.

La Ley de Biodiversidad define a las áreas silvestres protegidas así:

“Artículo 58. Áreas silvestres protegidas Las áreas silvestres protegidas son zonas geográficas delimitadas, constituidas por terrenos, humedales y porciones de mar. Han sido declaradas como tales por representar significado especial por sus ecosistemas, la existencia de especies amenazadas, la repercusión en la reproducción y otras necesidades y por su significado histórico y cultural . Estas áreas estarán dedicadas a conservación y proteger la biodiversidad, el suelo, el recurso hídrico, los recursos culturales y los servicios de los ecosistemas en general. Los objetivos, la clasificación, los requisitos y mecanismos para establecer o reducir estas áreas se determinan en la Ley Orgánica del Ambiente, No. 7554, de 4 de octubre de 1995. Las prohibiciones que afectan a las personas físicas y jurídicas dentro de los parques nacionales y las reservas biológicas están determinadas, en la Ley de la Creación del Servicio de Parques Nacionales, No. 6084, de 24 de agosto de 1977. Durante el proceso de cumplimiento de requisitos para establecer áreas silvestres protegidas estatales, los informes técnicos respectivos deberán incluir las recomendaciones y justificaciones pertinentes para determinar la categoría de manejo más apropiada a que el área propuesta debe someterse. En todo caso, el establecimiento de áreas y categorías tomará muy en cuenta los derechos previamente adquiridos por las poblaciones indígenas o campesinas y otras personas físicas o jurídicas, subyacentes o adyacentes a ella”. (Lo resaltado no corresponde al original).

El reglamento a la Ley de Biodiversidad, n.°34433 define las reservas biológicas y establece la categoría técnica de manejo de la siguiente manera:

“Artículo 70 (…) d). Áreas geográficas que poseen ecosistemas terrestres, marinos, marino-costeros, de agua dulce, o una combinación de estos y especies de interés particular para la conservación. Sus fines principales serán la conservación y la protección de la biodiversidad, así como la investigación”.

En consecuencia, tienen una categoría de manejo muy limitada, por cuanto solamente se permite la conservación, protección e investigación.

Es preciso destacar que la RBLB no es propiamente un humedal, pero, según informaron las autoridades, sí forma parte del sitio Ramsar Palo Verde, es decir, forma parte de un humedal de importancia internacional (sitio Ramsar).

Como es sabido, la Convención Relativa a los humedales de Importancia Internacional, especialmente como Hábitat de Aves Acuáticas (conocida en forma abreviada como Convenio de Ramsar, debidamente aprobada mediante ley n°.7224) señala que los humedales de importancia internacional deben mantener su designación y su extensión inicial y sólo en circunstancias realmente excepcionales debería considerarse cambiarlas (artículos 2 y 4 de la Convención citados infra). Y, además, cuando se definen los sitios Ramsar, no solo se consideran los ecosistemas por sí solos, sino las interrelaciones existentes que impactan los humedales.

El Parque Nacional Palo Verde fue creado mediante decreto ejecutivo n.°11541 del 30 de mayo de 1980, cuya parte considerativa consignó lo siguiente:

“1°—Que la zona que comprende la fila Catalina, la fila Pedregosa, el cerro Bocana, el cerro El Roble y el cerro Alvarado, en Guanacaste, es una de las últimas en toda la provincia que conservan bosques secos tropicales, formación ecológica muy escasa en el país.

2°—Que las lagunas Nicaragua, El Roble, Los Aromos, y Corralillos, y los sitios El Tieso, Piñuela, Cristina y otros, constituyen lugares de particular importancia para la conservación de aves migradoras y residentes, y son a la vez las áreas más ricas en avifauna en el país.

3°—Que la zona en general es particularmente diversa en fauna silvestre, y es uno de los últimos refugios para animales que existen todavía sin protección en la provincia de Guanacaste.

4°—Que se presentan también varios ecosistemas de gran diversidad y riqueza de especies florísticas, tales como los bosques sobre depósitos calizos, las lagunas herbáceas, los bosques mixtos de llanura y los bosques de palo verde sobre vertísoles”.

Esto fue ratificado por ley n.°6794 de 25 de agosto de 1982, “Ley de Creación de Parques Nacionales y Reservas Biológicas. Ratifica como Leyes Decretos Creadores de Parques Nacionales y Reservas Biológicas”. Posteriormente, mediante decreto ejecutivo 27345-MINAE, “Establece para el Parque Nacional Palo Verde Manejo Activo en sus Humedales y Áreas de Pasto y Crea Comité Asesor”, se destacó, en su parte considerativa, lo siguiente:

“III.—Que entre los objetivos fundamentales del Parque Nacional Palo Verde está el proteger, manejar, conservar y restaurar, tanto ecosistemas de humedales como de bosque tropical seco, para mantener la diversidad y poblaciones de vida silvestre.

IV.—Que la Convención Relativa a los Humedales de Importancia Internacional, conocida como Convención Ramsar, fue ratificada por Costa Rica mediante ley 7224 del 2 de abril de 1991 y que como instrumento jurídico internacional, tiene valor superior a la Ley. Que Costa Rica, como parte contratante, debe fomentar la conservación de las zonas húmedas y de las aves acuáticas, creando reservas naturales de humedales y atendiendo de manera adecuada su manejo y cuidado. Asimismo, se compromete a fomentar la investigación y el intercambio de datos relativos a humedales a fin de favorecer las condiciones para aumentar las poblaciones de aves acuáticas”. (Lo destacado no es del original).

Además, el Plan General de Manejo del Parque Nacional Palo Verde, del Sistema Nacional de Áreas de Conservación, claramente establece la inclusión de la RBLB dentro del Parque Nacional Palo Verde (ver el Acuerdo n.°20 de la Sesión Ordinaria n.°03-2016 del 28 de marzo del 2016, dictado por el Consejo Nacional de Áreas de Conservación, disponible en la página del Sistema Costarricense de Información Jurídica – SCIJ).

Mediante decreto ejecutivo n.°39786-MINAE de 22 de abril de 2016, se declaró de interés público y nacional las actividades de manejo, conservación y rehabilitación de este parque:

“Artículo 3.- Declaratoria de Interés Público. Declárese de interés público y nacional las actividades de manejo activo para la conservación y rehabilitación de los ecosistemas del Parque Nacional Palo Verde, con el fin de contar con el apoyo del Estado y demás dependencias públicas, organizaciones no gubernamentales y organismos internacionales públicos y privados para su implementación”.

Al examinar con detalle el anterior marco normativo es posible advertir la gran importancia que tiene la zona en cuestión para la tutela medio ambiental. De ahí que las decisiones que se tomen, respecto a la disminución de la cabida de estas zonas o el cambio en su destino, deben estar debidamente razonadas en estudios técnicos que justifiquen apropiadamente tal determinación.

Examen sobre la existencia de los estudios técnicos sobre la desafectación A partir de lo expuesto, es claro que tanto la legislación nacional como los principios constitucionales examinados y la jurisprudencia constitucional exigen, como primer elemento, que una ley que disponga la desafectación de un área silvestre protegida, integrada al PNE, debe estar razonablemente cimentada en un estudio técnico que justifique, de forma concreta, el motivo por el cual se debe desafectar una zona en particular y variar su naturaleza. Por eso, es preciso ahora examinar si la ley cuestionada contó con tal estudio.

Como se ha visto, el propósito original de salvaguardar estos terrenos es la protección de un tipo de bosque muy particular y casi único en nuestro país, a saber, el bosque seco tropical y su diversidad biológica, que no está incluido en otra categoría específica de protección. En cambio, si bien la normativa cuestionada le brinda protección ambiental y dispone que se le reconocerá como un ecosistema de humedal administrado por el Sistema Nacional de Áreas de Conservación (SINAC) (artículo 6 de la ley n.°9610 que “Modifica límites de la Reserva Biológica Lomas de Barbudal para el desarrollo del proyecto de abastecimiento de agua para la cuenca media del río Tempisque y comunidades costeras”), lo cierto es que se cambia por completo su naturaleza. Esto porque, precisamente, la finalidad última de la desafectación es hacer posible el proyecto Paacume, que conlleva inundar los espacios de estos bosques primarios. En el propio estudio de la Organización de Estudios Tropicales (OET), se evidenció lo relativo al cambio de la naturaleza del inmueble:

“Por su posición geográfica y el relieve de la zona, el embalse Rio Piedras afectaría directamente un sitio dentro de la Reserva Biológica Lomas de Barbudal, un área silvestre protegida creada en 1986 con el fin de resguardar los ambientes del bosque seco tropical y su diversidad biológica. El área en conflicto ha sido estimada en casi 113 hectáreas bajo la cota de 50 m de elevación, que quedarían inundadas una vez construido el embalse ”. (Lo resaltado no corresponde al original).

Sobre la finalidad del proyecto Paacume, la exposición de motivos del proyecto de ley expuso con detalle lo siguiente:

“El objetivo fundamental es la provisión de agua, accesible en cantidad, calidad y oportunidad -de 20 metros cúbicos por segundo- para diferentes usos potenciales. Se proyecta beneficiar al menos a 204 mil personas y cubrir al menos 17 mil hectáreas bajo riego. De este caudal quedarán disponibles 2 metros cúbicos por segundo para el abastecimiento a largo plazo de comunidades de cantones de Santa Cruz, Nicoya y Carrillo y que será administrada por el Instituto Costarricense de Acueductos y Alcantarillados. Además, el proyecto contempla al menos 1.5 metros cúbicos por segundo de agua para riego como apoyo a la actividad turística en la zona costera y con ello beneficiar las comunidades costeras con la liberación de aguas subterráneas hoy usadas en riego.

Este proyecto no solo permitirá el acceso sostenible al agua por parte de las comunidades y el sector productivo, sino que además pretende armonizar y regular la explotación racional de los principales recursos subterráneos en acuíferos en la margen derecha de la cuenca media del río Tempisque, pues permitirá al Estado la regulación del uso máximo de pozos para estas actividades”.

De este modo, y teniendo presente lo dicho por las autoridades en el trámite de acción de inconstitucionalidad, no hay duda de la urgencia e importancia de hacer posible el acceso al servicio de agua potable y de enfrentar otros problemas de sequía, desabastecimiento, desalinización de los acuíferos, entre otros (ver manifestaciones de la Presidencia de la Asamblea Legislativa, SENARA, Ministerio de Ambiente y Energía (MINAE), Ministerio de Agricultura y Ganadería (MAG)). Se señala que la dotación de agua en la zona se realizará a través de la construcción de una represa en el Río Piedras, que requerirá de un embalse con un espejo de agua de aproximadamente 850 hectáreas, de las cuales, 113 hectáreas se encuentran dentro de la RBLB, conforme al diseño realizado por SENARA.

Sin embargo, revisada la exposición de motivos del proyecto de ley, el expediente legislativo y el expediente de esta acción de inconstitucionalidad no se logró vislumbrar el cumplimiento de este requisito de importancia capital, a saber, el de realizar un estudio que, de forma específica justifique la necesidad de atender dicha severa problemática, a través de la desafectación de un área especialmente protegida.

La única referencia en la exposición de motivos es la siguiente:

“Así las cosas, la ubicación de la presa en el río Piedras obedece a una condición topográfica única que no permite ser trasladada a otro sitio; por tanto, esta ubicació n y diferencia de nivel entre la entrada del canal que lo abastece y la salida del canal que permitirá llevar el agua hasta el río Tempisque determinan el nivel má ximo de embalse y la capacidad de este para abastecer con 20 metros cú bicos por segundo al Paacume.

En algún momento se valoró la posibilidad de construir un dique para evitar la inundación de esta área de la Reserva Biológica Lomas Barbudal y un tú nel de más de 2 kilómetros para evacuar las aguas; sin embargo, resultó que el sitio del dique coincide con una falla geológica que haría imposible su construcción por el alto riesgo que genera a la obra”. (Lo destacado no es del original).

Estas valoraciones, si bien pueden ser valiosas para ilustrar la situación, no relevan, de forma alguna, que se haya cumplido con el necesario estudio que justifique de forma concreta la desafectación.

Informes de SENARA y del Consejo Regional del Área de Conservación En el informe de las autoridades del SENARA rendido con posterioridad a la audiencia oral realizada en el trámite de esta acción de inconstitucionalidad se hizo referencia a un Estudio de Factibilidad del Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras. Este estudio es de octubre de 2018, es decir, es paralelo a la fecha en que se aprobó la legislación de análisis, a saber, el 17 de octubre de 2018 . Por lo que no pudo ser valorado por el órgano parlamentario. Asimismo, tanto en la vista oral, como en el informe posterior, la Gerente General del SENARA hace referencia a que la zona tiene las condiciones ideales para realizar la obra y fundamenta sus afirmaciones en un estudio técnico realizado por el Instituto Costarricense de Electricidad (ICE) –atendiendo el contrato interadministrativo suscrito entre SENARA-ICE-MINAE 201600011 y sus adendas– según el cual, dadas las condiciones de topografía del área, la zona en cuestión tiene las condiciones ideales para la construcción de un embalse de gran capacidad (ver informe rendido ante la Sala en fecha 15 de junio de 2020). Sin embargo, queda claro que no existe un estudio específico que justifique la desafectación como tal.

En el expediente legislativo constan manifestaciones del propio Consejo Regional del Área de Conservación Arenal Tempisque de julio de 2017 , en las que se concluye lo siguiente:

“Basados en el estudio antes mencionado (Consulta obligatoria a las comunidades locales, propuesta de compensación para la Reserva Biológica Lomas Barbudal) y los documentos hasta ahora aportados, esta instancia considera que aún no se ha demostrado que existan otras alternativas del proyecto PACUUME, sin que necesariamente se tenga que desafectar un área de la actual RBLB. Si efectivamente estas alternativas no son viables, será necesario valorar la tercera medida que es la compensación”. (Oficio SINAC-CORACAT-SE-041, visible a folios 126 y 1492 de la copia del expediente legislativo).

Adicionalmente, se hizo llegar al trámite legislativo, el oficio SINAC-CORACAT-049-2018 de 9 de setiembre de 2018, en el que el Secretario Ejecutivo del Consejo Regional del Área de Conservación Arenal Tempisque enfatiza lo siguiente:

“Con base en la Ley General de Administración Pública y la línea jurisprudencial de la Sala Constitucional, es necesario que existan los estudios técnicos ambientales, jurídicos y financieros suficientes que justifiquen la selección adecuada, tanto del área a desafectar, como de las áreas que servirían como compensación. Debe verificarse la existencia de estos estudios dentro del expediente de este proyecto de ley, ya que a la fecha este Consejo no cuenta con tal información”. (Folio 2641 de la copia del expediente legislativo. Lo destacado corresponde al oficio original).

De esas manifestaciones se desprende que para estas autoridades el estudio de compensación deberá ser posterior a los estudios técnicos que justifiquen la necesidad de desafectar las zonas en cuestión y cambiarles, radicalmente, su destino. Es decir, pasarían de ser un bosque tropical seco a convertirse –por la inundación– en un humedal, perdiendo así la riqueza originaria de la zona. Las propias autoridades del Área de Conservación enfatizan que la determinación inicial de desafectar no se encuentra debidamente motivada en un estudio que lo justifique de forma apropiada. En efecto, la propia autoridad rectora del área de conservación en cuestión expuso durante el trámite legislativo que “aún no se ha demostrado que existan otras alternativas del proyecto PACUUME, sin que necesariamente se tenga que desafectar un área de la actual RBLB” (folios 126 y 1494). Además, llamó la atención de los legisladores respecto de la necesidad de que existan los estudios técnicos ambientales, jurídicos y financieros suficientes que justifiquen “la selección adecuada (…) del área a desafectar ”.

En un momento posterior, luego de la determinación técnica sobre la necesidad de desafectar un área silvestre protegida en concreto, se requieren los estudios de compensación, que son aquellos que procuran una especie de resarcimiento ambiental del área suprimida, con otra de igual tamaño y de similares características biológicas. Sobre el particular, los representantes de la OET manifestaron lo siguiente:

“La compensación ambiental ante un impacto ambiental es una medida última, que debe realizarse únicamente en caso de que no pueda evitarse dicho impacto o que este no pueda mitigarse adecuadamente. En consecuencia, cuando los impactos de un proyecto requieren compensación, se está ante una situación en la que es inevitable resarcir un potencial impacto. En esa circunstancia, la discusión no debe centrarse en si se puede o no compensar, sino en cómo lograrla de manera que haya ganancias ambientales”. (Lo resaltado no corresponde al original).

De lo anterior se podría concluir que incluso la propia OET reconoce que primero debe determinarse con certeza, sobre la base de estudios técnicos, que la desafectación es la última solución posible, y luego corresponde realizar el estudio de las medidas de compensación.

El informe de la Procuraduría General de la República Resulta de gran relevancia para el caso concreto, transcribir en lo conducente algunos pasajes del informe rendido por la Procuraduría General de la República (PGR) en la acción de inconstitucionalidad. Respecto de la necesidad de realizar un estudio previo que justifique la desafectación de porciones de la RBLB, afirmó lo siguiente:

“Por otra parte, aunque se constate la suficiencia del estudio de la OET y de la propuesta final de compensación, debe advertirse que ese estudio técnico únicamente justificaría la validez de la compensación practicada, y, como tal, no es un estudio técnico que justifique directamente la decisión de desafectar una parte de la RBLB.

Atendiendo a la jurisprudencia constitucional sobre el tema, el estudio que exige el artículo 38 de la Ley Orgánica del Ambiente para justificar la reducción de un área silvestre protegida debería ser un estudio que determine la necesidad y conveniencia de adoptar ese tipo de medida.

En este caso, un estudio en ese sentido, sería aquel que fundamente técnicamente la necesidad de desafectar parte de la RBLB. Es decir, un estudio que determine que la única alternativa para desarrollar el proyecto PAACUME y el embalse Río Piedras, es desafectando parte de la Reserva Biológica.

Al respecto, el Consejo Regional del Área de Conservación Tempisque, al referirse al estudio de la OET, indicó que “esta instancia considera que aún no se ha demostrado que existan otras alternativas del proyecto PAACUME, sin que necesariamente se tenga que desafectarse un área de la actual RBLB. Si efectivamente estas alternativas no son viables, será necesario valorar la tercera medida que es la compensación.” (Oficio No. SINAC-CORACAT-SE-041 de 7 de julio de 2017, folios 1492-1497 del expediente legislativo). Y, ese mismo Consejo, después de aprobado el proyecto de ley en segundo debate, indicó que “es necesario que existan los estudios técnicos ambientales, jurídicos y financieros suficientes que justifiquen la selección adecuada tanto del área a desafectar, como de las áreas que servirían como compensación. Debe verificarse la existencia de estos estudios dentro del expediente de este proyecto de ley, ya que a la fecha este Consejo no cuenta con tal información.” (Oficio No. SINAC-CORACAT-049-2018 de 9 de setiembre de 2018, folios 2641-2644).

En el “Documento Perfil del Proyecto PAACUME” elaborado por el SENARA (Folios 505-621) se parte de que “una de las propiedades dentro del área del embalse pertenece a la Reserva Biológica Lomas Barbudal, con un área aproximada a las 112 ha.” Y se indica que el “área debe de ser compensada con un área aledaña de similares características ecológicas, para lo cual se requiere la elaboración de un estudio de línea base de biodiversidad que demuestre la equivalencia de las áreas de compensación” y se indica que dicho estudio fue elaborado por la OET. (ver folio 557). Algunos de los funcionarios que comparecieron a las sesiones de la Comisión Legislativa que tramitó el proyecto indicaron que técnicamente el proyecto PAACUME no podía desarrollarse sin desafectar e inundar parte de la RBLB, y en el documento denominado “Consulta Obligatoria a las Comunidades Locales. Propuesta de Compensación para la Reserva Biológica Lomas Barbudal” (Folios 622-726), ante una de las preguntas formuladas por uno de los participantes, se indicó que “si no se logran obtener las 113 hectáreas de la RBLB, el proyecto cambia totalmente, ya que sin estas 113 hectáreas de la RBLB las condiciones de la presa, la cantidad de agua a embalsar, el costo del proyecto y el diseño tendría que cambiar totalmente.” (Folio 661).

Entonces, con base en el criterio de las instituciones a las cuales se les dio audiencia sobre esta acción de inconstitucionalidad, debe valorarse si existe sustento técnico suficiente para justificar la necesidad de desafectar parte de la RBLB para ser utilizada en la ejecución del proyecto PAACUME .

Si no se constata ese fundamento, la Ley 9610 debe declararse inconstitucional por violación a los principios de irreductibilidad de las áreas silvestres protegidas, objetivación a la tutela ambiental y de no regresión .

En ese supuesto la norma podría resultar contraria a la Convención Ramsar, porque si bien es cierto, ésta no obliga a los Estados a comunicar de previo la decisión de modificar el área de los sitios de importancia internacional, su artículo 4° sujeta esa posibilidad a la existencia de un motivo de urgente necesidad nacional, el cual no estaría debidamente justificado en este caso particular”. (Lo destacado no es del original).

Se observa que la PGR fue enfática en señalar la necesidad de atender los alegatos de los accionantes respecto a este primer agravio, a saber, la obligatoriedad de valorar si se cuenta con un estudio técnico que justifique la desafectación de una particular área protegida como lo es RBLB.

Conclusiones sobre el particular Se constata que las autoridades proponentes del proyecto han aducido de forma insistente que la existencia del estudio de compensación justifica la necesidad de desafectar. Lo anterior refleja, al menos, una seria confusión entre la respectiva finalidad del estudio de desafectación de un área especialmente protegida que se ha integrado al PNE y la del estudio de compensación. Esa confusión –o intento de homologación de dos categorías de estudio que tienen diversa naturaleza– torna injustificada la decisión de desafectar.

Por lo demás, cabe agregar que ambos estudios son distintos del estudio técnico que se requiere para la valoración de la infraestructura que se pretende desarrollar, esto es, un estudio de evaluación de impacto ambiental. Este, en los términos de la Ley Orgánica del Ambiente, es específico para las actividades humanas que alteren o destruyan elementos del ambiente o generen residuos peligrosos y es un requisito indispensable de previo al inicio de las actividades, obras o proyectos:

“Artículo 17 . Las actividades humanas que alteren o destruyan elementos del ambiente o generen residuos, materiales tóxicos o peligrosos, requerirán una evaluación de impacto ambiental por parte de la Secretaría Técnica Nacional Ambiental creada en esta ley. Su aprobación previa, de parte de este organismo, será requisito indispensable para iniciar las actividades, obras o proyectos. Las leyes y los reglamentos indicarán cuáles actividades, obras o proyectos requerirán la evaluación de impacto ambiental”.

Entonces, sobre la base del marco normativo y de la jurisprudencia se debe concluir que los estudios técnicos que justifiquen la desafectación y los posteriores estudios de compensación deben ser previos a la decisión legislativa, precisamente porque es exigido que esta se fundamente en aquellos.

Por lo tanto, considero que lleva razón la PGR en el sentido de que la ley cuestionada es inconstitucional por carecer de un estudio que sustente técnicamente la necesidad de desafectar parte de la RBLB. Dicha omisión resulta lesiva de los principios precautorio, no regresión en material ambiental, irreductibilidad y objetivación de la tutela ambiental.

Sobre los estudios de compensación Procede ahora examinar los agravios, el marco normativo e informes sobre la obligación de realizar estudios de compensación.

• Los agravios planteados por los accionantes Los accionantes cuestionaron que se pretendió justificar la reducción del área de RBLB, mediante un estudio incompleto y sesgado realizado por la Organización de Estudios Tropicales (OET). Acusan que se pretende compensar el área desafectada que se intenta inundar con terrenos privados adyacentes a la reserva biológica, incorporando dos propiedades definidas por SENARA. Una sobre la cual no se hizo ningún estudio (propiedad perteneciente a la sociedad Hacienda Ciruelas SP S.A.) y otra sobre la cual se hizo un estudio muy superficial (propiedad perteneciente a la sociedad conocida como Brindis de Amor).

Así, aducen que la ley n.°9610 violenta el artículo 50 de la Constitución Política, por cuanto, según su criterio, no incorpora un estudio serio, integral y objetivo sobre las consecuencias de la desafectación de 113 hectáreas de la RBLB y la sustitución o compensación con unas 500 hectáreas de propiedades privadas que se pretenden incorporar a la reserva biológica. Cuestionan, en este particular, la solidez del estudio realizado por la Organización de Estudios Tropicales (OET), mediante el cual se pretendió justificar la desafectación y compensación. Hacen referencia a otros estudios que ponen en entredicho la consistencia de ese estudio y concluyen que este es “insuficiente para definir el cambio de límites de Lomas de Barbudal, y no demuestra que este cambio será plenamente compensado por áreas adicionales en otros sectores de la Reserva. La finca ASETREK, estudiada con más detalle por los consultores, al final se reconoce como insuficiente para justificar el canje de tierra, y se acude precipitadamente a otras fincas cercanas para balancear la compensación”. Insisten que el estudio realizado por la OET no es completo, objetivo, científico ni técnico, ya que adolece de muchas omisiones y debilidades. Reiteran que tal estudio se centra prácticamente en una porción de una de las tres propiedades privadas con las que se pretenden compensar las 113 hectáreas desafectadas con la ley; pero omite incorporar estudios sobre las condiciones biológicas de las otras dos propiedades, por lo que no se puede determinar de manera científica que se trate de propiedades que efectivamente cuenten con características medioambientales que reemplacen las funciones ecosistémicas del área por desafectar.

La obligación internacional de realizar estudios de compensación Respecto de la necesidad de adoptar medidas de compensación, cuando se trata de desafectar áreas silvestres protegidas que sean humedales o estén integradas a estos existe una obligación internacional establecida en la Convención Ramsar, ley n.°7224 de 9 de abril de 1991, que dispone lo siguiente:

“Artículo 2.5. Las partes contratantes tendrán derecho a añadir a la "Lista" otras zonas húmedas situadas en su territorio, a ampliar las que ya están inscritas o, por motivos urgentes de interés nacional, a retirar de la "Lista" o a reducir los humedales ya inscritos e informarán de estas modificaciones, lo más rápidamente posible, a la organización o al gobierno responsable de las funciones de la Oficina permanente especificados en el artículo 8º”.

“Artículo 4. 1. Cada parte contratante fomentará la conservación de las zonas húmedas y de las aves acuáticas creando reservas naturales en los humedales, estén o no inscritos en la "Lista", y atenderá de manera adecuada su manejo y cuidado.

2. Cuando una parte contratante, por motivos urgentes de interés nacional, retire o reduzca una zona húmeda inscrita en la "Lista", deberá compensar, en la medida de lo posible, cualquier pérdida de recursos en los humedales y, en especial, deberá crear nuevas reservas naturales para las aves acuáticas y para la protección, en la misma región o en otro sitio, de una parte adecuada de su hábitat anterior. 3. Las partes contratantes fomentarán la investigación y el intercambio de datos y de publicaciones relativas a las zonas húmedas, a su flora y a su fauna”. (Lo resaltado no corresponde al original).

De estas normas se desprende la obligación del Estado de realizar una compensación que, en la medida de lo posible, remedie la pérdida de recursos en los humedales y crear nuevas reservas naturales para la protección en la misma región.

Informes de las autoridades que constan en el presente expediente 1- Informe de la Procuraduría General de la República.

La PGR manifestó en su informe que en caso de determinarse que el estudio de la OET y la propuesta final de compensación de la RBLB son insuficientes técnicamente, la ley impugnada resultaría inconstitucional por violación a los principios de objetivación de la tutela ambiental, precautorio, preventivo y de irreductibilidad de las áreas silvestres protegidas. En efecto, no se estaría garantizando que la variación de los límites aprobada no afecta la integridad de la RBLB y no se estaría mitigando adecuadamente el impacto ambiental generado por la desafectación de una parte de dicha reserva biológica. También, ello resultaría contrario a la obligación que establece el artículo 3° de la Convención Ramsar de favorecer la conservación de las zonas húmedas inscritas en la lista de humedales de importancia internacional.

Informe de la presidenta del Directorio de la Asamblea Legislativa La presidenta de la Asamblea Legislativa en su informe señala que en el expediente legislativo consta el estudio denominado “Establecimiento de línea Base de Biodiversidad para la Reserva Biológica Lomas de Barbudal (RBLB) y finca adyacente” realizado por la OET, en el que se efectuó un análisis comparativo entre la reserva y terrenos aledaños previamente seleccionados para conocer las condiciones de similitud y factibilidad de utilizarse como reemplazo ecológicamente equivalente. Explica que la OET realizó el estudio correspondiente basándose en los lineamientos establecidos por el SENARA y explicó que la OET pudo comprobar que el área de la RBLB que se pretendía desafectar estaba en mejores condiciones ecológicas que las áreas que se proponían para compensar, en una proporción de 3 a 1, o sea que, por cada hectárea que se desafectara se debería compensar 3. Asevera que, al revisar en detalle se determinó que uno de los objetos de creación de la RBLB, precisamente la conservación y protección del bosque ripario, no estaba representado dentro de la finca ASETREK, la cual era la propuesta para compensar las 113 hectáreas que se desafectarían. Justifica que fue por lo anterior que se dio la necesidad de buscar otros terrenos aledaños que tuvieran bosque ripario para compensar el faltante de ese ecosistema en la propuesta de compensación. Señala que debido a que lo que se requería era únicamente buscar el bosque ripario, los estudios en las fincas Brindis de Amor y Hacienda Ciruelas no profundizaron con el mismo detalle que los estudios de ASETREK ; sin embargo, dice que aun así la OET sí realizó un estudio de caracterización de la Finca Brindis de Amor, como complemento de compensación, el cual se encuentra visible en los folios del 209 al 215 del estudio.

Informe del Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento Estas autoridades explicaron que el estudio fue realizado por la OET y prevé que la compensación del área, consista en que, por la desafectación de 113 hectáreas se incorporen 556 hectáreas. Arguye que la OET recomienda que se adquieran como mínimo 332 hectáreas de la finca ASETREK, sin embargo, para facilitar el manejo y el control de incendios se tomó la decisión de incorporar 444 hectáreas de ASETREK, por lo que se compensan todos los diferentes ecosistemas que se encuentran dentro de las 113 hectáreas de RBLB, a excepción del bosque ripario. En consecuencia, aclara que la incorporación de las fincas Brindis de Amor y Hacienda Ciruelas a la propuesta de compensación se realizó por recomendación del administrador de Lomas Barbudal, basándose en que cuentan con terrenos de bosque ripario en condiciones adecuadas de conservación, así como con las nacientes principales del río Cabuyo y quebrada Amores.

Organización de Estudios Tropicales Por su importancia, se transcriben en lo conducente pasajes relevantes del informe realizado por la OET, que fue el insumo técnico de la compensación realizada en el caso concreto. Dicho informe indica en su resumen ejecutivo, lo siguiente:

“El sitio de afectación en Lomas de Barbudal posee tres tipos de ambientes, cada uno correspondiendo a una cobertura forestal distinta: bosque deciduo, bosque secundario y bosque maduro asociado a las quebradas en el sitio y por lo tanto, llamado aquí bosque ripario. El bosque deciduo representa el 70% de la cobertura forestal en ese sitio, y corresponde a un estadío de sucesión temprano caracterizado por ser abierto y estar constituido por especies pioneras y por presentar una baja densidad de árboles. El bosque secundario posee mayor estructura y corresponde a un estadio más avanzado donde persisten árboles dominantes. Finalmente, el bosque ripario, integrado principalmente por especies siempre verdes y con árboles dominantes, es uno de las asociaciones vegetales más amenazadas de la región. Cerca de 30 hectáreas existen en el sitio de afectación, lo que representa cerca del 11% de la cobertura de ese tipo de asociación de la Reserva Biológica. El sitio de compensación también es heterogéneo en cobertura forestal y cuenta con bosque deciduo, bosque secundario y zonas de pastizal y no forestales. Este sitio no dispone de bosque ripario.

Así, el sitio en la Reserva Biológica produjo estimados de riqueza de especies mayores que los estimados en el potencial sitio de compensación en ASETREK. Además, las especies encontradas en la Reserva Biológica no son las mismas que las encontradas en ASETREK: las mayores similitudes en composición se encontraron en la comunidad de anfibios, familias de artrópodos y aves, con 79%, 76% y 62% de especies compartidas, mientras que para plantas leñosas y mamíferos los sitios comparten tan solo el 55% y 50% de sus especies. Para reptiles, peces y plantas herbáceas los sitios en Lomas de Barbudal y ASETREK comparten 39%, 34% y 33% de las especies. Esas discrepancias hacen que la composición de especies en ASETREK represente cerca del 45 % de la cuantificada en la referencia. Nuestros análisis revelan que en general, el sitio potencial de inundación en Lomas de Barbudal posee mayor estructura, más árboles dominantes, biomasa y potencial para fijar carbono. El aporte del bosque ripario a estos indicadores es innegable, pero también se observaron diferencias entre las coberturas de bosque secundario de Lomas de Barbudal y la de ASETREK, este último mostrando los valores más bajos. Estas diferencias indican que el ambiente en el sitio de compensación en ASETREK ha sido más perturbado que el sitio en Lomas de Barbudal. En término de estructura y calidad del ambiente, el hábitat en ASETREK obtuvo un menor puntaje que la referencia, equivalente a un 51.2% de su calidad. La incertidumbre derivada de la heterogeneidad de los ambientes presentes reduce el estimado de puntuación de calidad del ambiente, por lo que el mínimo valor de calidad de ambiente posible estimada a partir de nuestros datos resulta en 34 pts. Al tratarse de un ambiente de menor calidad, se requeriría de unas 332 hectáreas de un hábitat como el observado en ASETREK para compensar la pérdida de las 113 hectáreas de la referencia. Por lo tanto, el sitio de potencial compensación en ASETREK es inferior en calidad de ambiente, composición y biodiversidad al sitio que sería impactado directamente por el Embalse Rio Piedras dentro de la Reserva Biológica Lomas de Barbudal. Siguiendo el procedimiento para la estimación del área necesaria para resarcir pérdidas derivadas del impacto, recomendamos anexar al menos 332 Ha del tipo de hábitat observado en el sitio potencial de compensación para resarcir las pérdidas que sufrirá la Reserva Biológica Lomas de Barbudal por el Embalse Piedras. Una propuesta es asignar la parte boscosa de ASETREK como área de compensación. Para ello se requiere segregar 444 Ha de dicha propiedad, con el fin de unir los fragmentos de bosque disponibles. Aún asi, ese terreno no incluye la cobertura de bosque ripario , por lo que se sugiere anexar adicionalmente a Bridis de Amor, una propiedad de 86 Ha adyacente al extremo norte de la Reserva Biológica y que posee casi 16 hectáreas de bosque ripario. La incorporación de ambas propiedades (ASETREK segregado y Brindis de Amor) suponen la anexión de 530 hectáreas en compensación por las 113 Ha que se perderían en la Reserva Lomas de Barbudal”.

Sobre el agravio planteado por los accionantes, en el sentido de que el estudio de OET fue realizado con ligereza y que, con posterioridad, añadieron unas fincas sin un estudio similar al que se realizó respecto de la finca ASETREK, afirmaron lo siguiente:

“En el noreste de la Reserva Biológica Lomas de Barbudal, existen propiedades privadas con fragmentos de bosques riparios y secundarios. De hecho, un examen rápido revela que en las cercanías de la Quebrada Amores existen condiciones boscosas que podrían ser de interés de protección. Una de ellas es Brindis de Amor, una propiedad de cerca de 86 Ha que limita con la Reserva Lomas de Barbudal y cuya cobertura boscosa ha sido protegida por su propietario Carlos Jiménez en los últimos veinte años (Figura 47). (…)

1. Los resultados de nuestro estudio, tanto en calidad de habitat como en composición de comunidades, revelan la necesidad de resarcir la pérdida en Lomas de Barbudal a partir de al menos 332 Ha de hábitat boscoso. Sin embargo, para lograr ese número de hectáreas en ASETREK, se requiere incluir parte del bosque deciduo en la ladera este de la propiedad, cuya calidad es inferior (por tener mayor pendiente) a la del lado oeste. Además no se cuenta con ningún fragmento de bosque ripario-maduro, lo que sin duda constituye un desacierto en la capacidad de compensación de la propiedad ASETREK evaluada en nuestro estudio. 2. La propiedad de Brindis de Amor posee 15.87 ha de bosque ripario-maduro. Aunque el análisis de la composición de este fragmento fue preliminar, nuestras observaciones de campo indican que está constituido por especies siempreverdes similares a las encontradas en la misma cobertura en RBLB y que es comparable en área basal (Figura 49) a la del fragmento encontrado en el sitio potencial de inundación en Lomas de Barbudal. Si bien es cierto que la extensión del bosque ripario en Brindis de Amor es menor a la que se perdería en Lomas de Barbudal, (…)

De hecho, el área de bosque ripario en Brindis de Amor representa un 7.4 % del área cubierta por ese tipo de bosque dentro la Reserva Biológica actualmente. 3. El área de bosque ripario en Brindis de Amor puede constituirse un área núcleo de especies para repoblar otros ambientes riparios en la propiedad. Aunque esta situación no es cronológicamente correspondiente a la pérdida en Lomas, si es una considerable ventaja por sobre la propiedad de ASETREK, que carece de dicho núcleo. Nuestras observaciones en el sitio muestran gran reclutamiento de especies arbóreas típicas de bosques riparios, como son el espavel Anacardium excelsum y el terciopelo Sloanea terniflora. 4. Tanto el bosque deciduo como el secundario han sido protegidos en Brindis de Amor por al menos veinte años. En contraste con ASETREK, la propiedad de Brindis de Amor tiene una pendiente leve y la cobertura boscosa en mejor condición de estructura y composición que los encontrados en la propiedad de ASETREK. A diferencia de ASETREK, no hay registros de talas ni fuegos recurrentes, aunque sí hay evidencia de fuego entrando a la propiedad por lado sur. 5. Aunque este estudio no incluyó un análisis de composición de especies en su bosque secundario o deciduo , la protección que se le ha dado a estas coberturas en Brindis de Amor podría significar que estas coberturas se encuentren en mejores condiciones que sus homónimas en ASETREK. (…)

Al sur de Brindis de Amor se localiza el Rancho Wilson, que posee un fragmento boscoso protegido y que podría ser de interés para protección al reducir la mencionada península (Figura 50). Sin embargo, argumentamos que precisamente debido a la protección que actualmente se le brinda a ese fragmento en Rancho Wilson, la anexión de Brindis de Amor podría ser una alternativa más adecuada para consolidar el bloque de bosque ripario en el norte de la Reserva. En nuestra visión, esta anexión permitiría negociar con Rancho Wilson la futura incorporación del fragmento de bosque remanente en dicha propiedad. Además, la protección de un segmento del río Cabuyo se conseguiría a partir de la protección del área actualmente oocupada por Brindis de Amor”. (En el informe rendido ante la Sala aclararon que donde se señala Rancho Wilson, se refiere, en realidad, a la Hacienda Ciruelas).

De manera que el propio estudio técnico pone en evidencia lo informado posteriormente en la acción de inconstitucionalidad, por el encargado de realizar el estudio de la línea base. En el informe rendido a la Sala se reconoció que la integración de estas dos fincas se hizo con el propósito de mejorar la propuesta de compensación original, pero “estas áreas no fueron analizadas con la profundidad que lo hicimos en ASETREK ”. En el informe rendido a esta Sala, en lo conducente, señala lo siguiente:

“El empleo de Brindis de Amor como sitio de forrajeo demuestra la importancia biológica de esta propiedad y lo acertado que sería protegerla. El anexar una fracción de la Hacienda Ciruelas obedece a evitar dejar una península en el contorno de la RBLB de anexarse Brindis de Amor, lo que contravendría las nociones básicas del diseño de reservas, que trata de minimizar el efecto de borde y su afectación a las especies que se desean proteger. Además, esa fracción contiene también un fragmento de cobertura riparia. En nuestro propio informe indicamos que, de tener que decantarse entre una de esas dos propiedades, se sugiere que se adquiera Brindis de Amor puesto que Ciruelas ya está manteniendo alguna protección en esa zona de su propiedad. Nuestros detractores indican que el estudio no evaluó esas propiedades. Eso no es del todo correcto, pues como se menciona anteriormente si hubo una evaluación de vegetación en la propiedad Brindis de Amor. La razón por la que no se evaluaron otros grupos taxonómicos (fauna) es que: (1) ya hay evidencia de la importancia de ese lugar para la fauna de la RBLB; (2) el incluir esta propiedad complementa la propiedad de ASETREK; (3) Brindis de Amor efectivamente fue identificada después de que se apostara por compensar con ASETREK. El fragmento en la Hacienda Ciruelas (llamado por error Rancho Wilson en nuestro informe) efectivamente no fue evaluado. Sin embargo, vuelvo a reiterar que asumir la protección tanto esta propiedad como Brindis de Amor vendría a dar un mejor servicio al ambiente que pretende conservar la RBLB”. (Informe rendido por Dr. Mahmood Sasa Marín en virtud de la audiencia conferida como prueba para mejor resolver).

Conclusiones sobre el particular A partir de las manifestaciones realizadas por las propias autoridades que constan en el expediente de la acción de inconstitucionalidad, es posible concluir que el estudio de compensación realizado para el caso concreto no fue ejecutado con idéntica rigurosidad en la incorporación de la finca ASETREK, respecto de la integración posterior de otras dos fincas llamadas Brindis de Amor y Hacienda Ciruelas.

Como se señaló supra, la disconformidad de los accionantes es que el informe final “Establecimiento de la línea Base de Biodiversidad para la Reserva Biológica Lomas de Barbudal (RBLB) y finca adyacente” omite incorporar estudios sobre las condiciones bioló gicas de las otras dos propiedades, por lo que no se puede determinar de manera científ ica que se trate de propiedades que efectivamente cuenten con caracterí sticas medioambientales que reemplacen las funciones eco sistémicas del á rea por desafectar.

La PGR insistió en la necesidad de la solidez de dicho estudio, pues de lo contrario, existe un peligro de que no se estaría mitigando adecuadamente el impacto ambiental generado por la desafectación de una parte de dicha reserva biológica.

La Presidencia de la Asamblea Legislativa evidenció que efectivamente los estudios en las fincas Brindis de Amor y Hacienda Ciruelas no se ejecutaron con el mismo detalle y rigor respecto del estudio que se realizó a la finca ASETREK. El resto de autoridades coincidieron en que la evaluación integral de la referida finca dio como resultado la carencia en la compensación de bosque ripario, prioridad en la protección medio ambiental por ser casi única en el país. Esto motivó a que se adoptaran recomendaciones de las propias autoridades del Área de Conservación de integrar otras dos fincas. Sin embargo, respecto de estas dos fincas que se integraron a la compensación con posterioridad, no se realizó el estudio biológico y de equivalencia de biodiversidad con similares parámetros de exigencia y disciplina. Además, según las propias consideraciones de OET, que fue el ente encargado del estudio, el análisis respecto de la Finca Brindis de Amor fue meramente preliminar, no incluyó un análisis de composición de especies en su bosque secundario o deciduo y no se realizó ningún estudio de fauna. Asimismo, la decisión final de incluir la Hacienda Ciruelas, si bien denota un afán de asegurar una adecuada compensación, no se respaldó en ningún estudio científico que dé cuenta de la equivalencia y de la obligada compensación de recursos naturales. El responsable de estudio reconoció que “el fragmento en la Hacienda Ciruelas (llamado por error Rancho Wilson en nuestro informe) efectivamente no fue evaluado”.

A lo anterior, conviene añadir que sobre la base de un estudio de diez meses en el que se valoró fauna, flora, estructura de hábitat, servicios ecosistémicos y atributos físicos, y que incluyeron muestreos tanto en época seca como en la temporada lluviosa se concluyó que la finca ASETREK no era suficiente para compensar las áreas de bosques desafectados en RBLB. Por eso, con mucha más razón, no se advierte cuál es la base para realizar unas inclusiones, en el último momento, que puedan realmente cumplir los requerimientos de compensación exigidos en cuanto a especies de fauna, bosques y fijación de carbono.

Por lo tanto, estimo que las deficiencias detectadas en los estudios, las cuales fueron reconocidas por las autoridades que intervinieron en este proceso de constitucionalidad, son lesivas de los principios constitucionales ya señalados y que, en términos generales, obligan al Estado a adoptar decisiones relacionadas con la reducción de áreas silvestres protegidas sobre la base de un estudio técnico debidamente fundamentado.

Conclusiones

Las consideraciones realizadas permiten concluir que hay cuatro tipos de estudios en esta materia que no son homologables: 1) el estudio que justifique la desafectación de un área protegida, 2) el estudio de compensación de la desafectación de un área protegida, 3) el estudio de impacto ambiental de un proyecto de infraestructura. Aparte está el estudio de factibilidad de la realización de un proyecto de infraestructura. En el caso de la ley bajo examen, se omitió hacer el primero, se hizo deficientemente el segundo y el tercero está por hacer (según correspondería luego de tener los dos primeros, y de promulgarse la ley). El estudio de factibilidad del proyecto no sustituye en parte ni en su totalidad ninguno de los tres anteriores. Por tal motivo, estimo que llevan razón quienes señalan que la normativa cuestionada resulta inconstitucional por la infracción a los principios precautorio, no regresión en materia ambiental, irreductibilidad y objetivación de la tutela ambiental, que deben regir la toma de decisiones en esta materia.

Anamari Garro Vargas CO12/20 ... Ver más Contenido de Interés:

Tipo de contenido: Nota separada Rama del Derecho: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Tema: AMBIENTE Subtemas:

NO APLICA.

Res. Nº 2020-0013836 NOTA DE LA MAGISTRADA GARRO VARGAS Sobre el cumplimiento de las obligaciones internacionales Los accionantes cuestionaron que, dado que la Reserva Biológica Lomas de Barbudal (LBLB) forma parte del humedal de Palo Verde, el Consejo Regional del Área de Conservación Arenal Tempisque advirtió, en su momento, a la Asamblea Legislativa que era necesario que se comunicara a la Convención Relativa a los Humedales de Importancia Internacional especialmente como Hábitat de Aves Acuáticas (Convención Ramsar) la intención de realizar este proyecto y activar cualquier otro procedimiento para cumplir con los compromisos del país.

Acusan que, pese a lo anterior, el Estado no ha notificado a Ramsar sobre la desafectación del área de la RBLB, ni el cambio en los límites de esa reserva biológica, lo que supone una omisión que infringe los compromisos internacionales de nuestro país y, por ello, una violación al artículo 7 de la Constitución Política.

Es preciso citar en esta nota, nuevamente, lo dispuesto en lo conducente por la Convención Ramsar, la cual señala en el artículo 2.5 lo siguiente:

“ Las partes contratantes tendrán derecho a añadir a la “Lista” otras zonas húmedas situadas en su territorio, a ampliar las que ya están inscritas o, por motivos urgentes de interés nacional, a retirar de la “Lista” o a reducir los humedales ya inscritos e informarán de estas modificaciones, lo más rápidamente posible, a la organización o al gobierno responsable de las funciones de la Oficina permanente especificados en el artículo 8º”. (Lo resaltado no corresponde al original).

Adicionalmente, el artículo 4 señala:

“1. Cada parte contratante fomentará la conservación de las zonas húmedas y de las aves acuáticas creando reservas naturales en los humedales, estén o no inscritos en la "Lista", y atenderá de manera adecuada su manejo y cuidado.

2. Cuando una parte contratante, por motivos urgentes de interés nacional, retire o reduzca una zona húmeda inscrita en la "Lista", deberá compensar, en la medida de lo posible, cualquier pérdida de recursos en los humedales y, en especial, deberá crear nuevas reservas naturales para las aves acuáticas y para la protección, en la misma región o en otro sitio, de una parte adecuada de su hábitat anterior. 3. Las partes contratantes fomentarán la investigación y el intercambio de datos y de publicaciones relativas a las zonas húmedas, a su flora y a su fauna”. (Lo resaltado no corresponde al original).

Es decir, esa norma reitera que cuando una parte, por motivos urgentes de interés nacional, retire o reduzca una zona húmeda inscrita en la “Lista”, deberá compensar en la medida de lo posible cualquier pérdida de recursos en los humedales y, en especial, deberá crear nuevas reservas naturales para las aves acuáticas y para la protección en la misma región o en otro sitio.

Con fundamento en el propio texto normativo, es preciso concluir que el Estado costarricense no ha incurrido en una infracción a sus obligaciones internacionales, conforme a lo dispuesto en el artículo 7 de la Constitución Política. Lo anterior, por cuanto el propio instrumento internacional de análisis no señala en qué momento exacto se debe realizar la compensación y la respectiva comunicación a la Oficina Permanente creada por el artículo 8 del mismo instrumento.

Por otra parte, es preciso señalar que, si bien se han detallado razones de interés público para la realización de un proyecto que procura solucionar a largo plazo el faltante de agua en la provincia de Guanacaste, no se ha constatado que, a la fecha, haya existido propiamente una declaratoria formal de los motivos urgentes de interés nacional para la desafectación cuestionada de RBLB como parte del Parque Nacional Palo Verde. Cabe recordar lo informado por la Procuraduría General de la República (PGR) en este particular, que apuntó en lo conducente lo siguiente:

“En ese supuesto la norma podría resultar contraria a la Convención Ramsar, porque si bien es cierto, ésta no obliga a los Estados a comunicar de previo la decisión de modificar el área de los sitios de importancia internacional, su artículo 4° sujeta esa posibilidad a la existencia de un motivo de urgente necesidad nacional, el cual no estaría debidamente justificado en este caso particular”. (Lo resaltado no corresponde al original).

De lo cual es preciso concluir que, si bien no existe un plazo para la notificación a la oficina competente Ramsar, sí existe la obligación del Estado costarricense de justificar la decisión en “un motivo de urgente necesidad nacional”; todo lo cual deberá ser calibrado por el Estado costarricense para no incurrir en responsabilidad internacional por el incumplimiento de las obligaciones soberanamente admitidas.

Sobre el dimensionamiento de los efectos de la legislación cuestionada En relación con los efectos de la legislación impugnada se hace necesario transcribir en lo conducente lo manifestado por PGR en el informe de esta acción de inconstitucionalidad:

“La Ley 9610 presenta ciertas particularidades con respecto a otras normas legales que pretenden disminuir la medida de áreas silvestre protegidas, pues, en este caso, la decisión de desafectar parte de la RBLB no está motivada en la pérdida de valor ambiental o de la necesidad de proteger la zona, sino, exclusivamente, en la necesidad de desarrollar una obra de infraestructura como parte de la ejecución del proyecto PAACUME. Es decir, la desafectación autorizada interesa únicamente para el desarrollo de dicho proyecto.

Con base en lo anterior, la Procuraduría estima que, aparte de las observaciones apuntadas en el segmento anterior, un defecto de la Ley que podría causar su inconstitucionalidad, es que no se contempló ninguna disposición que dimensionara los efectos de la desafectación efectuada hasta el momento en el que el proyecto se ejecute, pues, la decisión de desafectar tiene sentido y justificación únicamente si dicho proyecto se lleva a cabo. Si por alguna razón el proyecto no es desarrollado, la desafectación practicada no tendría ningún sentido, y, por tanto, ésta no tendría justificación alguna .

La justificación de la desafectación depende de la eventual ejecución del proyecto, que podría verse impedida por varias razones. Por ejemplo, porque –como argumentan los accionantes- no se otorgue la viabilidad ambiental al proyecto, porque no exista financiamiento necesario, porque se pierda interés en desarrollarlo o porque, por algún otro motivo sea imposible ejecutarlo.

Además, debe tenerse en cuenta que la garantía de la no afectación a la RBLB yace en la medida de compensación propuesta. Pero, lo cierto es que, con la ley impugnada se desafectó una parte de la Reserva y, pese a que se incluyó dentro de sus límites el área de compensación, esos terrenos son propiedades privadas que no han sido expropiadas. Con base en lo dispuesto en el artículo 37 de la Ley Orgánica del Ambiente, hasta que esas propiedades no sean expropiadas o compradas, no pueden pasar a formar parte del área silvestre protegida, y, por tanto, la compensación propuesta no se ha materializado. En otras palabras, con la emisión de la Ley 9610, el área de la RBLB se disminuyó y la afectación generada por esa disminución no ha sido compensada., en contravención con lo dispuesto por el principio precautorio y preventivo.

Si por alguna razón el proyecto no es desarrollado y tampoco se ejecutan las expropiaciones necesarias para efectuar la compensación propuesta, la Ley 9610 habría desafectado la RBLB en vano, sin existir una justificación válida y sin haber compensado y mitigado los efectos generados por esa disminución. Ello constituiría una violación al principio de irreductibilidad de las áreas silvestres protegidas, de no regresión, precautorio y preventivo, e, incluso, una violación a la Convención Ramsar al no existir un motivo de urgente necesidad para justificar la disminución del área de uno de los sitios de importancia internacional.

Por lo tanto, sin perjuicio de lo que se constate en cuanto a la suficiencia de los estudios y criterios técnicos antes señalados, la Procuraduría estima que, por lo recién indicado, la Ley 9610 podría resultar inconstitucional, a menos que se interprete que la desafectación que autoriza surtirá efectos hasta el momento en que el proyecto se ejecute y se expropien los terrenos necesarios para que opere la compensación propuesta”. (Lo resaltado no corresponde al original).

Dichas manifestaciones son sumamente relevantes y ponen en evidencia que el legislador competente no introdujo ningún dimensionamiento respecto de los efectos de la legislación examinada en esta acción de inconstitucionalidad.

Asimismo, a la luz de las manifestaciones de la PGR, se hace preciso señalar que si bien se coincidió con el voto de mayoría en el sentido de que no había legitimación para conocer de una eventual infracción al derecho a la propiedad privada, consagrado en el artículo 45 de la Constitución Política, es lo cierto que se advierte que la eficacia de la compensación propuesta está supeditada a la expropiación de los terrenos que se contemplaron para esos efectos y la correspondiente indemnización hacia los accionantes. Es decir, la materialización de la compensación está condicionada a que, de manera efectiva, se expropien los terrenos objeto del estudio de compensación. En este momento, mientras no se haya perfeccionado la expropiación, los terrenos no están sometidos a un régimen de protección ambiental (una especie de medida cautelar) y tampoco se ha consolidado la compensación ofrecida como parámetro de legitimidad de la norma de desafectación.

La falta de un dimensionamiento por parte del propio legislador hace descansar la legitimidad de esta compensación en una expropiación que no se ha concretado y que compromete la constitucionalidad de la normativa de análisis. Incluso, pone de manifiesto que ya se realizó el cambio de coordenadas desafectando RBLB, pero no se introdujo una condición resolutoria y unas previsiones sobre las consecuencias de que no se lleve a cabo el proyecto. Es decir, surge la interrogante sobre qué sucede con la desafectación de esta importante reserva biológica en el supuesto de que el proyecto de infraestructura no se logre ejecutar.

Con todo respeto, considero que sobre el particular no es suficiente la solución ofrecida por la mayoría de esta Sala en el sentido de que se trata de una ley condicionada, pues lo cierto es que ya se realizó el cambio de coordenadas correspondiente, sin ofrecerse una claridad sobre los efectos de que no se ejecute el proyecto de infraestructura que se pretende llevar a cabo.

Anamari Garro V.

CO12/20 ... Ver más Res. Nº 2020-0013836 SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA. San José, a las quince horas treinta minutos del veintidós de julio de dos mil veinte.

Acción de inconstitucionalidad interpuesta por MARÍA DEL MILAGRO GAMBOA MIRANDA , mayor, soltera, empresaria, vecina de San José, con cédula de identidad 1-1433-0357, y GARY DOUGLAS STEWART POSTEL , mayor, casado, empresario, vecino de Bagaces, con cédula de identidad 1-0466-0672; contra la ley n.º 9610 de 17 de octubre de 2018, denominada “Modificación de límites de la Reserva Bioló gica Lomas de Barbudal para el desarrollo del Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras”. Resultando: 1.- Por escrito recibido en la Sala Constitucional a las 12:32 horas de 9 de enero de 2019, los accionantes interponen acción de inconstitucionalidad contra la ley n.º 9610 del 17 de octubre de 2018, “Modificación de límites de la Reserva Bioló gica Lomas de Barbudal para el desarrollo del Proyecto de Abastecimiento de Agua para l a Cuenca Media del Río Tempisque y Comunidades Costeras ”, en defensa de un interés que atañ e a la colectividad en su conjunto: el derecho a un ambiente sano y ecológicamente equilibrado . Manifiestan que, por lo anterior, no se requiere lesión individual y directa. Estiman lesionados los artí culos 7, 11, 45, 50 y 176 de la Constitución Política y los principios constitucionales de no regresividad en materia ambiental, in dubio pro natura, razonabilidad y proporcionalidad, e conomía y eficiencia, equilibrio pr esupuestario y seguridad jurídica. Afirman que se violentó el procedimiento establecido en el numeral 208 bis del Reglamento de la Asamblea Legislativa. Indican que la ley impugnada tiene por objeto desafectar 113 hectáreas de la reserva biológica Lomas de Barbudal (RBLB), que tiene un nivel de protección absoluta similar al de un parque nacional, y cambiar su uso para proceder a inundar tal terreno y ahí construir el e mbalse Río Piedras, lo que llevaría agua a la cuenca m edia del río Tempisque y las comunidades costeras. Ese proyecto, co nocido como PAACUME, contempla un embalse con un espejo de agua de 850 hectáreas, así como ampliació n y mejoras al Canal Oeste y la construcción de 300 kilómetros de canales para conducir y distribuir el agua en los cantones de Carrillo, Santa Cruz y Nicoya. Con la l ey impugnada se pretende, además, compensar el área de la RBLB que se reducirí a con otros terrenos privados adyacentes a la reserva biológica pertenecientes a las sociedades ASETREK Tres Azul S.A., Hacienda Ciruelas SP S.A. y 3-101-734726 S.A. (conocida co mo Brindis de Amor o Brindis de Amor en Liberia). Refieren que, en cumplimiento de la Convención Relativa a los Humedales de Importancia Internacional Especialmente como Hábitat de Aves Acuá ticas (Convención RAMSAR), el Estado costarricense incluyó el p arque n acional Palo Verde y el refugio de vida silvestre Caño Negro en la lista de humedales de importancia internacional. Aseveran que ese parque forma parte del Área de Conservación de Tempisque y esta área incluye el refugio de vida s ilvestre Caballero, el p arque nacional Barra Hond a y la reserva biológica Lomas de Barbudal (RBLB). Añaden que, en el sitio oficial de RAMSAR en internet, en la sección denominada “Servicio de informac ión sobre sitios RAMSAR”, puede obs ervarse la ficha técnica para ampliación del sitio “ RAMSAR Palo Verde, Costa Rica” , en el que claramente se menciona a la RBLB como parte de ese humedal internacional. Agregan que dado que la RBLB forma parte del humedal de Palo Verde, el Consejo Regional del Área de Conservación Arenal Tempisque a dvirtió a la Asamblea Legislativa, en su momento, que era necesario que se comunicara a la Convención Relativa a los Humedales de Importancia Internacional especialmente como Hábitat de Aves Acuá ticas la intención de realizar este proyecto y activar cualquier otro procedimiento para cumplir con los compromisos del país (ver oficio SINAC-CORACAT-049-2018); sin embargo, no se notificó a RAMSAR sobre la desafectación del área de la RBLB ni el cambio en los límites de esa reserva biológica, lo que supone una omisión que infringe los compromisos internacionales de nuestro paí s y, por ende, una violación al artículo 7 de la Constitución Polí tica. Mencionan que el numeral 4 inciso 2) del Convenio de RAMSAR establece, que c uando una Parte Contratante, por motivos urgentes de interés nacional, retire de la lista o reduzca los límites de un humedal incluido en ella, deberá compensar, en la medida de lo posible, la pérdida de recursos de humed ales y, en particular, crear nuevas reservas naturales para las aves acuá ticas y la protecció n de una porción adecuada de su hábitat original, en la misma regió n o en otro lugar. Manifiestan que la modificación de los límites de la RBLB no ha sido declarada de urgente interé s nacional. Alegan que en ese mismo oficio (n.º SINAC-CORACAT-049-2018) se consignó qu e era necesario analizar si el proyecto PAACUME podía tener algún impacto indirecto en el sitio patrimonio mundial Área de Conservación Guanacaste y va lorar la activación de los mecanismos pertinente para comunicar al Centro de Patrimonio Mundial esta iniciativa; sin embargo, eso no se hizo. Reclaman que, en consecuencia, también se violentó la Convención de Patrimonio Mundial de la UNESCO. Afirman que, de acuerdo con diversos pronunciamientos de la Sala Constitucional, el ordinal 50 constitucional introduj o la ciencia y la técnica en las decisiones ambientales, sean estas legislativas o administrativas, de tal manera que las actuaciones estatales en materia ambiental deben fundarse y no p ueden contradecir las reglas unívocas de la ciencia y la técnica en aras de lograr el goce pleno y universal a un ambiente sano y ecológicamente equilibrado , amén de un mayor bienestar para todos los habitantes del país ( a esto se le ha denominado el principio de objetivación de la tutela ambiental). Acusan que la Ley n.º 96 10 violenta el citado artículo 50 constitucional, ya que no incorpora un estudio serio, integral y objetivo, sobre las consecuencias de la desafectación de 113 hectá reas de la RBLB y la sustitución o compensación con unas 500 hectá reas de propiedades privadas que se pretenden incorporar a la reserva biológica. Remiten al informe del Dr. Jorge Arturo Lobo Segura –comisionado por la Escuela de Biologí a de la Universidad de Costa Rica para responder a un requerimiento de información de la Secretarí a Técnica N acional Ambiental (SETENA) atinente al proyecto PAACUME-, en donde con respecto al estudio de la Organización de Estudios Tropicales (OET) -mediante el cual pretenden justificar la referida desafectación y compensación- se conclu ye que es “insufici ente para definir el cambio de límites de Lomas de Barbudal, y no demuestra que este cambio será plenamente compensado por áreas adicionales en otros sectores de la Reserva. La finca ASETREK, es tudiada con más detalle por los consultores, al final se reconoce como insuficiente para justificar el canje de tierra, y se acude precipitadamente a otras fincas cercanas para balancear la compensación, a mi parecer un ejercicio poco serio porque no está debidamente fundamentado”. En el citado informe s e dice también que “e l desconocimiento de los impactos ambientales del embalse Río Piedras sobre la Reserva Biológica y sobre todos los ecosistemas de humedales del Bajo Te mpisque debe ser conocido antes de aceptar la inundación de un sector de la Re serva de Lomas de Barbudal y de en general de los ecosistemas afectados por el futuro embalse de PAACUME ”. Alegan que tal violación al artículo 50 de la Constitución se complemen ta con la lesión a los principios de no regresividad en materia ambiental y de in dubio pro natura. Insisten que el estudio realizada por la OET no es completo, objetivo, científico, ni técnico, ya que adolece de muchas omisiones y debilidades. Reiteran que tal estudio se centra prácticamen te en una porción de una de las tres propiedades privadas con las que se pretende n compensar las 113 hectáreas desafectadas con la ley ; empero, omite incorporar estudios sobre las condiciones biológicas de las otras dos propiedades, por lo que no se puede determinar de manera científica , que se trate de propiedades que efectivamente cuenten con características medioambientales que reemplacen las funciones eco sistémicas del área por desafectar. A ñaden que tampoco se analizó la afectación que podría ocasionarle al parque nacional de Palo Verde , que e s un humedal con protección internacional brindada por la Convención de RAMSAR, del cual forma parte la RBLB. Acusan que se promulgó la ley impugnada, pero aú n no se ha aprobado el Estudio de Impacto Ambiental para realizar el proyecto PAACUME, pese que tal proyecto implica construi r un embalse con un espejo de agua de 850 hectáreas en una zona de bosque seco, lo que en definitiva afectaría el Río Piedras y el humedal de categoría internacional de Palo Verde. Alega n que, en consecuencia, en la tramitación del proyecto de ley que dio origen a la normativa impugnada se procedió a “poner la carreta delante de los bueyes ”. Aducen que la ley n.º 9610 violenta el artículo 45 de la Constitució n Política, ya que se priva de propiedad privada a tres personas jurídicas para incorporarle a la RBLB casi 500 hectáreas de propiedades privadas como compensación de una desafectación de 113 hectáreas pertenecientes al Estado y que son parte de la RBLB. Sostienen que tal privación de la propiedad privada se hace sin que haya u n interés pú blico que hubiere sido legalmente comprobado y sin indemnización previa. Expresan que el informe n.º AL-DESTCJU-068-2018 del Departamento de Servicios Técnicos de la Asamblea Legislativa señala que el proyecto que finalmente derivó en la ley n. º 9610 modificó los límites originales de la reserva biológica Lomas de Barbudal, subsumiendo en sus límites propiedad privada; además, que al “modificarse los límites originales de la Reserva Biológica Lomas Barb udal se está frente a la intervención de la propiedad privada, siendo omiso el proyecto en indicar que tales propiedades serán adquiridas por expropiació n, quedando los fundos privados en sus nuevos límites bajo limitaciones ambientales ”. Agregan que es claro que el párrafo segundo del artículo 45 de la Constitución Política establece que, por motivos de necesidad pública, la Asamblea Legislativa podrá imponer a la propiedad limitaciones de interés social; sin embargo, dichas limitaciones de interés social demanda n el cumplimiento de varios requisitos para materializarse. En primer lugar, la aprobación de la ley que impone tales limitaciones requiere de 38 votos; en cuyo caso, si bien es cierto la ley impugnada se aprobó por má s de 38 votos, lo cierto es que buena parte del procedimiento parlamentario se realizó mediante un procedimiento abreviado basado en el artículo 208 bis del Reglamento de la Asamblea Legislativa, lo que implica la inconstitucionalidad de la ley por violació n al procedimiento parlamentario, ya que ese procedimiento abreviado e stá ved ado para proyectos que requieren para su aprobación el voto de una mayoría calificada de diputados. Asimismo, el artículo 45 constitucional estatuye que podrá expropiarse o afectarse la propiedad privada si hubiera indemnización previa. Ese requisito tamp oco se ha cumplido, ya que en ningún momento se han expropiado las propiedades privadas mencionadas. Tampoco se elaboró o se ha elaborado un avalúo de las propiedades privadas afectadas, ni había una partida presupuestaria antes de aprobarse el proyecto de ley para cancelar la indemnizació n correspondiente. Acusan que, a partir de la entrada en vigencia de esta ley impugnada, la cual involucra propiedades privadas pertenecientes a tres personas jurídicas (ASETREK, Hacienda Ciruelas S.P. S.A. y Brindis de Amor), estas quedan afectadas, lo cual claramente violenta el artículo 45 de la Constitución Política, ya que esa afectació n se hace sin previa indemnización y, además, la forma en que se decide expropiar la p ropiedad de Brindis De Amor para incorporarla a la RBLB, deja por fuera y enclavada dentro de la reserva una propiedad de aproximadamente 14 hectáreas perteneciente a la sociedad Inversiones y Desarrollos Costa Rica Pacifico del Mar CMP S.A., pero que forma parte de todo el proyecto de Brindis de Amor (pr opiedad que queda enclavada dentro de los nuevos límites de la RBLB, sin acceso a calle pú blica). Reiteran que la ley que se está impugnando mediante esta acción de inconstit ucionalidad fue tramitada en una buena parte mediante un procedimiento abreviado basado en el numeral 208 bis del Reglamento de la Asamblea Legislativa. Acusan que con esto se infringieron las limitaciones establecidas en esa norma, que establece que la Asamblea Legislativa podrá estable cer procedimientos especiales para tramitar las reformas a su reglamento y proyectos de ley cuya aprobación requiera mayoría absoluta; en cuyo caso, el proyecto de ley de marras, que posteriormente se convirtió en la Ley n.º 9610, requirió de mayorí a calificada para su votació n, ya que claramente afectaba propiedades privadas al incorporarlas dentro de la RBLB como compensació n del área que se desafectaría. Exponen que, sobre este tema, el Departamento de Servicios Té cnicos, en el citado informe AL-DESTCJU-068-2018, indicó: “En virtud de lo anterior, se aprecia un vicio en la tramitación del Proyecto de Ley por medio de la Comisión Especial creada por moción de orden y regulado bajo el artículo 208 bis, el que preceptúa que sólo se pueden tramitar proyectos cuya aprobació n requiera mayoría absoluta, y para el caso concreto el Proyecto de Ley requiere de una votación de los dos tercios de los diputados del Plenario Legislativo…” . Acotan que ese vicio en el procedimiento, señalado por el Departamento de Servic ios Técnicos, es claro y evidente. Destacan una nota que el Instituto Geográ fico Nacional (IGN) envió a la Asamblea Legislativa (oficio DIG-0388-2018) en respuesta a la consulta que se le hizo mediante oficio AL-DSDI-OFI-0313-2018, de la que se deriva una violació n al principio de seguridad jurídica; por cuanto se constata la existencia de inconsistencias y errores en las coordenadas incluidas en la ley finalmente aprobada. Argumentan que con la aprobación de la ley n.º 9610 se han co nfigurado violaciones al principio de legalidad (ordinal 11 de la Constitución Polí tica). Añaden que se ha infringido la Ley Orgánica del Ambiente (ley n.º 7554), en sus artí culos 32, 34, 36, 37 y 38, pues en el proceso para modificar los lí mites de la RBLB para desafectar 113 hectáreas e incluir aproximadamente 500 de terrenos privados dentro de l os nuevos límites de la reserva biológica, se irrespetaron re querimientos contemplados en esa normativa; por ejemplo, no se desarrollaron estudios p reliminares fisiogeográficos de diversidad biológica de todas las propiedades pri vadas que se le incorporan a la RBLB; tampoco se hicieron estudios socioeconó micos que justificasen, por un lado, la desafectació n y, por otro, el aumento de la RBLB con casi 500 he ctáreas de terrenos privados; nu nca se hizo un estudio de factibilidad técnica y tenencia de la tierra de todos los potenciales terrenos que podrían haberse considerado para compensar las 113 hectáreas que se desafectan de la RBLB; tampoco estaba el financiamiento mí nimo para adquirir el área (ni siquiera existe un avalúo sobre las propiedades a expropiar) , protegerla y manejarla. Exponen que los terrenos privados incorporados a la RBLB no se indemnizaron de previo. Arguyen que no se efectuaron estudios té cnicos sobre dos de las tres propiedades que finalmente se incorporaron a la RBLB, lo que vul nera el artí culo 50 de la Constitución Política y los principios de no regresividad en materia ambiental e in dubio pro natura. Consideran que también se ha infringido el numeral 58 de la Ley de la Biodiversidad (ley n.º 7788), ya que no hubo informe técnico con las recomendaciones y justificaciones para incluir dentro de la reserva biológica a dos de las tres propiedades que finalmente quedaron dentro de los nuevos lí mites de la RBLB. Explican que se han infringido los ordinales 71 y 72 del Reglamento a la Ley de Bi odiversidad, dado que el informe de la OET no consigna que se hubiesen hecho las consultas obligatorias a las comunidades que podrían ser perjudicadas por la desafectació n de 113 hectáreas de la reserva biológica y la creación de un gran embalse con un esp ejo de agua de aproximadamente 850 hectáreas. Menciona que no se hizo un aná lisis de la tenencia de la tierra alrededor de la RBLB para determinar cuá l área era la idó nea para compensar el área desafectada de esa reserva biológica, sino que fue el SENARA e l que determinó con qué terrenos compensar. Refieren que lo anterior no fue producto de un estudio pormenorizado de la tenencia de la tierra. Manifiestan que se incumplió el requisito de verificar la existencia de recursos financieros suficientes para adquirir los terrenos del área propuesta. Añaden que, como puede observarse de la revisión del informe té cnico de la OET, ese informe no estuvo coordinado por la instancia respectiva del SINAC, en clara violación a lo regulado en el artí culo 71 del Reglamento a la Ley de Biodiversidad. Plantean que se violentó adicionalmente la Ley de Creación del Servicio de Parques Nacionales (ley n.º 6084), cuyo numeral 8 deja claro el tipo de limitaciones a la propiedad que experimentan aquellas propiedades que son declaradas reserva biológica. Argumenta que en este caso no se hicieron estudios técnicos sobre dos de las tres propiedades que se incluyeron en la reserva biológica y, además, del área de expropiació n se dejó por fuera un fundo enclavado dentro de la reserva biológica. Relatan que el ordinal 36 de la Ley del Ambiente establece que para crear nuevas áreas silvestres protegi das propiedad del Estado, cualquiera que sea la categoría de manejo que é l establezca, deberá cumplirse previamente, entre otros requisitos, con el financiamiento mí nimo para adquirir el área, protegerla y manejarla. Sostienen que es a condición se incumplió en el caso de la ley n.º 9610. Indican que el presupuesto ordinario del año 2018, en ejecució n para cuando se aprobó la ley n.º 9610, carecí a de una partida presupuestaria para pagar las expropiaciones de las propiedades privadas incorporadas a la RBLB. Agregan que ese incumplimiento violenta el principio de equilibrio presupuestario (artículo 176 de la Constitución Polí tica), ya que mediante esa ley se asumen nuevas obligaciones de pago sin que estuvieran previstas en la ley de presupuesto, lo que es requisito para ampliar á reas protegidas. Expresan que la ley n.º 9610 desafecta 113 hectáreas de la RBLB para inundarlas. Acotan que, para poder hacer esa desafectación, se compensa con más de 500 hectáreas de terrenos privados; sin embargo, surge el cuestionamiento de por qué se escogieron esas y no otras propiedades colindantes con la RBLB, incluso terrenos de menor valor o terrenos que ya pertenecen al Estado colindantes con la reserva biológica Lomas de Barbudal y que tienen una categoría de protección muy inferior a la de una reserva bioló gica (más de 300 hectá reas). Alegan que, en consecuencia, se está ante una violación del principio constitucional de razonabilidad y proporcionalidad, ya que no se justifica una erogación de dinero de miles de millones de colones para compensar 113 hectáreas de la RBLB que se desafectan mediante la ley impugnada, cuando existen opciones que van desde cero costos para el Estado a un cost e mucho más reducido. Aducen que el principio de economía y eficiencia guarda una estrecha relació n, en el contexto de esta ley que se impugna, con el principio constitucional de razonabilidad y proporcion alidad previamente mencionados. Acusan que se está ante una violación al principio constitucional de economía y eficiencia, cuando la ley obliga a expr opiar más de 500 hectáreas par a compensar 113 que se están desa fectando, cuando perfectamente podrían incorporársele a la RBLB más d e 300 hectáreas del Estado que tienen una categoría de manejo y protección inferior a la de un parque nacional o reserva biológica, sin costo alguno para el erario . Sostienen que tampoco se hizo el trabajo para revisar todas las propiedades adyacentes a la RBLB con el fin de encontrar la manera de compensar con el menor costo posible , ni un análisis d e costo-beneficio con todas las propiedades adyacentes a la RBLB. En virtud de lo expuesto, solicitan que se declare inconstitucional la norma impugnada. 2.- Mediante providencia de las 15:16 horas de 10 de enero de 2019, la Presidencia de la Sala previno a los accionantes aclarar: “a) si tienen algú n tipo de relación jurídica o de interé s económico respecto de las sociedades ASETREK Tres Azul S.A., Hacienda Ciruelas SP S.A., 3-101-734726 S.A. (conocida como Brindis de Amor o Brindis de Amor en Liberia), Inversiones y Desarrollos Costa Rica Pacífico del Mar CMP S .A. u otra persona j urídica eventualmente afectada por la normativa impugnada, así como la prueba documental que acredite su dicho; y b) en cuanto a la acusada infracción a los derechos e intereses de tales sociedades, incluidas las alegadas violaciones a los artículos 11 y 4 5 de la Constitución Política y 208 bis del Reglamento de la Asamblea Legislativa, si existe un asunto base en el que se haya invocado expresamente –con anterioridad a la interposición de la acción- la inconstitucionalidad de la normativa impugnada y, de ser así, deberá n aclarar en qué fase o estado procesal se encuentra este asunto base y aportar copia certificada del escrito en que se invocó tal inconstitucionalidad”. 3 .- Por escrito recibido a las 10:19 horas de 16 de enero de 2019, se apersonan los accionantes María del Milagro Gamboa Miranda y Gary Douglas Stewart Postel. Indican que la primera es representante legal de 3-101-734726 S.A. y el segundo de Hacienda Ciruelas SP S.A. Señalan que ambos no tienen participación accionaria ni representación legal de las sociedades Asetrek Tres Azul S.A. e Inversiones y Desarrollos Costa Pacífico del Mar CPM S.A. Mencionan que recurren en su condición personal y no como representantes de tales sociedades. Acotan que no hay ningún asunto previo en el que se esté disputando la constitucionalidad de la ley aprobada. 4.- Mediante resolución de la Presidencia de las 11:05 horas de 23 de enero de 2019, se dio curso a la acción de inconstitucionalidad promovida por Marí a Del Milagro Gamboa Miranda y Gary Douglas Stewart Postel , por su orden representantes legal es de 3-101-734726 S.A. y HACIENDA CIRUELAS SP S.A., en contra de la ley n.º 9610 de 17 de octubre de 2018 denominada “ Modificación de límites de la Reserva Biológica Lomas de Barbudal para el desarrollo del Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras ”, respecto de lo cual se confirió audiencia al Procurador General de la República, al Presidente de la Asamblea Legislativa, al Ministro de Ambiente y Energí a y al Gerente General del Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento. Asimismo, se dispuso que la acción se admitía por reunir los requisitos contemplados en los numerales del 73 al 79 de la Jurisdicción Constitucional y que la legitimación de los accionantes provenía del párrafo 2 del ordinal 75 de e se mismo cuerpo normativo, en tanto se acciona en defensa de intereses difusos en resguardo del derecho a un ambiente sano y ecológicamente equilibrado. 5.- Los edictos indicados en el párrafo segundo del artículo 81 de la Ley de la Jurisdicción Constitucional fueron publicados en las ediciones del Boletín Judicial n.os 35, 36 y 37 de los días 19, 20 y 21 de febrero de 2019, respectivamente. 6.- Por escrito incorporado al expediente digital a las 11:07 horas de 15 de febrero de 2019, se apersona Julio Jurado Ferná ndez, en su condición de Procurador General de la República. Indica que, con el fin de esquematizar y facilitar el análisis de la acción, agrupará los puntos por exp oner según su contenido, de la siguiente manera: “1) Alegatos referidos a la violación al derecho a un ambiente sano y ecológicamente equilibrado. a) Violación al artículo 50 de la Constitución Polí tica. Haciendo referencia a la jurisprudencia constitucional sobre el derecho a un ambiente sano y ecológicamente equilibrado, los accionantes indican que la Ley 9610 violenta el principio de objetivació n de la tutela ambiental, porque fue emitida sin contar con un estudio serio, integral y objetivo sobre las consecuencias de desafectar 113 hectáreas de l a RBLB y sobre la sustitución o compensación con 500 hectáreas de propiedades privadas. Con base en un estudio de la Escuela de Biología de la Universidad de Costa Rica que aportan como prueba, indican que el estudio de la Organizació n para Estudios Tropicales (OET ) que fue utilizado para la aprobación de la Ley ("Establecimiento de la línea de base de biodiversidad para la Reserva Bioló gica Lomas de Barbudal (RBLB) y finca adyacente") es insuficiente para definir el cambio de lí mites, que éste no demuestra que el á rea desafectada será compensada plenamente, que incluye pre cipitadamente otras fincas cercanas sin un adecuado fundamento y no toma en cuenta los impactos ambientales del embalse río Piedras sobre la Reserva y sob re t odos los ecosistemas de humedales del Bajo Tempisque. b) Violación al artí culo 7º de la Constitución Política. Los accionantes estiman que la Ley 9610 violenta el artículo 7° de la Constitución, porque es contraria a la Convención Relativa a los Humedales de Importancia Internacional Especialmente como Hábitat de Aves Acuátic as (Convención Ramsar, aprobada mediante Ley No. 7224 de 9 de abril de 1991) y la Convenció n para la Protección del Patrimonio Mundial Cultural y Natural de la Organización de las N aciones Unidas para la Educación, la Ciencia y la Cultura (aprobada mediante Ley No. 5980 de 16 de noviembre de 1976). Indican que esa Reserva está ubicada al norte del Parque Nacional Palo Verde y que en el año 2001 se incluyó dentro del área geográfica d el Sitio Ramsar Palo Verde Verde ( sic). Por esa razón, con base en varios oficios del Área de Conserva ción Arenal Tempisque, estiman que el proyecto debió ser comunicado a la Convención, pues de lo contrario, el país está desatendiendo los compromisos adquiridos al suscribirla . Concretamente, estiman quebrantado el artículo 4 inciso 2) de la Convención Ram sar que establece que "cuando una parte contratante, por motivos urgentes de interés nacional retire o reduzca una zona humedal inscrita en la “Lista”, de berá compensar, en la medida de lo posible, cualquier pérdida de recursos en los humedales y, en especial deberá crear nuevas Reservas naturales para las aves acuáticas y para la protecció n, en la misma región o en otro sitio, de una parte adecuada de su h ábitat anterior ”. Indican, además, que la modificació n de los límites de la RBLB no ha sido declarada de urgente interés nacional . Por otra parte, con base en los oficios del Área de Conservació n Tempisque aportados, afirman que el Área de Conservación Guanaca ste es un sitio de patrimonio mundial que se encuentra en constante monitoreo por parte de la UNESCO y que recientemente el Comité de Patrimonio Mundial solicitó al país una evaluación ambiental estraté gica de la zona, que permita prever los posibles impactos directos o indirectos de los proyectos, aunque éstos se encuentren fuera de los lí mites del sitio declarado como patrimonio. Indican que si bien la RBLB no está dentro del área de ese sitio, colinda con el Corredor Biológico Morocochas, que a su vez, colinda con el Parque Nacional Rincón de la Vieja, que sí forma parte del Patrimonio Mundial. Por e sa razón, indican, es necesario analizar si el PAACUME tiene algú n impacto sobre ese sitio. Argumentan que el estudio de la OET que sirve de base a la Ley impugnada no menciona el Humedal Palo Verde ni detalles de cómo compensar el área afectada. Asimismo, indican que ese estudio tampoco menciona la Convención de Patrimonio Mundial de la UNESCO, que da una especial protección al Área de Conservación Guanacast e. c) Violació n al principio de no regresión en materia ambiental. Los accionantes transcriben varios votos de la Sala Constitucional referidos al principio de no regresión en materia ambiental y la aplicación de ese principio al tema de la disminución de medidas de las á reas silvestres protegidas, e indican que al emitirse la Ley impugnada se incumplió con el requisito exigido por la Sala Constitucional de contar con un criterio técnico y científico que justifique la reducción de la medida del área prote gida. Basándose en el criterio de la Escuela de Biología de la Universidad de Costa Rica que aportan y transcriben, afirman que el estudio de la OE T que sirvió de base a la Ley 9610 no es un estudio completo, objetivo, científico y técnico y que adolece de muchas omisiones y debilidades. E mpiezan por decir que el primer defecto del estudio es que fue el Se rvicio Nacional de Aguas Subterráneas, Riego y Avenamiento (SENARA) quien determinó cuál finca debía utilizarse para la compensació n del área a desafectar de la RBLB, sin justificació n técnica alguna . Luego, indican que el estudio de la OET incluye dos fincas má s que finalmente fueron utilizadas para compensar el área desafectada, sin hacerse un estudio de línea base de biología que permita determinar científic amente que se trata de propiedades que efectivamente cuenten con caract erísticas medioambientales que reemplacen las funciones ecosistémicas del área desafectada. Además, reprochan que ese estudio no contempló la posible afectación al Parque Nacional Palo Verde, que es un sitio Ramsar del cual tambié n forma parte la RBLB. Por lo anterior, consideran que el estudio que justifica la desafectación de 113 hectáreas de la RBLB es incompleto y no determina técnica ni científicamente cuál será el impacto sobre el ambiente de esa desafectación y de la inundación de esos terrenos. Y, con ello, a su juicio, se incumplen los requisitos exigidos por la Sala Constitucional para la reducción de límites de áreas silvestres protegidas, como se indicó en el voto No. 13367-20 12 referido al proyecto de ley de reconocimiento de los derechos de los habitantes del caribe sur. En apoyo de lo dicho, transcriben la nota de la Escuela de Biologí a de la Universidad de Costa Rica, suscrita por Jorge Arturo Lobo, en la cual se indica que la propuesta de compensación planteada por la OET es insuficiente en relación con los dañ os ambientales que el embalse de 850 hectáreas generará sobre la integridad ecológica de un área protegida de bosque seco tan importante. En dicha nota se cuestiona la metodología utilizada por la OET y se indica que para determinar el área de terreno que debía ut ilizarse para compensar los terrenos desafectados se asignó un valor numé rico a diferentes variables ecosistémicas del área inundable de la RBLB y de la finca "ASETREK", luego se contabilizaron los puntajes de cada á rea y se obtuvieron los totales. Se explica que en varios aspectos la finca ASETREK tuvo un puntaje menor que el obtenido por el ecosistema de la RBLB, que por ello se calcula el área necesaria de la finca de compensación para nivelar el puntaje, y que, con base en ese cá lculo se llega al resultado final de cantidad de hectáreas necesarias para compensar las 113 hectáreas que se inundarán de la RBLB. Adicionalmente, se cuestiona que al realizarse la contabilizació n de los servicios ecosistémicos no se consideraron los s ervicios de polinización, protección del suelo, protección de acuí feros y control de plagas; se señalan limitaciones del muestreo de campo, pues, por ejemplo, no se llevó a cabo un muestreo de aves en la época de ll egada de especies migratorias; y se indica que existen limitaciones en el sistema de puntuación pues no se valoró adecuadamente la diferencia de pendientes entre ambos sitios ni se cuantificó la importancia de las fuentes de agua. En el Informe transcrito se reprocha el resultado final del estudio de la OET, pues se indica que los autores, al considerar que la finca ASETREK no posee bosques riparios, proponen la incorporació n de otros terrenos que no fueron estudiados y a los que no se les asignó puntaje so bre el valor ecosistémico. También, se cr itica la recomendación final de considerar el embalse Rio Piedras que se desarrollará, como parte de la compensación del área inundada de la RBLB al indicar que puede declararse com o un humedal bajo la categoría de Refugio de Vida Silvestre. Sobre ese ú ltimo punto se indica que “se tratarí a de un intercambio entre dos ecosistemas formalmente diferentes (un ecosistema boscoso por uno de humedal), y además se cuestiona que no se valoraron los impactos ambientales que g enerará el embalse. Con base en lo anterior, los accionantes reiteran que el estudio de la OET no cumple los requisitos exigidos por la Sala Constitucional para desafectar parte de un área silvestre protegida y adicionan c omo falencias que el mismo estudio señala que por la forma y ubicació n de la finca "Brindis de amor" su anexión extendería el extremo norte de la RBLB formando una península boscosa que no contribuiría a la formació n de un bloque compacto y que ello contraviene nociones básicas de diseño de Reservas. También acusan que la Hacienda Ciruelas (mencionada en el estudio como Rancho Wilson) fue incorporada a la RBLB sin ser estudiada , pues en el estudio de la OET se hace referencia a ella de manera tangencial y, ade más, la propuesta formal de su incorporación fue planteada por el SENARA mediante oficio No. SENARA-INDEP-441-2017, después de elaborado el estudio de la OET, según los mapas y el conocimiento del sitio de los funcionarios de SENARA y del Ministerio de Ambiente y Energía. d) Violació n al principio precautorio. Los accionantes estiman que se viola el pri ncipio precautorio, en virtud de que al aprobarse la Ley ya fueron desafectadas 113 hectáreas de la RBLB con el fin de inundarlas y constituir el embalse Río Piedras, sin haberse aprobado el estudio de impacto ambiental por parte de la Secretaría Té cnica Nacional Ambiental (SETENA) del proyecto PAACUME. Por lo tanto, consideran que se modificaron los límites de una Reserva Biológica, que tiene un alto nivel de protecció n, sin que exista certeza de que el proyecto obtendrá la viabilidad ambiental y podrá ser ejecutado. e) Violación al principio de seguridad jurídica. El oficio del Instituto Geográfico Nacional No. DIG-388-2018 que aportan los accionantes, hace r eferencia al contenido del proyecto de ley No. 20645 y señala varias imprecisiones en cuanto a las coordenadas y la delimitación geográfica dispuesta en el artí culo 1° del proyecto. Con base en ello, los accionantes consideran que se violenta el princip io de seguridad jurídica porque no es posible saber a ciencia cierta cuá ntas hectáreas deben expropiarse y cuáles son los límites definitivos de la RBLB . f) Violación al principio de legalidad. Otro de los argumentos de los accionantes es que la Ley es contraria a varias disposiciones de la Ley Orgánica del Ambiente, de la Ley de Biodiversidad y su Reglamento y de la Ley de Creación del Servicio de Parques Nacionales, que fijan los requisitos para crear o modificar las áreas silvestres protegidas. Por esa r azón, opinan que se violenta el principio de legalidad dispuesto en el artículo 11 de la Constitución Polí tica. 2) Alegatos relacionados con la infracció n al principio de equilibrio presupuestario. Los accionantes exponen que del artí culo 176 de la Constitución Política se deriva el princ ipio de equilibrio presupuestario o principio de contenido necesario del presupuesto, y que la Ley 9610 es contraria a ese principio porque, desatendiendo el requisito que dispone el artí culo 36 de la Ley Orgánica del Ambiente de contar con el financiamient o mínimo para la creación de las áreas silvestres protegidas, incluy e propiedades privadas dentro de la RBLB sin que el presupuesto del año 2018 contemplara alguna partida presupuestaria para pagar las expropiaciones necesarias . En línea con lo anterior, estiman violentado el principio de razonabilidad y proporcionalidad porque, a su juicio, la Ley obliga al Estado a destinar una gran cantidad de recursos para expropiar los terrenos que compensará n el área desafectada de la RBLB, cuando la compensación pod ía realizarse con terrenos propiedad del MINAE o con terrenos menos costosos que los elegidos. Consideran que, en el entorno actual de finanzas públicas deficitarias, no existe justificación para que el Estado destine sumas millonarias a la expropiación de esos terrenos, cuando existían otras opciones más favorables. Por esa misma razón, estiman violentado el principio de economía y eficiencia ya que existía la opción de compensar el á rea desafectada con una propiedad del MINAE, sin costo alguno para el Estado. Cuestionan, ademá s, que no se estudiaron todas las propiedades adyacentes a la Reserva para determinar la manera de compensar el área desafectada al menor costo posible. 3) Alegatos relativos a la transgresión del derecho de propiedad privada. A juicio de los accionantes, la Ley 9610 afecta la propiedad privada de tres personas jurídicas y las somete al á rea de la RBLB, sin que exista un interés público legalmente comprobado y sin indemnización previa. Ello, a su criterio, constituye una violación al a rtículo 45 Constitucional. En estrecha relación con ese ú ltimo argumento, los accionantes indican que al tratarse de una norma que restringe el derecho de propiedad, la Ley fue votada por mayoría calificada, y, por esa razón, no podía tramitarse utilizando el procedimiento que dispone el artículo 208 bis el Reglamento de Orden, Dirección y Disciplina Interior de la Asamblea Legislativa, que está concebido como un procedimiento para la tramitación de proyectos de ley que se aprueben por mayorí a absoluta. Indican que, tal y como lo señaló el Departam ento de Servicios Técnicos de la Asamblea, el proyecto de ley fue tramitado, en parte, a través de ese procedimiento, y que ello constituye una violación a las limitaciones que fija el artí culo 208, el cual, a su juicio, es un parámetro de constitucionalidad de las normas. Por tanto , estiman que la ley es inconstitucional por violación al procedimiento parlamentario” . Al respecto, la Procuradurí a considera que los accionantes se encuentran legitimados para interponer esta acción de conformidad con el párrafo segundo del artí culo 75 de la Ley de la Jurisdicción Constitucional, únicamente en cuanto a los reclamos concernien tes a la violación al derecho fundamental a un ambiente sano y ecológ icamente equilibrado y los referidos a la violación al principio de equilibrio presupuestario. Ac ota que la Sala Constitucional ha reconocido la legitimación por la defensa de intereses difusos en materia ambiental en mú ltiples ocasiones (por ejemplo, en los votos n.os 18360-2017 de la s 10:50 horas de 15 de noviembre de 2017, 9201-2009 de las 9 horas 7 minutos de 12 de junio de 2009 y 2699-2009 de las 15 horas 6 minutos de 2 de marzo de 2011, entre muchos otros) y también en los asuntos en que se defiende el buen manejo de los fondos pú blicos (votos n.os 472-2018 de las 9:15 horas de 17 de enero de 2018, S798-2014 de las 16:33 horas de 30 de abril de 2014 y 14348-2009 de las 15:19 horas de 16 de setiembre de 2009). Menciona que no existe un interés difuso para defender la alegada violac ión al derecho de propiedad privada y, en el sub iudice , no se comprueba la existencia de un asunto previo en el que se invoque la inconstitucionalidad alegada como medio para amparar el derecho o interés reclamado. Estima que l a acción es admisible únic amente en cuanto a los alegatos atinentes a la violació n del derecho a un ambiente sano y ecológicamente equilibrado y al principio del equilibrio presupuestario y, en consecuencia, son inadmisibles los reproches relativos a la violació n al derecho de propie dad privada. En relación con el fondo de la acción manifiesta lo siguiente. 1) Alegatos referidos a la violación al derecho a un ambiente sano y ecoló gicamente equilibrado. A. La reducción de las áreas silvestres protegidas. Arguye que la Sala Constitucion al ha reconocido, en múltiples ocasiones, que la validez de la disminución de la cabida de un á rea silvestre protegida depende de si se ajusta o no a lo dispuesto en el artículo 38 de la Ley Orgá nica del Ambiente. Expone que, en otras palabras, reducir el terreno de un área silvestre protegida no resulta inconstitucional si se res petan dos requisitos esenciales: que la medida se adopte mediante una ley, y que de previo se justifique con estudios té cnicos suficientes. Cita parcialmente el voto n.º 1056-2009 de las 14:59 horas y en igual sentido remite a las sentencias n.os 11155-2007, 14772-2010 y 2375-2017. Refiere que este Tribunal, en el voto n.º 12887-2014 de las 14:30 horas de 8 de agosto de 2014, añadió un tercer requisito: "Un área protegida sol o se puede reducir si se hace mediante ley, si hay estudios técnicos y científic os que descartan el daño ambiental y si se da una compensación del área suprimida con otra de igual tamaño. Así se desprende de lo que esta Sala ha resuelto en anteriores oportun idades en los votos números 2012-13367 y 2009-1056… no cabe duda que tod as aquellas normas en las cuales hay reducción de las áreas protegidas sin el respaldo de estudios técnicos ni compensación alguna, son inconstitucionales”. Sobre el estudio técnico que de be justificar la medida, transcribe parcialmente la sentencia n.º 13367-2012 de las 11:33 horas de 21 de setiembre de 2012:“En este sentido, la exigencia de estudios técnicos que justifiquen la aproba ción de los proyectos de ley tendientes a la reducció n o desafectació n de un área ambientalmente protegida, debe ser satisfecha con anterioridad o durante el desarrollo del procedimiento legislativo. Además, el requerimiento de estudios técnicos no es una mera formalidad, sino que se trata de un requisito material, es decir materialmente se tiene que demostrar mediante un análisis cientí fico e individualizado, el grado de impacto de la medida correspondiente en el ambiente, plantear recomendaciones orientad as a menguar el impacto negativo en este y demostrar cómo tal medida implica un desarrollo que satisface las necesidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades". Remite en igual sentido al voto n.º 10158-2 013. Añade que el desarrollo j urisprudencial anterior configura el principio de irreductibilidad de las áreas silvestres protegidas, según el cual este tipo de espacio no puede verse disminuido o modificado si no se cumplen los requisitos fijados. Agrega que lo anterior guarda una rela ción clara con los principios de no regresión en materia ambiental, objetivació n de la tutela ambiental, preventivo y precautorio. En cuanto al principio de no regresión cita parcialmente la sentencia n.º 13367-2012 y res pecto del pr incipio de objetivación de la tutela ambiental transcribe de forma parcial el voto n.º 2063-2007 de las 14:40 horas de 14 de febrero de 2007. Explica que el principio preventivo, contemplado en el numeral 11 de la Ley de Biodiversidad (n.º 7788 de 30 de abril de 1998), exige la adop ción por parte de los poderes públicos de aquellas medidas destinadas a evitar, mitigar o corregir los efectos adversos que generan las actividades o acciones humanas al ambiente. Aduce que el principio precautorio encuent ra sustento en el artículo 15 de l a Declaración de Río sobre Medio Ambiente y Desarrollo y en el artíc ulo 11 de la Ley de Biodiversidad, e implica que cuando exista peligro de producirse un daño al ambiente, aunque no exist a certeza científica de su concre ción, deben paralizarse las activi dades o proyectos o improbar o suspender el otorgamiento de las autorizaciones que puedan generar esas afectaciones. Menciona, en sustento de lo anterior, el voto n.º 6322-2003 de las 14:14 horas de 3 de julio de 2003. B. Sobre el fundamento técnico de la ley impugnada. Asevera que en el expedien te legislativo n.º 2046, do nde se tramitó la ley impugnada, consta el estudio “Establecimiento de la Línea base de Biodiversidad para la Reserva Biológica Lomas de Barbudal y Finca Adyacente ” de la Organización para Estudios Tropicales (folios 268-504), que tuvo como objetivo determinar las características bioló gicas y geofísicas del área de la RBLB que sería sustituida por el área del embalse y ev aluar los componentes de biodiversidad en una finca adyacente propiedad de ASETREK Tres Azul S.A., con el fin d e valorar su potencial para compensar el área afectada de la RBLB; es decir, tal estudio estuvo destinado a determinar la posibilidad de compensar el área de la RBLB que sería desafectada. Relata que en ese estudio se determinó que, para compensar el área, dentro de la Reserva debí an incluirse 444 hectáreas de la finca ASETREK y 86 hectáreas de la finca Brindis de Amor, amén de utilizar el embalse Río Piedras como parte de la compensació n. Sostiene que, con base en el criterio del Comité Técnico del Área de Conservació n Arenal Tempisque (minuta n.º 5 de 30 de junio de 2017, folios 1478-1491 del expediente legislativo), el c onsejo regional de es a área de conservación v aloró el estudio de la OET e indicó: “ ... salvo las consideraciones realizadas en el objeto de conservación denominado bosque ripario; técnicamente se puede afirmar que: a) los objetos de conservación que fundamentan la creación de la Reserva Biológica Lom as Barbudal no están siendo afectados y b) Que el área es compensada por otra de igual tamaño que cumple con los mismos fines y semejantes condiciones ecosisté micas. III- Que se ha verificado que el informe técnico remitido a esta instancia para su consideración ha cumplido con el contenido requerid o por los numerales 71 y 72 del Decreto Ejecutivo 34433-MINAE “Reglamento a la Ley de Biodiversidad"." (Oficio No. SINAC-CORACAT-SE-041 de 7 de julio de 2017, folios 1492-1497)”. Indica qu e, como en el estudio de la OET se constató un faltante del área de bosque ripario para compensar el área afectada d e ese tipo de ecosistema, e l Comité Técnico y el Consejo Regional del Área de Conservación, en los documentos citados, recomend aron: “Identificar un área de bosque ripario que permi ta compensar el faltante en hectáreas para este tipo de ecosistema” . Señala que el Consejo Regional, e n la nota aludida, refirió: “Existen algunos oficios enviados por SENARA, por ejemplo, SENARA-GG-0374-2017, SENARA-GG-0257-2017 y SENARA-INDER-172-2017 que indican que dentro de la propiedad de ASETREK existen 6,14 has (sic ) de b osque ripario. No obstante, este dato no es mencionado en el estudio realizado por la OET, o respaldo por algún estudio al respecto, con las mismas características del estudio inicial. Respecto a la finca Brindis de Amor, también este Consejo estima que lo s estudios no se realizaron con la misma profundidad de aná lisis con respecto al estudio inicial, ni en el tiempo suficiente que sustente té cnicamente la calidad de los componentes abordados desde el inicio de la investigació n. Es necesario que se profundice más los estudios en esta propiedad o cualquier otra que se considere como propuesta de compensación, para que este Consejo pueda emitir un criterio fundamentado”. Acota que el Co nsejo Nacional de Áreas de Conserva ción recomendó la elaboració n de un proyecto de ley con fundamento técnico, que incluyera las recomendaciones dadas por el Comité Té cnico y por el Consejo Regional del Área de Conservación Arenal Tempisque. (Oficio No. SI NAC-CONAC-SA-226 de 14 de agosto de 2017, folios 1476-1478). Manifiesta que, considerando el faltante del área de bosque ripario señ alado por el Comité Técnico y el Consejo Regional, la propuesta final de compensación se definió en el oficio n.º SENARA-INDEP-441-2017 de 17 de julio de 2017 (folios 141-149), en el que se indicó qu e para compensar el área desafectada y cubrir el faltante de bosque ripario se incluirían 444,04 hectáreas de la finca ASETREK Tres Azul S.A., la totalidad de la Finca Brindis de Am or en Liberia S.A. con un área de 86,96 hectáreas, y un á rea de 40 hectáreas de la finca Hacienda Ciruelas SP S.A.. Afirma que el Consejo Regional del Á rea de Conservación Tempisque, después de aprobado en segundo debate el proyecto de ley, indicó que lo que SENARA propuso fue básicamente una compensació n de 5 a 1, o sea, compensar con área 5 veces mayor a la que se desafectaría (oficio n.º SINAC-CORACAT-049-2018 de 9 de setiembre de 2018, folios 2641-2644). Refiere que, puesto que la Procur aduría funge como asesor jurí dico, técnicamente no puede valorar el estudio de la OET ni la forma en que se definió la propuesta final de compensación del á rea desafectada de la RBLB. Menciona que esa valoración debe tomar en cuenta los criterios de las demás instituciones, a las que se les dio audiencia e n esta acció n de inconstitucionalidad. Manifiesta que, si el estudio de la OET y la propuesta final de compensación del área silvestre proteg ida técnicamente resultaren insuficientes, la ley impugnada sería inconstitucional por violación al principio de objetivació n de la tutela ambiental. Asevera que, en la exposición de motivos del proyecto de ley y a lo largo del expediente legislativo, se ha justificado la desafectación de una parte de la RBLB con el argumento de que la compensación propuesta garantiza, que los objetos de conservación que fundamentaron la creación de la RBLB no estarían siendo afectados y que el área desafectada sería compensada por otra de igual tamaño que cumpliere con los mismos fines y semejantes condiciones ecosistémicas. Explica que la garantía de que no se vaya a afectar al área silvestre protegida y que el impacto de la desafectación de una parte de esta sea mitigado, directamente recae en la compensación propuesta. Añade que si se concluye que el estudio de la OET y la propuesta final de compensación son insuficientes y adolecen de falencias técnicas, la ley impugnada violentaría el principio de irreductibilidad de las áreas silvestres protegidas, pues no se estaría garantizando que la variación de los límites aprobada no afecte la integridad de la RBLB y no se estaría mitigando adecuadamente el impacto ambiental generado por la desafectación de una parte de esa reserva biológica. Agrega que en consecuencia se violentarían los principios precautorio y preventivo, amén de que no existiría respaldo técnico de que la medida legislativa adoptada no lesiona el derecho a un ambiente sano y ecológicamente equilibrado. Sostiene que lo anterior también podría resultar contrario a la Convención Ramsar, en cuanto a la obligación que establece el artículo 3° de favorecer la conservación de las zonas húmedas inscritas en la lista de humedales de importancia internacional, de la cual forma parte la RBLB al estar integrado Palo Verde al sitio Ramsar. Asevera que, aun cuando se constate la suficiencia del estudio de la OET y de la propuesta final de compensación, debe advertirse que ese estudio técnico únicamente justificaría la validez de la compensación practicada y, como tal, no es un estudio técnico que justifique directamente la decisión de desafectar una parte de la RBLB. Refiere que, de acuerdo con la jurisprudencia constitucional sobre el tema, el estudio que exige el artículo 38 de la Ley Orgánica del Ambiente para justificar la reducción de un área silvestre protegida debe ser un estudio que determine la necesidad y conveniencia de adoptar ese tipo de medida. Señala que, en este caso, sería aquel estudio que fundamente técnicamente la necesidad de desafectar parte de la RBLB; es decir, uno que determine que la única alternativa para desarrollar el proyecto PAACUME y el embalse Río Piedras, es desafectar parte de la reserva biológica. Acota que el Consejo Regional del Área de Conservación Tempisque, al referirse al estudio de la OET, indicó: “esta instancia considera que aún no se ha demostrado que existan otras alternativas del proyecto PAACUME, sin que necesariamente se tenga que desafectarse un área de la actual RBLB. Si efectivamente estas alternativas no son viables, será necesario valorar la tercera medida que es la compensación" (oficio n.° SINAC-CORACAT-SE-041 de 7 de julio de 2017, folios 1492-1497 del expediente legislativo). Menciona que, el propio consejo, después de aprobado el proyecto de ley en segundo debate, expuso: “es necesario que existan los estudios técnicos ambientales, jurídicos y financieros suficientes que justifiquen la selección adecuada tanto del área a desafectar, como de las áreas que servirán como compensación. Debe verificarse la existencia de estos estudios dentro del expediente de este proyecto de ley, ya que a la fecha este Consejo no cuenta con tal información" (oficio n.° SINAC-CORACAT-049-2018 de 9 de setiembre de 2018, folios 2641-2644). Manifiesta que en el documento " Perfil del Proyecto PAACUME", elaborado por el SENARA (folios 505-621), se parte de que "una de las propiedades dentro del área del embalse pertenece a la Reserva Biológica Lomas Barbudal, con un área aproximada a las 112 ha”; además, se señala que el “ área debe de ser compensada con un área aledaña de similares características ecológicas para lo cual se requiere la elaboración de un estudio de línea base de biodiversidad que demuestre la equivalencia de las áreas de compensación". Agrega que se consigna que tal estudio fue elaborado por la OET (folio 557). Expresa que algunos de los funcionarios que comparecieron a las sesiones de la comisión legislativa que tramitó el proyecto expusieron que, técnicamente, el proyecto PAACUME no podía desarrollarse sin desafectar e inundar parte de la RBLB y en el documento denominado "Consulta Obligatoria a las Comunidades Locales. Propuesta de Compensación para la Reserva Biológica Lomas Barbudal" (folios 622-726), ante una de las preguntas formuladas por uno de los participantes, se contestó que “si no se logran obtener las 113 hectáreas de la RBLB, el proyecto cambia totalmente, ya que sin estas 113 hectáreas de la RBLB las condiciones de la presa, la cantidad de agua a embalsar, el costo del proyecto y el diseño tendría que cambiar totalmente" (folio 661). Aduce que, con base en el criterio de las instituciones a las que se les dio audiencia en esta acción de inconstitucionalidad, debe valorarse si existe sustento técnico suficiente para justificar la necesidad de desafectar parte de la RBLB a los efectos de la ejecución del proyecto PAACUME. Arguye que, si no se constata ese sustento, la ley n.° 9610 debe declararse inconstitucional por violación a los principios de irreductibilidad de las áreas silvestres protegidas, objetivación a la tutela ambiental y de no regresión. Sostiene que, en ese supuesto, la norma podría resultar contraria a la Convención Ramsar, porque si bien esta no obliga a los Estados a comunicar de previo la decisión de modificar el área de los sitios de importancia internacional, su artículo 4° sujeta esa posibilidad a la existencia de un motivo de urgente necesidad nacional, lo que no estaría debidamente justificado en este caso particular. Asevera que también resulta importante que se constate si el texto de la ley impugnada consideró las imprecisiones señaladas por el Instituto Geográfico Nacional (oficios que constan a folios 1890-1914 y 2604-2608) en cuanto a las coordenadas y la localización geográfica, así como si esas imprecisiones tienen alguna consecuencia en la delimitación adecuada del área desafectada y de las áreas que se incluyen en la reserva que deben ser expropiadas, pues eso podría impedir, en alguna medida, que se materialice la compensación propuesta. Sugiere que se pida el criterio técnico del Instituto Geográfico Nacional. Indica que los alegatos de los accionantes relativos a la violación al principio de legalidad, merced al incumplimiento de requisitos legales y reglamentarios para disminuir o modificar la cabida de las áreas silvestres protegidas, se encuentran inmersos en el análisis efectuado al respecto y, por ello, no son examinados de manera separada. Señala que lo tiene que ver con la posible violación de la Convención para la Protección del Patrimonio Mundial Cultural y Natural de la UNESCO y los posibles efectos del proyecto PAACUME sobre el sitio declarado como Patrimonio Mundial en el Área de Conservación Guanacaste, es un asunto que debe ser valorado en el proceso de evaluación de impacto ambiental del proyecto que se encuentra en trámite. Sobre los efectos de la ley impugnada. Acota que la ley n.° 9610 presenta ciertas particularidades con respecto a otras normas legales que pretenden disminuir la medida de áreas silvestres protegidas, pues, en este caso, la decisión de desafectar parte de la RBLB no está motivada en la pérdida de valor ambiental o en la protección de la zona, sino, exclusivamente, en la necesidad de desarrollar una obra de infraestructura como parte de la ejecución del proyecto PAACUME. Añade que la desafectación autorizada interesa únicamente al desarrollo de ese proyecto. Con base en lo expuesto, la Procuraduría estima que, aparte de las observaciones apuntadas en el segmento anterior, un defecto de la ley que podría causar su inconstitucionalidad está referido a que no se contempló alguna disposición que dimensione las consecuencias de la desafectación hasta que el proyecto se ejecute, pues la decisión de desafectar tiene sentido y justificación únicamente si aquel se lleva a cabo. Agrega que, si por alguna razón el proyecto no es desarrollado, la desafectación practicada no tendría sentido alguno y, por ende, carecería de justificación. Insiste en que la justificación de la desafectación depende de la eventual ejecución del proyecto, que podría verse impedida por varias razones, tales como: porque no se otorgue la viabilidad ambiental al proyecto, no exista financiamiento necesario, se pierda interés en desarrollarlo, o sea imposible ejecutarlo. Expone que la garantía de la no afectación a la RBLB yace en la medida de la compensación propuesta, pero lo cierto es que con la ley impugnada se desafectó una parte de la reserva y, pese a que se incluyó dentro de sus límites el área de compensación, esos terrenos son propiedades privadas que no han sido expropiadas. Explica que, con base en lo dispuesto en el numeral 37 de la Ley Orgánica del Ambiente, mientras esas propiedades no sean apropiadas o compradas, no pueden pasar a formar parte del área silvestre protegida, de modo que la compensación propuesta no se ha materializado. Refiere que, en otras palabras, con la emisión de la ley n.° 9610, el área de la RBLB se disminuyó y la afectación generada por esa disminución no ha sido compensada, lo que contraviene el principio precautorio y preventivo. Manifiesta que, si por alguna razón el proyecto no es desarrollado y tampoco se ejecutan las expropiaciones necesarias para efectuar la compensación propuesta, la ley habría desafectado la RBLB en vano, sin existir una justificación válida y sin haber compensado ni mitigado los efectos generados por esa disminución. Menciona que lo anterior constituiría una violación al principio de irreductibilidad de las áreas silvestres protegidas, de no regresión, precautorio y preventivo e, incluso, una violación a la Convención Ramsar al no existir un motivo de urgente necesidad para justificar la disminución del área de uno de los sitios de importancia internacional. Arguye que, sin perjuicio de lo que se constate en cuanto a la suficiencia de los estudios y criterios técnicos antes señalados, la Procuraduría estima que, por lo recién indicado, la ley n.° 9610 podría resultar inconstitucional, a menos que se interprete que la desafectación que autoriza surtirá efectos hasta el momento en que el proyecto se ejecute y se expropien los terrenos necesarios para que opere la compensación propuesta. 2) Sobre la infracción al principio de equilibrio presupuestario. Indica que el artículo 176 de la Constitución Política establece que el presupuesto ordinario comprende todos los ingresos probables y todos los gastos autorizados de la Administración Pública, durante todo el año económico, y que el monto de los gastos presupuestados no puede exceder el de los ingresos probables. Señala que, con base en esa disposición se ha desarrollado el principio de equilibrio presupuestario, que indica: “Lo que el constituyente previó fue simplemente un equilibrio de tipo contable, en el sentido de que el total de las erogaciones previstas nunca podrían superar el total de los ingresos proyectados” (voto n.° 481-2002 de las 14:42 horas de 23 de enero de 2002, y en similar sentido votos n.os 2794-2003 y 15712-2016). Acota que la discusión acerca de si se ha incluido en el presupuesto ordinario la partida específica destinada a cubrir las expropiaciones que se requieren para la compensación de la RBLB no está referida a la violación del principio de equilibrio presupuestario. Refiere que la falta de ejecución de esas expropiaciones podría constituir, más bien, una afectación al derecho a un ambiente sano y ecológicamente equilibrado, según lo expuesto. Menciona que la escogencia de un terreno para compensar la disminución de la cabida de un área silvestre protegida no debe responder únicamente a un criterio económico, sino que debe hacerse en función de los atributos ecológicos del terreno, con el fin de que reúna condiciones ambientales equivalentes al área desafectada y así la compensación cumpla su objetivo final. Aduce que la Sala Constitucional ha dispuesto que los derechos a la salud y a un ambiente sano y ecológicamente equilibrado son derechos fundamentales y que "cualquier criterio económico que se quiera aplicar en un caso concreto debe ceder en importancia ante los primeros" , y, además, que no es válido "el criterio de contraponen dándole mayor valor, a cuestiones puramente económicas…” (voto n.° 5906-1999 de las 16:15 horas de 28 de julio de 1999). Asevera que el hecho de que existieran otros terrenos menos costosos para realizar la compensación no constituye una violación a los principios de razonabilidad, proporcionalidad, economía y eficiencia, en los términos narrados por los accionantes; salvo que se comprobara técnicamente que existían otros terrenos menos onerosos con las mismas o mejores condiciones ambientales y que eran totalmente aptos para compensar el área desafectada de la reserva. Concluye lo siguiente: “ 1. La acción es admisible únicamente en cuanto a los alegatos relacionados con la violación del derecho a un ambiente sano y ecológicamente equilibrado y al principio de equilibrio presupuestario, y, en consecuencia, son inadmisibles los reproches relativos a la violación al derecho de propiedad privada. 2. En caso de determinarse que el estudio de la OET y la propuesta final de compensación de la RBLB son insuficientes técnicamente, la ley impugnada resultaría inconstitucional por violación a los principios de objetivación de la tutela ambiental, precautorio, preventivo y de irreductibilidad de las áreas silvestres protegidas, pues no se estaría garantizando que la variación de los límites aprobada no afecta la integridad de la RBLB y no se estaría mitigando adecuadamente el impacto ambiental generado por la desafectación de una parte de dicha Reserva Biológica. También, ello resultaría contrario a la obligación que establece el artículo 3° de la Convención Ramsar de favorecer la conservación de las zonas húmedas inscritas en la lista de humedales de importancia internacional. 3. Debe valorarse si existe sustento técnico suficiente para justificar la necesidad de desafectar parte de la RBLB para ser utilizada en la ejecución del proyecto PAACUME. Si no se constata ese fundamento, la Ley 9610 debe declararse inconstitucional por violación a los principios de irreductibilidad de las áreas silvestres protegidas, objetivación a la tutela ambiental y de no regresión, y por no comprobarse el motivo de urgente interés nacional al que la Convención Ramsar sujeta la posibilidad de modificar el área de los sitios de importancia internacional. 4. Es recomendable requerir el criterio del Instituto Geográfico Nacional en cuanto a si la Ley impugnada consideró las imprecisiones hechas sobre las coordenadas y la localización geográfica y si esas imprecisiones tienen alguna consecuencia en la delimitación adecuada del área desafectada y de las áreas que se incluyen en la Reserva y que deben ser expropiadas, pues ello podría impedir que se materialice la compensación propuesta. 5 . Si por alguna razón el proyecto no es desarrollado y tampoco se ejecutan las expropiaciones necesarias para efectuar la compensación propuesta, la Ley 9610 habría desafectado la RBLB en vano, sin existir una justificación válida y sin haber compensado y mitigado los efectos generados por esa disminución. Ello constituiría una violación al principio de irreductibilidad de las áreas silvestres protegidas, precautorio, preventivo y de no regresión, e, incluso, una violación a la Convención Ramsar al no existir un motivo de urgente necesidad para justificar la disminución del área de uno de los sitios de importancia internacional. Lo anterior, a menos que se interprete que la desafectación que autoriza surtirá efectos hasta el momento en que el proyecto se ejecute y se exploren los terrenos necesarios para que opere la compensación propuesta. 6. La inclusión o no de la partida específica destinada a cubrir las expropiaciones que se requieren para la compensación de la RBLB en el presupuesto ordinario, no implica la violación del principio de equilibrio presupuestario. 7 . El hecho de que existieran otros terrenos menos costosos para realizar la compensación no constituye una violación a los principios de razonabilidad, proporcionalidad, economía y eficiencia. A menos que se comprobara técnicamente que esos terrenos poseen las mismas o mejores condiciones ambientales que los seleccionados y que eran totalmente aptos para compensar el área desafectada de la Reserva”. 7.- Por escrito recibido en la Secretaría de la Sala a las 11:02 horas de 15 de febrero de 2019, se apersona Carolina Hidalgo Herrera, en su condición de presidenta de la Asamblea Legislativa. Indica que la acción fue planteada por Gary Douglas Stewart Postel y María del Milagro Gamboa Miranda, quienes justificaron su legitimación en la regulación provista en los artículos 11 y 50 constitucionales, en el tanto se pretende la tutela de intereses difusos, pues según criterio de ellos, la norma cuestionada lesiona el derecha a un medio ambiente sano y ecológicamente equilibrado así como los principios de legalidad, principios pro natura, precautorio y de no regresión en materia ambiental. Cita parcialmente el artículo 75 de la Ley de la Jurisdicción Constitucional en relación con los intereses difusos. Señala que, a la luz del párrafo segundo de la norma anterior, no es necesario un caso previo pendiente de resolución cuando por la naturaleza del asunto no exista lesión individual y directa, o bien, se trata de la defensa de intereses difusos que atañen a la colectividad en su conjunto. Transcribe parcialmente el voto n.° 8239-2001 de la Sala sobre los parámetros de los intereses difusos. Acota que, en la posición jurisprudencial, los intereses difusos son aquellos cuya titularidad pertenece a grupos de personas no organizadas formalmente, pero unidas a partir de una determinada necesidad social, una característica física, su origen étnico, una determinada orientación personal o ideológica, entre otros. Refiere que la Sala ha señalado reiteradamente que cuando se trate de la protección jurídica del ambiente, resulta de particular relevancia la legitimación de los particulares, para actuar judicialmente y lograr la aplicación de normas que tienen esa finalidad, o bien, solicitar la tutela jurisdiccional para restablecer los derechos que se estimen conculcados. Menciona que, en el presente asunto, los accionantes justificaron su proceder en que la norma impugnada, lesiona -a su criterio- el derecho de toda persona para disfrutar de un ambiente sano y ecológicamente equilibrado, previsto en el numeral 50 de la Carta Fundamental; es decir, no fundamentan su legitimación en la afectación a algún sujeto privado en particular o a ellos mismos, sino a la sociedad en su conjunto sea intereses colectivos, razón por la cual no se cuestiona su legitimación. En cuanto a los humedales y su régimen jurídico. Manifiesta que la Convención Relativa a los Humedales de Importancia Internacional Especialmente como Hábitat de Aves Acuáticas (Convención de RAMSAR), incorporada al ordenamiento jurídico costarricense a través de la ley n.° 7224 de 9 de abril de 1991, define humedales de la siguiente manera: “En el sentido de la presente Convención, los humedales son extensiones de marismas, pantanos, turberas o aguas de régimen natural o artificial, permanentes o temporales, estancadas o corrientes, dulces, salobres o saladas incluyendo las extensiones de agua marina cuya profundidad en marea baja no exceda de seis metros. A los efectos de la presente convención, las aves acuáticas son aquellas que, ecológicamente, dependen de las zonas húmedas". Aduce que, a partir de esa definición, la Convención RAMSAR establece que las partes definen dentro de su territorio los humedales que consideran son de importancia internacional de conformidad con lo que la propia convención establece, lo cual da lugar a una lista de humedales. Arguye que, tal y como lo establece el artículo 2 de la Convención RAMSAR, la importancia internacional de un humedal se define a partir de criterios ecológicos, botánicos, zoológicos, limnológicos o hidrológicos, con especial atención a la importancia que estos tienen para las aves acuáticas a lo largo de todo el año. Agrega que ese numeral señala lo siguiente en relación con la posibilidad de añadir o reducir lista de zonas de humeral: “Las partes contratantes tendrán derecho a añadir a la "Lista" otras zonas húmedas situadas en su territorio, a ampliar las que ya están inscritas o, por motivos urgentes de interés nacional, a retirar de la “Lista" o a reducir los humedales ya inscritos e informarán de estas modificaciones, lo más rápidamente posible, a la organización o al gobierno responsable de las funciones de la Oficina permanente especificados en el artículo 8". Asevera que el artículo 3 de la Convención RAMSAR manda a los Estados parte a elaborar planes de gestión que favorezcan la conservación y explotación racional de los humerales: “Artículo 3.- Las partes contratantes deberán elaborar y aplicar sus planes de gestión de forma que favorezcan la conservación de las zonas húmedas inscritas en la "Lista" y, siempre que ello sea posible, la explotación racional de los humedales de su territorio. Cada parte contratante tomará las medidas para ser informada, lo antes posible, de las modificaciones de las condiciones ecológicas de las zonas húmedas situadas en su territorio e inscritas en la "Lista", que se hayan producido o puedan producirse como consecuencia de las evoluciones tecnológicas, de la contaminación o de cualquier otra intervención del hombre. Las informaciones sobre dichas modificaciones se transmitirán sin pérdida de tiempo a la organización o al gobierno responsable de las funciones de la Oficina permanente especificada en el artículo 80” . Sostiene que, tal y como lo indica el numeral anterior, el desarrollo tecnológico como elemento a ser tomado en cuenta, resulta relevante e importante resaltarlo, por cuanto no prohíbe la intervención siempre y cuando se garantice la sostenibilidad del ecosistema. Acota que el artículo 4 de la Convención RAMSAR insta a los Estados parte a que establezcan en los humedales regímenes jurídicos de conservación, pero lo hace en términos generales sin referencia a ningún tipo en especial y, además, recomienda la compensación en los casos en que se reduzcan humedales incluidos en la lista: “Articulo 4.- Cada parte contratante fomentará la conservación de las zonas húmedas y de las aves acuáticas creando reservas naturales en los humedales, estén o no inscritos en la “Lista", y atenderá de manera adecuada su manejo y cuidado... Cuando una parte contratante, por motivos urgentes de interés nacional, retire o reduzca una zona húmeda inscrita en la “Lista", deberá compensar, en la medida de lo posible, cualquier pérdida de recursos en los humedales y, en especial, deberá crear nuevas reservas naturales para las aves acuáticas y para la protección, en la misma región o en otro sitio, de una parte adecuada de su hábitat anterior". Sostiene que la filosofía de la Convención Ramsar gira en torno al concepto de uso racional de los humedales, el cual se define como " el mantenimiento de sus características ecológicas, logrado mediante la implementación de enfoques por ecosistemas, dentro del contexto el desarrollo sostenible ". Asevera que la conservación de los humedales, así como su uso sostenible y el de sus recursos, se hallan en el centro del "uso racional”, en beneficio de la humanidad. Indica que, respecto del régimen jurídico de los humedales en Costa Rica, conforme lo dispuesto en el artículo 40 de la Ley Orgánica del Ambiente, estos se definen como: “ecosistemas con dependencia de regímenes acuáticos, naturales o artificiales, permanentes o temporales, lénticos o tráficos, dulces salobres o salados incluyendo las extensiones marinas hasta el límite posterior de fanerógamas marinas o arrecifes de coral o, en su ausencia, hasta seis metros de profundidad en marea baja". Indica que, desde esa perspectiva jurídica, los humedales son ecosistemas definidos por sus características biológicas, donde prevalece o es exclusivo el recurso agua (artículo 1.1 de la Convención de RAMSAR, numerales 40, 51 y 52 de la Ley Orgánica del Ambienta y 5, 6 y 7 del decreto ejecutivo n.° 35803 de 7 de enero de 2010). Señala que a los humedales le son aplicables otras disposiciones como las contenidas en la Ley de Aguas, la Ley de Conservación de Vida Silvestre y la Ley de Zona Marítimo Terrestre. Acota que la legislación nacional no contiene un régimen jurídico propio de los humedales (como ecosistema) y, por ende, se ha admitido que sea posible realizar ciertas actividades sin que ello implique una desmejora en el nivel de tutela jurídicamente establecida. Aclara que la Reserva Biológica Lomas Barbudal no es propiamente un humedal, pero sí forma parte del sitio Ramsar Palo Verde, porque cuando se definen los sitios Ramsar, no solo se consideran los ecosistemas por sí solos, sino las interrelaciones existentes que impactan para bien o mal los humedales, entre ellos esa área silvestre protegida. Menciona que “La Convención Relativa a los Humedales de Importancia Internacional Especialmente como Hábitat de Aves Acuáticas (Convención RAMSAR), pues si bien es cierto ese Convenio insta a compensar, en la medida de lo posible, la pérdida de recursos de humedales mediante la creación de nuevas reservas naturales, en aquellos casos en los que se retire un humedal de la lista de humedales de importancia internacional o se reduzcan los límites de uno de ellas y de igual manera el tema de comunicación con respecto a la modificación de zonas húmedas situadas en su territorio e inscritas en la "Lista"; resulta conveniente puntualizar que el objetivo de la Ley N 9610 es el (sic) para el desarrollo del Proyecto de Abastecimiento de Agua para la Cuenca Media del Rio Tempisque y Comunidades Costeras (Paacume) consta en la exposición de motivos (expediente legislativo numero 20.465) tema considerado de vital importancia, de igual manera la Convención no señala un momento preciso para que el Estado contratante realice tal comunicación y realizar las acciones de compensación requeridas; siendo que en el caso concreto la aprobación de la Ley N° 9610 es el momento a partir del cual tal acción podría darse en virtud que de los efectos de la misma se generen, y no antes, por ende no existe violación a dicha Convención ni vulneración al numeral 7 constitucional ya que el Estado costarricense puede realizar la comunicación respectiva de manera paralela a las acciones que a nivel interno se realicen en tutela de los humedales por parte del Ministerio de Ambiente y Energía como ente competente, específicamente en relación a (sic) la categoría de manejo a asignar al Embalse Río Piedras, de conformidad al numeral 6 de la citada ley”. Principio de objetivación de la tutela ambiental. Manifiesta que este principio también llamado principio de vinculación a la ciencia y a la técnica, o bien, principio de razonabilidad en relación el derecho ambiental. Expone que ha sido reconocido por la jurisprudencia constitucional y consiste en la obligación de acreditar, mediante estudios técnicos y científicos, la toma de decisiones en materia ambiental ya sea en relación con actos administrativos individuales o disposiciones de carácter general tanto legales como reglamentarias. Añade que, en virtud de lo anterior, siempre se debe contar con estudios técnicos y científicos serios, exhaustivos y comprehensivos que garanticen el menor impacto ambiental posible. Cita parcialmente el voto n.° 2063-2007 de las 14:40 horas de 14 de febrero de 2007. Refiere que este principio se encuentra ligado al principio preventivo contenido en el artículo 15 de la Declaración de Río y en el artículo 11 de la Ley de Biodiversidad, el cual exige la adopción por parte de los poderes públicos de aquellas medidas destinadas a evitar, mitigar o corregir los efectos adversos para el ambiente que generan las actividades o acciones humanas. Explica que, en relación con el trámite de la ley n. ° 9610 (expediente legislativo 20.465), visible del folio 268 al folio 728, consta el estudio denominado “Establecimiento de línea Base de Biodiversidad para la Reserva Biológica Lomas del Barbudal (RBLB) y finca adyacente ”, elaborado por la Organización para Estudios Tropicales (OET). Agrega que en ese documento se definió la línea base que permite determinar la integridad ecológica, relevancia y fragilidad de los ecosistemas presentes, así como la biodiversidad existente en el área de la RBLB al ser impactada directamente por el Embalse Río Piedras y, además, se efectuó un análisis comparativo entre la reserva y terrenos aledaños previamente selecciones para conocer las condiciones de similitud y factibilidad de utilizarse como remplazo y que sea ecológicamente equivalente (exposición de motivos del proyecto de ley). Añade que ese estudio utilizó el “método de hábitat-hectárea” desarrollado en Australia, el cual emplea un set de indicadores que describen la condición del lugar (composición de estadios, estructura, potencial de reclutamiento, especies invasivas, etc) y su contexto a nivel de paisaje. Menciona que esos indicadores son ponderados y combinados en una puntuación de hábitat, todo cual está explicado con detalle (páginas 296 y 297 del expediente legislativo 2/10). Sostiene que después de aplicar esa metodología, la OET pudo comprobar que el área de la RBLB que se pretendía desafectar estaba en mejores condiciones ecológicas que las áreas que se proponían para compensar, en una proporción de 3 a 1, o sea que, por cada hectárea que se desafectara se debería compensar 3. Asevera que, aun así, cuando se revisa en detalle se determina que uno de los objetos de creación de la RBLB, precisamente el bosque ripario, no estaba representado dentro de la finca ASETREK, la cual era la propuesta para compensar las 113 hectáreas que se desafectarían. Indica que fue por lo anterior que se dio la necesidad de buscar otros terrenos aledaños que tuvieran bosque ripario para compensar el faltante de ese ecosistema en la propuesta de compensación. Señala que, debido a que lo que se requería era únicamente buscar el bosque ripario, los estudios en las fincas Brindis de Amor y Hacienda Ciruelas no profundizaron con el mismo detalle que los estudios de ASETREK; sin embargo, aun así, la OET sí realizó un estudio de caracterización de la Finca Brindis de Amor, como complemento de compensación, lo cual se encuentra visible en los folios del 209 al 215 del Estudio de la Línea Base. Acota que el Área de Conservación Arenal Tempisque (ACAT) del Sistema Nacional de Áreas de Conservación, en su carácter de competente técnico, realizó el análisis en relación con el estudio denominado "Establecimiento de la Línea Base de Biodiversidad para la Reserva Biológica Lomas de Barbudal (RBLB) y Finca Adyacente ", según consta a folios 126 al 131 del expediente legislativo, en virtud de lo que emitió las siguientes recomendaciones de mejora: “... De modo que, salvo las consideraciones realizadas en el objeto de conservación denominado bosque ripario; técnicamente se puede afirmar que: a) los objetos de conservación que fundamentan la creación de la Reserva Biológica Lomas de Barbudal con los mismos fines no están siendo afectados y b) Que el área es compensada por otra de igual tamaño que cumple con los mismos fines y semejantes condiciones ecosistémicas. III. Que se ha verificado que el Informe técnico remitido a esta instancia para su consideración ha cumplido con el contenido requerido por los numerales 71 y 72 del Decreto Ejecutivo N° 34432-MINAE "Reglamento a la Ley de Biodiversidad". IV. Que el estudio presenta una serie de recomendaciones que han sido analizadas por este órgano colegiado y que en lo pertinente deben ser acogidas..." (Acuerdo n.° 1 de la sesión extraordinaria de 5 de julio de 2017 del Consejo Regional del Área de Conservación Tempisque visible del folio 126 al folio 131 del expediente 1/10 legislativo). Refiere que los estudios técnicos fueron vistos y revisados por las instancias respectivas del SINAC: Comité Científico Técnico del ACAT, Consejo Regional del ACAT (acuerdo n.° 1 de la sesión extraordinaria celebrada el 5 de julio de 2017) y el Consejo Nacional de Áreas de Conservación (sesión extraordinaria n.° 3-2017 de 11 de julio de 2017). Principio de no regresión ambiental o irreductibilidad. Menciona que la RBLB corresponde a un área silvestre protegida de categoría protección absoluta, la cual fue declarada mediante decreto ejecutivo n.° 16849-MAG de 23 de enero de 1986, posee una extensión de 2602 hectáreas y forma parte del Área de Conservación Arenal-Tempisque (ACAT) del SINAC. Manifiesta que la modificación de áreas silvestres protegidas está prevista en la Ley Orgánica del Ambiente, cuyo artículo 38 dispone: “La Superficie de las áreas silvestres protegidas, patrimonio natural del Estado cualquiera sea su categoría de manejo, solo podrá reducirse por Ley de la República, después de realizar los estudios técnicos que justifiquen esta medida”. Agrega que el legislador tiene la posibilidad de reducir las áreas, previo cumplimiento de las justificaciones técnicas. Añade que, relacionado con el principio de no regresión (garantía sustantiva de los derechos estrictamente ambientales que prohíbe al Estado adoptar medidas o políticas, o bien, aprobar o modificar normas, que empeoren, sin justificación razonable o proporcionada, los derechos alcanzados con anterioridad, derivándolo de los principios de progresividad de los derechos humanos, objetivación de la tutela ambiental e irretroactividad de las normas). Menciona el voto n.° 2012-13367 de la Sala Constitucional. Arguye que el Tribunal Constitucional ha establece que es válido ampliar por decreto ejecutivo la extensión física de las áreas de protección (principio de progresividad); sin embargo, la reducción solo se puede dar por ley, previo estudio técnico ajustado a los principios de razonabilidades y proporcionalidad, a las exigencias de equilibrio ecológico y de un ambiente sano, y al bienestar general de la población que sirva para justificar la medida. Cita parcialmente la sentencia n.° 7294-98. Remite al voto n.° 5994-2017 en cuanto a los alcances del principio de no regresión en materia ambiental: “no toda modificación de la normativa ambiental debe tenerse como violatoria del tal principio ”. Afirma que, en la sentencia n.° 2012-13367, la Sala explica en qué situaciones no se violenta el principio de no regresión, así como su vinculación con el principio de inderogabilidad singular de la normativa. Aduce que, en el caso concreto, la modificación hecha a la RBLB responde a un mejor aprovechamiento de los recursos hídricos en la provincia de Guanacaste y, por tanto, se trata de una modificación justificada y razonable en atención al principio de desarrollo sostenible conceptualizado en la sentencia n.° 763-1994 de las 16:45 horas de 13 de abril de 1994, la cual transcribe parcialmente. Asevera que ese principio, a nivel nacional, se encuentra contenido en el numeral 50 de la Constitución Política, que establece un derecho a un ambiente sano y ecológicamente equilibrado. Cita parcialmente la sentencia n.° 15315-2008 de las 14:59 horas de 10 de octubre de 2008. Indica que, sobre el trámite legislativo, del folio 268 al 726, consta el estudio denominado "Establecimiento de línea Base de Biodiversidad para la Reserva Biológica Lomas de Barbudal (RBLB) y finca adyacente ” realizado por la OET, en el que se efectuó un análisis comparativo entre la reserva y terrenos aledaños previamente seleccionados para conocer las condiciones de similitud y factibilidad de utilizarse como remplazo ecológicamente equivalente: “Así las cosas, de acuerdo con los resultados expuestos en el estudio realizado por la OET y lo planteado en la comisión de alto nivel del Piaag, la propuesta definitiva de compensación es: 1.- De la finca Asetrek Tres Azul S.A un total de 444,04 hectáreas conforme al plano del área propuesta. 2.- La totalidad de la Finca Brindis de Amor en Liberia S.A., con un área de registro de 86,96 hectáreas conforme al plano. 3.- Un área de la finca de 40,00 hectáreas de Hacienda Ciruelas SP S.A. En total, la compra de 571 hectáreas, lo que representa un factor de 5 veces el área que se verá afectada en la RBLB, con una equivalencia directa en tipos de bosques, conforme a lo que se indica en la tabla 7. Tabla 7. Comparación de área por tipo de bosque entre el área afectada de la RBLB y el área propuesta para compensación Tipo de cobertura Área afectada en la RBLB (Ha)¹ Área de ASETREK Tres Azul S.A. (Ha) Área de Brindis de Amor S.A. (Ha) Área de la finca Hacienda Ciruelas SP S.A.

Área total propuesta de compensación (Ha) Bosque maduro (Ripario) 24,71 6,14 16,41 8,49 31,04 Bosque secundario 9,13 59,5 6,63 2,44 68,57 Bosque deciduo 96,05 286,67 45,74 26,91 359,32 Pastos 0,79 73,23 18,18 2,16 93,57 Áreas no forestales 0,39 18,5 - - 18,5 TOTALES 131,07 444,04 86,96 40 571 ¹A pesar de que el área requerida de la RBLB es de 113 hectáreas, la OET realizó el estudio sobre 130,64 hectáreas, razón por la cual se usa este valor para realizar la comparación. Con las medidas de compensación propuestas se alcanza el objetivo de conservación y, por ende, se puede afirmar: 1.- Que los objetos de conservación que fundamentan la creación del “área protegida”: no están siendo afectados. 2.- Que el área es compensada por otra de igual tamaño que cumple con los mismos fines y semejantes condiciones ecosistémicas". Señala el Área de Conservación Arenal Tempisque del Sistema Nacional de Áreas de Conservación, en su carácter de competente técnico, analizó el estudio anterior. Acota que, con vista en lo anterior, existe un estudio previo para el caso concreto de carácter científico y debidamente fundado, con recomendaciones en cuanto al tema de mitigación de los impactos (inevitables) al generar mediante la compensación de biodiversidad equivalente. Menciona que ese estudio fue tomado como base dentro del expediente legislativo, por lo que se cumple con lo requerido tanto a nivel de parámetros normativos como constitucionales. Manifiesta que el estudio toma las previsiones para que, a nivel técnico, los objetos de conservación que fundamentaron la creación del área silvestre protegida sean efectivamente compensados. Principio constitucional in dubio pro natura o precautorio. Afirma que se encuentra contenido en el artículo 11 de la Ley de Biodiversidad y en el principio 15 de la Declaración de Río sobre el Medio Ambiente y Desarrollo. Cita parcialmente la opinión jurídica n.º OJ-139-2001 de 27 de setiembre de 2001 de la Procuraduría General de la República: "De todas maneras y aú n si existiese duda acerca de si se producirán las alteraciones ambientales aquí analizadas al autorizarse la titulació n en áreas silvestres protegidas, es cl aro que el Estado debe abstenerse de aprobar este tipo de leyes en aplicación del llamado pri ncipio precautorio, contenido en la Declaración de Río sobre el Medio Ambiente y Desarrollo (en el mismo sentido, el artículo 11 de la Ley de Biodiversidad No. 7788 de 30 de abri l de 1998): “Principio 15 Con el fin de proteger el medio ambiente, los Estados deber án aplicar ampliamente el criterio de precaució n conforme a sus capacidades. Cuando haya peligro de daño grave o irreversible, la falta de certeza científica absoluta no deberá utilizarse como razón para postergar la adopción de medidas eficaces en funció n de los costos para impedir la degradación de/medio ambiente" En otras palabras, ante la seria amenaza que representa para los diferentes ecosistemas permitir la inscripción en el Registro Público de terrenos a nombre de particul ares dentro de áreas proteg idas, el principio precautorio ordena la eliminación de tal posibilidad o su sustitución por una regla no perjudicial para los recursos naturales. De no hacerse así, se vulnera este principio, que es derivación directa del “ in dubio pro naturaleza", pilar básico del Derecho Ambientan". Transcribe, en lo conducente, la resolución n.º 2000-10465 de 24 de noviembre de 2000: "...Uno de los principios esenciales que componen el derecho ambiental es el "principio precautorio" o "princip io de la evitación p rudente'; el cual está contenido en la Conferencia de las Naciones Unidas sobre el Medio Ambiente y el Desarrollo, Declaración de Rio, que literalmente indica: "Principio 15.- Con el fin de proteger el medio ambiente, los Estados deberán a plicar ampliamente el criterio de precaución conforme a sus capacidades. Cuando haya peligro de daño grave e irreversible, la falta de certeza científica absoluta no deberá utilizarse como razón para po stergar la adopción de medidas eficaces en función de los costos para impedir la degradación del medio ambiente" (En igual sentido Ver artículo 11 de la Ley de Biodiversidad). El término prevención deriva del latí n "preventivo", que alude a la acción y efecto de prevenir a aquellas preparaciones y disposiciones que se hacen a nticipadamente para evitar un riesgo o ejecutar una cosa. La prevención pretende anticiparse a los efectos negativos y asegurar la protecció n, conservació n y adecuada gestión de los recursos. Consecuentemente, el principio rector de preven ción se fundamenta en la necesidad de tomar y asumir todas las medidas precautorias para evitar o contener la posible afectació n del ambiente o la salud de las personas. De esta forma, en caso de que ex ista un riesgo de daño grave o irreversible –o una duda al respecto-, s e debe adoptar una medida de precaución e inclusive posponer la actividad de que se trate. Lo anterior debido a que en materia ambiental la coacción a posteriori resulta ineficaz, por cuanto de haberse producido ya las consecuencias bioló gicas y socialmente nociv as, la represión podrá tener una trascendencia moral, pero difícilmente compensará los daños ocasionados al ambiente". Arguye que debe diferenciarse entre el estudio requerido para el trámite de la ley n.° 9610 (sobre el cual se refirió lí neas atrás) y el estudio de impacto ambiental del “Proyecto de Abastecimiento de Agua para la Cuenca Media del Rio Tempisque y Comunidades Cesteras (Paacume)” que de berá tramitarse ante la Secret aria Técnica Nacional Ambiental, según dispone el numeral 4 de dicha no rma: “A RTICULO 4- El Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento (Senara) será le entidad responsable de realizar el estudio ambiental del Proyecto de Abastecimiento de Agua para la Cuenca Media del Rio Tempisque y Comunidades Cosieras (Pa acume), que deberá incluir las medidas de prevención, mitigación y compensación del área desafectada afecta en el artículo 2 de la presente ley, las cuales deben ser implementadas por el desarrollador. El estudio de impacto ambiental de berá considerar la l ínea base aprobada por las entidades y avalada por el Consejo Regional de Áreas de Conservació n del Sistema Nacional de Áreas de Conservación (Sinac), sin perjuicio de los términ os de referencia que emita la Secretaria Técnica Nacional Ambiental (Setena), conforme al marco jurí dico correspondiente”. Refiere que el Convenio sobre la Diversidad Bioló gica y sus anexos 1 y 2, firmado en Río de Janeiro en 1992 y aprobado mediante la ley n.° 7 416 de 30 de junio de 1994, establece en el artículo 14 el instrumento de eval uación de impacto ambiental, bajo el principio preventivo con la reducción al mínimo del impacto adverso: "Articulo 14. Evaluación del impacto y reducción al mínimo del Im pacto adverso 1. Cada Parte Contratante, en la medida de lo p osible y según proceda: a) Establecerá procedimientos apropiados por los que se exija la evaluación del impacto ambiental de sus proyectos propuestos que puedan tener efectos adversos importantes para la diversidad biológica can miras a evitar o reducir al mínimo esos electos y cuando proceda, permitirá la participación del público en esos procedimientos. b) Establecerá arreglos apropiados para asegurarse de que se tengan debidamente en cuenta las consecuencias ambientales de sus programas y políticas que puedan tener efect os adversos importantes para la diversidad biológica” . Agrega que el numeral 17 de la Ley Orgánica del Ambiente dispone: “ Evaluación de impacto ambiental. Las actividades humanas que alteren o destruyan elementos del ambiente o generen residuos, materiales tó xicos o peligrosos, requerirán una evaluación de impacto ambiental por parte de la Secretaria Té cnica Nacional Ambiental creada en esta ley. Su aprobación previa, de parte de este organismo, será requisito indispensable para iniciar las actividades, obras o pr oyectos. Las leyes y los reglamentos indicarán cuáles actividades, obras o proyectos requerirán la evaluación de impacto ambiental". Menciona que los artí culos 92 y siguientes de la Ley de Biodiversidad exigen la Evaluación de Impac to Ambiental de todos los p royectos cuando se considere que pueden afectar la biodiversidad. Transcribe parcialmente el inciso 38 del artículo 3 del decreto ejecutivo n.º 31849: "el procedimiento administrativo científico-técnico que permite identificar y predecir cuáles e fectos ejercerá sobre el ambiente, una actividad, obra o proyecto, cuantificá ndolos y ponderándolos para conducir a la toma de decisiones. De forma general , la Evaluación de Impacto Ambiental, abarca tres fases: a) la Evaluació n Ambiental Inicial, b) la confección d el Estudio de Impacto Ambiental o de otros instrumentos de evaluación ambiental que corresponda, y e) el Control y Seguimiento ambiental de la ac tividad, obra o proyecto a través de los compromisos ambientales establecidos”. Añad e que la evaluación de i mpacto ambiental refiere al desarrollo e implementación del Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras (Paacume), tal y com o lo consigna el artículo 17 de la Ley Orgánica del Ambiente. Expone qu e la evaluació n de impacto ambiental debe hacerse de forma previa a toda actividad humana que pueda alterar , contaminar o dañar el ambiente: “VI.- Competencias en materia de eva luación ambiental. En desarrollo de las obligaciones estatales de defensa y preservación del ambiente establecidas en el artí culo 50 constitucional el numeral 17 de la Ley Orgánica del Ambiente, nú mero 7554 de cuatro de octubre de mil novecientos noventa y seis, ha dispuesto la obligación de las personas, físicas o jurí dicas, de realizar antes de emprender actividades o proyectos que por su naturaleza puedan alterar o contaminar el medio ambiente, un estudio de impacto ambiental" (sentencia n.º 2003-06311 de 3 de julio de 2003) . Plantea que será la EIA otorgada por SETENA, de acuerdo con el numeral 84 de la Ley Orgá nica del Ambiente, la que determinará si las actividades que se pretenden desarrollar al amparo de dicho proyecto son ambien talmente posibles, o bien, si se deben restringir las actividades sometidas a consideració n como condición previa a su aprobación y, a su vez, establecer las medidas de mitigación correspondientes. Aduce que la EIA no es requisito para la promulgación de ley de desafectació n, s egún el artí culo 38 de la Ley Orgánica del Ambiente. Asevera que SETENA deberá considerar como uno de los insumos el estudio “Establecimiento de línea Base de Biodiversidad para la Reserva Biológica Lomas de Barbudal (RBLB) y finca adyacente”, sin que deba entend erse que es el único, por cuanto la misma norma señala que, de acuerdo con el marco jurí dico, deberá emitir los términos de referencia pertinentes que permitan realizar el análisis de ese proyecto en ejercicio de sus competencias técnicas y legales. Sostie ne que lo indicado en el artículo 4 de la ley n.º 9610 es acorde con el numeral 50 constitucional y con los ordinales 17 y 43 de la Ley Orgánica del Ambiente, por cuanto exige como requisito la EIA de manera previa al desarroll o del proyecto. Señala que el artículo 1 de la ley cuestionada tiene el siguiente contenido: “ ARTÍCULO 1- S e rectifica y se delimita el área de la Reserva Biológica Lomas de Barbudal, creada mediante Decreto Ejecutivo N.º 16849-MAG, de 23 de enero de 1986, para el desarrollo del Proye cto de Abastecimiento de Agua para la Cuenca Media del Rio Tempisque y Comunidades Costeras (Paacume)...". Expresa que no resulta factible, como lo pretenden los accionantes que, previo a la aprobación de la ley, se realizara el trá mite de la viabilidad ambiental del proyecto. Áreas privadas inmersas dentro de los límites de áreas silve stres protegidas (artículo 37 de la Ley Orgánica del Ambiente y artículo 45 de la Constitución Política). Cita el artí culo 37 de la Ley Orgánica del Ambiente: “Al establecer áreas silvestres protegidas, cualquiera sea su categoría de manejo, el Poder Ejecutivo, por medio del Ministerio del Ambiente y Energía, queda facultado para incluir, dentro de sus límites, las fincas o partes de fincas particulares necesarias para cumplir con los objetivos señalados en esta ley y para instrumentarlos de acuerdo con el respectivo plan de manejo o crear las servidumbres legales para la protección ecológica y el cumplimiento de la presente ley. Cuando se trate de parques nacionales, reservas biológicas o refugios nacionales de vida silvestre estatales, los terrenos serán adquiridos por compra, expropiación o ambos procedimientos, previa indemnización. En los casos de reservas forestales, zonas protectoras, refugios de vida silvestre mixtos y humedales, los predios o sus partes también podrán comprarse o expropiarse, salvo que, por requerimiento del propietario, se sometan voluntariamente al régimen forestal. Esa sujeción será inscrita en el Registro Público de la Propiedad, como una afectación al inmueble, que se mantendrá durante el tiempo establecido en el plan de manejo. Las fincas particulares afectadas según lo dispuesto por este artículo, por encontrarse en parques nacionales, reservas biológicas, refugios de vida silvestre, reservas forestales y zonas protectoras, quedarán comprendidas dentro de las áreas protegidas estatales solo a partir del momento en que se hayan pagado o expropiado legalmente, salvo cuando en forma voluntaria se sometan al Régimen Forestal. Tratándose de reservas forestales, zonas protectoras y refugios de vida silvestre y en caso de que el pago o la expropiación no se haya efectuado y mientras se efectúa, las áreas quedarán sometidas a un plan de ordenamiento ambiental que incluye la evaluación de impacto ambiental y posteriormente, al plan de manejo, recuperación y reposición de los recursos”. Aco ta que ese numeral establece la facultad del Poder Ejecutivo, por medio del Ministerio de Ambiente y Energía, de establecer áreas silvestres protegidas, cualquiera que sea su categoría de manejo, quedando facultado para incluir, dentro de sus lí mites, las fincas o partes de fincas particulares, necesarias para cumplir con los objetivos señalados por la ley y para instrumentarlos de acuerdo con el respectivo plan general de manejo. Menciona que cuando se trata de parques nacionales, reservas bioló gicas o refugios nacionales de vida silvestre estatales, los terrenos deben ser adquiridos por compra, expropiación, o ambos procedimientos, previa indemnización, pues los fines de mane jo y conservación de esas categorías de manejo las hace incompatibles c on la propiedad privada. Cita la sentencia de la Sala n.º 1019-1997:"A pesar de declaratoria de ASP ví a decreto o ley, los propietarios privados conservan todos los atributos del domini o, sujeto a los límites de la legislación ambiental ordinaria, hasta la exprop iación o pago. Estas personas pueden continuar con sus cultivos o pastos y mantener sus construcciones pero no podrían expandir sus actividades si estas implican un cambio de uso del suelo, es decir, la tala de árboles y pé rdida de cobertura boscosa. En el caso de establecerse reservas forestales, zonas protectoras y refugios de vida silvestre, se da la opción de que el propietario consenso su tierra, ya que, siguiendo el plan de manejo puede continuar aprovechándola en términos ec onómicos. Pero la integració n será voluntaria. Pero si los afectados con las limitaciones no desean someterse al ré gimen forestal, pueden negociar con el Estado la venta del terreno o bien someterse a las diligencias de expropiación". Manifiesta que la normativa vigente prev é la posibi lidad de incluir inmuebles privados dentro de los límites de las á reas silvestres protegidas, ya que el derecho de propiedad no es absoluto y puede estar sujeto a limi taciones. Transcribe parcialmente la resolución de la Sala n.º 2007-011359 de 10 de agosto de 2007. Afirma que la doctrina señala que se ha dado un cambio entre la intangibilidad del concepto de propiedad absoluta e ilimitada (artí culo 29 Constitución Polí tica de 1871) a un derecho funcional, elástico y adaptable a la realidad socia l que experimente la colectividad (artículo 45 supra), que prevé la autorizació n de expropiación por motivos de utilidad pública y la imposición de li mitaciones de interés social y en razón de la funció n social de la propiedad. Cita la resolución n.º 4205- 1996 de 20 de agosto de 1996: “El contenido de esta "propiedad-función", consiste en que el propietario tiene el poder del emplear el bien objeto del dominio en la satisfacción d e sus propias necesidades, pero correspondiéndole el deber de ponerla tambié n al servicio de las necesidades sociales cuando tal comportamiento sea imprescindible. Con este nuevo concepto se ensanchan las atribuciones del legislador para determinar el contenido del derecho de propiedad, lo que logra por medie de los limites y obliga ciones de interé s social que pueda crear, poniendo fin a su sentido exclusivo, sagrado e inviolable”. Trascribe parcialmente el voto de la Sala n.º 2007-011359: "el Derecho de propiedad del artículo 45 de la Constitución Política, al igual que los demás, no son absolutos, de manera que pueden estar sujetos a restricciones, que resultan legítimas únicamente cuando son necesarias para hacer posible la vigencia de los valores democráticos y constitucionales, por lo que además de "necesaria", "útil", "razonable" y "op ortuna", la restricción debe implicarle existencia de una necesidad social imperiosa que la sustente". Arguye que la restricción al derecho de propiedad que vacíe su conte nido esencial, se convierte en una expropiación encubierta y, en consecuencia, genera la obligación de indemnizar. Explica que la Sala, en la resolución n.° 4465-99 de 11 de junio de 1999, estableció la obligación de indemnizar cuando se trate de expropiac iones no así de limitaciones de interés que se establezcan por votación calificada. A grega que, para el caso concreto, vuelve a tomar relevancia el numeral 37 de la Ley Orgá nica del Ambiente. Añade que los terrenos privados incluidos en la declaratoria de área si lvestre protegida mantienen su condición hasta tanto el Poder Ejecutivo ejecut e los procesos expropiatorios, de conformidad con el numeral 37 supra mencionado, por lo que no se está vaciando el contenido del derecho de propiedad. Expone que el mismo artícul o 37 dispone la adquisición por compra directa o expropiación, por lo q ue no existe omisió n alguna en la ley n.° 9610. Aduce que debe integrarse el ordenamiento jurí dico de tal forma que se entienda que, por tratarse de la categoría de manejo de reserva bioló gica, existe la obligación de adquirir los inmuebles mediante los mecanismo s dispuestos para tal fin (Ley de Expropiaciones n.º 7495). Asevera que no es factible realizar los trámites contenidos en la Ley de Expropiaciones hasta tanto se diera la afectació n por ley de los inmuebles privados. Sostiene que lo indicado con respecto al c ontenido presupuestario y avalúos administrativos tampoco debe ser un requisito previo, toda vez que para eso se disponen momentos administrativos y procesales oportunos, a los e fectos de realizar la debida indemnización de los propietarios privados en los procesos respectivos. Indica que, con respecto a lo indicado en los puntos 4 y 5 del apartado E, lo argumentado corresponde a intereses particulares (afectación al desarr ollo de un proyecto turístico y la existencia de servidumbres y fundos enclava dos) cuya defensa deben ser ejercidas por las sociedades supuestamente afectadas, por lo que no hace referencia al respecto. Señala que no hay vicios de constitucionalidad, ya que el ordenamiento jurí dico vigente contiene la regulación relativa a todos los aspect os que fueron señalados en la presente acción y son de legalidad ordinaria. Procedimiento legislativo (numeral 208 bis de la Asamblea Legislativ a). Acota que el expediente legis lativo n.º 20.465 fue remitido a la Secretarí a del Directorio el 20 de julio del año 2017 y, en ese momento, la Presidencia de la Asamblea Legislativa lo asignó a la "Comisión Especial Investigadora de la Provincia de Guanacaste para que analice, estudie, dictamine y valores las recomendaciones pertinentes en r elación con la problem ática social, econó mica, empresarial, agrícola, turística, laboral y cultural de toda la provincia de Guanacaste" (comisión especial n.º 19.206). Menciona que lo anterior se dispuso de acuerdo con el procedimiento ordinario de formaci ón de ley; sin embargo , en la sesión ordinaria n.º 28 de 20 de junio de 2016, el Plenario acordó la aplicación de un procedimiento especial para su conocimiento, de co nformidad con el artículo 208 bis del Reglamento de la Asamblea Legislativa. Manifiesta que, con base en esas reglas, el expediente legislativo n.º 20.465 fue asignado a la comisió n especial n.º 20.869, “Comisió n Especial que será la Encargada de analizar, estudiar y dictaminar el Expediente No. 20.465 “Ley para la Modificación de Límites de l a Reserva Biológica Lomas de Barbudal para el desarrollo del Proyecto de Abastecimiento de Agua para la Cuenca Media del Rí o Tempisque y Comunidades Costeras". Arguye que ese órgano dictaminó l a iniciativa. Refiere que, en consideración de esos hechos y a raí z de la argumentació n de varios Diputados y Diputadas, en la sesión ordinaria del Plenario n.º 46 de 7 de agosto de 2018, se acordó aprobar por una mayoría de 46 votos a favor y 3 en contra, una moción de orden que estableció: “Para que se deje sin e fecto el procedimiento es pecial aprobado vía artículo 208 bis al expediente legislativo No. 20.465 "LEY PARA LA MODIFICACIÓN DE LÍMITES DE LA RESERVA BIOLÓGICA LOMAS DE BARBUDAL PARA EL DESARROLLO DE PROYECTOS DE ABASTECIMIENTO DE AGUA PARA LA CUENCA MEDIA DEL RIO TEMPISOUE Y COMU NIDADES COSTERAS", por encontrarse roces de constitucionalidad en el trámite que lo hacen incompatibles con la aplicación de un procedimiento especial y que en adelante, continúe su trá mite legislativo ordinario". Explica que, en consecuencia, la Asamblea Legislativa desconoció todos los acuerdos tomados en razón del procedimiento especial y conoció el proyecto de ley con base en las reglas del procedimiento ordinario de formació n de ley. Agrega que se puede verificar en las actas que, luego de la aprobació n de la moción de orden, la Asamblea Legislativa retomó el conocimiento del proyecto de ley y acordó dispensarlo de todos los trámites previos, con excepció n de su publicación, d e conformidad con el artículo 177 del Reglamento de la Asamblea Legislativa (a cta de la sesión ordinaria n.º 46 de 7 de agosto de 2018). Añade que la iniciativa no fue conocida de forma pre via por ninguna comisión legislati va, sino de forma directa por el Plenario, quien actuó como comisión general. Expone que el ex pediente legislativo n.º 20.465 ingresó al orden del día del Plenario el 9 de agosto de 2018 y, en la sesión extraordinaria n.º 7 de esa fecha, fue discutido y ap robado en primer debate. Aduce que la Presidencia de la Asamblea Legislativa indicó al inicio de la discusión: “ Se inicia la discusión en el trámite de primer debate. Este proyecto se encuentra dispensado de todos los trámites excepto de la publicación y cuenta, a partir de la moción de orden aprobada en la sesión ordinaria nú mero 46, celebrada el 7 de agosto del 2018". Asevera que no existe vicio sustancial en el procedimiento, pues no fue conocido ni aprobado en primero y segundo debate con base en el artículo 208 bis del Reglamento de la Asamblea Legislativa, sino conforme a los numerales 135, 15 0 y 177 como un proyecto dispensando de los trámites previos de comisión. Principio de seguridad jurídica. Relata que la Sala ha indicado reiteradamente que la se guridad jurídica es un principio constitucional que, en su sentido genérico, consiste en la ga rantía dada al individuo de que su persona, sus bienes y sus derechos no será n objeto de ataques violentos, o bien, que si estos llegan a producirse, le serán ase guradas protecció n y reparación; además, es la situación del individuo c omo sujeto activo y pasivo de relaciones sociales que, sabiendo o pudiendo saber cuáles son las normas jurí dicas vigentes, tiene fundamentales expectativas de que ellas se cumplan. Indica que e se valor jurídico pretende dar certeza y procura evitar la incertidumbre del D erecho vigente (las modificaciones jurídicas arbitrarias, realizadas sin previo estudio y consulta). Expresa que puede ser considerado tanto en sentido subjetivo y objet ivo: el primero es la convicció n que tiene una persona de que la situación que goza no será modificada por una acció n contraria a los principios que rigen la vida social y el segundo es la existencia de un estado de organización social o de un orden social. Acota que la l ey n.º 9610 cuenta con los estudios de respaldo respectivos y, por ende, no co nlleva una modificación arbitraría del ordenamiento jurídico. Menciona que en el caso concreto existe certeza absoluta de los inmuebles a nombre de Asetrek Tres Azul S.A, Finca B rindis de Amor en Liberia S.A. y Hacienda Ciruelas SP S.A. afectados por la ley n.º 9610 (condiciones que constan en el asiento del Registro Nacional) y que como se indicó previamente deberá n someterse al procedimiento dispuesto en la Ley de Expropiaciones para su integración efectiva en la reserva biológica Lo mas de Barbudal. Manifiesta que los límites de la reserva biológica Lomas de Barbudal está n debidamente señalados en el decreto ejecutivo n.º 16849-MAG de 23 de enero de 1986 y en las coordenadas esta blecidas en la ley n.° 9610. Afirma que, en caso de que surjan dudas en el cam po (de manera posterior a la adquisición de los inmuebles privados), será responsabilidad del Ministerio de Ambiente y Energía dar cumplimiento a lo dispuesto en el numeral 16 de la Ley Forestal: “ARTICULO 16.- Linderos. El Ministerio del Ambiente y Energía delimitará en el terreno, los linderos de las áreas que conforman el patrimonio natural del Estado. El procedimiento de deslinde se fijará en el reglamento de esta ley” . Menciona que el Patrimonio Natural del Estado está definido en el numeral 13 de la Ley Fo restal y lo integran las Áreas Silvestres Protegidas (cualquiera que sea su categoría de manejo) declaradas por ley o decreto Ejecutivo; es decir, reservas forestales, zonas prot ectoras, parques nacionales, reservas biológicas, refugios nacionales de vida silvestre, humedales y monumentos naturales. Manifiesta que, de acuerdo con la regulación prevista en los artí culos: 1, 2, 3 inciso i) de la Ley Forestal, 31 de la Ley Orgánica de l Ambiente; 22 y 58 de la Ley de Biodiversidad, 3 incisos d) y f) de la Ley de Servicio de Parques Nacionales , y 82 incisos a) y b) de la Ley de Conservación de la Vida Silvestre. Cita parcialmente la sentencia de la Sala n.º 2003-03840 de las 14:02 horas de 2 de mayo de 2003 y remite en el mismo sentido al voto n.º 05266-200 9 de las 12:24 horas de 27 de marzo de 2009. Arguye que los aspectos señalados por los accionantes están regulados en la normativa ambiental vigente y, por ende, la ley n.º 9610 no tiene vicios de constitucionalidad. Principio de legalidad (artí culo 11 de la Constituc ión Política). Aclara que, en el caso de la ley n.º 9610, se está ante la modificación de límite de la reserva biológica Lomas de Barbudal, la cual fue establecida c omo área silvestre protegida mediante decreto ejecutivo n.º 1684 9-MAG de 23 de enero de 198 6. Refiere que se cumplió la normativa vigente, toda vez que el artí culo 71 del Reglamento a la Ley de Biodiversidad indica: “ Para la declaratoria, modificación o ca mbio de categoría de manejo de ASR deberá elaborarse un informe técnico, que estará coordinado por la Instancia respectiva de SINAC”. Agrega que, para cumplir con esos estudios, el Servicio Nacional de Agua Subterrá nea, Riego y Avenamiento (SENARA) contrató a la Organización para Estudios Tropicales (OET) para que d esarrollara el estudio “ Establecimiento de la línea Base de Biodiversidad para la Reserva Biológica Lomas de Barbudal (RBLB) y finca adyacente”. Explica que el objetivo del estudio consistió en el aborar y definir la línea base que permitiera determinar la integridad ecoló gica, relevanc ia y fragilidad de los ecosistemas presentes, así como la biodiversidad existente en el á rea de la reserva biológica Lomas de Barbudal que sería impact ada directamente por el Embalse Rí o Piedras; además, un análisis comparativo entre un á rea de la RBLB y t errenos aledaños previamente seleccionados, para conocer las condiciones de similitud y factibilidad de utilizarse como zona de reemplazo ecológicamente equivalente. Agrega que ese estudio se realizó siguiendo las especificaciones del artí culo 72 del Regla mento a la Ley de Biodiversidad, según se indica expresamente en el oficio de la Organización para Estudios Tropicales de 30 de enero del 2017 y visibl e a folio 212 del expediente 1/10 legislativo. Añade que, en relación con el pu nto h) del numeral 72 del Reglamento a la Ley de Biodiversidad (decreto ejecutivo n.º 34433-MINAE), consta en el expediente legislativo documento denominado “Consulta Obligatoria a las Comunidades Locales Propuesta de Compensació n para la Reserva Biológica Lomas de Barbudal". Expo ne que, de igual manera, el Área de Conservación Arenal Tempisque del Sistema Nacional de Áreas de Conservació n, en su carácter de órgano técnico competente, con respecto al estudio de la Organización Para Estudios Tropicales (OET), se ñaló lo siguiente: “… Que se ha v erificado que el informe técnico remitido a esta instancia par a su consideración ha cumplido con el contenido requerido por los numerales 71 y 72 del Decreto Ejecutivo Nº 34433-MINAE "Reglamento a la Ley de Biodiversidad..." (acuerdo n.° 1 de l a sesión extraordinaria de 5 de julio de 2017 del Consejo Regional del Área de Conservación Tempisque visible a folios 126 al 131 del expediente 1/10 le gislativo). Principio de Equilibrio Presupuestario. Aduce que, segú n el artículo 5 de la Ley de Administración Financiera de la República y Presupuestos Públicos (n.° 8131), el presupuesto deberá reflejar el equilibrio entre los ingresos, los egresos y las fuentes de financiamiento . Asevera que, además de lo ya indicado con respecto al trámite contenido en la Ley de Exp ropiaciones que deberá seguirse para la adquisición por parte del Estado de los inmuebles privados afectos con la ley n.º 9610, es preciso indiciar que en el expediente l egislativo consta el oficio DM-MAG-264-2017 del 18 de abril del 2017 del Ministro A gricultura y Ganadería en el que se compromete a incluir dentro del extra lí mite presupuestario los 1.425.000.000,00 millones de colones para la adquisició n de los terrenos para la compensación de áreas de la reserva biológica Lo mas de Barbudal en el marco del proyecto PAACUME (folio 150 expediente 1/10 legislativo). Acota que lo anterior se dispuso con base en estimaciones realizadas por SENARA: “Para cumplir con este requer imiento de ley, se hace necesario contar con un monto estimado en mil cuatroci entos veinticinco millones de colones 00/100 (1.425.000.000,00), en el entendido que, una vez aprobada la ley que autorice la compensació n, se procederá a realizar los trámites de expropiación correspondientes" Oficio SENARA-GG-023 1-2017 del 06 de abril del 201 7 lodos 214 al 218 del expediente 1/10 legislativo)”. Menciona que el requisito dispuesto en el inciso g) del numeral 72 del Reglamento a la Ley de Biodiversidad fue plename nte satisfecho dentro del trámite legislativo, ya que el MAG se comprometió a contar con el contenido econó mico para atender las obligaciones dispuestas en la ley n.º 9610. Manifiesta que, a partir de la emisió n de la ley n.º 9610, surge la obligación de compra de los inmuebles privados que se encuentran den tro de la reserva bioló gica, distinto al momento efectivo en que debe contarse con los recursos correspondientes a indemnización, según la Ley de Expropiaciones. Principio de razonabilidad y proporcionali dad. Cita el voto de la Sala n.º 732-2001: “V. DEL PR INCIPIO DE RAZONABILIDAD COMO PARÁ METRO CONSTITUCIONAL. La jurisprudencia constitucional ha sido clara y conteste en considerar que el principio de razonabilidad constituye un parámetro de constitucionalidad ... Para realizar el juicio de razonabilidad la doc trina estadounidense invita a examinar en primer término, la llamada -razonabilidad técnica" dentro de la que se examina la norma en concreto (ley, reglamento, etc.). Una vez establecido que la norma elegida es la adecuada para regular determinada mater ia, habrá que exam inar si hay proporcionalidad entre el medio escogido y el fin buscado. Superado el criterio de razonabilidad técnica" hay que analizar la "razonabilidad Jurídica”. Para lo cual e sta doctrina propone examinar: a) razonabilidad ponderativa, que es un tipo de valora ción jurí dica a la que se concurre cuando ante La existencia de un determinado antecedente (ej. ingreso) se exige una determinada prestación (ej. tributo debiendo en este supuesto establecerse si la misma es equivalente o proporcionad a; b) la razonabilidad de igualdad, es el tipo de valoración jurí dica que parte de que ante iguales antecedentes deben haber iguales consecuencias, sin excepciones arbitrarias; c) razonabilidad en el fin, en este punto se valora si el objetivo a alcanzar, no ofende los f ines previstos por el legislador con su aprobación. Dentro de éste mismo aná lisis no basta con afirmar que un medio sea razonablemente adecuado a un fin, es necesario, ademá s, verificar la í ndole y el tamaño de la limitación que por ese medi o debe soportar un der echo personal. De esta manera, si al mismo fin se puede llegar buscando otro medio que produzca una limitación menos gravosa a los derechos personales, el medio escogido no es razonable… ". Arguye que el principio de razonabilidad y proporcionalidad cumple un rol de primer orden en el Derecho Administrativo, al proyectarse en diversos á mbitos. Refiere que es de vital importancia como límite al ejercicio de la discrecionalidad administrativa, al establecer la Ley General de la Administració n Pública que no se pueden dictar actos administrativos discrecionales contrarios a las reglas uní vocas de la ciencia o de la técnica, o a los principios elementales de justicia, lógica o convenien cia (artículos 1G, párrafo 1° , 158. párrafo 4° y 160) (Principios constitucion ales que rigen a las Administraciones Públicas, Ernesto Jinesta L). Explica que, sobre el tema de compensació n y los inmuebles seleccionados para tal fin, la exposición de motivos del proyecto, tomando como base el estudio denominado "Establecimiento de línea Ba se de Biodiversidad para la Reserva Biológica Lomas de Barbudal (RBLB) y finca adyacente " señala: “ Los terrenos evaluados para el área de compensación son propiedad nombre d e ASETREK Tres Azul S.A., cédula jurídica N° 3-101-37025 9, cuyo representante es el Sr, Ramón Agilitar Facio, cé dula de identidad Nº 9-0001-0541, plano catastrado N° 5-666-1976, folio real N° 034932-000, situada en el distrito primero Bagaces, del cantón cuarto Bagaces, de la provincia de Guanacaste, con un área de registro de 751 hectáreas. El procedimiento realizado por la OET para la evaluación de la compensació n, se basa en una metodología llamada: Hábitat/Hectárea, un sistema de puntajes, desarrollado por investigadores australianos el cual identifica una serie de indica dores de calidad de ambiente y asigna valores a cada uno de los factores de los há bitats a evaluar. Se realizaron dos evaluaciones de compensación de fo rma independiente, una basada en indicadores de calidad de hábitat y la otra basada en diversidad y comp osición de c omunidades, ambas adaptadas al bosque seco tropical. Adicionalmente, la metodología usada por la OET fue modificada con el fin de incluir otros indicadores (geofísico s, servicios eco sistémicos, entre otros). El puntaje final resulta de la suma de los valores determinados para cada indicador y representa la calidad de hábitat o la composición de comunidades en relación al hábitat de referencia (RBLB). A partir del resultado obtenido en el Estudio, fue posible estimar el número de hectáreas que se requi eren para lograr un nivel de calidad como el de la referencia y así compensar las 113 hectáreas por inundar en la RBLB. Es importante señ alar que el estudio realizado por la OET consideró un á rea en la RBLB de 131,07 hectáreas, pues fue durante la ejecució n del mismo, que el SENARA realizó el trabajo de campo en topografía para elaborar el plano definitivo sobre el área efectiva requerida para el embalse, que dio como resultado las 113 hectá reas, todas incluidas dentro de las 131,07 hectáreas estudiadas por la OET. El Estudio realizado por la OET (sobre 131,07 hectáreas), al considerar el área establecida, determinó que este sector de la RBLB cuenta con tres tipos de cobertura fore stal: bosque deciduo en 96,05 hectáreas, bosque secundario en 9.13 hectáreas y bosque maduro en 24,71 hectáreas. Este último en adelante será llamado bosque ripario, debido a que está relacionado a los cauces de la zona y compuesto por remanentes de vegeta ción que subsisten en las riberas de los ríos y quebradas, constituido por especies siempre verdes. Además, la finca cuenta con 1,18 hectáreas en á rea no forestal y pastos. El área de bosque ripario en ASETREK, corresponde a pequeñas áreas fragmentadas, situació n que llevó a no considerar su existencia para efectos de la asignació n de puntajes en la evaluación realizada en el Estudio para determinar el área de compensación requerida. Las conclusiones del estudio revelan según la calidad de hábitat, que es n ecesario un área equivalente entre 290 y 332 hectárea s para compensar el á rea a inundar en la RBLB, debido a que la finca estudiada representa entre el 34,00 % y el 51,20 % del sitio de referencia, que corresponde a las 113 hectáreas de la RBLB. Estas diferencias indican que la finca ASETREK Tres Azul SA ha sido má s perturbada y al no co ntar con cobertura de bosque ripario, se requerirán 332 hectá reas para la compensación, considerando el valor máximo probable que da como resultado la metodología aplicada. Por otra parte, aplicando la metodologí a para diversidad y composición de comu nidades, ASETREK contiene 30,90 % de la referencia (113 hectá reas de la RBLB), es decir, la reserva cuenta con una riqueza de especies mayor de los grupos taxonómicos estudiados, por lo que se necesitan 290 hectá reas para compensar la pérdida en la RBLB. E n conclusión, considerando el resultado obtenido por la aplicación de la metodología, tanto para calidad de hábitat como para diversidad y composició n de comunidades, el sitio de compensación ASETREK Tres Azul S.A es inferior en calid ad de ambiente, composición y biodiversidad al sitio de la RBLB que serí a inundado por el Embalse Río Piedras, razón por la cual, al considerar la condición más adecua da para la RBLB, la OET recomendó que se adquieran como mínimo 332 hectáreas de la Finca ASETREK Tres Az ul S A. para resarcir las pérdidas de la RBLB. La finca ASETREK Tres Azul S.A, como extensión para la compensación y estudiada por la OET, tiene un área total de 751 hectá reas, de las cuales, una parte importante está dedicada a la producció n agrícola y ganadera. Al considerar el área de compensación propuesta como resultado del Estudio elaborado, se realizó un análisis del sitio, para valorar la extensión que se debería proponer para la compensación de las 113 hectáreas a inundar de la RBLB, atendiendo a l os siguientes pará metros fundamentales: 1. Cumplir con el área mínima requerida para la compensación obtenida del estudio, que corresponde a 332 hectáreas. 2. Considerar que el área por adquirir para compensación cuente con la cantidad de bosque suficiente, según los tipos de cobertura que se encuentran en el área por inundar de la RBLB. 3. Que el área a comprar incluya las 189,30 hectáreas que fueron estudiadas por la OET para las respectivas comparaciones entre el sitio potencial de compensación y el sitio de referencia (RBLB). 4. Que el área se pueda integrar adecuadamente al resto de la RBLB, respetando entre ellas el mayor porcentaje de colindancia posible. 5. Que el área propuesta para la compensación permita la conectividad de la RBLB con las áreas de protección que se considera dejar alrededor del futuro Embalse Río Piedras como anillo de protección, principalmente en la margen izquierda de este. 6- Que se limite al máximo el lindero del área propuesta con áreas con cobertura no forestal, potreros o pastos, ya que estos pueden incrementar y facilitar el riesgo de incendios dentro de la RBLB. 7- Uniformizar el lindero de la propiedad, para que el área de compensación permita el adecuado manejo por parte de la administración del SINAC en la RBLB. Una vez anali zados los parámetros anteriores, el resultado obtenido denota que el área que se debería comprar de la Finca ASETREK Tres Azul S.A. es de 444,04 hectá reas. De estas se estima una presencia de bosque deciduo en 286,87 hectáreas, bos que secundario en 59.50 h ectáreas, pastizales en 73,23 hectáreas y un área no forestal, es decir, un á rea de pastos con otras hierbas nativas de 18,50 hectáreas. Es impor tante indicar que el área seleccionarla de la finca cuenta además con un área de bosque ripario de 6.14 hectáreas, d istribuida en pequeñas secciones, que por su no conectividad o por encontrarse en la zona de impacto directo del embalse, no se consideraron para la aplicación de la metodología utilizada en el Estudio para determinar el área de la compensación . Si bien es cierto, que el área propuesta de 444,04 hectá reas como compensación a las 113 hectáreas que serían inundadas de la RBLB cumple con los requ erimientos establecidos con base en los resultados de la metodología de calidad de háb itat aplicada en el Estud io por parte de la OET, la realidad es que esta área solo tiene un á rea de 2,2 hectáreas de un bosque maduro o ripario con características simila res al encontrado en el área por inundar en la RBLB. En estas circunstancias, se estimó pertinente la búsqueda de una superficie adicional, que pueda solventar esta deficiencia de bosque ripario del área de compensación en la Finca ASETREK Tres Azul S A., cumpliendo con los parámetros men cionados anteriormente, identificándose luego de un trabajo de campo conjunto entre expertos de la OET, funcionarios de la RBLB del SINAC y del SENARA, dos fincas potenciales para compensació n, ubicadas en el lindero noroeste de la RBLB. Esta propiedad se encuentra a nombre de Brindis de Amor en Liberia S.A y Hacienda Ciruelas SP S.A. En este sentido y según las inspecciones de campo realizadas en forma conjunta de expertos de la OET, SINAC y SENARA, apoyados en imágenes aér eas tomadas con un dron volando a baja altura, se determinó que las propiedades de Brindis de Amor posee un est imado inicial de 1141 hectáreas de bosque ripario y Hacienda Ciruelas SP S.A. posee un estimado de bosque ripario de 8.49 hectáreas conformado por una cobertura boscosa constituida por especies siempre verdes y que es comparable en calidad con el en contrado en el sitio potencial de inundación en la RBLB. El área de bosque ripario en Brindis de Amor representa un 7,40 % del área cubierta por ese tipo de bosque dentro la RBLB actualmente; de ahí la importancia de incorporar esta área a la RBLB. Otro aspecto i mportante, es que el área de bosque ripario en esta finca puede constituirse un área núcleo de especies para repoblar otros ambientes riparios en la propiedad. Aunque esta situación no es cronoló gicamente correspondiente a la pérdida en la RBLB, segú n la OET, si es una considerable ventaja ya que esta área núcleo permite a corto plazo una restauración e incorporació n de nuevos bosques riparios, situación que no se estaría dando en la Propiedad de ASETREK Tres Azul S.A. El bosque deciduo (45,74 hectáreas), a sí como el secundario (6,63 hectáreas) en Brindis de Amor han sido protegidos, por al menos veinte años y no hay registros de talas ni fuegos recientes, por lo que están en mejor condición de estructura y composición que los encontrados en el sitio de potencial impacto en la RBLB o en la propiedad de ASETREK Tres Azul S.A. Aunque no es el objetivo principal, la anexión de este tipo de bosque de Bri ndis de Amor a la RBLB implica una ganancia significativa en estas coberturas forestales tambié n. El Estudio de Lí nea Base de Biodiversidad para la RBLB, evidenció el incremento en diversidad de diferentes grupos taxonómicos como respuesta a fuentes de agua más permanentes, condició n que se ve muy favorecida en la finca Brindis de Amor que posee varias fuentes de agua p ermanentes, incluyendo el río Cabuyo y sus afluentes, lo que da un valor agregado a esta finca. Existen estudios de la Dra. Susan Perry (Universidad de California, Los Angel es), los cuales señalan que tropas de monos carablanca (Cebus capuccinus) de l a RBLB utilizan los bosques dentro de Brindis de Amor como sitios de alimentació n y descanso; es decir, hay evidencia de un constante flujo de animales entre la RBLB y Brindis de Amor como sitio de forrajeo, lo que demuestra la import ancia biológica de est a propiedad para ser incorporada a la RBLB. Finalmente es importante mencionar, que el Estudio realizado por la OET establece un área de compensación que considera la cond ición actual de los terrenos que se están valorando, sin hacer referencia a las mejoras que a futuro tendrán al incorporarse a un régimen de protección como lo es la reserva. Ante ello, se procedió a identificar un área bosque ripario que permite compensar el faltante en hectá reas para este tipo de ecosistema manteniendo la conectividad eco sis témica del área protegida, concluyendo que la propiedad de Hacienda Ciruelas SP S.A. presenta tales condiciones y permite compensar un área de 8,49 hectá reas de bosque ripario. Adicionalmente, se concluye que la mejor opción para completar la compensación del bosque ripario es necesario adquirir un á rea de 40,00 hectáreas propiedad de Hacienda Ciruelas SP S.A., la cual contiene 8,49 hectá reas de bosque ripario. Según las capas de cobertura mencionadas anteriormente, esta finca posee un total de 33,64 hectár eas de bosque ripario, donde la mayoría de este tipo de bosque se encuentra bordeando la quebrada Amores, donde el á rea seleccionada para compensación posee un á rea de 8,49 hectá reas de bosque ripario, 2,44 hectáreas de bosque se cundario, 26,91 hectá reas de bosque deciduo y 2,16 hectáreas de pastos. Por su parte, es de esperar que dentro de los beneficios que a futuro tendrá la regeneración da pastizales que posee ASETREK Tres Azul S.A., se encuentre la contribución al establecimiento de bosque secundario, la fijació n de carbono (CO2), protección de suelos, ganancia de cobertura, protección de la biodiversidad y de la belleza escénica del lugar, protección de fuentes de agua, a la vez que contribuye a aumentar su valor ecológico, econó mico y social. Es decir , la nueva superficie establecida bajo el régimen de protección, tendrá una tendencia a mejorar su condición actual, tanto en calidad de há bitat como en diversidad y composición de comunidades. Segú n indica Quesada, R (2008), en su Manual para promover la regeneración natural en pastos degradados en el Pacífico Central y Norte de Costa Rica, "para revertir áreas de pastos en bosques a través de métodos de regeneració n natural, deben tener una ubicación estratégica a fuentes semill eras y cercanía a parc hes boscosos", condiciones que presenta el área propuesta en las fincas ASETREK Tres Azul S.A. y Brindis de Amor en Liberia S.A. Estas condiciones hacen predecir que si bien en la actualidad las 91,74 hectáreas (zona de pastizales de 73,23 hectáreas y un área n o forestal de 18,51 hectáreas) en ASETREK Tres Azul S.A. 18,18 hectá reas de pastos en Brindis de Amor y 2.16 hectáreas de Hacienda Ciruelas SP S.A., en pocos años, bajo un régimen de protecció n como el de la RBLB y un manejo cont rolado de fuegos, estas superficies podrán incorporarse a las distintas etapas de sucesión de bosques secundarios. Así las cosas, de acuerdo con los resultados expuestos en el estudio realizado por la OET y a lo planteado en la Comisión de Alto nivel del P IAAG la propuesta definitiva de compensación es: 1- De la finca ASETREK Tres Azul S.A un total de 444,04 hectáreas, conforme al plano del área propuesta. 2-La totalidad de la Finca Brindis de Amor en Liberia S.A., con un área de registro de 86,96 hectáreas conforme al plano. 3- Un área de la finca de 40,00 hectáreas de Hacienda Ciruelas SP S.A. En total, la compra de 571 hectáreas, lo que representa un factor de 5 veces el área que se verá afectada en la RBLB, con una equivalencia directa en tipos de bosques". Acota que, de lo anteri or, se extraen las siguientes consideraciones de interés: “En el estudio sí se tomó en consideración la propiedad de Hacienda Ciruelas SP S.A. La decisión de las fincas a elegir obedece a la aplicación del método de hábitat-hectárea y en la cual se fundamenta el estudio de la OET. Que las consideraciones del estudio refieren a aspectos técnicos y no de carácter económico. Que no se consideró la compensación con terrenos ya afectos a un régimen de protección por el simple hecho de estado; por cuanto ello conlleva ba sobreponer un tema económico a los aspectos técnicos contenidos en el informe de la OET, el cual es el sustento para realizar una verdadera compensación -basada en las características de los terrenos a incluir con el fin de que contengan los objetos de conservación para los cuales se creó el área silvestre protegida- y no convertirse en una simple equiparación con terrenos estatales para cumplir el requisito sin sustento alguno; lo cual sí debilitaría la ley bajo análisis”. Principio de Economía y Eficiencia. Refiere que las manifestaciones de los accionantes sobre la violación de este principio resultan reiterativas. Solicita que se declare sin lugar la acción de inconstitucionalidad. 8.- Por escrito recibido en la Secretaría de la Sala a las 13:21 horas de 15 de febrero de 2019, se apersona Patricia Quirós Quirós, en su condición de Gerenta General con facultades de apoderada generalísima sin límite de suma del Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento (SENARA). I. Interés Público del Proyecto PAACUME. Indica que el proyecto viene a complementar con aguas de la Laguna Arenal, la disponibilidad de recurso hídrico para distintos usos que actualmente suministran las fuentes naturales a la margen derecha del Río Tempisque (cantones de Carrillo, Santa Cruz y Nicoya) y que, en definitiva, no son suficientes para suplir las necesidades cada vez mayores de recurso hídrico, tanto para uso humano (agua potable) como para uso en agricultura (riego), que permita darle sostenibilidad al suministro del agua durante todo el año. Señala que la región Chorotega en general tiene un régimen natural de precipitación que presenta más de 5 meses de déficit hídrico al año, sin considerar efectos naturales extremos, como el caso de sequías más prolongadas ocasionadas por el fenómeno del niño o el cambio climático, que son cada vez más frecuentes y recurrentes (v.g. la sequía del 2014 al 2016), que afectan severamente a las comunidades y la actividad tanto productiva como económica y que, por primera vez en Costa Rica, requirió una declaratoria de emergencia por sequía, según el decreto ejecutivo n.° 38642-MP-MAG de 30 de noviembre de 2014. Expresa que SENARA es una institución autónoma creada con la ley n.º 6877 de julio de 1983 y es la responsable de la ejecución del PAACUME. Acota que en el artículo 2 de ese cuerpo normativo se le confiaron los siguientes objetivos: "•Fomentar el desarrollo agropecuario en el país, mediante el establecimiento y funcionamiento de sistemas de riego, avenamiento y protección contra inundaciones. •Contribuir a desarrollar preferentemente aquellos proyectos de desarrollo agropecuario que se sustenten en una justa distribución de la tierra. •Procurar que en el territorio beneficiado por la creación de distritos de riego y avenamiento, se efectué una modificación racional y democrática en la propiedad de la tierra". Menciona que el PAACUME representa una excelente iniciativa de aprovechamiento de las agu as almacenadas en la Laguna Arenal y que alimentan el Sistema Hidroelé ctrico Arenal- Dengo- Sandillal (ARDESA) operado por el ICE, en actividades generadoras de valor como el riego, en la actividad de producción agropecuaria y el riego en desarrollos turí sticos costeros, así como para agua potable y generación hidroelé ctrica, lo cual lle va implícito, una gran oportunidad de crecimiento y desarrollo a la provincia de Guanacaste, con un impacto a nivel nacional. Manifiesta que para el proyecto se utilizaría la infraestructura existente para captación y conducció n de agua en el Distrito de Riego Arenal Tempisque operado por el SENARA (presa Miguel Pablo Dengo y Canal Oeste Tramo I) y, ademá s, se construirían obras como la presa de almacenamiento en el río Piedras, la ampliació n y mejoras en el canal oeste (desde el río Piedras hasta el r ío Tempisque; es decir, alrededor de 55 kilómetros de longitud) y las redes tanto de conducción como de distribución de agua en la margen derecha del rí o Tempisque (alrededor de 300 kiló metros de líneas de conducción por gravedad y bombeo). Arguye q ue, a partir del almacenamiento en el embalse río Piedras, el PAACUME permitirá abastecer de agua a una zona históricamente seca, que, por razones de variabilidad y cambio climático, ha aumentado su condició n de sequía, en muchos casos a seq uía extrema, limitando la sostenibilidad y desincentivando el crecimiento socioeconómico de la región y del país en general. Afirma que el PAACUME está constituido por cuatro componentes: el embalse río Piedras (el cual incluye la automatización del sistem a, la casa de máquinas y la presa y el embalse propiamente dicho), la ampliación del Canal Oeste desde el rí o Piedras hasta el río Tempisque con una longitud de aproximadamente 55 kilómetros, la constr ucción de la red de distribución en la margen derecha del rí o Tempisque (aproximad amente 300 kilómetros de longitud) y la propuesta de implementació n de un Plan de Desarrollo Regional para el área directa e indirectamen te afectada por el proyecto, proceso que está en etapa de conceptualización y formulació n. Refiere que el PA ACUME, como proyecto de inversió n pública, se encuentra vinculado, según la clasificación establecida en el decreto ejecutivo n.° 38536-MP-PLAN del Reglamento Orgánico del Poder Ejecutivo, publicado el 25 de julio de 2014, al sector Desarrollo Agropecuario y Rural (po r su importancia e impacto en la seguridad alimentaria y el desarrollo social del área de influencia) y al sector Ambiente, Energía, Mares y Ordenamiento Territorial ( por su valor como medida de adaptación al cambio climático y el efecto sobre la disponibi lidad de agua en la zona de impacto). Adiciona que el PAACUME está incluido en el Plan Nacional de Desarrollo y uno de los principales proyectos conceptualizados como priorit arios para la reactivación económica del país. Agrega q ue, con la construcción del conjunto de obras que comprende PAACUME, se beneficiarán de manera directa a productores agropecuarios ubicados en los cantones de Carrillo, Santa Cruz y Nicoya, así como consumidores de agua potable y de riego para zonas verdes en empresas turí sticas. Añade que, entre los beneficiarios directos se encuentran productores grandes, medianos y pequeños (en esta última categorí a se hace referencia, en su mayoría, a adjudicatarios en asentamientos campesinos que se caracterizan por una mayor necesidad de ap oyo por parte de las instituciones del sector agropecuario). Expone que el á rea de riego para la producción agropecuaria se estima en 18.639 hectáreas en donde se podrían beneficiar 746 productores entre grandes, medianos y pequeños propietarios (SENARA, 2 018 Estudio de Factibilidad PAACUME). Agrega que este proyecto reviste vital importancia para la colectividad , por cuanto se destinarán 2 me tros cúbicos por segundo de agua para consumo humano (cuyo tratamiento y distribución estar á a cargo del Insti tuto Costarricense de Acueductos y Alcantarillados). Explica que, con respecto al suministro de agua para consumo humano, el caudal establecido para el sector es con una proyecció n de demanda a 50 años; asimismo, que se estima que para el 2025 habrá una población , dentro del área del proyecto, equivalente a más de 220.000 habitantes, los cuales se convierten en usuarios de los acueductos principales de la zona. Añade que los acueductos r urales atienden actualmente una población mayor a las 139.000 personas. Aduce que, además de la població n que se estará abasteciendo de agua para consumo humano (que se estima que unos 200.000 habitantes de la regió n), se beneficiará de forma indirecta a toda aquella población inserta en el sector de bienes y servicios, a las personas q ue sean contratadas para atender las nuevas áreas bajo riego en las diferentes etapas de productivas y a los nuevos actores que logren consolidar actividades de producció n y comercialización. Adiciona que otro sector beneficiado será el dedicado al tur ismo, para el cual el PAACUME procurará abastecer de agua para riego en un área estimada en 1.213 hectáreas distribuidas entre las 171 empresas turísticas debidamente iden tificados en la zona costera y que muestren su disposición de pertenecer al pr oyecto, con lo que tambié n se estará tratando de disminuir la presión que se genera en la extracción de aguas subterráneas de los acuíferos de la costa (SENARA, 2018 Estudio de Factibilidad PAACUME). Asevera que PAACUME podrá generar elect ricidad en la presa Río Piedras (7 MW por año), como un beneficio del proyecto que implica un óptimo aprovechamiento del recurso hídrico disponible. Sostiene que, como se mencionó anteriormente, la infraestructura planteada en el PAACUME contempla tres componentes principales: e l embalse en el río Piedras compuesto por el embalse propiamente dicho, la presa, el vertedor de excedencias, la obra de toma y la casa de máquinas para la generació n de electricidad, la red de p rincipal conducción que va del embalse Río Piedras al río Tem pisque (55 kilómetros de longitud) y, por último, la red distribución compuesta por la red de canales en la margen derecha del río Tempisque, donde se realizará la distribución d e los 20 m3/seg que se extraerán del embalse río Piedras provenientes d e la Laguna Arenal. Indica que la construcción de la presa río Piedras generará un embalse con una extensión (espejo de agua) de aproximadamente 85 0 hectáreas. Señala que el siti o donde se ubicará la presa corresponde al río Piedras, especí ficamente entre las coorden adas Longitud Oeste 358930, Latitud Norte 1163180 y Longitud Oeste 359690, Latitud Norte 1155330 a una elevación de nivel de agua máxima de 50.00 m.s.n.m.. Expresa que el sitio de presa se ubicará en un estrechamiento natural del cauce del río Piedras . Acota que el agua de la Laguna Arenal captada en la Presa derivadora Miguel Pablo Dengo B . es conducida hasta el río Piedras por medio del Canal Oeste Tramo I que tiene una long itud de 21 km y una capacidad hidráulica de 55 m3/seg. Menciona que es importa nte destacar que antes de que el Canal Oeste Tramo I interseque con el rí o Piedras se da una caída natural y es precisamente esa caída la que permite concebir el sitio de almacen amiento que genera el embalse en el río Piedras. Manifiesta que la ubicación d e la presa en el Río Piedras obedece a una condición topográfica ú nica que no permite ser trasladada a otro sitio, por tanto, esa ubicació n y diferencia de nivel entre la entrada del canal que lo abastece y la salida del canal que per mitirá llevar el agua h asta el río Tempisque, determinarán el nivel máximo de embalse y la capacidad del mismo para abastecer con 20 m3/seg al PAACUME para que sean distribuidos en la margen derecha de l río Tempisque. Afirma que, en algún momento se valoró la posibilidad de cons truir un dique para evitar la inundación de esa área de la RBLB y un túnel de má s de 2 kilómetros para evacuar las aguas; sin embargo, resultó que el sitio del dique que se debería construir coincide con una falla geológica que harí a imposible su construcci ón por el alto riesgo que genera a la obra. Concluye que no existe posibilidad de reubicar o disminuir el volumen de embalse sin afectar significativamente el alcance del PAACUME, con lo cual, se determina la urgente e indispensable necesidad de contar con las 113 hectáreas de la Reserva Biológica Lomas Barbudal para ser inundadas, resultando un elemento esencial para la construcción de la presa en el río Piedras, por lo qu e la presa en ese sitio es la única posibilidad del PAACUME de almacenar el ag ua disponible proveniente de la laguna Arenal. Arguye que la ley n.° 9610 "Modificación de límites de la Reserva Biológica Lomas Barbudal para el Desarrollo del Proyecto Abastecimiento de Agua para la Cuenca del Río Tempisque y Comunidades Costeras" es urgente y necesariamente indispensable para poder ejecutar el PAACUME. Refiere que la construcció n de la presa en el río Piedras es un elemento esencial del PAACUME que requiere la vigenci a de la ley n.° 9610 , a fin de poder satisfacer el inter és público de po der brindar soluciones a diversas necesidades tales como agrícolas, productivas y de abastecimiento de agua para consumo en una zona donde cada vez es más escaso el recurso hídrico. Explica que la ley impugnada es urgente para brindar so luciones a los poblados de la cuenca del Tempisque y las comunidades costeras de Guanacaste, como por ejemplo Sardinal, impactadas por problemas de abastecimiento y salinización de acuí feros (situaciones que ha n sido de conocimiento de la Sala Constitucional en múltiples recu rsos de amparo en procura de la defensa del recurso hídrico). Agrega que, en esos casos, el rol del SENARA ha permitido la correcta protección del recurso hí drico. Añade que en el caso co ncreto la participación del SENARA garantizará el corre cto aprovechamiento y fomen to del recurso hídrico, impactando positivamente la cuenca del Tempisque y las zonas costeras de Guanacaste. Solicita que se analice la presente acción de inconstitucionalida d considerando el interés público de los poblados costeros y de la cuen ca del Tempisque beneficiados con el proyecto PAACUME, para el cual es absolutamente necesario contar con ley n.º 9610 para su desarrollo. Aduce que se analizarán los argumentos del acc ionante en el mismo orden en que los expuso. A) Inexistente obligación de comunicar a la convención sobre la ley denominada “ Modifica límites de la Reserva Biológica Lomas de Barbudal para el desarrollo del proyecto de abastecimiento de agua para la cuenca media del río tempisque y comunidades costeras ”. Re chaza lo expuesto por el a ccionante, ya que no existe obligación alguna de comunicar a la Convención RAMSAR los alcances de la norma impugnada. Relata que la convención estipula una obligació n de los Estados suscribientes de proteger los humedales reportados como parte de lo s sitios integrantes de los Humedales de Importancia Internacional Especialmente como Hábitat de Aves Acuáticas. Asevera que la norma impugnada no desmejora o reduce el sitio RAMSAR de interés internacional inscrito por nuestro país (parque nacional Palo Verde), sino que, por el contrario, incrementa las áreas de protección, pues los límites son aumentados al incorporar mayor cantidad de área inundada, así como una mayor cantidad de área con cobertura boscosa. Sostiene que el artículo 4 de la Convención RAM SAR establece la obligació n de fomentar la conservación de los humedales y de las aves acuá ticas creando para ello reservas naturales; a su vez instaura una obligació n concreta en el inciso 2 atinente al retiro o reducción de los límites de un humedal, regulando que, si por interés nacional urgente, se genera esa necesidad, se debe compensar en la medida de lo posible la pérdida de recursos de humedales: “Artículo 4. 1. Cada parte contratante fomentará la conservación de las zonas húmedas y de las aves acuáticas creando reservas naturales en los humedales, estén o no inscritos en la "Lista", y atenderá de manera adecuada su manejo y cuidado. 2. Cuando una parte contratante, por motivos urgentes de interés nacional, retire o reduzca una zona húmeda inscrita en la "Lista", deberá compensar, en la medida de lo posible, cualquier pérdida de recursos en los humedales y, en especial, deberá crear nuevas reservas naturales para las aves acuáticas y para la protección, en la misma región o en otro sitio, de una parte adecuada de su hábitat anterior. 3. Las partes contratantes fomentarán la investigación y el intercambio de datos y de publicaciones relativas a las zonas húmedas, a su flora y a su fauna”. Indica que, a partir de esa norm a se desprende la obligació n, según el a ccionante de informar de previo a su aprobación la modificación de los límites de la reserva bio lógica Lomas de Barbudal. Señ ala que este argumento del accionante será abarcado de manera má s amplia por el Ministerio de Ambiente y Energí a, quien refiere que, a pesar de que no se afecta ningún humedal, con la aprobación de la norma impugnada, se debe aclarar que sí se estaría cumpliendo con la Convenció n Ramsar, dado que, por la desafectación de las 113 ha se estarían incorporando 549 ha de área con un ré gimen de protección ambiental. Expresa que la ley n.º 9610 contempla que el espejo de agua del embalse a construir de aproximadamente 850 ha y la zona de protección (cuando estén consoli dadas) sea declarado un humedal con una categoría de manejo especial. Estima q ue no existe violación alguna al Derecho de la Constitución. B) El estudio de la OET garantiza el respeto del artículo 50 de la Constitució n Política. Aclara que, contrario a lo que señala el accionante, el estudio para el “Establecimiento de la línea Base de Biodiversidad para la Reserva Biológica Lomas de Barbudal (RBLB) y finca adyacente ”, sí se realizó y fue elaborado por la Organización para Estudios Tropicales. Acota que también se generó la participación de las comunidades, las cuales fueron consultadas. Menciona que incluso el 8 de mayo de 2017 se realizó una actividad formal en el local del CEPROMA Bagatzí, a fin de considerar las observaciones de las comunidades en cuanto al proyecto (se adjunta el informe de la consulta). Manifiesta que, de igual manera, participó el Área de Conservación Arenal Tempisque (ACAT). Afirma que, el 30 de junio de 2017, en reunión del Comité Técnico en la que participaron 19 profesionales del ACAT (incluyendo su departamento legal), se analizó el proyecto Embalse Río Piedras, reserva biológica Lomas de Barbudal (se aporta la minuta de la reunión). Arguye que se adjunta el oficio SINAC-COACAT-SE-041 de 7 de julio de 2017 remitido al Consejo Nacional de Áreas de Conservación, a fin de que conocieran sobre el acuerdo adoptado por el Consejo Regional de ACAT al conocer el proyecto de interés. Refiere que es evidente que los accionantes no tienen clara la diferencia entre el estudio elaborado por la OET (requerido para los efectos de la aprobación de la ley n.º 9610) y el denominado Estudio de Impacto Ambiental (EIA). Refiere que el primero es el estudio específico y exclusivo para el área de Lomas de Barbudal a desafectar y finca adyacente como área de compensación; en cambio, el EIA contempla toda el área del proyecto PAACUME y su objetivo es incorporar los estudios técnicos necesarios para la valoración de impactos y plantear las medidas de mitigación ambiental que permitan contar con la Viabilidad Ambiental por parte de SETENA. Añade que el estudio de la OET fue preparado en coordinación con SENARA, MINAE y otras instituciones involucradas. Explica que la OET es una organización con gran prestigio y capacidad técnica para ese tipo de estudio; asimismo, posee solvencia técnica por su operación desde hace más de 50 años en consorcio con 50 universidades, colegios e instituciones de investigación de siete países en cuatro continentes. Agrega que la misión de la OET es proporcionar liderazgo en la educación, la investigación y el uso responsable de los recursos naturales en los trópicos; su objetivo es mantener los ecosistemas tropicales por la conducción del descubrimiento científico y el conocimiento, mediante el enriquecimiento de la percepción humana de la naturaleza y la mejora de las medidas de política en todo el mundo en los trópicos. Añade que la organización opera cuatro estaciones de investigación: Skukuza en África del Sur; y La Selva, Palo Verde y Las Cruces en Costa Rica. Expone que, de acuerdo con lo anterior, debe tenerse claro que para poder ejecutar el proyecto PAACUME, lo primero que se debe tener es la desafectación de las 113 ha de la reserva biológica Lomas de Barbudal (para poder construir el embalse), ya que sin embalse no hay proyecto y, al no haber proyecto no se requiere la viabilidad, por lo tanto, son estudios y trámites totalmente independientes. Aduce que el estudio realizado por la OET, sin lugar a dudas se trata de un estudio con rigor científico, desarrollado por una organización de renombre mundial, emitido a la luz de una contratación administrativa. Asevera que, si bien la contratación la hizo el SENARA, los términos, objeto, objetivo y alcances se definieron de manera conjunta con el MINAE y demás instituciones involucradas. Sostiene que, debido a la seriedad del estudio y a la organización que lo elaboró, la Asamblea Legislativa decidió utilizarlo como base para la aprobación de la ley. Indica que el accionante olvida que esta es una acción de inconstitucionalidad y no un procedimiento de pleno conocimiento en el que se puedan discutir aspectos de legalidad, científicos o técnicos. Señala que el procedimiento establecido por la Ley de la Jurisdicción Constitucional no contempla contradictorio para poder discutir los términos del estudio. Expresa que el procedimiento de aprobación de la ley cuestionada lo que requería no era sino la rendición de dicho estudio, el cual ya se elaboró y se aporta copia en el acto. Cita parcialmente la sentencia de la Sala n.º 3049-08. Acota que exista una necesidad de deslindar el control de constitucionalidad y legalidad en materia de protección del derecho a un ambiente sano y ecológicamente equilibrado. Transcribe parcialmente el voto salvado del ex Magistrado Ernesto Jinesta y del Magistrado Salazar Alvarado emitido en el voto de la Sala n.º 06340-2017. Manifiesta que las discrepancias que pueda tener la parte accionante con el estudio de la OET es un tema discutible en la vía ordinaria y no en sede constitucional. Pide que se rechace la acción en cuanto a este extremo. C) Inexistente quebrant o del principio de no regresividad en materia ambiental. Afirma que la ley n.º 9610 prevé la compensación del área y como por la desafectación de 113 hectáreas se están incorporando 556, no hay disminución alguna. Arguye que la OET recomienda que se adquieran como mínimo 332 hectáreas de la Finca ASETREK; sin embargo, para facilitar el manejo y el control de incendios se tomó la decisión de incorporar 444 hectáreas de ASETREK, por lo que se compensan todos los diferentes ecosistemas que se encuentran dentro de las 113 ha de la reserva biológica Lomas de Barbudal, a excepción del bosque ripario. Refiere que, si al accionante no le complace el estudio elaborado por la OET, esta vía no es la correspondiente para discutirlo. Aclara que la incorporación de las fincas Brindis de Amor y Hacienda Ciruelas a la propuesta de compensación se realiza por recomendación de Manrique Montes Obando, administrador de Lomas Barbudal, basándose en que cuentan con terrenos de bosque ripario en condiciones adecuadas de conservación, así como con las nacientes principales del río Cabuyo y quebrada Amores. Cita de la ley n.º 9610 el párrafo segundo del artículo 5: “Del canon que cobre el Ministerio de Ambiente y Energía (Minae) a los usuarios por concepto de uso y aprovechamiento de agua, se destinará un cincuenta po r ciento (50%) al Sistema Nacional de Áreas de Conservació n (Sinac) para la implementación del Plan General de Manejo de Uso Sostenible y Racional se incorporan recursos eco nómicos” y el artículo 6: "Finalizadas las obras de construcción y puesto en o peración el Embalse Río Piedras por parte del Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento (Senara), el área de embalse, que incluye el anillo de protecció n, se constituirá en un ecosistema de humedal administrado por el Sistema Nacional de Áreas de Conservación (Sinac) y conforme a lo establecido en el artículo 33 de la Ley N. ° 7575, Ley Forestal, de 13 de febrero de 1996. Deberá existir estricta coordinació n con Senara para la utilización del agua conforme a diversos usos requeridos. En este mis mo artículo la Ley establece: "Para la elaboración del Plan General de Manejo de Uso Sostenible y Racional, se conformará una comisión con representación del Sinac, Senara y la Municipalidad de Bagaces". Concluye que la propuesta de compensación, según lo establecido en la ley n.º 9610, no constituye una regresión ambiental para la reserva biológica Lomas de Barbudal, sino que, por el contrario, se está dando un fortalecimiento en materia de protección y administración en temas ambientales, ya que se incrementa el área de la reserva, se protegen e incorporan áreas con humedales naturales (río Cabuyo y Quebrada Amores), se asignan recursos económicos para la administración y manejo de recursos naturales, se integra la coordinación entre instituciones para el manejo y elaboración de los planes correspondientes en materia ambiental, y finalmente se incorporara un nuevo ecosistema de humedal, el cual, además de ser un nuevo destino para las aves acuáticas, será un ecosistema que contribuirá a la adaptación al cambio climático en toda la provincia de Guanacaste. Pide que se rechace la acción en cuanto a este extremo. D) Inexistencia de violación al principio in dubio pro natura. Refiere que la delimitación planteada en la ley n.º 9610 de los nuevos límites de la reserva biológica Lomas de Barbudal no violenta el Derecho de la Constitución, sino que, por el contrario, la norma plantea una variación de los límites que permite desafectar 113 ha para compensarlas con otras 556 ha. Agrega que, pese a que el estudio de la OET recomendó que se adquirieran como mínimo 332 ha de la Finca ASETREK, se tomó la decisión de incluir 444 ha a fin de facilitar el manejo y el control de incendios; por otra parte, la incorporación de las propiedades Brindis de Amor y Hacienda Ciruelas, posibilita contar con bosque ripario en condiciones adecuadas de conservación, asimismo poder conservar (al estar dentro del área del proyecto) las nacientes principales del río Cabuyo y quebrada Amores, que se encuentran en esas fincas. Añade que los artículos 5 y 6 de la ley n.º 9610 establecen además obligaciones para el MINAE y el SENARA respectivamente; al primero le encarga destinar el 50% del canon que cobre el MINAE a los usuarios por concepto de uso y aprovechamiento de agua, para que el SINAC implemente el Plan General de Manejo de Uso Sostenible y Racional, mientras que a SENARA le indica que una vez se concluya con la fase constructiva y entre en operación el embalse Río Piedras, el área de embalse (que incluye el anillo de protección) se constituirá en un ecosistema de humedal administrado por el SINAC, conforme a lo establecido en el artículo 33 de la ley n.º 7575. Expone que, además, una comisión conformada por SINAC, SENARA y la Municipalidad de Bagaces, tendrá encargada la elaboración de un Plan General de Manejo de Uso Sostenible y Racional de las áreas que incrementarán las zonas de interés por la existencia de humedales. Aduce que no se está ante una regresión ambiental, sino que se generará un fortalecimiento en materia de protección y administración en Guanacaste. E) Inexistente violación del artículo 45 de la Constitución Política. Asevera que el artículo 1 de la ley n.º 9610 redefine los límites para ampliar la reserva biológica Lomas de Barbudal: “ARTÍC ULO 1- Se rectifica y se delimita el á rea de la Reserva Biológica Lomas de Barbudal, creada mediante Decreto Ejecutivo N. ° 16849-MAG, de 23 de enero de 1986, para el desarrollo del Proyecto de Abastecimiento d e Agua para la Cuenca Media del Rio Tempisque y Comunidades Costeras (P aacume). El á rea protegida parte de un punto ubicado en el río Cabuyo de coordenadas en el Sistema CRTM05 x 350792,224 y Y 1163050,33 y continú a por el límite con la propiedad de Invers iones y Desarrollos Costa del Pacífico del Mar CPM S.A. con las siguientes coo rdenadas: (…)”. Sostiene que, como se denota con lectura del numeral, no se está despojando a ningú n propietario de su propiedad privada. Indica que, en aplicación de la Ley de Expropiaciones, se tramitará n los procedimientos correspondientes para expropiar las propiedades requeridas para el proyecto, incluyendo el levantamiento de planos catastrados, la definición de accesos o servidumbres, la confección de avalúos, la emi sión del decreto de expropiació n donde se incluya el cará cter de interés públi co, la comunicació n del avalúo al propietario. F) Procedencia de emplear la figura del 208 bis para la aprobación de la ley n.º 9610. Señala que la ley cuestionada no dispone de normas que expresamente afecten, despojen o expropien alguna propiedad privada, de allí que el procedimiento aplicado para su aprobación sea válido. Acota que la figura del 208 bis del Reglamento de la Asamblea Legislativa es un instrumento jurídico reglado; es decir, que dispone con total claridad cuáles supuestos son aplicables y cuáles no. Expresa que esa vía no es utilizable para aprobar un proyecto de ley cuando verse sobre aprobación de contratos administrativos, venta de activos del Estado o apertura de sus monopolios y tratados y convenios internacionales sin importar la votación requerida para su aprobación. Cita el artículo 208 bis del Reglamento de la Asamblea Legislativa. Refiere que en este caso no se está ante ninguno de los supuestos que dispone la norma en cuestión como inadmisibles y tampoco están ante una norma que requiera mayoría calificada, por lo que no existía ninguna imposibilidad para que se tramitara el proyecto a través del procedimiento especial. G) Respeto del principio de seguridad jurídica. Expone que esa representación tiene que claro que en el recurso no se afirma que las coordenadas que están en la ley son incorrectas, sino que no coinciden con las registradas en el Instituto Geográfico Nacional. Añade que lo anterior no ocasiona vicio de inconstitucionalidad alguno, por cuanto las coordenadas de delimitación de la reserva biológica Lomas de Barbudal, señaladas en la ley n.° 9610 son correctas. Agrega que la reserva biológica Lomas de Barbudal fue establecida en el decreto ejecutivo n.° 16849-MAG, publicado en la Gaceta 45 de 5 de marzo de 1986, momento en que no se contaba con los instrumentos tecnológicos de precisión geográfica que existen en la actualidad. Expresa que en un trabajo conjunto entre el MINAE y el SENARA se realizaron los estudios y replanteamiento topográfico de campo necesarios, lo que permitió una adecuada precisión geográfica de ubicación y delimitación real del área de la reserva de interés. Explica que para la delimitación se consideraron las coordenadas establecidas en el decreto ejecutivo n.° 16849-MAG y, además, se integraron las 3 fincas incluidas como compensación conforme con los planos catastrados de cada una de ellas. Arguye que, de igual forma, se excluyeron las 113 has requeridas para el embalse río Piedras. Sostiene que las coordenadas señaladas en la ley n.° 9610 marcan el área total de la reserva biológica Lomas de Barbudal en estricto apego a la delimitación anterior, con la inclusión y exclusión de las áreas correspondientes. Considera que no existe inseguridad jurídica que pueda calificar al proyecto de inconstitucional. H) Inexistente violación al artículo 11 constitucional. Transcribe parcialmente el artículo 4 de la Convención RAMSAR: “Artículo 4. 1. Cada parte contratante fomentará la conservación de las zonas húmedas y de las aves acuáticas creando reservas naturales en los humedales, estén o no inscritos en la "Lista", y atenderá de manera adecuada su manejo y cuidado. 2. Cuando una parte contratante, por motivos urgentes de interés nacional, retire o reduzca una zona húmeda inscrita en la "Lista", deberá compensar, en la medida de lo posible, cualquier pérdida de recursos en los humedales y, en especial, deberá crear nuevas reservas naturales para las aves acuáticas y para la protección, en la misma región o en otro sitio, de una parte adecuada de su hábitat anterior. 3. Las partes contratantes fomentarán la investigación y el intercambio de datos y de publicaciones relativas a las zonas húmedas, a su flora y a su fauna”. Asevera que, tal y como se extrae de lo anterior, es una facultad del Estado el retiro de la lista o reducción de los límites de un humedal cuando así lo amerite el interés nacional. Afirma que para lo anterior se exige una compensación, en la medida de lo posible, de la pérdida de recursos de humedales. Indica que, de acuerdo con esa línea de pensamiento, lo requerido para la reducción de límites de un humedal es un estudio de compensación. Señala que, en el caso concreto, tales estudios fueron elaborados por la OET, así como por el MINAET, SENARA y otras instituciones. Acota que no debe confundirse ese estudio de compensación de áreas (incluido en el estudio “Establecimiento de la línea base de Biodiversidad para la Reserva Biológica Lomas de Barbudal (RBLB) y finca adyacente”), con el Estudio de Impacto Ambiental necesario para la construcción del proyecto PAACUME, pues son diferentes. Cita, en relación con el Estudio de Impacto Ambiental, el artículo 4 de la ley cuestionada: “ARTÍCULO 4- El Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento (Senara) será la entidad responsable de realizar el estudio ambiental del Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras (Paacume), que deberá incluir las medidas de prevención, mitigación y compensación del área desafectada afecta en el artículo 2 de la presente ley, las cuales deben ser implementadas por el desarrollador. El estudio de impacto ambiental deberá considerar la línea base aprobada por las entidades y avalada por el Consejo Regional de Áreas de Conservación del Sistema Nacional de Áreas de Conservación (Sinac), sin perjuicio de los términos de referencia que emita la Secretaría Técnica Nacional Ambiental (Setena), conforme al marco jurídico correspondiente”. Refiere que, como se desprende de lo anterior, la ley no tiene contiene vicio alguno de inconstitucionalidad. I) Inexistencia de violación al artículo 176 de la Constitución Política. Considera que no lleva razón la parte accionante al indicar que, previo a la aprobación de la ley impugnada se debía de contar con la totalidad del proyecto, toda vez que, como se logra observar de la simple lectura de la norma en cuestión, no estipula la creación de alguna obligación que deba ser cubierta con el presupuesto de la República. Menciona que se podría decir que la ley n.º 9610 es una norma accesoria y necesaria para poder ejecutar el proyecto PAACUME, pues lo que permite es una nueva delimitación de límites de la reserva biológica Lomas de Barbudal, para que luego se adquieran esas propiedades a través de los procesos de expropiación. Manifiesta que la ley cuestionada no es la llamada a regular el proceso de expropiación, sino que, en la fase oportuna del proyecto PAACUME, el Estado iniciará los trámites respectivos para finiquitar los procesos de expropiación de todas aquellas propiedades que se hayan determinado de interés público para la ejecución del proyecto, momento en el cual los propietarios podrán hacer valer sus derechos conforme al proceso establecido en la normativa aplicable. Arguye que al no haberse iniciado la fase de ejecución del proyecto (sin ningún proceso tendente a expropiar un fundo), no existe obligación de contar con contenido presupuestario para hacerle frente al trámite y pago de las expropiaciones. Afirma que al día de hoy no se cuenta con los avalúos respectivos para determinar el monto exacto a cancelar. Aclara que el SENARA ha realizado una estimación global (dado que los avalúos específicos se realizarán una vez aprobada la ley) y, con base en ella, se realizó el presupuesto extraordinario n.° 3, aprobado mediante oficio DFOE-AE-0602 de 20 de diciembre de 2018 de la Contraloría General de la República, por un monto de ¢2.851.1 millones contenido en la ley n.° 9622 y su contraparte de gastos en la subpartida de indemnizaciones, para ser aplicados en la expropiación de tres inmuebles correspondientes a la compensación de 113 hectáreas de la reserva biológica Lomas de Barbudal. Adjunta el oficio DFOE-AE-0602, así como certificación de contenido presupuestario SENARA-DAF-FIN-PRES-O63-2019, emitida por el jefe del Proceso de Presupuesto. Pide el rechazo de este extremo. J) Respecto a los principios de razonabilidad y proporcionalidad. Afirma que no existe violación alguna a estos principios en la tramitación de la ley 9610. Explica que, en relación con el estudio de las fincas Brindis de Amor, ASETREK y Hacienda Ciruelas, existe un estudio técnico que demuestra que sí cumplen como áreas de compensación y así fueron mencionadas en el estudio de la OET, en el cual se determinan cuáles parámetros fueron empleados para poder determinar la razonabilidad y proporcionalidad. Aduce que la determinación de las propiedades a expropiar no entraña una discusión de constitucionalidad, sino más bien de legalidad sobre la posibilidad de que otras áreas cumplieran con los parámetros para considerarlas aptas para compensar. Arguye que existe un estudio científico de nivel elaborado por una organización internacional reconocida, que tuvo por acreditado que las propiedades de Brindis de Amor y Asetrek eran idóneas por sus condiciones para ser utilizadas como compensación. Asevera que no se trata de una decisión discrecional (donde la Administración a su arbitrio escogió uno u otro bien), sino que medió un análisis científico de los inmuebles a fin de poder determinar la procedencia de utilizarlos como área útil para la compensación. Sostiene que la propuesta de compensación planteada (Asetrek y Brindis de Amor) se remitió al Ministro de Ambiente y Energía para que se le diera el trámite correspondiente, de acuerdo con lo establecido en el artículo 71 y 72 del reglamento de la Ley de Biodiversidad. Añade que el CORACAT, según acuerdo n.° 1 tomado en la sesión extraordinaria celebrada el 5 de julio de 2017 y, posteriormente, el CONAC, en sesión extraordinaria n.° 3 de 11 de julio de 2017, consideraron que la suma de áreas propuestas de bosque ripario era de 18,07 hectáreas; es decir, un área menor que el fragmento que se perdería en el sitio de inundación de la RBLB (24,71 hectáreas). Agrega que, por lo anterior, tales instancias plantearon la identificación de un área adicional para la propuesta de compensación que contemplara bosque ripario y que permitiera así resarcir el faltante en hectáreas para este tipo de ecosistema. Aduce que el faltante identificado era alrededor de 6,64 hectáreas de bosque ripario, debido a que el área debía ser compensada por otra de igual tamaño (24,71 hectáreas) que cumpliera con los mismos fines y tuviera semejantes condiciones ecosistémicas; es decir, en una relación mínima de 1:1. Sostiene que, después de analizar las propuestas de posibles áreas de compensación del bosque ripario faltante y en conjunto con los funcionarios del SINAC, se consideró adicionar una parte de la finca Hacienda Ciruelas SP S.A., cédula jurídica n.° 3-101-290749, plano catastrado n. ° 5-734177-2001, folio real n.° 034930-000, situada en el distrito primero Bagaces del cantón cuarto Bagaces de la provincia de Guanacaste, con un área total de 1299 hectáreas (1699.15 m2). Asevera que, después de un análisis de campo realizado por funcionarios de la Dirección de Aguas y del SENARA, se propuso la adquisición de 25,00 hectáreas. Indica que esa propuesta colinda al norte con la finca Brindis de Amor, al este con el resto de la finca de Hacienda Ciruelas, al sur con la quebrada Amores y al oeste con la RBLB. Señala que se efectuó un análisis preliminar de las 25,00 hectáreas de la finca, las cuales presentan 7,16 hectáreas de bosque ripario, 2,42 hectáreas de bosque secundario, 13,13 hectáreas de bosque deciduo y 2,28 hectáreas de pastos. Expone que, para efectos de la tramitación de la ley 9610, se consideró el documento denominado "Propuesta de Compensación para la Reserva Biológica Lomas de Barbudal” , del cual se aporta copia. Menciona que, al existir ese criterio científico que respalda la decisión administrativa, resulta razonable y proporcional lo actuado en el proceso de aprobación de la ley. K) La ley 9610 y la determinación de los inmuebles de interés para el proyecto PAACUME son acordes a los principios de economía y eficiencia. Manifiesta que ha quedado acreditado que la escogencia de los inmuebles que posteriormente serán expropiados se deriva de un estudio técnico científico preparado por la Organización de Estudios Tropicales, de ahí que resulta irrelevante, ante el rigor científico, cuestionarse por qué no se escogió otro inmueble, cuando la determinación se encuentra debidamente motivada. Refiere que los inmuebles que se afectaron son idóneos para la correcta protección de las áreas en la zona. Menciona que discutir sobre la procedencia de escoger una finca u otra como área compensable, no resulta un aspecto de constitucionalidad, sino más bien una discusión propia de la vía ordinaria contencioso administrativa. Solicita el rechazo de la acción de inconstitucionalidad en cuanto a este extremo. Requiere que se celebre una comparecencia oral para formular conclusiones antes del dictado de la sentencia de la presente acción. Pide que se declare sin lugar la acción de inconstitucionalidad interpuesta en contra de la ley n.° 9610. 9.- Por escrito incorporado al expediente digital a las 15:04 horas de 18 de febrero de 2019, se apersona Carlos Manuel Rodríguez Echandi, en su condición de Ministro de Ambiente y Energía. Sobre el Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras (PAACUME). Indica que el proyecto tiene como objetivo potenciar el desarrollo socioeconómico de la provincia de Guanacaste por medio de un aprovechamiento sostenible de los recursos hídricos provenientes del Sistema Hidroeléctrico Arenal-Dengo-Sandillal (ARDESA) y demás fuentes disponibles como medidas de adaptación al cambio climático en un marco de sostenibilidad y equidad. Señala que contiene la automatización de la Presa Derivadora Miguel Pablo Dengo B y Canal Oeste Tramo I hasta el embalse río Piedras, contemplando la construcción de un embalse de almacenamiento en el río Piedras, ampliación y construcción del Canal Oeste Tramos II y III desde este hasta el río Tempisque. Expresa que, además, las líneas de conducción secundarias y terciarias para riego agropecuario y áreas de desarrollo turístico, obras de entrega de agua para las poblaciones que será administrada por el Instituto Costarricense de Acueductos y Alcantarillados, todo desde la planicie del río Tempisque hasta la zona costera. Acota que el proyecto igualmente integra la construcción de casa de máquinas para generación eléctrica en el punto de presa. Menciona que el objetivo fundamental es la provisión de agua, accesible en cantidad, calidad y oportunidad -de 20 metros cúbicos por segundo- para diferentes usos potenciales. Manifiesta que se proyecta beneficiar al menos a 204 mil personas y cubrir al menos 17 mil hectáreas bajo riego. Afirma que de ese caudal quedará disponible 2 metros cúbicos por segundo para el abastecimiento de largo plazo de comunidades de cantones de Santa Cruz, Nicoya y Carrillo, lo cual será administrado por el ICAA. Arguye que el proyecto contempla al menos 1.5 metros cúbicos por segundo de agua para riego como apoyo a la actividad turística en la zona costera y con ello beneficiar las comunidades costeras con la liberación de aguas subterráneas hoy usadas en riego. Refiere que este proyecto no solo permitirá el acceso sostenible al agua por parte de las comunidades y el sector productivo, sino que, además , pretende armonizar y regular la explotación racional de los principales recursos subterráneos en acuíferos en la margen derecha de la cuenca media del río Tempisque, pues permitirá al Estado la regulación del uso máximo de pozos para estas actividades. Agrega que la construcción de la presa sobre el río Piedras implica un embalse con un espejo de agua de aproximadamente 850 hectáreas, de la cuales, conforme al levantamiento de campo realizado por el SENARA, 113 hectáreas se encuentran dentro de la Reserva Biológica Lomas Barbudal. Añade que el sitio de presa se ubicará en un estrechamiento natural de cauce de este río entre las coordenadas Longitud Oeste 358930, Latitud Norte 1163180 y Longitud Oeste 359690, Latitud Norte 1155330, a una elevación de nivel de agua máxima de 50.50.m.s.n.m. Expone que la presa tendrá como función crear un represamiento para el almacenamiento del agua, que será captada por el SENARA en la presa Miguel Pablo Dengo ubicado en el Rio Santa Rosa. Aduce que desde ese sitio el agua será conducida por medio del Canal Oeste, Tramo I, que tiene una longitud de 21 km y una capacidad hidráulica de 55 metros cúbicos por segundo. Asevera que antes que el Canal Oeste Tramo I interseque con el río Piedras, se da una caída natural que permite concebir un sitio de almacenamiento. Menciona que el proyecto se ubicará en la región Chorotega, provincia de Guanacaste; además, su área de influencia comprende los cantones de Bagaces, Carrillo, Santa Cruz y Nicoya. Sostiene que el área de riego solo cubre algunos distritos de Filadelfia, Palmira, Belén y Sardinal del cantón de Carrillo, los distritos de Santa Cruz, Bolsón, Cartagena y Diriá del cantón de Santa Cruz y el distrito de San Antonio del cantón de Nicoya. Indica que la ubicación de la presa en el río Piedras obedece a una condición topográfica única que no permite ser trasladada a otro sitio, por lo que la ubicación y diferencia de nivel entre la entrada del canal que lo abastece y la salida del canal que permitirá llevar el agua hasta el río Tempisque, determinan el nivel máximo de embalse y la capacidad del mismo para abastecer con 20 metros cúbicos por segundo al PAACUME. Señala que en algún momento se valoró la posibilidad de construir un dique para evitar la inundación de esa área de la Reserva Biológica Lomas Barbudal y un túnel de más de 2 kilómetros para evacuarlas aguas; sin embargo, el sitio del dique coincide con una falla geológica que haría imposible su construcción por el alto riesgo que genera a la obra. Expresa que, por lo anterior, no existe la posibilidad de reubicar o disminuir el volumen del embalse sin afectar significativamente el alcance del PAACUME y con ello los beneficios para la población guanacasteca, con lo cual se determinó la necesidad de contar con 113 hectáreas a de la reserva biológica Lomas de Barbudal para ser inundadas. Acota que resulta de vital importancia que este embalse se desarrolle a plenitud, para lo cual es indispensable tener como área inundable esa extensión. Menciona que SENARA, a través de múltiples estudios ha demostrado que esa extensión de embalse, incluida la zona dentro de la Reserva Lomas de Barbudal (113 hectáreas), es la única vía para hacerlo con el fin de atender la demanda hídrica en el ámbito del proyecto de forma sostenible. Manifiesta que el proyecto fue pensado para aprovechar las aguas del Sistema Hidroeléctrico ARDESA que ya está construido y utilizando infraestructura que se tiene ya instalada en el Distrito de Riego que administra SENARA. Afirma que el documento del perfil de proyecto que elaboró SENARA recoge varios temas que fueron posteriormente desarrollados, partiendo de estudios realizados en junio de 2016 por parte del ICE a petición de SENARA. Arguye que, según los accionantes, no fueron valorados en el estudio base: identificación del proyecto, antecedentes, identificación del problema del agua y valoraciones de posibles embalses. Beneficiarios del proyecto. Refiere que con PAACUME se beneficiarán con riego tres cantones de la provincia de Guanacaste (Carrillo, Santa Cruz y Nicoya) y d estinará 2 metros cúbicos por segundo de agua para consumo humano (cuyo tratamiento y distribució n estará a cargo del ICAA), lo que implica solucionar el déficit con un horizonte de 50 añ os de aproximadamente 500.000 personas (incluyendo el abasteci miento de agua a las poblaciones de los cantones citados). Agrega que también se prevé la generación hidroeléctrica en sitio de presa que producirá n 7 MW por año y, en materia de riego, además del destinado para el sector productivo agr ícola, se pretende cubrir u n área estimada en 1.875 ha en el sector turístico de la zona costera, lo cual liberarí a el agua subterránea hoy usada con ese fin. Resalta que en la factibilidad del proyecto (e tapa en la que se encuentra) no solo rigen los principios de la Política Hí drica Nacional -PHN- en particular el 5.1 .1.4 prioridad del uso del agua para consumo humano, el 5.1.1.1 Derecho humano fund amental de acceso al agua potable y saneamiento básico; y el 5.1.1.7 de aprovechamiento sostenible del agua , pues no solo se gestiona el proyecto para el abastecimiento señalado, sino que además como se informa, se busca que exista agua en la costa de forma alternativa que permita la liberación del uso del agua subterrá nea en riego. Agrega que lo anterior con el fin de dejar esa agua solo para ingesta y de tal forma mejorar la presión sobre ese recurso en la zona costera que es la más vulnerable al déficit hí drico y las altas demandas. Afirma que los beneficiarios potenciales del proyecto están compuestos por la población general d e la provincia de Guanacaste. Explica que, según datos del Instituto Nacional de Estadística y Censos (INEC), al 2016 la población proyectada era de 371.375 habitantes, más la població n flotante que está compuesta por el turismo nacional y extranjero, esti mándose en má s de un millón de personas al año, a lo cual se le debe sumar otra población compuesta por trabajadores de las diferentes empresas que incluyen el turismo y que permanecen entrando y saliendo del á rea. Expone que el ICAA ha estimado que para el 2025 habrá una población, dentro del área del proyecto, equivalente a más de 220.000 habitantes como usuarios de los acueductos principales de la zona (Senara, 2006). Aduce que, en cuanto al sector turismo, en 2002 se registró el ingreso de 1.113.359 turistas y la tendencia al crecimiento es constante ya que para el 2014 se duplicó el número de visitació n al país. Relata que, contrario al panorama de pobreza de la región Chorotega, est a es una de las zonas que mayor desarrollo turístico ha experimentado; en sus costas se asientan los principales complejos hoteleros que existen en el país. Asevera que en 2015 se estimó que la capacidad instalada en los hoteles de la zona del proyecto era para 140.812 personas en temporada alta y se proyectaba que para el año 2025 alcanzará las 230.900 personas (Senara, 2006). Sostiene que el recurso con mayor presió n en la actualidad es el agua, debi do a la extracción en los acuíferos para consumo humano y otros usos, aspecto que se agrava aú n más en las z onas turísticas por la amen aza de salinización de los pozos. Indica que, en el 2005, la demanda promedio de agua potable (con la capacidad instalada) se estimó en 570 l/s y con el crecimiento sostenido al 202 5 alcanzaría los 935 l/s. Señala que el área de rie go agropecuario se estima en 17000 ha en donde se podrían beneficiar 1067 productores agropecuarios (grandes, medianos y pequeños). Tabla 1. Distribución de productores por cantó n (fuente: SENARA, 2017): Cantón Número de beneficiarios Nicoya 84 Santa Cruz 482 Carillo 505 Total 1067 Tabla 2. Distribució n del uso actual del suelo en el área de influencia del PAACUME. Por cantó n en hectáreas (fuente: SENARA, 2016) Uso actual del suelo Carrillo (ha) Nicoya (ha) Santa Cruz (ha) Total (ha) Total (%) Áreas de protección 962 188 2396 3546 8.5 Áreas protegidas 327 269 596 1.4 Arroz 874 507 1380 3.3 Bosque 659 448 1355 2462 5.9 Caña de Azúcar 11282 616 1612 13510 32.6 Charral 90 203 293 0.7 Forestales 1 9 33 52 0.1 Frutales 257 95 352 0.8 Industria 3 2 32 0.1 Melón 39 1 391 0.9 Pacas 1814 1814 4.4 Palma 46 46 0.1 Pastos 4945 1464 9960 16370 39.5 Sorgo 37 37 0.1 Urbano 328 268 596 1.4 ÁREA TOTAL 20166 2716 18595 41477 100 ÁREA REGABLE 17749 2080 14071 33900 81.7 Acota que la tabla 2 r efleja el área total de cob ertura del proyecto que corresponde a 41.477 hectáreas y el área regable, en la que se excluyen para los tres cantones las áreas de protecció n, áreas protegidas, bosque, charral, forestales, industria, y la zona urbana, suma un t otal de 33.900 hectáreas. U so propuesto del suelo. Expresa que a partir de la oferta de agua que introduce el PAACUME, se identifica el á rea que efectivamente se va a regar. Arguye que para las áreas que no sea posible de abastecer con el proyecto se deberá buscar y analizar posteriormente la opció n que resulte factible y viable dentro de las potenciales alternativas de solución. Manifiesta que, en el caso del abastecimiento de agua para consumo humano, lo que se está proponiendo es una reserva a futuro sob re un uso que es prioritario. Afirma que, con base en la determinación de los cultivos que se ubican dentro del á rea regable del proyecto y considerando que el área potencial de riego supera el área posible de regar con el agua disponible, se determinará una propuesta de cultivos a regar a partir del uso del suelo, la cual se utilizará como referencia para la determinación de la demanda de agua y para la valoración financiera y económica del proyecto. Menciona que en la tabla 3 se presenta el uso propuesto del suelo ajustado segú n la disponibilidad de la oferta de agua para uso agropecuario. Añade que, de acuerdo con el caudal disponible, la demanda de agua puede variar según las épocas de siembra prop uestas, eficiencia del método de riego y disponibilidad de agua. Tabla 3. Uso propuesto del suelo, é pocas de siembra y cosecha según la oferta de agua disponible (fuente: SENARA, 2017): Cultivos Época siembra Época cosecha Total (has) Total (%) Arroz Enero-Julio Abril, Noviembre 1400 8.2 Caña de Azúcar Dic-Abril 8500 50 Forrajes Mayo Enero-Dic 600 3.5 Frutales Febrero-Abril 400 3.5 Hortalizas Enero-Mayo, Jul, Set, Nov, Dic Enero-Setiembre Nov 400 2.4 Melón Nov-Enero Enero-Mayo 600 2.4 Pacas Mayo Enero-Dic 4000 23.5 Raíces y tubérculos Noviembre-Febrero Febrero-Abril Junio-N oviembre 700 4.1 Sandía Nov, Marzo, Abril En, Feb, Marzo, Mayo, Jun, Jul, Agosto 400 2.4 TOTAL 17.000 100 Uso potencial del suelo. Expone que la tabla de uso potencial del suelo refleja una propuesta de cultivos en un tiempo estimado de tres años plazo después de iniciada la operación del sistema de riego, en la cual se mantienen los mismos cultivos y las épocas de siembra. Aduce que hay un aumento de área de producción, porque se considera que se optimiza la operación del sistema de riego y aumenta la eficiencia de los métodos de riego utilizados. Asevera que en la tabla 4 se desglosa el área de siembra de cada uno de los diferentes sistemas de producción y se observa que se incrementan las áreas sembradas de caña de azúcar, frutales, pacas, raíces y tubérculos y sandía. Tabla 4. Cultivos potenciales, épocas de siembre, cosecha y áreas potencialmente regables (fuente: SENARA, 2017) Cultivos Época siembra É poca cosecha Total (has) Total (%) Arroz Enero-Julio Abril, Noviembre 1400 7.5 Caña de Azúcar Dic-Abril 8500 45.2 Forrajes Mayo Enero-Dic 1000 5.3 Frutales Febrero-Abril 1000 5.3 Hortalizas Enero-Mayo, Jul, Set, Nov, Dic E nero-Setiembre Nov 400 2.1 Melón Nov-Enero Ener o-Mayo 1000 5.3 Sandía Nov, M arzo, Abril En, Feb, Marzo, Mayo, Jun, Jul, Agosto 500 2.7 Pacas Mayo Enero-Dic 4000 21.3 Raíces y tubérculos Noviembre-Febrero Febrero-Abril Junio-Noviembre 1000 5.3 TOTAL 18.800 100 Sostiene que las 18.800 hectáreas tienen su máxima demanda en abril con un total de 16.35 m³/s. Respecto de la Convención Relativa a los Humedales de Importancia Internacional, especialmente como Hábitat de Aves Acuáticas (Convención Ramsar). Indica que la Convención Ramsar (1971) es un tratado intergubernamental cuya misión es la conservación y el uso racional de los humedales mediante acciones locales, regionales y nacionales y gracias a la cooperación internacional, como contribución al logro de un desarrollo sostenible en todo el mundo. Señala que, al adherirse a la convención, los países se comprometen a agregar sitios a una lista de humedales de importancia internacional (La lista Ramsar). Acota que esos sitios son reconocidos a nivel internacional por su valor ecológico para la humanidad. Expone que la Reserva Biológica Lomas Barbudal es parte de Palo Verde, designado por Costa Rica en la lista de sitios Ramsar. Aduce que, mediante acuerdo 3 de la sesión extraordinaria n.º 4-2017 del Consejo Nacional de Áreas de Conservación (CONAC), se acordó que es necesario que se comunique a la Convención Ramsar, la intención de realizar este proyecto y activar cualquier otro procedimiento para cumplir con los compromisos país. Relata que el humedal Palo Verde, junto con Caño Negro, fueron los primeros humedales declarados sitios Ramsar para Costa Rica en 1991; asevera que es un complejo de humedales estacionales y permanentes formado por un grupo de pantanos, marismas, lagos, ríos y arroyos de la cuenca media y baja del río Tempisque, el cual, junto a sus afluentes, son los principales sistemas fluviales de la cuenca. Asevera que, como consecuencia de los cambios marcados en la precipitación entre las estaciones seca y lluviosa, el flujo varía considerablemente produciendo desbordamientos que inundan zonas aledañas a los cauces. Ubicación del sitio. Indica que se encuentra ubicado en los cantones de Nicoya y Bagaces de la provincia de Guanacaste e incluye las siguientes áreas silvestres protegidas: parque nacional Palo Verde; reserva biológica Lomas de Barbudal; refugios nacionales de vida silvestre Mata Redonda y Cipancí; Humedales Corral de Piedra, Laguna Madrigal y Zapandí; y los ecosistemas de humedal de El Tendal y Sonzapote. Señala que ese humedal es administrado por las Áreas de Conservación Tempisque y Arenal-Tempisque. Expresa que algunas de las comunidades localizadas en las inmediaciones del humedal son: Bagaces, Bagatzi, Bebedero, Bolsón, Ortega, Playitas, Pijije, Llanos del Cortés, Falconiana, Pozo de agua, Charco, Colorado, Puerto Humo, Raizal, Roblar, Rosario y San Antonio. Acota que, en 2002, el sitio sufrió una ampliación y su limitación continúa de la siguiente manera (según Rodríguez y Alvarado, 2014): “El nuevo límite parte de un punto ubicado en la margen izquierda del cauce del Río Bebedero (coordenadas 25 74 20 N y 40 37 80 O) y continúa por un camino público, atraviesa una matriz de paisaje compuesto por vegetación menor, pastos y cultivos cerca del sector denominado Asentamiento Tamarindo, luego se utilizan las márgenes de la quebrada La Mula como límite natural, se utiliza también el límite de la margen del canal de riego del oeste, hasta encontrarse con el límite de la Reserva Biológica Lomas Barbudal. Continúa utilizando límites físicos como caminos que conducen a diferentes asentamientos campesinos y canales de drenaje, hasta llegar al antiguo cauce del Río Tempisque, allí intercepta el antiguo límite del Parque Nacional Palo Verde hasta cerrar con el cauce actual del Rio Tempisque. Fuente: Ficha de información Técnica actualizada 2018”. Menciona que, para la ubicación geográfica, las siguientes coordenadas que corresponden a un punto medio en el sitio Ramsar y “están en el sistema oficial para Costa Rica CRTM05 con Datum WGS84 y proyecció n Tranversal Mercato r 357269 y 11431 26”. Refiere, en cuanto al área de sitios Ramsar en Costa Rica, lo siguiente: “Palo Verde 27/12/1991 Guanacaste 24,519 ha 10º20´ N 085º 20´W ”. Manifiesta que los manuales Ramsar recogen tema tras tema, las diversas orientaciones pertinentes adoptadas por las partes, a las que se han añadido material de los documentos de informació n de las conferencias de las partes, estudios de caso y otras publicaciones per tinentes, a fin de ilustrar los aspectos esenciales de los lineamientos. Afirma que el manual Ramsar n.º 17, 4a. edición, denominado “ Designación de sitios Ramsar: Marco estratégico y lineamientos para el desarrollo futuro de la Lista de Humedales de Importancia Internacional-HPII-”, establece los criterios para la identificació n de humeda les de importancia internacional, lineamientos para aplicarlos y metas a largo plazo. Criterios de justificació n que definieron la inclusión de Palo Verde como sitio Ramsar. Refi ere lo siguiente: “ El criterio de Ramsar y su justificación especí ficamente ut ilizado para la Reserva Biológica Lomas de Barbudal. Criterio 1: Tipos de humedales representativos, raros o únicos n aturales o casi naturales. El Humedal Palo Verde se ubica en una regió n representativa del bosque seco tropical, por lo que los hume dales ubicados en la cuenca media y baja del Río Tempisque, se consideran cómo representativo e importante. Esta es una cuenca muy extensa dentro del territorio costarricense y s e encuentra interconectada a una red fluvial con todas sus características, como lo son las áreas de recolección de lluvias, llanuras de inundación, bosques y estuarios. Los Ríos Tempisque y Bebedero son los principales afluentes dentro de la cuenca y son esenciales para los humedales. Estos presentan variaciones en sus caudales y durante la época lluviosa pueden desbordarse (Rodríguez y Alvarado, 2014). Los humedales de las partes bajas de la cuenca y que conforman este sitio Ramsar son considerados islas o parajes para la diversidad de especies distribuidas en esta región. Esto es motivo de la pérdida de ecosistemas a los que fue y es sometido los humedales de Guanacaste (50%) para ser transformados en campos agrícolas y ganaderos especialmente (Convención sobre los Humedales Ramsar, 1998). Caso suscitado para l as lagunas de Cañ as, humedal es de Filadelfia y Liberia, Hacienda el Viejo y Pelón y de otras en Bagaces. En los alrededores de los humedales son comunes las prácticas como la siembra de arroz, caña de azúcar y meló n reduciendo los espacios y disponibilidad de recursos para la biota, sumado a má s de 60000 ha dedicadas a ganado y plantaciones forestales. Esta ausencia de ecosistemas de humedales es especialmente crítica si se considera el largo y pronunciado periodo seco que se presenta en esta parte del paí s durante la é poca seca. En este sentido, los humedales lacustres, palustres, manglares, bosques inundados, esteros, rí os, entre otros, que forman parte de las diferentes áreas protegidas del Humedale s de Importancia Internacional - HPII-, mantienen ecosistemas importantes para la vida en general durante el año y en especial durante las condiciones secas (Rodríguez et al. 2012; UNED-SINAC, 2012; SINAC, 2013a; SINAC, 2013b, SINAC, 2013c), además por poseer sus á reas boscosas naturales permite la movilidad de la fauna entre las áreas par a aprovechar los cuerpos de agua. De igual manera, se pueden encontrar ojos de agua, fuentes naturales durante la escasez, en Palo Verde existen los llamados Guayacá n, Alm endro, Coyol, Espíritu Santo, Saíno, Bejuco, Avellanal, C erritos, Oropopo (SINAC,2013b)”. Sobre lo establecido en la Convención sobre Humedales RAMSAR en cuanto al anuncio de la desafectació n del área de la Reserva Biológica Lomas de Barbudal. Aduce que ta nto la Convención Ramsar como sus manuales se dirigen a orientar el “ uso racional” de los ecosistemas. Asevera que el uso racional de los humedales se define como: “el mantenimiento de sus características ecoló gicas, logrado mediante la implementación de enfoques por ecosistemas, dentro del contexto el desarrollo sostenible”. Expone que el inciso 5 del artí culo 2 de la convención señala: "Toda Parte Contratante tendrá derecho a añ adir a la Lista otros humedales situados en su territorio, a ampliar los que y a están incluidos o, por motivos urgentes de interés naci onal, a retirar de la Lista o a reducir los límites de los humedales ya incluidos, e informarán sobre estas modificaciones lo más rá pidamente posible a la organización o al gobierno responsable de las funciones de la Oficina permanente especificado en el Artí culo 8". Agrega qu e el instrumento internacional prevé que, por razones de urgencia e interés nacional, se reduzca o retiren humedales de la lista y, en este caso, la necesidad urgente de agua para atend er a la población, prever opciones de desarrollo para la zona de Guanacaste y asegurar el acceso al recurso hídrico a las futuras generaciones constituye un tema de interés público, que fue decla rado por los decretos de conveniencia e interés nacional mencionados en el apartado del proyecto. Afirma que el manual 19 denominado “ Cómo abordar la modificación de las características ecológicas de los humedales” (4ª. edición), establece: “La promoción d e la conservación de los Humedales de Importancia Internacional designados ("Sitios Ramsar") (Artículo 3.1 de la Convenció n), a través del mantenimiento de sus características ecológicas, es uno de los principios fundamentales de la Convención de Ramsar sobre los Humedales. Por lo tanto, se espera que las Partes Contratantes en la Convención establezcan mecanism os de planificación y supervisi ón del manejo de los humedales para mantener las caracterí sticas ecológicas de todos los humedales que hayan designad o para la Lista de Humedales de Importancia Internacional”. Añade que ese manual indica lo siguiente: "D. Retir ada o reducción de los límit es de un Sitio Ramsar de la Lista: interpretación de la expresión "motivos urgentes de interé s nacional" en el Artí culo 2.5 de la Convención 35. El Artículo 2.5 de la Convención de Ramsar establece que "Toda Parte Contratante tendrá derecho... por motivos urgentes de interés nacional, a retirar de la Lista o a reducirlos límites de los humedales ya incluidos". 36. A raí z del Artículo 2.5, el Artículo 4.2 de la Convención in dica que "Cuando una Parte Contratante, por motivos urgentes de interés nacional, re tire de la Lista o reduzca los límites de un humedal incluido en ella, deberá compensar en la medida de lo posible, la pérdida de recursos de humedales”. 37. Sin embargo, en la COP8 (2002) las Partes Contratantes reconocieron a travé s de la Resolución VIII.20 que ni el Artículo 2.5 ni Artículo 4.2 proporcionan ninguna orientación con respecto a la interpretación de la expresió n "motivos urgentes de interés nacional" ni a la manera en que se debe determinar la compensación, y adopt aron orientaciones generales sobre estas cuestiones, como Anexo a la Resolución VIII.20. 38. A continuación se proporcionan esas orientaciones pa ra interpretar la expresió n "motivos urgentes de interés nacional" en el Artículo 2.5, y en la Sección G del presente Manual se ofrece la disposició n sobrecompensación en virtud del Artículo 4.2. Orientación general para interpretar la expresión "motivos urgentes de interé s nacional" en el Artículo 2.5 de la Convenció n (párrafos 1 a 3 y 5 a 7 del Anexo a la Resolución VIII.20) Propósit o 39. De conformidad con lo dispuesto en el Artículo 2.3 de la Convención en el sentido de que "la inclusión de un humedal en la Lista se realiza sin prejuicio de los derechos ex clusivos de soberanía de la Parte Contratante en cuyo territorio se encuentra dicho humedal”, la determinación de los "motivos urgentes de interés nacional" incumbe exclusivamente a la Parte Contratante . La orientación siguiente puede ayudar a las Partes Contratantes a interpretar el Artículo 2.5 y el Artículo 4 .2. Esta orientación podrá s er utilizada por las Partes Contratantes si así lo desean. 40. Esta orientación general no impide que una Parte Contr atante mantenga o introduzca una reglamentación más es tricta para la aplicación de la cláusula relativa a los "motivos urgentes de interés nacional" y a las disposiciones relativas a la compensación cuando se ha invocado esa cláusula. 41. Cuando invoque su derecho a tenor del Artículo 2.5 para retirar de la Lista de Humedales de Importancia Internacional (Sitios Ramsar) o reducir los límites de un humedal incluido en ella, en el caso de motivos urgentes de interés nacional, una Parte Contratante podrá tener en cuenta, entre otras cosas, lo siguiente: i) los beneficio s nacionales de mantener la integridad del sistema de humedales y sus b eneficios conexos; ii) si el mantenimiento del statu quo amenaza un interé s nacional; iii) si el cambio propuesto es compatible con las políticas nacionales; iv) si se requiere una acció n inmediata para evitar una amenaza significativa; v) si un interé s nacional sufre una amenaza creciente; vi) las demás alternativas razonables a la acció n propuesta, incluida la opción "sin proyecto", la bú squeda de una ubicación alternativa, la introduc ción de zonas de amortiguamiento, etc.; vii) los valores económicos, sociales y ecológicos y las funciones existentes del sitio en cuestión. (Cuanto más importantes sean los valores y las funciones del sitio, más elevados deberán ser los beneficios sociales, económicos o ecoló gicos del proyecto propuesto); viii) el valor part icular de los há bitats que alberguen especies endémicas, amenazadas, raras, vulnerables o en peligro; ix) si la acción propuesta proporciona beneficios a una amplia base de receptores; x) si, a largo plazo, la acció n propuesta ofrece beneficios mayores; xi) la al ternativa que reduzca al mí nimo el daño al sitio en cuestión; y xii) los efectos transfronterizos". L a ley n.º 9610 e stablece que al embalse Río Piedras se le debe dar una categoría de manejo que permita regular de form a sostenible sus actividades. Menciona que lo anterior, sin perder su objetivo de creación, constituye la alternativa razonable que se plantea en inciso 41 anterior del manual 19 que contempla la introducción de zonas de amortiguamiento, ubicació n alternativa, contemplació n de beneficio s sociales, entre otros. Cita el artículo 6 de la ley n.º 9610: “ARTÍCULO 6- Finalizadas las obras de construcción y puesto en operación el Embalse Río Piedras por parte del Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento (Senara), el área de embalse, que incluye el anillo de protección, se constituirá en un ecosistema de humedal administrado por el Sistema Nacional de Áreas de Conservación (Sinac) y conforme a lo establecido en el artículo 33 de la Ley N.° 7575, Ley Forestal, de 13 de febrero de 1996. Deberá existir estricta coordinación con Senara para la utilización del agua conforme a diversos usos requeridos. El Poder Ejecutivo, mediante el Sinac, realizará los estudios necesarios para otorgar a dicho espacio una categoría de manejo, que no deberá contraponerse al uso que se le dé al agua producto del Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras (Paacume). Para la elaboración del Plan General de Manejo de Uso Sostenible y Racional, se conformará una comisión con representación del Sinac, Senara y la Municipalidad de Bagaces”. Expone que se han considerado criterios importantes sobre la categoría de manejo especial de ese embalse y sus beneficios ecosistémicos: “•S e definiría con mayor claridad las competencias de cada institució n y se definirían mejor los mecanismos y procedimientos para el ordenamiento y uso de los recursos. • Bajo la categoría de oficial de Humedal se tendrí a mayores oportunidades de ordenar el uso para que la socied ad local, nacional e internacional logren contar con bienes y servicios de calidad producidos por el recurso bien conservado entre ellos: educación, investigación, agua, recreación y tu rismo. • Permitirá prevenir y controlar con mayo r eficiencia y rigurosidad diferentes actividades ilícitas como invasión de tierras y tala ilegal, cacería y pesca furtiva e incendios forestales. • Al asignar una categorí a de manejo al Embalse e incorporarlo como sitio Ramsar, el paí s estaría cumpliendo responsablemente con los compr omisos internacionales como país signatario de la Convención Relativa a los Humedales de importancia Internacional; Convenci ón Ramsar aprobada mediante Ley número 7224 del 02 de abril de 1991. • El otorgar el estatus oficial como Humedal facilitará el proc eso de ordenamiento de la actividad turística donde grupos locales y microempresarios de la zona podrí an integrase a desarro llar un turismo rural sostenible, como alternativa socieconómica. • Con la creación de esta área protegida se estarí a fortaleciendo u na importante zona que funge como Corredor Biológico entre la Reserva Biológica Lomas Barbudal, Parque Nacional Palo Verde y el Corredor Biológico Nambiral. • Se estaría i ntegrando la sociedad civil local e instituciones locales relacionadas para coordinar y efectuar una planificación y gestión ambiental integral a través del Consejo Local del Humedal, aprovechando de manera eficiente los recursos y capacidad instalada de cada una de las instituciones relacionadas. • La categoría de Humedal permitirá planificar, ordenar y efectuar un uso armonioso y sostenible de los recursos naturales con un nivel de fricción o conflicto bajo, como si posiblemente ocurriría si se asignara una cate goría de Parque Nacional o Reserva Biológica. • El contar con un á rea silvestr e núcleo, servirá de justificación y motivación a instancias locales, regionales y entes internacionales a cooperar té cnica y financieramente para promover el desarrollo de acciones orientadas a la conservació n y actividades socio productivo de carácter so stenible en el territorio de la cuenca en general. • El asignar una categorí a de manejo para el ordenamiento y el uso sostenible de Embalse, estaría contribuyendo de forma significativa para la conservació n de los ecosistemas y especies de la Reserva Biológica Lomas Barbudal, ya que ademá s de favorecer la conectividad y desplazamiento de las especies, fungirá también como zona de amortiguamiento y disminución de presión hac ia los recursos de la Reserva”. Aclara que, con respecto al cuestionamiento de las comunicaciones a Ramsar, existe un procedimiento. Aduce que Costa Rica, luego de la aprobación de la ley n.º 9610, se encuentra en una fase de recopilación de la información para d etectar los cambios probables, dado que la modificación del sitio opera en fu nción del desarrollo del proyecto del embalse y parte de esa información se encuentra inmersa en el proceso de Evaluación ambiental de la Secretaria Técnica Nacional Ambien tal; todo amparado al tenor del artículo 2.5 para modificar los lí mites del humedal P ato Verde incluido en la lista, por motivos urgentes de interés nacional, por la amenaza sobre la disponibilidad el recurso hídrico y los beneficios humanos sociales y económicos del proyecto. Sostiene que, la Viceministra de Aguas y Mares, mediante oficio n.º VAM-068-2019 de 11 de febrero de 2019, con respecto al proyecto PAACUME, solicitó al Consejo Nacional Asesor de Humedales "la colaboración para dar fiel cumplimiento a las obligaciones contraídas por el paí s acorde con los procedimientos establecidos en la Convención RAMSAR". Sobre las inconsistencias en las coordenadas incluidas en la ley n.º 9610. Asevera que la reserva bioló gica Lomas de Barbudal fue declarada el 23 de enero de 1986, por medio del decreto ejecutivo n.º 16 849-MAG publicado en la Gace ta n.º 45 de 5 de marzo de 1986, momento en el cual no se contaba con los instrumentos tecnoló gicos de precisión geográfica como hoy. Indica que, en un trabajo conjunto entre el MINAE y el SENARA, se realizaron los estudios y re planteamientos topográficos de campo necesarios, que permitieron una adecuada precisión geográfica de ubicación y delimitació n real del área de la RBLB. Señala que, para la modificación aprobada en la ley impugnada, se consideraron las coordenadas establec idas en para la reserva bioló gica Lomas de Barbudal en el decreto ejecutivo n.º 16849-MAG y, además, se integraron las 3 fincas incluidas como compensación conforme con los planos catastrados de cada una de ellas; asimismo, se excluyeron las 113 has requeridas para el embalse Rí o Piedras. Expresa que las coordenadas señaladas en la ley n.° 9610 delimitan el á rea total de la reserva biológica Lomas de Barbudal en estricto apego a la delimitación anterior, con la inclusión y exclusión de las áreas correspondi entes. Sobre los alegatos referidos a la violació n de principios constitucionales. • Derecho a un ambiente sano y ecoló gicamente equilibrado. Acota que el artículo 50 de la Carta Magna establece el derecho a un ambiente sano y ecológicamente equilibrado, así como el deber del E stado de garantizar, preservar y defender ese derecho. Menciona que del mismo modo establece como mandato, la obligación del Estado de procurar el mayor bienestar a todos los habitantes del paí s, organizando y estimulando la producción y el más adecuado reparto de la riqueza. Refiere que ese precepto constitucional es la base para el desarrollo de esa obra pú blica. Manifiesta que una de las obligaciones fundamentales del Estado Co starricense es procurar el bienestar de sus habitantes a través del desarrollo y la producció n; sin embargo, no existirá un verdadero desarrollo si este no se despliega en armoní a con el ambiente. Arguye que se está en presencia de dos conceptos que lejos de yuxtaponerse, se complementan y precisamente es en esa instancia en la que surge el concepto de desarrollo sostenible, el cual ha sido definido desde diferentes puntos de vista, prevaleciendo a nivel mundial el consignado en el Informe Bruntlandz "Nuestro Futuro Común", redactado por la Comisió n Mundial para el Medio Ambiente y D esarrollo (1987): "… el desarrollo sostenible es un proceso de cambio en el cual la explotació n de los recursos, la orientación de las inversiones, del desarrollo tecnoló gico y d el cambio institucional, están en armonía y mejoran el p otencial corriente y f uturo para satisfacer las necesidades humanas. El concepto supone límites, que se imponen a los recursos del medio ambiente, el estado actual de la tecnologí a, de la organización social y la capacidad de la biosfera para absorber los efectos de las actividades hu manas, pero tanto la tecnología como la organización social pueden ser ordenadas y mejoradas de manera que preparen el cam ino a una nueva era de crecimiento económico". Refiere que el artículo 50 constitucional, impone el desarrollo y la producción, en armoní a con el ambiente, de tal forma que se está en presencia de dos mandatos constitucionales de idé ntico rango, cuyo cumplimento es de carácter obligatorio. Explica que en ese ar tículo se plasma la obligación del Estado de proveer de forma eficiente a la colectividad, la prestació n de los servicios públicos, en franco equilibrio con el ambiente. Agrega que lo expuesto constit uye un parámetro fundamental que enmarca las actuaciones del Estado, equiparando de forma idéntica las potestades que ostenta en el plano del desarrollo del país, para beneficio de la colectividad y la protección ambiental. Cita el artículo 26 de la Convención Americana sobre Derechos Humanos y numeral 1 1 del Protocolo de San Salvador. Plantea que la conjugación de los artí culos citados de estos dos instrumentos internacionales nos lleva a un desarrollo sostenible en armonía con el medio ambiente, al progre so de los pueblos y a un cumplimiento de otros derechos económicos y sociales, situación que en el cas o de Costa Rica y especialment e en la Provincia de Guanacaste operaría para mejorar la condición de vida de los habitantes de la zona. • In dubio pro natura. Cita la resolución de la Sala n.º 2000-10465 de 24 de noviembre de 2000. Aduce que no existe ningu na violación a este princ ipio, por cuanto las instituciones involucradas en este proyecto han realizados los estudios correspondientes, así como las acciones que compensan las áreas en las que se desarrollará el proyecto. • No regresividad en materia ambiental e irreductibilidad. Asevera que el principio de no regresión o de prohibición de retroceso dispone que la normativa y la jurisprudencia no deberían ser modificadas si eso implica retroceder respecto a los niveles de protecció n ambiental alcanzados con anterioridad, por lo que la nueva norma o sentencia no debe ni puede empeorar la situación del derecho ambiental preexistente en cuanto a su alcance, amplitud y efectividad. Sostiene que el Estado se encuentra facultado para aprobar la reducción de áreas silvestres protegidas de confo rmidad con el artículo 38 de la Ley Orgánica del Ambiente. Transcribe parcialmente la resolución de la Sala n.º 2012-13367. Detalla que, en enero de 2016, el SENARA suscribió el "Convenio entre la Organizació n para Estudios Tropicales (OET) para realizar el Estudio para el establecimiento de la línea base de biodiversidad para la Reserva Bioló gica Lomas de Barbudal y finca adyacente". Indica que el objetivo del estudio consistió en elaborar y definir la línea base que permita determinar la integridad e cológic a, relevancia y fragilidad de los ecosistemas presentes, así como la biodiversidad existente, en el á rea de la reserva bioló gica Lomas de Barbudal, a ser impactada directamente por el embalse Río Piedras. Señ ala que a la vez se hizo un aná lisis comparativo entre un área de la RBLB y terrenos aledaños previamente seleccionados, para conocer las condiciones de similitud y factibilidad de utilizarse como zona de reemplazo ecológicamente equivalente; es decir, se contó con criterios científicos y una polí tica de desarrollo sostenible que lo ampara desde el punto de vista de acceso al agua como Derecho Humano. • Inviolabilidad de la propiedad privada. Cita los numerales 37 y 38 de la Ley Orgánica del Ambiente. Acota que a los accionantes se les garantiza la pr opiedad de sus bienes inmuebles hasta que se instaure el proceso de expropiació n. Transcribe parcialmente la sentencia de una sentencia de Sala Primera que identifica con el n.º 356. Refuta que con el artículo primero de la ley n. º 9610 se haya despojado a los accionantes de sus propiedades, por lo que no es obligación del Estado cancelar alguna indemnización sino hasta el proceso expropiatorio. • Sobre el fundamento técnic o de la ley n.º 9610. Cita parcialmente las sentencias n.° 7294-98 y n.°6322-2003, así como remite al voto n.° 18665-20 12. Expone que: “ El Estudio para el establecimiento de la línea base de biodiversidad para la Reserva Biológica Lomas de Barbudal -RBLB- y finca adyacente realizado por la Organización para Estudios Tropicales -OET- constituye el insumo técnico considerado para la aprobación de la Ley N° 9610. El procedimiento realizado por la OET para la evaluación de la compensación se basa en una metodología l lamada: Hábitat/Hectárea, un sistema de puntajes, desarrollado por inve stigadores australianos el cual identifica una serie de indicadores de calidad de ambiente y asigna valores a cada uno de los factores de los hábitats a evaluar. Se realizaron dos evaluaciones de compensación de forma independiente, un a basada en indicadores de calidad de há bitat y la otra basada en diversidad y composición de comunidades, ambas adaptadas al bosque seco tropical. Adicionalmente, la metodología usada por la OET fue modificada con el fin de incluir otros indicadores (geofí sicos, servicios ecosistémico s, entre otros). El puntaje final resulta de la suma de los valores determinados para cada indicador y representa la calidad de hábitat o la composició n de comunidades en relación al hábitat de referencia (RBLB). A partir del resultado obtenido en el Estudio, fue posible estimar el nú mero de hectáreas que se requieren para lograr un nivel de calidad como el de la referencia y a sí compensar las 113 hectáreas por inundar en la RBLB. Es importante señ alar que el estudio realizado por la OET consideró un áre a en la RBLB de 131,07 hectáreas, pues fue durante la ejecución del mismo, que el SENARA realizó el trabajo de campo en topografía para elaborar el plano definitivo sobre el área efectiva requerida para el embalse, que dio como r esultado las 113 hectá reas, todas incluidas dentro de las 131,07 hectáreas estudiadas por la OET. El Estudio realizado por la OET (sobre 131,07 hectáreas) , al considerar el área establecida, determinó que este sector de la RBLB cuenta con tres tipos de cobertura forestal: bos que deciduo en 96,05 hectáreas, bosque secundario en 9.13 hectáreas y bosque maduro en 24,71 hectáreas. Este último en adelante será l lamado bosque ripario, debido a que está relacionad o a los cauces de la zona y compuesto por remanentes de vegetación que subsist en en las riberas de los ríos y quebradas, constituido por especies siempre verdes. Además, la finca cuenta con 1,18 hectáreas en área no forestal y pastos. Los terrenos e valuados para el área de compensación son propiedad de la soc iedad ASETREK Tres Azul S.A., cédula jurí dica N° 3-101-370259, cuyo representante es el Sr. Ramó n Aguilar Facio, cédula de identidad N° 9-0001-0541, plano catastrado N° 5-666-1976, folio real N° 034932-000, situada en el distrito primero Bagaces, del ca ntón cuarto Bagaces, de la provincia de Guanacaste, con un á rea de registro de 751 hectáreas. El área de bosque ripario en ASETREK, corresponde a pequeñas á reas fragmentadas, situación que llevó a no considerar su existencia para efectos de la asignació n de puntajes en la eva luación re alizada en el Estudio para determinar el área de compensació n requerida. Las conclusiones del estudio revelan según la calid ad de hábitat, que es necesario un área equivalente entre 290 y 332 hectáreas para compensar el área a in undar en la RBLB, debido a que la finca estudiada representa entre el 34,00 % y el 51,20 % del sitio de referencia, que corresponde a las 113 hectá reas de la RBLB. Estas diferencias indican que la finca ASETREK Tres Azul SA ha sido más perturbada y al no contar con cobertu ra de bosque ripario, se requerirán 332 hectáreas para la compensació n, considerando el valor máximo probable que da como resultado la metodología aplicada. Por otra parte, aplicando la metodología para diversidad y composición de comunida des, ASETREK contiene 30,90 % de la referencia (113 hectáreas de la RBLB), es decir, la reserva cuenta con una riqueza de especies mayor de los grupos taxonómicos estudiados, por lo que se necesitan 290 hectáreas para compensar la pérdida en la RBLB. En co nclusión, considerando el resultado obtenido por la aplicació n de la metodología, tanto para calidad de hábitat como para diversidad y composición de comunidades, el sitio de compensación ASETREK Tres A zul S.A es inferior en calidad de ambiente, composición y biodiversidad al sitio de la RBLB que sería inundado por el Embalse Río Piedras, razón por la cual, al considerar la condición más adecuada para la RBLB, la OET recomendó que se adquieran como mínimo 332 hectáreas de la Finca ASETREK Tres Azul S A. para resarcir las pérdidas de la RBLB. La finca ASETREK Tres Azul S.A, como extensión para la compensación y estudiada por la OET, tiene un área total de 751 hectá reas, de las cuales, una parte importante está dedicada a la producción agrí cola y ganadera. Al considerar el área de co mpensación propuesta como resultado del Estudio elaborado, se realizó un análisis del sitio, para valorar la extensión que se deberí a proponer para la compensación de las 113 hectáreas a inundar de la RBLB, atendiendo a los sigui entes parámetros fun damentales: 1. Cumplir con el área mínima requerida para la compensación obtenida del estudio, que corresponde a 332 hectáreas. 2. Considerar que el área por adquirir para compensación cuente con la cantidad de bosque suficiente, según los tipos de cobertura que se encuentran en el área por inundar de la RBLB. 3. Que el área a comprar incluya las 189,30 hectáreas que fueron estudiadas por la OET para las respectivas comparaciones entre el sitio potencial de compensación y el sitio de referencia (RBLB). 4. Que el área se pueda integrar adecuadamente al resto de la RBLB, respetando entre ellas el mayor porcentaje de colindancia posible. 5. Que el área propuesta para la compensación permita la conectividad de la RBLB con las áreas de protección que se considera dejar alrededor del futuro Embalse Río Piedras como anillo de protección, principalmente en la margen izquierda de este. 6- Que se limite al máximo el lindero del área propuesta con áreas con cobertura no forestal, potreros o pastos, ya que estos pueden incrementar y facilitar el riesgo de incendios dentro de la RBLB. 7- Uniformizar el lindero de la propiedad, para que el área de compensación permita el adecuado manejo por parte de la administración del SINAC en la RBLB. Una vez analizados los parámetros anteriores, el resultado obtenido denota que el á rea que se debería comprar de la Finca ASETREK Tres Azul S.A. es de 444,04 hectá reas. De estas se estima una presencia de bosque deciduo en 286,87 hectáreas, bosque secundario en 59.50 hectár eas, pastizales en 73,23 hectáreas y un á rea no forestal, es decir, un área de pastos con otras hierbas nativas de 18,50 hectá reas. Es importante indicar que el área seleccionarla de la finca cuenta además con un á rea de bosque ripario de 6.14 hectáreas, distribuida en pequeñ as secciones, que por su no conectividad o por encontrarse en la zona de impacto directo del embalse, no se consideraron para la aplicación de la metodología utilizada en el Estudio para determinar el área de la compensación. Si bien es cierto, que el área propuesta de 444,04 hectá reas como compensación a las 113 hectáreas que serían inundadas de la RBLB cumple con los requerimientos establecidos con base en los resultados de la metod ología de calidad de hábitat aplicada en el Estudio por parte de la OET , la realidad es que esta área solo tiene un área de 2,2 hectáreas de un bosque maduro o ripario con características similares al encontrado en el área por inundar en la RBLB. En estas circunstancias, se estimó pertinente la búsqueda de un a superficie adicional, que pueda solventar esta deficiencia de bosque ripario del área de compensació n en la Finca ASETREK Tres Azul S A., cumpliendo con los pará metros mencionados anteriormente, identificándose luego de un trabajo de campo conjunto entre expertos de la OET, funcionarios de la RBLB del SINAC y del SENARA, dos fincas potenciales para compensación, ubicadas en el lindero noroeste de la RB LB. Esta propiedad se encuentra a nombre de Brindis de Amor en Liberia S.A y Hacienda Ciruelas SP S.A. En este sentido y s egún las i nspecciones de campo realizadas en forma conjunta de expertos de la OET, SINAC y SENARA, apoyados en imágenes aé reas tomadas con un dron volando a baja altura, se determinó que las propiedades de Brindis de Amor posee un estimado inicial de 1141 hectáreas de bosque ripario y Hacienda Ciruelas SP S.A. posee un estimado de bosque ripario de 8.49 hectáreas conformado por una cobertura boscosa constituida por especies siempre verde s y que es comparable en calidad con el encontrado en el sitio potencia l de inundació n en la RBLB. El área de bosque ripario en Brindis de Amor representa un 7,40 % del á rea cubierta por ese tipo de bosque dentro la RBLB actualmente; de ahí la importancia de incorporar esta área a la RBLB. Otro aspecto import ante, es que el área de bosque ripario en esta finca puede constituirse un área núcleo de especies para repoblar otros ambientes riparios en la propiedad. Aunque esta situación no es cronológicam ente correspondiente a la pérdida en la RBLB, según la OET, s i es una considerable ventaja ya que esta á rea núcleo permite a corto plazo una restauración e incorporación de nuevos bosques riparios, situación que no se estaría dando en la Propiedad de ASETREK Tres Azul S.A. Es decir, si se está tomando en consideración la propiedad de Hacie nda Ciruelas SP S.A. El bosque deciduo (45,74 hectáreas), así como el secundario (6,63 hectá reas) en Brindis de Amor han sido protegidos, por al menos veinte añ os y no hay registros de talas ni fuegos recientes, por lo que están en mejor condición de estructura y composició n que los encontrados en el sitio de potencial impacto en la RBLB o en la propiedad de ASETREK Tres Azul S.A. Aunque no es el objetivo principal, la anexió n de este tipo de bosque de Brindis de Amor a la RBLB implica una ganancia signific ativa en estas coberturas forestales también. El Estudio de Línea Base de Biodiversidad para la RBLB, evidenció el incremento en diversidad de diferentes grupos taxonómicos como respuesta a fuentes de agua má s permanentes, condición que se ve muy favorecid a en la finca Brindis de Amor que posee varias fuentes de agua permanentes, incluyendo el río Cabuyo y sus afluentes, lo que da un valor agregado a esta finca. Existen estudios de la Dra. Susan Perry (Universidad de California, Los Angeles), los cuales señalan que tropas de monos carablanca (Cebus capuccinus) de la RBLB utilizan los bosques dentro de Brindis de Amor como sitios de alimentació n y descanso; es decir, hay evidencia de un constante flujo de animales entre la RBLB y Br indis de Amor como sitio de forrajeo, lo que demuestra la importancia bioló gica de esta propiedad para ser incorporada a la RBLB. Finalmente es importante mencionar, que el Estudio realizado por la OET establece un área de compensació n que considera la condición actual de los terren os que se están valorando, sin hacer referencia a las mejoras que a futuro tendrá n al incorporarse a un régimen de protección como lo es la reserva. Ante ello, se procedió a identificar un área bosque ripario que permite compensa r el faltante en hectá reas para este tipo de ecosistema manteniendo la conectividad eco sistémica del área protegida, concluyendo que la propiedad de Hacienda Ciruelas SP S.A. presenta tales condiciones y permite compensar un área de 8,49 hectá reas de bosque ripario. Adicionalmente, se concluye que la mejor opción para completar la compensació n del bosque ripario es necesario adquirir un área de 40,00 hectá reas propiedad de Hacienda Ciruelas SP S.A., la cual contiene 8,49 hectáreas de bosque ripario. Según las capas de cobertu ra mencionadas anteriormente, esta finca posee un total de 33,64 hectáreas de bosque ripario, donde la mayoría de este tipo de bosque se encuentra bordeando la quebrada Amores, donde el área seleccionada para compensació n posee un á rea de 8,49 hectá reas de bosque ri pario, 2,44 hectáreas de bosque secundario, 26,91 hectáreas de bosque deciduo y 2,16 hectáreas de pastos. Por su parte, es de esperar que dentro de los beneficios que a futuro tendrá la regeneración da pastizales que posee ASETREK Tres Azul S.A., se encuentre la contribución al establecimiento de bosque secundario, la fijació n de carbono (CO2), protección de suelos, ganancia de cobertura, protecció n de la biodiversidad y de la belleza escénica del lugar, protección de fuentes d e agua, a la vez que contribuy e a aumentar su valor ecológico, económico y social. Es decir, la nueva superficie establecida bajo el ré gimen de protección, tendrá una tendencia a mejorar su condición actua l, tanto en calidad de hábitat como en diversidad y composición de comu nidades. Según indica Quesada, R (2008), en su Manual para promover la regeneración natural en pastos degradados en el Pacífico Central y Norte de Costa Rica, "para revertir áreas de pastos en bosques a travé s de métodos de regeneración natural, deben tener una ubicación estraté gica a fuentes semilleras y cercanía a parches boscosos", condiciones que presenta el área propuesta en las fincas ASETREK Tres Azul S.A. y Brindis de Amor en Li beria S.A. Estas condiciones hacen predecir que si bien en la actualidad las 91,7 4 hectáreas (zona de pastizales de 73,23 hectáreas y un á rea no forestal de 18,51 hectáreas) en ASETREK Tres Azul S.A. 18,18 hectáreas de pastos en Brindis de Amor y 2.16 hectáreas de Hacienda Ciruelas SP S.A., en pocos años, baj o un régimen de protección como el de la RBLB y un manejo controlado de fuegos, estas superficies podrán incorporarse a las distintas etapas de sucesión de bosques secundarios. Así las cosas, de acuerdo con los resultados expuestos en el estudio realiz ado por la OET y a lo planteado en la Comisió n de Alto nivel del PIAAG la propuesta definitiva de compensación es: 1- De la finca ASETREK Tres Azul S.A un total de 444,04 hectáreas, conforme al plano del área propuesta. 2-La totalidad de la Finca Brindis de Amor en Liberia S.A., con un área de registro de 86,96 hectáreas conforme al plano. 3-Un área de la finca de 40,00 hectáreas de Hacienda Ciruelas SP S.A. En total, la compra de 571 hectáreas, lo que representa un factor de 5 veces el á rea que se verá afecta da en la RBLB, con una equivalencia directa en tipos de bosques, conforme lo que se indica en la Tabla 6. Tabla 6. Comparación de área por tipo de bosque entre el área afectada de la RBLB y el área propuesta para compensación. Tipo de cobertura Área afectada en la RBLB (Ha)¹ Área de ASETREK Tres Azul S.A. (Ha) Área de Brindis de Amor S.A. (Ha) Área de la finca Hacienda Ciruelas SP S.A.

Área total propuesta de compensación (Ha) Bosque maduro (Ripario) 24,71 6,14 16,41 8,49 31,04 Bosque secundario 9,13 59,5 6,63 2,44 68,57 Bosque deciduo 96,05 286,67 45,74 26,91 359,32 Pastos 0,79 73,23 18,18 2,16 93,57 Áreas no forestales 0,39 18,5 - - 18,5 TOTALES 131,07 444,04 86,96 40 571 ¹A pesar de que el área requerida de la RBLB es de 113 hectáreas, la OET realizó el estudio sobre 130,64 hectáreas, razón por la cual se usa este valor para realizar la comparación. FUENTE: Estudio de Línea base de Biodiversidad para la RBLB realizado por OET. Con las medidas de compensación propuestas se alcanza el objetivo de conservación y por ende se puede afirmar que se está en claro cumplimiento que la normativa señala cuando se trata de intercambiar áreas que han sido sometidas a una categoría de manejo específica y deben desafectarse. Entonces en este tema podemos concluir: 1.- Que los objetos de conservación que fundamentan la creación del “área protegida”: no están siendo afectados. 2.- Que el área es compensada por otra de igual tamaño que cumple con los mismos fines y semejantes condiciones ecosistémicas, según el Establecimiento de la línea Base de Biodiversidad para la Reserva Biológica Lomas de Barbudal (RBLB) y finca adyacente elaborado por la Organización para Estudios Tropicales (OET). El Proyecto implica una transformación económica y social de la zona. Una mejora en cómo hacer las cosas, y hacerlas de manera diferente de cómo hasta ahora se han hecho. Se debe de educar a la población en general, a los agricultores y al área hotelera, sobre el buen y eficiente manejo del agua, lo que constituye parte del esfuerzo que se ha venido realizando por parte de esta Administración, desde el momento mismo en que dio inicio la primera Mesa de Trabajo para Guanacaste. No resultando cierto lo señalado desde un inicio por la parte accionante, sobre que las comunidades no han tenido participación. Como ya se anticipó en líneas arriba, se está ejecutando por parte de la presente Administración el Programa Integral de Abastecimiento de Agua para Guanacaste-Pacífico Norte (PIAAG) incorporado al Plan Nacional de Desarrollo 2015-2018 e incluido en el Plan Nacional de Desarrollo y de Inversión del Bicentenario 2019-2022, y que busca asegurar el aprovechamiento óptimo del recurso hídrico en la provincia de Guanacaste para satisfacer las demandas del recurso por parte de las distintas actividades. Dentro de este programa se ejecuta tal y como se indicó en líneas arriba, el proyecto cuestionado por los accionantes, el cual es estratégico y cuyos alcances son abastecer de riego un área de aproximadamente 18.8000 hectáreas beneficiando a más de 1000 productores, permitir el acceso a largo plazo de agua de las comunidades del cantón de Santa Cruz y Nicoya. Además, el suministro de agua para apoyar el riego en desarrollos turísticos costeros e incluye generación de electricidad. Un aspecto importante del PIAAG ha sido la participación ciudadana que se ha dado durante su construcción e implementación. Este programa ha sido validado por diversas organizaciones de la provincia y ciudadanía en varios espacios como la mesa de trabajo para Guanacaste. Entonces no existen esas únicas 7 empresas que se verán beneficiadas con el proyecto. De formar particular y como requisito cumplido según lo dispuesto en el artículo 25, numeral 3 de la Ley de Biodiversidad No. 7788, se realizó un proceso de consulta a las comunidades locales tanto del proyecto PAACUME como la propuesta de desafectación y compensación de la Reserva Biológica Lomas de Barbudal. Lo cual se adjunta al proyecto de ley y que debe tenerse constancia en el expediente legislativo correspondiente”. • Economía y eficiencia. Asevera que los accionantes han manifestado que existen otros terrenos propiedad del MINAE aledaños a Lomas Barbudal que pudieron haberse agregado a la Reserva Biológica (lo cual admite en cuanto a la existencia de los terrenos); sin embargo, según su criterio, no es viable compensar una parte de la Reserva Biológica Lomas Barbudal con Patrimonio Natural del Estado que, precisamente, ya está bajo un esquema de conservación y en cuyo caso podría cuestionarse si realmente existe o no compensación alguna. Sostiene que por esa razón se realizaron los estudios de la Organización de Estudios Tropicales, los cuales se basaron en hechos científicos y determinaron cuáles eran las fincas aptas para la compensación a la zona protegida. • Principio de legalidad. Cita parcialmente la sentencia de la Sala n.º 16202-2010 de 28 de setiembre de 2010. Indica que no se ha violentado este principio, por cuanto no existe obligatoriedad de realizar el aviso a la Convención Ramsar, ya que el país se encuentra en la etapa de recolección de datos. Sobre el incumplimiento al procedimiento establecido en el reglamento a la Ley de Biodiversidad. Señala que el contenido de los estudios realizados por la OET es acorde con el reglamento. Expresa que en sus archivos consta un documento que sistematiza una "consulta obligatoria a las comunidades locales" respecto de la propuesta de compensación para la Reserva Biológica Lomas Barbudal, por lo que no es cierto que la consulta no se realizara. Acota que los estudios mencionados fueron coordinados con el SINAC, ya que, según se desprende de múltiples documentos, ha existido desde mucho antes que se iniciaron los estudios, una buena coordinación entre el SINAC y el SENARA. Menciona que entre las consideraciones técnicas que fundamentaron la creación de la Reserva Biológica Lomas del Barbudal se encontraron: “• Que el sitio conserva muestras muy valiosas de la flora y fauna de la sabana seca arbolada de bajura, del bosque ripario de tierras bajas y del bosque caducifolio de tierras bajas, que en el pasado cubrieron extensas áreas de la provincia de Guanacaste. • Que el sitio posee al menos 10 nacientes y parte de la cuenca del Río Cabuyo, de importancia para la producción agrícola y ganadera de la región. • Que el tipo de suelo no presenta condiciones para un desarrollo agropecuario sostenido pero que desde el punto de vista de la investigación y del turismo, el área es importante por presentar una fauna entomológica única y por contener sabanas secas que no se encuentran protegidas en otra unidad de conservación”. Manifiesta que la asesoría legal de la Asamblea Legislativa había indicado, ante una iniciativa similar (de compensación), que, tratándose de una zona de protección, la autorización, de acuerdo con la normativa, no puede ser otorgada en tanto no cuente con el estudio técnico requerido por la ley. Arguye que el Reglamento a la Ley de Biodiversidad consigna en su artículo 71: “Para la declaratoria, modificación o cambio de categoría de manejo de ASP, deberá elaborarse un informe técnico, que estará coordinado por la instancia respectiva de SINAC”. Refiere que, a efectos de lo anterior, SENARA contrató a la Organización para Estudios Tropicales con el fin de que desarrollara el estudio "Establecimiento de la línea Base de Biodiversidad para la Reserva Biológica Lomas de Barbudal (RBLB) y finca adyacente", el cual inició en enero de 2016 y concluyó en diciembre de ese mismo año. Explica que una de las opciones exploradas y que dio origen al estudio fue la compensación del impacto a partir de su reemplazo por una superficie con características similares que permitiera la continuidad en biodiversidad de la RBLB. Agrega que originalmente se identificó que el área que potencialmente podía servir de compensación se ubicaba dentro de la finca ASETREK propiedad de Tres Azul S.A. Añade que algunas de las condiciones definidas antes del desarrollo de los estudios fueron: “• Considerar que el área por adquirir cuente con la cantidad de bosque suficiente, según los tipos de cobertura existentes en la RBLB. • Que el área se pueda integrar adecuadamente al resto de la Reserva. • Uniformizar y ajustar el lindero de la propiedad a adquirir para que el área de compensación permita el adecuado manejo de la Reserva por parte de la administración”. Expone que “Es así como se desarrolla el estudio en ambos sitios, (en el potencial a inundar y el potencial a reemplazar), y los resultados en términos muy generales, en relación a los tipos de coberturas en ambos sitios, determinan que están presentes las siguientes coberturas a) Bosque deciduo; b) Bosque maduro, referido en el Informe como "bosque ripario"; c) Bosque secundario; d) Uso no forestal; e) Pastos. Sin embargo en el sitio potencial a ser inundado dentro de la RBLB se distinguen tres hábitats: Bosque deciduo, bosque secundario y Bosque maduro o ripario; sin embargo en el caso del bosque maduro o ripario está presente prácticamente solo en el sitio potencial de inundación y no en el sitio de compensación. Otro dato que merece resaltar y que se incluye en el Informe Final de OET, es que el bosque ripario está presente o representado dentro de la RBLB, únicamente en un 8.0% de área total de la RBLB, indica también el Informe final "El bosque ripario dentro del sitio de inundación en la reserva corresponde a un 11.4% del área total de esa cobertura en la región, porcentaje nada despreciable si se considera que la cobertura constituye un solo fragmento continuo dentro del sito". Relacionado con esta misma cobertura o asociación vegetal de bosque ripario, indica el Informe "los otros fragmentos de bosque ripario están ubicados hacia el norte de la reserva bordeando en Río Cabuyo, por lo que el fragmento en nuestro sitio de estudio se encuentra prácticamente aislado. De acuerdo al informe en relación al factor conectividad, basado en distancia difiere entre las coberturas, dado a que el bosque deciduo en ambos sitios (potencial a ser inundado y potencial para compensación) es contiguo a una cobertura similar en la RBLB que no sería inundada. En el caso de la cobertura bosque secundario en el sito de compensación se encuentra muy cercano (Sobre la aprobación del Estudio de Impacto Ambiental. Expone que el estudio de línea base de biodiversidad que realizó la OET no es ni sustituye al Estudio de Impacto Ambiental, el cual sí determina los impactos de todo el proyecto y las medidas que se deben realizar para evitar, mitigar o compensar esos impactos. Aduce que ese estudio además es una competencia directa de SETENA y está en proceso de trámite. Aclara que, de acuerdo con el artículo 17 de la Ley Orgánica del Ambiente, la Evaluación de Impacto Ambiental es para actividades, obras y proyectos. Aduce que el Reglamento General sobre los Procedimientos de Evaluación de Impacto Ambiental (decreto ejecutivo n.º 31849-MINAE-S-MOPT-MAG-MEIC) define la Evaluación de Impacto Ambiental como “Procedimiento administrativo científico-técnico que permite identificar y predecir cuáles efectos ejercerá sobre el ambiente, una actividad, obra o proyecto, cuantificándolos y ponderándolos para conducir a la toma de decisiones. De forma general, la Evaluación de Impacto Ambiental, abarca tres fases: a) la Evaluación Ambiental Inicial, b) la confección del Estudio de Impacto Ambiental o de otros instrumentos de evaluación ambiental que corresponda, y c) el Control y Seguimiento ambiental de la actividad, obra o proyecto a través de los compromisos ambientales establecidos". Sostiene que la evaluación es para una actividad, obra o proyecto y no para un proyecto de ley. Asevera que, el 7 de diciembre del 2017, SENARA remitió a SETENA el Documento de Evaluación D1 del proyecto denominado “Abastecimiento de Agua para la Cuenca Media del río Tempisque y Comunidades Costeras (PAACUME)” con una calificación final de Significancia de Impacto Ambiental 1052 que, según la ruta de decisión, implica dentro del procedimiento la elaboración de un Estudio de Impacto Ambiental. Indica que el Coordinador del Departamento de Auditoría y Seguimiento Ambiental, mediante oficio SETENA-DT-ASA-0148-2018 de 7 de marzo del 2018, señaló que se identificaron 24 propiedades que debían ser adquiridas para la ejecución del proyecto y una de 113 ha dentro del área del embalse perteneciente a la reserva biológica Lomas de Barbudal (Patrimonio Natural del Estado) que debía ser segregada e integrada al embalse del Río Piedras, lo cual se pretendía realizar por medio del proyecto de ley n.°20465, por lo que solicitó criterio a lo interno sobre postergar el proceso de análisis de la evaluación hasta que la Asamblea Legislativa aprobara el proyecto. Señala que el 12 de julio de 2018, SETENA realizó las siguientes consultas del proyecto: “ • Á rea de Conservación T empisque del SINAC, oficio SG-DEA-1 197-2018-SETENA, respuesta el 10 de octubre del 2018 del señor Celso Alvarado Murillo, Director Áreas Silvestres Protegidas ACAT, Coordinador de la Comisión Temporal EsIA, PAACUME mediante el oficio ACAT-DASP-060 que ent regó el Informe técnico del Aná lisis del Estudio de Impacto Ambiental del proyecto. El 25 de octubre del 2018, el Ing. Alexander León Campos, Director del Área de Conservació n Arenal Tempisque presentó, criterio sobre el Estudio de Impacto Ambiental y el 2 0 de diciembre del 2018, el oficio SINAC-SE-IRT-304 de la Secretaría Ejecutiva del SINAC, Área de información y Regularización Territorial indica la participación en gira de campo del 12 al 15 de noviembre del 2018, adjunta el oficio del 19 de diciembre de l 2018 del señor Nelson Marín Mora, Director Regional del Área de Conservación Tempisque en oficio ACT-OR-DR-1764-18, que a su vez remite el criterio del Coordinador del Programa de Humedales del ACT-RNVS-MR-016-2018 y agrega que el embalse y cambio a realizar en el sito Ramsar debe comunicarse por la Autoridad administrativa en el país a la Convención de Ramsar. • Museo Nacional de Costa Rica, oficio SG-DEA-1 191-2018-SETENA. • P rograma Nacional de Humedales, oficio SG-DEA-1 190-2018-SETENA. • Coleg io de Biólo gos, oficio SG-DEA-1 187-2018-SETENA. • Escuela de Biología de la Universidad de Costa Rica, oficio SG-DEA-1188-2018-SETENA. • Escuela de Ciencias Biológicas Universidad Nacional, oficio SG-DEA-1189-2018- SETENA, respuesta por co rreo del 17-9-2019 y UNA-ECB-ofi-1456-2018. • Instituto Nacional de Innovación y Transferencia en Tecnologí a Agropecuaria (INTA), oficio SG-DEA-1 196-2018-SETENA (folios 2685-2686), respuesta en DSTINT A-574-2018”. Acota que, el Departamento de Auditoría y Seguimiento Ambiental, por oficio SETENA-DT-ASA-0016-2019 de 14 de enero de 2019, remitió el Criterio Técnico Forestal PAACUME-IT-DT-ASA-008-2019. Menciona que el 22 de enero del 2019, el Depart amento de Evaluación Ambiental emitió el Informe técnico DEA-0 1 33-2019 con recomendació n de solicitar un Anexo del Estudio de Impacto Ambiental, asunto que está pendiente de conocer por la Comisió n Plenaria. Manifiesta que en esos términos el expediente e n cuestión se encuentra en trá mite y en virtud de los efect os de la acción, la SETENA no emitirá el acto final del procedimiento, sea, pronunciamiento sobre la solicitud de viabilidad ambiental al proyecto, hasta que la Sala resuelva la presente acción, salvo que en este caso disponga otra cosa por el interés públ ico. Pide que se celebre una comparecencia oral. Solicita que se declare sin lugar la acción. 1 0.- Por escrito recibido en la Secretaría de la Sala a las 9:40 horas de 6 de marzo de 2019, se apersona Mario Andrés Boza. Indica que plantea coadyuvancia activa, con fundamento y legitimación en el artículo 50 de la Constitución Política. Señala que la acción de inconstitucionalidad debe ser declarada con lugar por las siguientes razones. 1. Ley aprobada sin contar con viabilidad ambiental. Acota que la ley n.° 9610 se publicó en noviembre de 2018 sin contar con un estudio de viabilidad ambiental aprobado. Cuestiona que se haya aprobado una ley relacionada con un proyecto tan grande sin que se sepa si es viable o no desde el punto de vista ambiental. Refiere que lo anterior fue abordado por un grupo de conservaciones denominado Frente por las Áreas Silvestres Protegidas. Expresa que fue hasta febrero de 2019 que SETENA emitió un informe en el que apuntó 91 carencias al estudio de impacto ambiental remitido por SENARA. 2. Un ambiente ecológicamente equilibrado. Menciona que el artículo 50 de la Constitución Política hace referencia a un ambiente ecológicamente equilibrado, lo cual debe ser entendido como aquel en el cual existe un estado dinámico y de perfecta armonía entre los seres vivos y su entorno. Manifiesta que una alteración a este equilibrio puede ser provocada por causas naturales o artificiales, tales como el cambio climático, un incendio forestal, la caza y pesca ilegales o la extracción del agua necesaria para la fauna silvestre. Aduce que la Sala Constitucional, en la resolución n.° 2014-12887, hizo clara referencia a que solo era posible reducir un área protegida si, entre otros requisitos, se daba una compensación del área suprimida con otra de igual tamaño. Estima que, cuando se segrega una parte de un parque nacional o de una reserva equivalente para dedicarla a otros usos, lo menos que se puede esperar es que la compensación de una hectárea por una hectárea se haga tomando en cuenta la situación ecológica de los terrenos que se intercambien; es decir, no puede tener igual valor ecológico la compensación de una hectárea de bosque primario por una de un pastizal totalmente deforestado -un desierto biológico-. Arguye que esa compensación, de acuerdo con lo expuesto los accionantes, no se está dando desde el punto de vista ecológico. 3.- No habrá compensación del área suprimida. Asevera que el artículo 71 del Reglamento a la Ley de Biodiversidad establece que para la declaratoria, modificación o cambio de categoría de manejo de un área silvestre protegida, deberá elaborarse un informe técnico que estará coordinado por la instancia respectiva del SINAC. Sostiene que el inciso g) del artículo 71 indica que para tales propósitos deberán existir recursos financieros suficientes para adquirir los terrenos del área propuesta y asegurar su adecuada protección y manejo en el largo plazo. Señala que ninguna de las dos condiciones está incluida en la ley cuestionada. Acota que la ley n.° 9610 establece en el artículo 1 los nuevos límites de la reserva biológica Lomas de Barbudal. Expresa que de esa forma la reserva pierde 113 ha de bosque primario, el cual no posible reemplazar. Describe que el artículo 2 establece los límites del área segregada y que el numeral 4 atribuye a SENARA la responsabilidad de realizar el estudio ambiental del proyecto PAACUME que deberá incluir, entre otras, las medidas de compensación del área desafectada; es decir, se traslada a un estudio las medidas de compensación. Formula la siguiente pregunta: ¿por qué no existe un artículo en esta ley que claramente indique, con base en lo que recomendó el estudio hecho por la Organización para Estudios Tropicales, que las 113 ha se deben compensar con la compra de 571 ha de terrenos vecinos? Refiere que si ese artículo no existe es porque esa compensación no se va a producir del todo. Menciona que en ninguna parte se dice, por ejemplo, que SENARA, el MINAE o el ICAA serán las instituciones que van a adquirir, por compra o expropiación, los terrenos que compensarían a los segregados. Manifiesta que ese tema fue también advertido por el “Frente por las Áreas Silvestres Protegidas” en su comunicado de prensa. Aduce que el transitorio único de la ley no subsana ese problema, sino que solo consigna que se dictará una reglamentación para rehabilitar (el bosque) en las áreas de compensación. Cuestiona que pueden pasar muchísimos años antes de que se adquieran esas áreas porque, de nuevo, ninguna institución es responsable de la compra de esas tierras. Destaca que las 571 ha compensarían parcialmente, desde el punto de vista ecológico, a las 113 ha por segregar. 4. Ni protección ni desarrollo para la reserva. Arguye que la Sala Constitucional, en el voto n.° 2017-014907, dispuso: “el Estado no ha sido capaz de brindar una protección efectiva a las áreas de conservación del país ”. Expone que, en julio de 2018, el Director del Área de Conservación Arenal-Tempisque, se refirió al tema de la protección de Lomas de Barbudal cuando compareció ante la comisión especial de la Asamblea Legislativa que estudiaba el expediente 20.465 (que dio lugar a la ley 9610); en ese momento manifestó que el proyecto de ley "debe contar con un mecanismo financiero que garantice su sostenibilidad, el manejo y el cuido de la reserva. Tiene que haber un mecanismo financiero y asegurar la sostenibilidad el manejo, el cuido, no solamente de ese embalse que se va a formar por ahí, sino también de la misma reserva biológica Lomas Barbudal. [...] Dichos recursos son importantes para poder atender problemas de cacería o incendios forestales, pues se requiere mucha inversión para poder hacerle frente a cualquier problemática". Asevera que la ley continúa con esa lamentable tendencia de no beneficiar en nada a una de las pocas áreas protegidas que conservan los bosques tropicales secos que aún existen en el país, que tiene una gran belleza escénica, que posee un río excelente para la natación (el Cabuyo) y que es excepcionalmente rica en especies de insectos tales como abejas, avispas y mariposas diurnas y nocturnas. Sostiene que la reserva se ve obligada a ceder su bosque más preciado y, a cambio, no solo no se le compensa esa área, sino que tampoco contará con fondos para mejorar su protección y el desarrollo de instalaciones para beneficio de sus visitantes. Indica que, en efecto, Lomas de Barbudal solo cuenta con tres guardaparques, lo que en la práctica significa que solo uno o dos de ellos la protegen de la caza furtiva, los incendios forestales y el robo de maderas. Señala que la ley no contempla, por ejemplo, que con una determinada parte de la ganancia de la venta de agua -un 5% de los ingresos netos-, se cree un fideicomiso destinado única y exclusivamente a lograr una mejor protección y desarrollo de la reserva. Acota que lo único que dice el artículo 5 de la ley es que un 50% de un canon lo usará el SINAC para implementar el plan de manejo. Formula la siguiente pregunta: ¿Qué garantía existe de que el plan de manejo va a darle una alta prioridad a la protección y desarrollo de la Reserva? Estima que lo anterior queda en el aire. Refiere que el SONAC se ha caracterizado por usar los fondos generados por los parques y las reserva para cubrir necesidades ajenas a estos, tal y como se indicó en el recurso de amparo que se tramitó con el expediente n.° 08-011453-0007-CO. Considera que la ley cuestionada no solo perjudica territorialmente a la reserva biológica Lomas de Barbudal, sino que no contempla ningún beneficio de las ganancias por la venta de agua que obtendrán SENARA y el ICAA, no así el MINAE. Menciona que la ley transgrede el numeral 50 de la Constitución Política. 11.- Por escrito recibido en la Secretaría de la Sala a las 13:14 de 8 de marzo de 2019, se apersona Jorge Arturo Lobo Segura. Indica que formula coadyuvancia. Señala que tiene legitimación en virtud de los intereses difusos o colectivos en materia ambiental. Expresa que la ley n.º 9610 transgrede los artículos 7 y 50 de la Constitución Política y los principios de no regresividad en materia ambiental, objetivación de la tutela ambiental, precautorio, preventivo e irreductibilidad de las áreas silvestres protegidas, con base en los siguientes argumentos: “I- VIOLACIÓN DEL ARTÍCULO 50 DE LA CONSTITUCIÓN POLÍTICA Y DE LOS PRINCIPIOS CONSTITUCIONALES DE NO REGRESIVIDAD EN MATERIA AMBIENT AL, OBJETIVACIÓN DE LA TUTELA AMBIENTAL, PRECAUTORIO, PREVENTIVO E IRREDUCTIBILIDAD DE ÁREAS SILVESTRES PROTEGIDAS. Como lo ha reseñado muy bien la Procuraduría General de la República en su escrito de contestación a la acción de inconstitucionalidad sobre la que estoy presentando esta coadyuvancia, la Sala Constitucional ha definido en numerosas sentencias que reducir la cabida de un área silvestre protegida no resulta inconstitucional, siempre y cuando se cumpla con tres requisitos esenciales:1- Que se ha ga mediante una ley; 2- Que de previo a la aprobació n de la ley se cuente con estudios técnicos suficientes que justifiquen la medida; y 3- Que se dé una compensación del área suprimida con ot ra de i gual tamaño y características. Ver en ese sentido las sig uientes sentencias: # 2003-11397 del 8 de octubre de 2003; #1999-2988 del 23 de abril de 1999, #7294-98 del 13 de octubre de 1998, #1056-2009 de las 14 horas 59 minutos de 28 de enero de 2009, #12887 -2014 de las 14 horas 30 minutos de 8 de agosto de 2014, así como los votos #11155-2 007, #14772-2010, #2012-13367, #2009-1056 y #2375-2017. VERIFICACIÓ N DEL CUMPLIMIENTO DE LOS 3 REQUISITOS PARA REDUCIR LA CABIDA DE UN ÁREA SILVESTRE PROTEGIDA. Haci endo una revisión del cumplimiento de esos 3 requisitos para det erminar si la reducció n de la cabida de la Reserva Biológica Lomas Barbudal, mediante la desafectació n de 113 hectáreas con la intención de inundarlas, se puede concluir lo siguiente: 1-SÍ CUMPLE CON EL REQUISITO 1, el cual es que se haga mediante una ley. La reducción de área fue d ebidamente aprobada mediante la ley #9610, cumpliendo por lo tanto con el primer requisito establecido por la Sala Constituc ional. 2- NO CUMPLE CON EL REQUISITO 2, que es el que requiere que de previo a la aprobación de la ley se cuente con estudios técnicos suficientes que justifiquen la medida , como lo demostrará a continuación: Sobre el estudio técnico que debe justificar la reducción de la cabida de un área Silvestre pro tegida, la Sala Constitucional ha indicado que: "En este sentido, la exigencia de estudios técnicos que justifiquen la aprobación de los proyectos de ley tendientes a la reducción o desafectación de un área a mbientalmente protegida, debe ser satisfecha con anterioridad o durante el desarrollo del procedimiento legislativo. Ad emás, el requerimiento de estudios té cnicos no es una mera formalidad, sino que se trata de un requisito material, es decir materialmente se tiene que demostrar, mediante un análisis científico e individualizado, el grado de impacto de la medida correspondiente en el ambiente, plantear recomendaciones orientadas a menguar el impacto negativo en este, y demostrar cómo tal medida implica un desarrollo que satisface las necesidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades." (Voto # 13367-2012 de las 11 horas 33 minutos de 21 de setiembre de 2012; y #10158-2013). (Subrayado no es del original) Coincido con la Procuraduría General de la Repú blica, que señala que el desarrollo jurisprudencial expuesto configura el principio de irreductibilidad de las áreas silvestres protegidas, según el cual este tipo de espacios protegidos no pueden disminuirse o modificarse si no se cumplen los requisitos fijados al efecto. Lo anterior tiene una clara relació n con los principios de no regresión en materia ambiental, de objetivación de la tutela ambiental, preventivo y precautorio. Sobre el estudio en cuestión, hay que señalar que en el expe diente legislativo del proyecto de ley que culminó con la aprobación de la ley #9610, consta un estudio denominado "Establecimiento de la Línea base de Biodiversidad para la Reserva Biológica Lomas de Barbudal y Finca Adyacente", el cual fue realizado por la Organización para Estudios Tropicales (OET) segú n los té rminos de referencia que le demarcó el SENARA que fue la entidad contratante (ver Folios 268-504 del expediente), y que tuvo como objetivo determinar las características bioló gicas y geofísicas del área de la Reserva Biológica Lomas Barbudal (RBLB) que serí a sustituida por el á rea del embalse y evaluar los componentes de biodiversidad en una finca adyacente propiedad de ASETREK Tres Azul S.A., con el fin de valorar su potencial para compensar el á rea afectada de la RBLB. Es decir, dicho estudio estuvo destinado a determinar l a posibilidad de compensar el área de la RBLB que sería desafectada. En ese estudio se determinó que para compensar el área debía incluirse dentro de la Reserva 444 hectáreas de la finca ASETREK y de forma muy superficial, ya que no se hicieron estudios de tallados, se menciona que deberían incorporarse las 86 hectáreas de la finca Brindis de Amor, además de utilizar el embalse Río Piedras como parte de la compensación. Las pregunt as obligadas sobre ese estudio son las siguientes: ¿Cumple el Estudio elaborad o por la OET con los términos de referencia fijados por el SENARA con los criterios establecidos por la Sala Constitucional? ¿Demuestra ese Estudio, mediante un análisis cientí fico e individualizado, el grado de impacto de la medida correspondiente (la des afectación de 113 hectáreas de esa Reserva Biológica) en el ambiente? ¿ Plantea recomendaciones orientadas a menguar el impacto negativo en el ambiente? ¿ Demuestra cómo tal medida (la desafectación de las 113 hectá reas) implica un desarrollo que satisface las nec esidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades? LA RESPUESTA ES UN ROTUNDO NO. A continuación expl ico por qué: 1- Observaciones al Estudio de la OET para la compensación del á rea inundable por el embalse. 1.1 Marco teórico. El estudio adopta, como metodología para calcular el área de compensación, la cuan tificación del valor relativo de diferentes aspectos de los ecosistemas, asignando un valor numérico a diferentes variables ecosisté micas. Este ejercicio se realiza para el área inundable de Lomas de Barbudal y su correspondiente ecosistema comparable en l a finca ASETREK, finca escogida por el SENARA. Obsérvese que el estudio no era para buscar en los terrenos colindantes con la Reserv a Biológica Lomas Barbudal (RBLB) un área para compensar con caracterí sticas ambientales lo más parecidas al área a inundar. SENARA fue la que determinó que debía ha cerse el estudio sobre una parte de la finca de ASETHEK. Para realizar la comp aración numé rica de la calidad de hábitat entre el á rea a inundar de la HBLB y una porción de la finca de ASETREK, el Estudio divide el área de cada sitio en tres ecosistemas principales: bosque ripario maduro, bosque deciduo y bosque secundario. Se asignan puntajes se gún el número de especies de diferentes grupos taxonómicos, o según la cobertura de bosque, número de estratos, etc. Se contabilizan los puntajes en cada área, para después obtener los totales. Como en muchos casos, la finca ASETREK tiene menor punta je que el ecosistema correspondiente del área a inundar de la Reserva Biológica Lomas de Barbudal, por lo que se calcula el área necesaria de la finca de compensación para nivela r el puntaje del área afectada. Así llegan al cálculo fin al que se requerirían 252 has (después se mencionan 330 has, en esto hay una cierta confusión al final del estudio) de una finca como ASETREK para compensar las 113 has inundadas de Lomas de Barbudal. Mi opinió n basada en mi conocimiento técnico es que est e marco teórico es un ejercicio numérico que lleva a una contabilidad peligrosa, poco fundamentada biológicamente. Las categorías para definir puntaje, los aspectos del ecosistema que fueron comparad os, y los valores numéricos otorgados a cada categoría son en buena par te arbitrarios, está n sobrevalorando algunos aspectos y subvalorando otros, como se podrá ver má s adelante con algunos ejemplos. El probl ema principal es establecer un principio de compensación, supuestamente cuantitativo, donde modificando el tamaño de un área de compensación se puede igualar el área perdida dentro un área protegida. Esto es equivocado, ya que las poblaciones o especies afectadas por la pérdida de un área protegida no necesariamente aparecerán, en su abundancia original en un área de compensación, aunque se aumente muchas veces su área, al no existir en el área de compensación los hábitats y recursos requeridos por esta especie, o los núcleos poblacionales o las fuentes para la migración de poblaciones que garanticen su repoblamiento. Difer encias drásti cas en la calidad del hábitat, especialmente en el grado de alteració n humana de los ecosistemas, como las que se detectaron entre Lomas de Barbudal y la finca ASETR EK, no se equilibran con el aumento del área de esta última. Est a inflación del á rea para compensar menos biodiversidad no va a resultar en que las especies afectadas van a restaurarse en el área de compensación, es pecialmente si en el área de compensación tenemos há bitats muy diferentes al área afectada dentro del Parque Nacional o Reserv a Biológica. En el área que será inundada de Lomas de Barbudal hay bosques riparios, y posiblemente otros hábitats no cuantificados por el estudio, que no están representados en ASETREK. Sería un precedente preocupante que la Asamblea Legislativa, la SETEN A y la Sala Constitucional consideraran este estudio como vá lido, porque esta práctica podría llevar a propiciar la afectación de los lí mites de más áreas protegidas, fundamentados en la compensació n con fincas privadas de área mayor, pero con ecosistemas mucho más alterados de los protegidos. La contabilidad ecosistémica y método Há bitat/Hectárea (sección 1.1.3 del Estudio de la OET), avalarían este tipo de compensaciones. 1.2 Co ntabilidad de servicios ecosistémicos. Un aspecto que genera dudas la c ontabilidad ambiental del estudio de la OET es la contabilidad de servicios ecosisté micos, y la comparación de ambas áreas en relació n a estos servicios. La contabilidad de servicios ec osistémicos se realizó seleccionando aquellos servicios que : "(1) que sean producto s o beneficios claramente distinguibles y cuantificables en escalas métricas, (2) que no tengan relación directa entre sí, para evitar redundancia de criterios, (página 99) entre otros criterios. Este criterio deja por fuera serv icios importantísimos que los ecosistemas naturales prestan a los ambientes humanos y silvestres, pero que son difícilmente cuantificables, y que están relacionados entre sí , porque al final de cuentas la cobertura boscosa, la calidad del suelo, y la biodiversidad son e lementos comunes a todos los servicios ecosistémicos. Siempre habrá "redundancia de criterios". Debido a estos criterios de selección, servicios ecosisté micos tan importantes como polinización, protección del suelo, protecció n de acuíferos, c ontrol de plagas y otros no entraron en la contabilidad comparativa de Lomas de Barbudal con ASETREK. Se debe recalcar que los servicios de polinizació n del área inundable de Lomas de Barbudal deben ser substanciales, dada la gran diversidad de abejas que motivaron en buena pa rte su creación en el año 1986. 1.3 Limitaciones del muestreo de campo. Para un estudio que pretende evaluar la diversidad ecosisté mica y biológica de dos áreas medianamente extensas (en la escala de cientos de hectá reas), 10 meses de trabajo parecen insuficient es para hacer una verdadera valoración de la diversidad bioló gica de un sitio, a pesar de que el esfuerzo fue muy intensivo. Para algunos casos, como los muestreos d e vegetación, a pesar de fundamentarse en un buen número de parc elas, la curva de acumulación de especies (pá gina 125 del Estudio) muestra que aún falta más muestreo para estabilizar los conteos de diversidad de especies. Aquí debo expresar mis dudas sobre las tablas de especies de plantas presentadas en este capítulo, donde aparentemente todas las muestras fueron identificadas a nivel de especie, lo que a mi parecer requiere un extenso trabajo en los herbarios nacio nales. Este punto no se informa. En lo que se refiere al muestreo de especies de aves, no se dice el núme ro de conteos que fueron realizados, aunque se reconoce que "Debido a la corta duración de este estudio, no se logró completar la información con muestreos en la época de llegada de especies m igratorias del hemisferio norte, que sucede en la región durante los meses de Agosto-Mayo" (pá gina 145 del Estudio). Debe señalarse que estudios a largo plazo de poblaciones de aves, realizados por el Dr. Gary Stiles en Costa Rica y Colombia, muestran cambios temporales anuales y supraanuales muy fuertes, provocando que durante inve ntarios de muchos añ os aún sigan presentándose especies nuevas, mientras otras desaparecen. Una crítica semejante se podría aplicar a los muestreos de entomofauna (insectos), ya que est os se limitaron a la colocación de dos trampas Malaise (trampas hechas con cor tinas y frascos) permanentes en cada sitio, de donde se colectaron insectos durante un añ o. Limitar este muestreo a esta técnica es insuficiente, muchos insectos de gran importancia ecosisté mica no son eficientemente colectados con este método, como mucha de la entomofauna de suelo, abejas, hormigas, etc. Un ejemplo es el nú mero limitado de individuos capturados de la familia Apidae (abejas) (cuadro 56, pá gina 195 del Estudio). Este cuadro muestra que dentro de Lomas de Barbudal no se colectó ningún individ uo de esta familia y sólo 11 abejas en ASETREK. Este resultado es totalmente equivocado. Estudios detallados en la región muestran que , en un solo árbol, durante su floración, pue de colectarse de 30-70 especies de abejas y miles de individuos. 1.4 Limitacio nes del sistema de puntuación El fraccionamiento de los ecosistemas en hábitats y elementos individuales, y la distribució n, un poco arbitraria, de cada elemento y nivel de semej anza entre el área afectada y el área de compensación, ha ce perder, des de mi punto de vista, la perspectiva general de cada sitio, creando una contabilidad que deja escapar diferencias importantes entre Loma s de Barbudal y ASETREK. Un ejemplo de este problema es la diferencia de pendientes entre ambos sitios. En la pá gina 52 del Estudio s e reconoce que el área dentro de Lomas de Barbudal está entre los 10-80 msnm de altitud, con pendientes menores a 5%, mientras que ASETREK muestra elevaciones mayores a 85 msnm, incluyendo una meseta con elevación media de 140 msnm (pá gina 53 del Estudio). No se informa de la pendiente promedio de ASETREK. Esta diferencia es otra vez resaltada en la pá gina 214 del informe de la OET, donde se discute la posibilidad de incluir otra finca (Brindis de Amor) como parte de la compensació n, ya que "en contraste con ASETREK, la propiedad Brindis de Amor tiene una pendiente leve..". Diferencias de pendientes son muy importantes, deberí an de afectar el puntaje final según la filosofía adoptada por los consultores. Sin embargo, en la página 5 8 del Estudio, los consultores asignan 4 puntos (de un máximo de 5) a los atributos geofí sicos de ASETREK. La gran diferencia de pendiente y altitud sólo significó un punto menos en la contabilidad del estudio. Otro ejemplo de como (sic) la contabilidad de l estudio dejó escapar elementos importantes, fue la cuantificación de la importancia de las fuentes de agua. En la página 105 del Estudio, en la sección de "Fuentes de Agua", se dice que dos fuentes de agua fueron identificadas en los sitios de estudio: Quebrada Viscoyol y Quebrada sin nombre. Después, en la misma página, concluyen: "De nuestras observaciones en el campo se concluye que, en término de fuentes de agua, accesibilidad a ellas y producció n, ambos sitios son similares. Por lo tanto, siguiendo los criterios señalado s en el cuadro 16, ASETREK recibe un puntaje de 3 puntos para este indicador. ". Sin embargo, en la pá gina 183 del informe, los responsables del análisis de la ictiofauna reconocen, al tratar de explicar la menor cantidad de especies de peces en ASE TREK: "Esta notable diferencia en composición posiblemente refleje las diferencias en elevación y en las cualidades de los microambientes acuáticos entre los sitios comparados: el de HBLB presenta un mayor nú mero y más profundidad en pozas y remansos mientras que en el sistema de quebradas en el sitio de compensación en ASETREK el agua fluye más somera. Esta clase de observaciones se repite al final del estudio (página 214 del Estudio), donde se dice "El sitio de compensación en ASETREK no posee quebradas permanen tes…" Aunque estas diferencias no fueron cuantificadas, es claro que el agua en superficie prevalece un mayor tiempo en RBLB, efecto especialmente notable durante los meses de estación seca. La presencia de una fuente de agua con ma yor permanencia en la época se ca es un elemento importantísimo en la ecología del bosque seco, y debió de afectar en mayor proporción el puntaje. Sin embargo, fuera de las diferencias de ictiofauna, el efecto de esta variable fue indirecto y no fue contabiliz ada directamente. Un ejemplo más de este problema: en el capí tulo 4.2. del Estudio, "Otras alternativas de compensación", se reconoce que ASETREK ha e stado sujeto a talas y fuegos recurrentes, una observación que no había aparecido y ni había sido cuantifi cada en el resto del estudio. Finalmente, no se consideraron variables relacionadas con la importancia paisajística de Lomas de Barbudal, como cuáles son los ecosistemas protegidos y cuánto quedan de estos ecosistemas en la provincia de Guanacaste. Sería p osible que concluir que Lomas de Barbudal protege "ecosistemas en extinción", a partir de la siguiente afirmación del estudio, en sus conclusiones: "La reserva se ubica dentro de la Cuenca Hidrográfi ca del Río Tempisque y protege los remanentes de ambientes naturales que prá cticamente han desaparecido de su entorno, como son los bosques riparios y el bosque seco maduro de bajura." Esta categorización no aparece en todo el estudio. Hubiera sido interesante saber cuá ntos "bosques secos maduros de bajura" y "bosques riparios" quedan en la provincia de Guanacaste, para valorar el sitio en su contexto paisajístico. 1.5 El marco teórico inicial es abandonado para hacer ajustes finales en las conclusiones del estudio. Al final de cuentas los autores advierten que la finca ASETREK se muestra insuficiente para compensar las pérdidas de hábitat en Lomas de Barbudal, un hecho que podría haber sido corroborado con an álisis más integrales y no necesariamente contables. Los autores no parecen satisfechos con la ecuación Hábitat/Hectárea , a pesar de ser el marco teó rico del estudio. De este cálculo se origina la recomendació n de comprar 252 hectáreas (después se menciona la cifra de 330 hectáreas, página 208 del Estudio) de la finca ASETREK para que se nivelen los puntajes f inales. Sin embargo, los autores reconocen que ASETREK no posee bosques riparios, y por lo tanto proponen, sin estudios detallados, un á rea adicional de compensación que sí contiene este hábit at. Queda la duda de cómo se justifica la recomendación de 252 o 330 hectáreas de ASE THEK, siendo que ahora se piensa agregar otra propiedad cuyo puntaje no fue calculado, ni mucho menos restado, al saldo de hectáreas originalmente propuestas. Debe resalta rse que, a pesar de esas dudas, los autores mantienen una con clusión tajante s obre la viabilidad de la compensación "7. Pese a las diferencias en calidad de ambiente, es posible compensar las pérdidas en el sitio potencial de inundación en RBLB a partir de la incorporació n de hábitats evaluados en ASETREK (y otros sitios, como se señ ala más adelante)". No hay justificación a esta conclusión, especialmente si las propias valoraciones de los autores ponen en duda la equiparación de á reas. Al final del estudio, se presenta la posibilidad de añadir la propiedad "Brindis de Amor", con una extens ión total de 86 Has, por poseer 15.8 has de bosque ripario (sin que se documente a ciencia cierta cómo se llegó a ese nú mero de hectáreas, ya que no se hizo ningún estudio en esa propiedad), en el sector norte de la Reserva de Lomas de Barbudal. Esta área se adicionaría a las 252 has de ASETREK, como un área adicional que compensaría la pérdida del bosque ripario de Lomas de Barbudal por inundación. Esto agregaría una faja de bosque, como una península aislada, en el norte de la Reserva (Figura 51 de l estudio). Los autores reconocen que el análisis de este fragmento adicional fue superficial (página 213), y no se hicieron los extensos inventarios físicos y biológicos practicados en ASETREK. Podrá observarse que "Brindis de Amor" quedaría como una isla aislada del resto de la Reserva, creando una geometría más alargada y estrecha del sector norte de Barbudal, algo no conveniente por el importante efecto de borde que tendría esta secció n de la reserva. 1.6 El embalse Río Piedras como parte de la compensación Al final del estudio, se adiciona una nueva idea: la consideración del Embalse Río Piedras como parte de la compensación del área inundada de Lomas de Barbudal, ya que podría declararse como un humedal bajo la categoría de Refugio de Vida Silvestre, constitu yendo un área protegida nueva que podrí a contabilizarse como parte de la compensación. NO SE DAN MAYORES DETALLES DE LAS CARACTERÍSTICAS DEL EMBALSE Y DE SUS EFECTOS EN EL AMBIENTE. Se trataría de un intercambio entre dos ecosistemas totalmente diferentes (un ec osistema boscoso por un humedal). Es una idea poco desarrollada en el estudio. Ademá s, esta propuesta desconoce los impactos ambientales del embalse, entre ellos sobre el p ropio rio Piedras. 1.7 ¿Compensación biológica o traspaso de tierras al Estado? De l a información aportada por el estudio de compensación de la OET, se observa que el á rea de las fincas ASETREK, Brindis de Amor y Ciruelas está en mayor parte cubierta por diferentes tipos de ecosistemas forestales (bosques maduro s, secundarios o deciduos). Son áreas de bosques existentes, que representan remanentes o regeneración de bosques después del intenso período histórico de deforestació n en la provincia de Guanacaste, durante los años entre las décadas de 1950 al 1990, p roceso que ha cambiado h acia la regeneración secundaria en los últimos 10-20 años (ver por ejemplo: Calvo- Alvarado et. al..2009. "Deforestation and forest restoration in Guanacaste, Costa Rica: Putting conservation policies in context". Forest Ecology and Management, 258, 931-940). Lo s propietarios de la finca ASETREK han manifestado interés en vender sus propiedades al Estado, o a mantenerlas bajo cobertura forestal para explotación turí stica o protecció n (caso de la propiedad Brindis de Amor). Pareciera muy probable que bajo un progr ama de incentivos a la protección (pago por servicios ambientales -PSA-) y bajo la actual legislació n forestal, esos bosques no están sujetos a procesos de cambio de uso de suelo inminentes o inmediatos. Por otro lado, si se visualiza la cober tura forestal en el sector de la cuenca del río Piedras que será afectado por el proyecto PAACUME, antes y después de la ejecución del p royecto, se podría contabilizar que va a ocurrir una reducción drá stica neta de la cobertura forestal (pérdida de 450 hectá reas de cobertura forestal, transformadas en un espejo de agua), sin ningún aumento de cobertura forestal previsible en los próximos años. Aunque 459 hectáreas de bosques dentro de f incas privadas pasarían a manos del Estado por el programa de compensació n, esto no altera el panorama de pérdida neta de cobertura forestal. No está ocurriendo una compensación biológica real, só lo un traspaso de tierras entre diferentes propietarios. Este traspaso sería aceptable como compensación si las tierr as privadas estuvieran bajo la amenaza de pérdida de cobertura, situació n que no parece probable. Al final, la situación final para las especies dentr o del futuro embalse es una pérdida drástica de há bitat, sin posibilidades para sus poblaciones, presentes y futuras, de ocupar nueva s áreas de una dimensión semejante a las pérdidas por la inundación del embalse. Pareciera más lógico que un programa de co mpensación sirviera para adicionar NUEVAS áreas de bosque a la RBLB, o a fincas privadas, que establecieran un equilibri o entre pérdi da de hábitat y ganancia de hábitat. Compensar áreas de bosque dentro de un área protegida, con otras áreas de bosque fuera del á rea protegida, no parece un canje que resulte en una verdadera compensación ecológica para las es pecies silvestres, solo una compensación territorial a un área protegida, un objetivo loable pero insuficiente.1.8 Conclusiones general sobre el estudio de la OET El informe aportado por la OET es insuficiente para definir el cambio de lí mites de Lomas de Barbudal, y no demuestra que e ste cambio será plenamente compensado por áreas adicionales en otros sectores de la Reserva. La finca ASETREK, estudiada con más detalle por los consultores, al final se reconoce como insuficiente para justificar el canje de tierra, y se acude precipitadamente a otras fincas cercanas para balancear la compensación, a nuestro parecer un ejercicio poco serio porque no está debidamente fundamentado. Además, el desconocimiento de los impactos ambientales del embalse Río Piedras sobre la Reserva Biológica y sobre todos los ecosistemas de humedales del Bajo Tempisque debe ser conocido antes de aceptar la inundació n de un sector de la Reserva de Lomas de Barbudal y de en gene ral de los ecosistemas afectados por el futuro embalse de PAA CUME. 2. El Estudio de Impact o Ambiental (EIA) de PAACUME e impactos ambientales no abordados por ese EIA La ley #9610, "Modificació n de límites de la Reserva Biológica Lomas Barbudal para el desarrollo del proyecto de abastecimiento de agua para la cuenc a medía del rí o Tempisque y co munidades costeras", publicada en el Alcance #199 de La Gaceta del 23 de noviembre del 2018, y el Estudio de la OET que se presentó para justificar la desafectación de 113 hectá reas de la Reserva Biológica que se inundarían, y para determinar el á rea que debía utilizarse de la propiedad de ASETREK para compensar esa pérdida de área, no pueden verse en forma aislada del proyecto de PAACUME. De hecho, en la respuesta de SENARA a la audiencia conferida por la Sala Constitucional en l a acción de inconstit ucionalidad en la cual estoy coadyuvando, se hace ver que el Embalse Río Piedras es vital para el proyecto PAACUME, y que ese emb alse requiere inundar las 113 hectáreas de la RBL B, para lo cual se requiere desafectarlas del nivel de protección absol uta que hoy tienen al formar parte de esa Reserva Bioló gica. Por eso es que se tramitó el proyecto de ley que culminó con la promulgación de la ley #9610 objeto de esta acción de inconstitucionalidad. Por esa razón es que no puede aislarse el aná lisis del Estudio de la OET, del otro estudio presentado ante la Secretaría Técnica Nacional Ambiental (SETENA) sobre el proyecto de PAACUME. De hecho, en dicho EIA hay menciones al Embalse Río Piedras y a la afectació n de la RBLB. 2.1 El EIA no aborda la compensació n general de las áreas de bosque inundadas por el embalse Segú n consta en el Capítulo de Ambiente Biológico del EIA del proyecto PAACUME, el futuro embalse del proyecto cubriría áreas que actualmente posee diversos grados de cobertura forestal. Se menciona que se inun darían 292 hectáreas de potreros, 170 hectáreas de bosques secundarios, 10 hectáreas de charrales y 289 hectáreas de bosques maduros riparios. La inundación de estas á reas representa un impacto importante en la biodiversidad de las áreas prote gidas y no protegidas de la cuenca del río Piedras. Según el mapa del uso del suelo del á rea del proyecto, los ecosistemas naturales de la cuenca del rí o Piedras, en especial los bosques menos alterados, son fragmentos lineales de bosques riparios, rodeado s por bosques secundarios y aislados por cultivos y áreas de potreros o charrales, especialmente en su sector sur. Aunque el EIA y el Es tudio de Compensación de la OET usan categorías de bosque un poco diferentes, se podría concluir que el á rea del embalse anegar á 459 hectá reas de área con cobertura forestal, con posiblemente la mitad del á rea correspondiente a bosques riparios, mientras que el estudio de compensación de la OET sólo cons idera las 113 hectáreas que serán inundadas dentro de la RBLB. No se pe rcibe ningún interés por compensar la pérdida de cobertura forestal por la inundación de bosques FUERA de la RBLB. En este sentido, el EIA de PAACUME, así como toda la tramitación ambiental del proyecto, ha estado dirigida más a solventar los problemas legales por la afectación de un á rea protegida, que a una real compensación de los impactos ambientales sobre la biodiversidad local. Debe destacarse que existen importantes áreas de bosques riparios fuera de la RBLB que serán inundados, como los presentes en la cuenca de la Quebrada Viscoyol y en la cuenca del río Piedras, próximos al sitio de la futura presa. En estos sitios se han localizado individuos de especies de árboles en peligro de extinció n, como Dalbergia retusa, Swietenia macrophylla, Dalbergia retusa, Astroni um graveolens y Agonandra macrocarpa (Fig 20, Anexos Tomo II del Estudio de Impacto Ambiental del proyecto PAACUME). 2.2 Efectos ambientales del embalse sobre los ecosistem as de bosques deciduos. El embalse de PAACUME será un cuerpo de á rea extenso y perma nente, que alterará el régimen hídrico de los suelos en la proximidad del embalse (aumento del nivel freático), representando un ecosistema nuevo, muy diferente a los bosques riparios, bosques deciduos, bosques secundarios y char rales que ocupan la mayor parte del área inundació n y de la Reserva Biológica de Lomas de Barbudal. El á rea de bosque de la RBLB tendrá ahora aproximadamente de 1 a 2 kilómetros de borde de embalse, y el área de bosques remanentes, en fincas privadas de ntro de la cuenca del ri o Piedras, tendrá contacto con el embalse por una extensión todavía mayor. Es previsible que el embalse, al ocupar las regiones más bajas, formará n un borde que hará contacto con lo que ahora son bosques deciduos o secundarios (compues to también de muchas especies deciduas), localizados en áreas adyacentes a los bosques riparios de la cuenca del río Piedras. Sería importante saber c ual (sic) serí a el ancho de la franja de suelo alrededor del embalse que tendría su nivel freático alte rado por la presencia de l embalse. Este dato no está disponible en el EIA. El problema con el efecto hídrico del embalse es que sustituye las condiciones edáficas de un bosque seco deciduo por el de un ecosistema húmedo, sin dé ficit hídrico ni estacionalidad de esa variable. Much as de las especies de plantas y animales se han adaptado al dé ficit hídrico de los meses de sequía, y han evolucionado diferentes estrategias para sobrevivir en la estacionalidad propia del bosque tropical seco. Esta característica es la que hace del bosqu e tropical seco un ecosistema propio, diferente a otros ecosistemas tropicales, que merece atenció n particular de conservación por su grado de alteración y disminución a n ivel mundial. Podría pronosticarse que el área alrededor del emb alse será colonizada por nuevas especies de plantas y animales, muchas de ellas má s relacionadas a ecosistemas más húmedos y menos estacionales que el original. Otro elemento de la biodiversidad que podrá ser favorecido por la existencia del embalse son especies invasoras, que han encontrado en los embalses artificiales un medio muy apropiado para dispersió n y formación de nuevas poblaciones (ver por ejemplo Richardson, David M., et al. "Riparian vege tation: degradation, alien plant invasions, and restoration prospects." Diversity an d distributions 13.1 (2007): 126-139, o también Havel, J. E. et al. 2005. "Do reservoirs facilitate invasions into landscapes?." AIBS Bulletin 55.62 518-525.). Este fenómeno puede incluir especies de plantas terrestres o acuática s. ¿Cuál serí a impacto de t al cambio drástico en las comunidades vegetales sobre el bosque estacional deciduo, dentro y fuera de la Reserva de Lomas de Barbudal? Esta pregunta no está contempl ada en la Matriz de Importancia de Impactos Ambientales de PA ACUME (Declaratoria de I mpacto Ambiental PAACUME). En esta matriz sólo se consideran, como impactos ambientales de la operación del embalse, las modificaciones sobre los ecosistemas acuáticos de la cuen ca del río Piedras, no el impacto sobre ecosistemas terrestres remanentes de l a Reserva Biológica o de las áreas de bosque deciduo en general. 2.3 Efecto de la irrigación sobre los suelos y la hidrología en área de riego. Las actividades de irrigación han proporcionado la posibilidad de expandir la frontera agrí cola a áreas secas, áridas o semi-á ridas a nivel mundial, ofreciendo un incremento substancial en la producción de alimentos y en el nivel de producción de productos de agroexportación. Sin em bargo, los impactos ambientales sobre los suelos y el manto a cuífero de los sistemas de irrigació n son un problema sobre el cual existe cada vez mayor nivel de conocimiento, con mayores advertencias hacia los paíse s interesados en ampliar sus áreas irrigadas. Existen muchos ejemplos de grandes proyectos de irrigación donde se presentan pro blemas con la pérdida de nutrientes del suelo, elevación del nivel freático y salinización. La salinización es una consecuencia d e la rápida evaporación del agua irrigada y la acumulació n de sales por capilaridad, o por irrigación con aguas provistas de al gún nivel de salinidad. Ver por ejemplo: Hillel, D., Braimoh, A. K., & Vlek, P. L. (2008). Soil degradation under irrigation. In Land Use and Soil Resources (pp. 101-119). Spring er, Dordrecht. Nunes, J. M., López-Piñeiro, A., Albarrán, A., Muñoz, A., & Coe lho, J. (2007). Changes in selected soil properties caused by 30 years of continuous irrigation under Mediterranean conditions. Geoderma, 139(3-4), 321-328. http://www.icid.org/resirri_env imp.html Aunque el proyecto PAACUME propone la construcción d e canales de irrigació n de 350 kilómetros de longitud, que influenciarán el riego en un área de aproximadamente 58.000 hectáreas, no se encuentra en el EIA una mención a los pote nciales impactos ambientales derivados de la degradación de suelos como produc to de la irrigació n. No se observa ningún esfuerzo en el estudio de un proyecto que representa un importante antecedente de un mega proy ecto de irrigación: el Distrito de riego Arenal-Tempisque, que podría ser un precedente interesante para entender los ef ectos de la irrigació n a largo plazo. Existen algunos estudios que muestran problemas potenciales con el nivel freático: Campos-Chaves, E. Informe del Proyecto de Graduación, Licenciatura en Ingeniería Agrí cola, Universidad de Costa Rica, Escuela de Ingeniería Ag rícola, San José (Costa Rica). Impacto del riego en el drenaje subterráneo y niveles freá ticos en el área demostrativa San Luis del Distrito de Riego Arenal-Tempisque. Así como los resultados de proyectos de distribución de tierras bas ado en el proyecto de riego Arenal-Tempisque para familias campesinas pobres. Ramos González, W. (2005). Evaluación del impacto económico del Proyecto de Parcelación Bagatzí : el caso de diez familias 20 años después. Tesis de Maestrí a, Evaluación de Programas y Proyectos de De sarrollo. UCR. Además de algunos estudios aislados sobre el efecto del proyecto en poblaciones de mosquitos, un problema que potencialmente se puede incrementar con el área de irrigació n: Vargas, V., Vargas, C., & Jorge, v. (2003). Male and mosquito larvae surve y at the Arenal- Tempisque irrigation project, Guanacaste, Costa Rica. Revista de biologí a tropical, 51 (3-4), 759-762. 2.4 Impacto ambiental sobre el río Piedras. E n el documento "Declaración de Impacto Ambiental", se señala que la presa de 4 0 metros que será construida para formar el embalse afectará tanto al río Piedras como a la quebrada Viscoyol. El río Piedras sufrirá una reducción del 75% de su caudal promedio (1.5 m3/s), caudal que aumentará mucho en la estación lluviosa. En el EIA los consultores r econocen que sería necesario un estudio más detallado para determinar los impactos en el río Piedras, bajo varios esquemas de operació n del embalse. Es de esperar una profunda afectació n del río Piedras aguas abajo, al ser modifi cado en forma drástic o el nivel del agua, las características bioquí micas del agua, y con ellos los ecosistemas acuáticos y terrestres que dependen de este caudal aguas abajo del embalse. La S ETENA no debería aceptar que este análisis esté ausente del E IA del proyecto PAACUME. 3-NO CUMPLE CON EL REQUISITO 3, que se dé una compensació n del área suprimida con otra de igual tamaño y características. Como señ alara anteriormente, el problema principal es establecer un principio de compensación, supuestamente cua ntitativo, donde modificando el tamañ o de un área de compensación se puede igualar el á rea perdida dentro un área protegida. Esto es equivocado, ya qu e las poblaciones o especies afectadas por la pér dida de un área protegida no necesariamente aparecerán , en su abundancia origi nal en un área de compensación, aunque se aumente muchas veces su área, al no existir en el área de compensación los hábitats y recursos requeridos por esta especie, o los nú cleos poblacionales o las fuentes para la migración de pob laciones que garanticen su repoblamiento. Diferencias drásticas en la calidad del há bitat, especialmente en el grado de alteración humana de los ecosistemas, como las que se detectaron entre Lomas de Barbudal y la finca ASETREK, no se equilibran con el aumento del área de esta última. Esta inflación del área para compensar menos biodiversidad no va a resultar en que las especies afectadas van a restaurarse en el á rea de compensación, especialmente si en el área de compensación tenemos há bitats muy diferentes al área afectada dentr o del Parque Nacional o Reserva Biológica. En el á rea que será inundada de Lomas de Barbudal hay bosques riparios, y posiblemente otros hábitats no cuantificados por el estudio, que no está n representados en ASETREK. Sería un precedent e preocupante que la Asamblea Legislativa, la SETENA y la Sala Constitucional consideraran este estudio como válido, porque esta práctica podría llevar a propiciar la afectació n de los límites de más áreas protegidas, fundamentados en la compensación con fincas privadas de áre a mayor, pero con ecosistemas mucho más alterados de los protegidos. La contabilidad ecosistémica y método Há bitat/Hectárea (sección 1.1.3 del Estudio de la OET), avalaría n este tipo de compensaciones. OTROS COMENTARIOS SOBRE LA VIOLACIÓN DEL ARTÍCULO 50 DE LA CONSTITUCIÓN POLÍTICA Y DE LOS PRINCIPIOS CONSTITUCIONALES DE NO REGRESIVIDAD EN MATERIA AMBIENTAL, OBJETIVACIÓN DE LA TUTELA AMBIENTAL, PRECAUTORIO, PREVENTIVO E IRREDUCTIBILIDAD DE ÁREAS SILVESTRES PROTEGIDAS. Puesto que, en el Estudio de la OET se constató un faltante de á rea de bosque ripario para compensar el área de ese tipo de ecosistema que se vería afectada, el Comité Té cnico y el Consejo Regional del Área de Conservació n Arenal Tempisque, recomendaron "Identificar un área de bosque rip ario que permita compensar el faltante en hectáreas para este tipo de ecosistema. " Sobre ese mismo tema, el Consejo Regional indicó: "Existen algunos oficios enviados por SENARA, por ejemplo, SENARA-GG 0374-2012 SENARA-GG-0257-2017 Y SENARA-INDEP-172-2017 que indican que dentro de la propiedad se ASETREK existen 6, 14 has de bosque ripario. No obstante, este dato no es mencionado en el estudio realizado por la OET, o respaldo por algún estudio al respecto, con las mismas características del e studio inicial. Respecto a la finca Brindis de Amor, también este Consejo estima que los estudios no se realizaron con la misma profundidad de análisis con respecto al estudio inicial, ni en el tiempo suficiente que sustente técnicamente la calidad de los componentes abordados desde el inicio de la investigación. Es necesario que se profundice más los estudios en esta propiedad o cualquier otra que se considere como propuesta de compensación, para que este Consejo pueda emitir un criterio fundamentado." (Lo resaltado no es del original.) (Ver notas del Comité Técnico del Á rea de Conservación Arenal Tempisque, minuta No. 5 de 30 de junio de 2017, folios 1478-1491 del expediente legislativo, y Ofi cio No. SINACCOHACAT-SE-041 de 7 de julio de 2017, folios 149 2-1497). Considerando el falta nte de área de bosque ripario señalado por el Comité Té cnico y por el Consejo Regional, la propuesta final de compensación se definió en el oficio No. SENARA-INDEP-441-2017 de 17 de julio de 2017 (folios 141-149), indicando que para compensar el á rea desafectada y cubrir el faltante de bosque ripario se incluiría 444,04 hectáreas de la finca ASETREK Tres Azul S.A., la totalidad de la Finca Brindis de Amor en Liberia S.A. con un área de 86,96 hectáreas y un área de 40 hectáreas de la finca Hacie nda Ciruelas SP S.A. Obsérvese que esa propuesta de compensación fue definida por SENARA y no fue producto de un Estudio técnico, objeti vo, e integral. Finalmente, el Consejo Regional del Área de Conservación Tempisque, después de aprobado en segundo debate el proyecto de ley , indicó que lo que el SENARA propuso fue básicamente una compensación de 5 a 1, o sea, compensar con área 5 veces mayor a la que se desafectaría. (Oficio No. SINAC-COHACAT-049-2018 de 9 de setiembre de 2018, folios 2641- 2644). La Proc uraduría seña la que no puede valorar técnicamente el estudio de la OET, ni la forma en que se definió la propuesta final de compensación del área desafectada de la RBLB. Por eso, como coadyuvante, aporto mis observaciones basado en mi conocimiento técnico de la biología. Precisamente para acreditar dicho conocimiento adjunto como Anexo de esta coadyuvancia mi curriculum vitae. Como bien señ ala la Procuraduría, en caso de determinarse que el estudio de la OET y la propuesta final de compensación del área silvestre protegida son insuficientes técnicamente, la ley impugnada resultaría inconstitucional por violación al principio de objetivación de la tutela ambiental. Eso es precisamente lo que he detallado en esta coadyuvancia. El informe o Estudio de la OET es insuficiente , parcial e incorpora un principio de compensación, supuestamente cuantitativo, donde modificando el tamaño de un á rea de compensación se puede igualar el á rea perdida dentro un área protegida. Esto es equivocado, ya que las poblaciones o espe cies afectadas por la pérdida de un área protegida no necesariamente aparecerán, en su abundancia original en un área de compensación, aunque se aumente muchas veces su área, al no exis tir en el á rea de compensación los hábitats y recursos requeridos por e sta esp ecie, o los núcleos poblacionales o las fuentes para la migración de poblaciones que garanticen su repoblamiento. Diferencias drásticas en la calidad del hábitat, especialmente en el grado de alteració n humana de los ecosistemas, como las que se det ectaron entre Lomas de Barbudal y la finca ASETREK, no se equilibran con el aumento del á rea de esta última. Esta inflación del á rea para compensar menos biodiversidad no va a resultar en que las especies afectadas van a restaurarse en el área de compensación, es pecialmente si en el área de compensación tenemos hábitats muy diferentes al área afectada dentro del Parque Nacional o Reserva B iológica. En el á rea que será inundada de Lomas de Barbudal hay bosques riparios, y posiblemente otros hábitats no cuantificado s por el estudio, que no están representados en ASETREK. Por eso es que manifestara anteriormente que sería un precedente preocupante que la Asamblea Legislativa, la SETENA y la Sala Constitucional consideraran este estudio como válido, porque esta práctica podría llevar a propiciar la afectación de los límites de más áreas protegidas, fundamentados en la compensación con fincas privadas de área mayor, pero con ecosistemas mucho más alterados de los protegidos. La contabilidad ecosistémica v el método Hábitat/Hectárea, avalarían este tipo de compensaciones. El informe aportado por la OET es insuficiente para definir el cambio de límites de Lomas de Barbudal, y no demuestra que este cambio será plenamente compensado por áreas adicionales en otros secto res de la Reserva. La finca ASETREK, estudiada con más detalle por los consultores, al final se reconoce como insuficiente para justificar el canje de tierra, y se acude precipitadamente a otras fincas cercanas para balancear la compensación, lo que a mi parecer es un ejercicio poco serio porque no está debidamente fundamentado. Además, el desconocimiento de los impactos ambientales del embalse Río Piedras sobre la Reserva Biológi ca y sobre todos los ecosistemas de humedales del Bajo Tempis que debe ser cono cido antes de aceptar la inundación de un sector de la Reserva de Lomas de Barbudal y de en general de los ecosistemas afectados por el futuro embalse de PAACUME. En su escrito de conte stación de la resolución dando curso a la acción de inconstitucionalida d sobre la cual estoy coadyuvando, la Procuraduría General de la República señala que en la exposición de motivos del proyecto de ley y a l o largo del expediente legislativo se ha justificado la desafectació n de una parte de la HBLB indicándose que con la compens ación propuesta se garantiza que los objetos de conservación que fundamentaron la creación de la RBLB no están siendo afectados y que el área desafectada es compensada por otra de igual tamañ o que cumple con los mismos fines y semejantes condiciones ecosistémica s. Es decir, la garantía de que no se afecta el área silvestre protegida y que el impacto de desafectar parte de su á rea será mitigado, recae directamente en la comp ensación propuesta. Así las cosas, tal y como lo he señ alado, es evidente que el estudio de la OET y la propuesta final de compensación son insuficientes y tienen falencias té cnicas que señalamos páginas arriba, por lo que la ley impugnada claramente violentaría el principio de irreductibilidad de las áreas silvestres protegidas, pues no se estaría garantizando que la variación de los límites aprobada no afecta la integridad de la RBLB y no se estaría mitigando adec uadamente el impacto ambiental generado por la desafecta ción de una parte de dicha Reserva Biológica. Consecuentemente, se violentaría el principio precautorio, principio preventivo y no existirí a respaldo técnico de que la medida legislativa adoptada no afecta el derecho a un ambiente sano y ecológicame nte equilibrado. ¿ES EL ESTUDIO PRESENTADO EL ESTUDIO QUE SE REQUIERE PARA JUSTIFICAR LA DECISIÓN DE DESAFECTAR UNA PARTE DE LA RBLB? ¿ES ESA LA ÚNICA OPCIÓ N PARA DESARROLLAR EL PROYECTO PAACUME? ¿HAY NECESIDAD DE DESAFECTAR LA RBLB? Coincidimos con la Procuradurí a en el sentido de que aunque se constate la suficiencia del es tudio de la OET -que he demostrado que no lo es- y de la propuesta final de compensación -que tampoco lo es según lo he señalado, debe a dvertirse que ese estudio técnico únicamente justificarí a la validez de la compensación practicada, y, com o tal, no es un estudio técnico que justifique directamente la decisión de desafectar una parte de la RBLB. La Procuraduría es contundente en este tema, y yo coincido con dicha entidad, cuando señ ala que … “ atendiendo a la jurisprudencia constitucional sobre el tema, el estudio que exige el artículo 38 de la Ley Orgánica del Ambiente para justificar la reducción de un área silvestre protegida debería ser un estudio que determine la necesidad y conveniencia de adoptar ese tipo de medida."(el subrayado no es del original). En est e caso, un estudio en ese sentido, sería aquel que fundamente técnicamente la necesidad de desafectar parte de la RBLB. Es decir, un estudio que determine que la única alternativa para desarrollar el proyecto PAACUME y el embalse Rio Piedras, es desafectando parte de la Reserva Biológica. Dicho sea de paso, dicho estudio no se ha realizado. No hay estudios que se hayan presentado en el expediente legislativo contemplando otras opc iones como podría ser la de terminar la construcción d e los canales de riego p endientes para aprovechar el agua del embalse del Arenal, ni tampoco estudios sobre la capacidad hídrica de los mantos acuí feros disponibles para explotación en los cantones de Nicoya, Santa Cruz y Carrillo. Dicho sea de paso, se acaba de inaugurar el acue ducto Sardinal-El Coco-Ocotal, con una inversión de aproximadamente $3 millones para dotar de agua potable a casi 30.000 personas mediante la perforación para acceder a mantos acuíferos subterráneos. Muchísimo menos dinero que los $500 millones de dólares proyectados para el desarrollo del proyecto PAACUME contemplando la construcció n de una represa para embalsar agua y luego canalizarla mediante 350 kilómetros de canales. Señala la Procuraduría, y yo lo respaldo, que si no se constata la necesidad y conven iencia de desafectar 113 hectáreas de la RBLB, la Ley 9610 debe declararse inconstitucional por violación a los principios de irreductibilidad de las áreas silvestres protegidas, objetivación a la tutela ambiental y de no regresión. Tal es la inexis tencia de ese tipo de estudio, que al respecto, el Consejo Regional del Área de Conservación Tempisque, al referirse al estudio de la OET, indicó que "esta instancia considera que aún n o se ha demostrado que existan otras alternativas del proyecto PAACUME, sin que nece sariamente se tenga que desafectarse un área de la actual RBLB. Si efectivamente estas alternativas no son viables, será necesario valorar la tercera medida que es l a compensación." (Oficio No. SINAC-CORACATSE-041 de 7 de julio de 2017, folios 1492-1497 del expediente legislativo). Ese párrafo lo que significa es que no se ha demostrado que la ÚNICA forma de realizar el proyecto PAACUME es mediante la desafectación de las 113 hectá reas de la RBLB para inundarlas. Existen otras opciones de llevar agua a la c uenca media del río Tempisque y comunidades costeras que no se han valorado adecuadamente y que lleven a la conclusión de que la construcció n del Embalse de Río Piedras es la ÚNICA opció n. Y, ese mismo Consejo, después de aprobado el proyecto de ley en segundo debate , indicó que "es necesario que existan los estudios técnicos ambientales, jurídicos y financieros suficientes que justifiquen la selección adecuada tanto del áre a a desafectar, como de las áreas que servirían como compensació n. Debe verificarse la existencia de estos estudios dentro del expediente de este proyecto de ley, ya que a la fecha este Consejo no cuent a con tal información." (Oficio No. SINACCÓRACAT- 049-2018 de 9 de setiembre de 201 8, folios 2641-2644). Por otro lado, en e l documento denominado "Consulta Obligatoria a las Comunidades Locales. Propuesta de Compensación para la Reserva Biológica Lomas Barbudal" (Folios 622-726), ante una de las preguntas f ormuladas por uno de los participantes, se indicó que "si no se logran obtener las 113 hectáreas de la RBLB, el proyecto cambia totalmente, ya que sin estas 113 hectáreas de la RBLB las condiciones de la presa, la cantidad de agua a embalsan el costo del proyecto y el diseño tendría que cambiar totalmente." ( Folio 661). ¿Qué significa eso? Que si es posible llevar agua a la cuenca media del río Tempisque y a comunidades costeras, pero el diseño del proyecto PAACUME tendrí a que cambiar. Ese estudio es el que falta, lo que hace que la ley 9610 sea inconstitucional por violación a los p rincipios de irreductibilidad de las áreas silvestres protegidas, objetivación a la tutela ambiental y de no regresión en materia ambiental. II- VIOLACIÓN DEL ARTÍCULO 7 DE LA CONSTITUCIÓN POLÍTICA. Considero que la ley 9610 también vi ola el artículo 7 de la Constitución Política, ya que dicha ley es contraria a la Convención Ramsar en cuanto a la obligación que establece el artícul o 3 de favorecer la conservación de las zonas húmedas inscritas en la lista de humedales de importancia internacional, d e la cual forma parte la RBLB, al estar integrado al Sitio Ramsar Palo Verde, ya que si bien es cierto dicha Convención no obliga a los Estados a comunicar de previo la decisión de modi ficar el área de los sitios de importancia internacional, su artículo 4 sujeta esa posibilidad a la existencia de un motivo de urgente necesidad nacional, lo cual no estaría debidamente justificado en este caso particular. Por lo tanto, también estarí amos ante una inconstitucionalidad por violación al artículo 7 de la Constitución P olítica. PETITORIA. Solicito se declare la inconstitucionalidad de la ley #9610, "Modificació n de límites de la Reserva Biológica Lomas Barbudal para el desarrollo del proyecto d e abastecimiento de agua para la cuenca media del río Tempisque y comunidades costeras", publicada en el Alcance #199 de La Gaceta del 23 de noviembre del 2018, por violació n a los artículos 7 y 50 de la Constitución Política; y los principios const itucionales de no regresividad en materia ambiental, objetiva ción de la tutela ambiental, precautorio, preventivo e irreductibilidad de á reas silvestres protegidas”. 12.- Por escrito recibido en la Secretaría de la Sala a las 14:57 horas de 11 de marzo de 2019, se apersona Juan Carlos Peralta Víquez, en su calidad de presidente de la Asociación para el Bienestar y Amparo de los Animales del Cantón de San José. Indica que formula coadyuvancia activa. Señala que su legitimación emana de los intereses difusos que se discuten, específicamente sobre las eventuales transgresiones a un derecho a un ambiente sano y ecológicamente equilibrado. Afirma que el objeto de la asociación es: "la protección y defensa de la Fauna Nacional", "el fiel cumplimiento de las leyes existentes o que en el futuro se dicten en defensa de los animales denunciando ante las autoridades correspondientes cualquier violación a dichas leyes y normas" y "Todo lo anterior sin perjuicio de proteger también a los animales silvestres en coordinación con entidades estatales y privadas, nacionales e internacionales". Expone que la acción debe ser declarada con lugar por las siguientes razones: “1. La Reserva Lomas de Barbudal es un oasis de vida acuática que protege ejemplos interesantes del bosque tropical seco, con ciertos parches siempre verdes de selva tropical y bosque ripario. Es más conocida como el "parque de los insectos" o el "parque de las avispas" debido a su inmensa variedad de insectos que se pueden encontrar ahí. Se estima que existen unas 250 especies de abejas y 60 de mariposas diurnas y nocturnas. Es un área silvestre muy importante, que cuenta con la presencia incluso durante el verano de abundantes fuentes de agua, numerosas quebradas y nacientes naturales. Conserva el agua en la siempre difícil estación seca que afecta a todo Guanacaste y al Pacifico Seco, permitiendo la supervivencia de los animales silvestres durante las severas sequías en periodos del Niño. Protege una nutrida presencia de muchos mamíferos como el venado, monos capuchinos o cara blanca, monos aulladores o congos, guatuzas, y gran cantidad de reptiles y peces de agua dulce. En cuanto a las aves, en esta área se han observado aproximadamente 130 especies siendo las más características los pavones, las loras de copete amarillo, el rey de zopilotes, el tucán o curré negro, la codorniz, la chachalaca, el trogón y el trogón elegante, y búhos. En el sector sur de la reserva es frecuente observar aves acuáticas, como garcetas patiamarillas, garzones, piches y otras. 2. La Reserva Lomas de Barbudal es parte del sistema de humedales del Parque Nacional Palo Verde, que fueron declarados desde 1991 como ecosistemas de importancia mundial y por ello fueron designados Sitios RAMSAR. Este humedal es reconocido como uno de los sitios más importantes del mundo por ser un área de anidación, refugio y alimentación de aves acuáticas residentes y migratorias. 3. En la Reserva Lomas de Barbudal se encuentran siete hábitats diferentes. Podemos mencionar el bosque deciduo o tropical seco, que ocupa un 70% de la reserva y posee 240 especies de árboles donde son comunes el ron ron, el pochote, el cristóbal, el caoba, el carboncillo, el cocobolo y el guayacán real, maderas preciosas que se encuentran en peligro de extinción en el resto del país. El bosque ripario o ribereño, que forma una franja a lo largo de los ríos y quebradas, es siempre verde, se considera el más denso y diverso del área y es especialmente rico en abejas y avispas solitarias. La sabana cubierta con pastos está salpicada de árboles. 4. Por medio de la Ley N° 9610 accionada, "el SENARA está tratando de cercenar 113 hectáreas que pertenecen a la Reserva Lomas de Barbudal, que serían inundadas para hacer el Embalse Río Piedras y seguir el mismo modelo de ineficiencia y de injusticia hídrica para beneficiar a los mismos de siempre y seguir con el "mal desarrollo" que aumenta día con día la pobreza, el despojo y lo expulsión de los habitantes de Guanacaste "... " El Embalse Río Piedras es un proyecto viejo, diseñado para riego, que en el pasado fue descartado y engavetado, por ser inviable”… "Fue diseñado bajo la lógica, actualmente superada, de que el agua se "desperdicia" si llega al mar y que es inagotable y que no existen los ciclos ecológicos de nutrientes o acuáticos. Seguir pensando así es no tener conciencia de los cambios que se necesitan frente a las nuevas condiciones ecológicas del cambio climático. "…"La realidad del megaproyecto Embalse Rio Piedras, es que se está desarrollando para subsidiar a la agroindustria y el megalurismo. Es la negación misma del cambio climático, no aceptar lo que vemos, año con año, en aumento de temperaturas y sequías"... " En lugar de solucionar problemas, se propician conflictos socio-ambientales e injusticia hídrica. Se suman a este modelo de saqueo desenfrenado para beneficio de la agroindustria” … "La inversión del Estado en PAACUME es inicialmente de unos 500 millones de dólares para darle el 80% del agua obtenida a los grandes propietarios, para regar sus fincas, que pagarían un "canon de agua " de 3 colones por metro cubico (m3), cuando los pobladores verán encarecerse sus facturas a más de 600 colones por el mismo m3, a pesar de que en el discurso y la justificación dice que "la prioridad es el consumo humano" " (Diario Digital El Independiente, 6-9-2016). 5.- En abril 2010 se anunció el Proyecto "Agua para Guanacaste", "una iniciativa que contempla el Embalse Río Piedras con un costo superior a los 9 mil millones de colones. Aseguraron que resolvería los problemas de abastecimiento de agua potable (domiciliaria-industrial) a toda esta zona durante los próximos 50 años, aunque en el área de influencia mencionada casi no existe población ni inversiones inmobiliarias o turísticas costeras, y más bien beneficiará a latifundios azucareros y arroceros. " (Kioscos Ambientales UCR. 8-4-2010). 6. Este "Proyecto de Abastecimiento de Agua para la Cuenca Media del Rio Tempisque y Comunidades Cercanas", conocido como PAACUME, es para riego básicamente, e implicaría 400 kilómetros de acueductos para llevar esa agua a los monocultivos de destino, con bombeo y plantas de potabilización. El riego es el gran consumidor de agua (más de 80%) y el gran derrochador, pues usa mayoritariamente canales de tierra y sistema de inundación de parcelas. Por su planificación centralizada, lograría quitarle el control y la administración del agua, a las comunidades, hoy abastecidas predominantemente por acueductos comunales (ASADAS). 7. Según información capturada de videos promocionales del propio SENARA, que impulsan su proyecto PAACUME, esta es la distribución que piensan hacer del agua: (…) 16,5 m³/s PARA RIEGO AGROPECUARIO 82.5% (…) 2 m³/s PARA CONSUMO HUMANO 10.0% (…) 1.5 m³/s PARA RIEGO EN ZONAS TURÍSTICAS 7.5% (…) 36 GW GENERACIÓN ANUAL HIDROELÉCTRICA ¿NECESARIO? ¿A QUÉ COSTO? En relación al (sic) Proyecto Embalse Río Piedras (es cual realmente se trata de una nueva presa hidroeléctrica), la campaña promocional del Gobierno es falaz, ya que dice que "ese embalse no es el proyecto, pero sí es el corazón de uno llamado PAACUME”, y que si no existe el embalse en el Río Piedras "no se podrá almacenar la cantidad de agua necesaria para garantizar condiciones seguras de abastecimiento" pero no da detalles de cómo hicieron para determinar esa cantidad y además omite señalar el hecho más importante: el agua que abastecerá este proyecto ya está almacenada en el Lago Arenal, catalogado como el reservorio de agua potable más grande del país. 8. El l de agosto 2018, Yamileth Astorga declara a través del diario local La Voz de Guanacaste "PAACUME es una alternativa para épocas de sequía en Guanacaste, pero grandes embalses generan grandes impactos" e indica que "Por ahora, el AyA no necesitará de esta agua para abastecer el consumo humano. El AyA solo va a utilizar dos metros cúbicos por segundo, el 10% de la capacidad de PAACUME, pero no en este momento. Con otros proyectos que está realizando, no va a necesitar más agua de aquí a 20 años.” 9. La SETENA acaba de emitir una resolución N° 459-2019 fechada 19 de febrero de 2019, que otorga viabilidad ambiental "potencial" al megaproyecto, al tiempo que en una segunda resolución N° 460-2019 de la misma fecha, señaló más de 90 inconsistencias que deben ser corregidas sobre el estudio de impacto ambiental del proyecto PAACUME, confirmando los mayores temores que hemos venido denunciando en relación a (sic) la tremenda afectación que traería esta enorme represa a la vida silvestre que habita en la Reserva Biológica Lomas de Barbudal (último reducto de bosque tropical seco que queda en la región, Patrimonio Natural Mundial), así como a las especies de aves migratorias que visitan el humedal Palo Verde (sitio RAMSAR de importancia internacional) y a los peces de agua dulce. Sin mencionar gran cantidad de insectos, sobre todo abejas y avispas vitales para la supervivencia humana. Esta gran contradicción pone de manifiesto que los intereses del Poder Ejecutivo en realizar este proyecto a toda costa para cumplir una promesa de campaña, privan sobre el criterio técnico y científico de un órgano tan serio como lo es la Secretaria Técnica Ambiental. 10. Lo triste es que la situación es mucho más grave de lo que creíamos, porque a lo largo de los 91 puntos sobre aspeaos de índole legal y técnico que el SENARA deberá subsanar y aclarar, se hace más que evidente la falta de compromiso ambiental de la que adolece este mediocre proyecto, desde su concepción hasta su planeación. Queda expuesto que no contempla otras alternativas viables para llevar agua a Guanacaste, no evalúa los riesgos de inundación que conlleva el embalse ni establece medidas de mitigación del impacto ambiental. Es más, ni siquiera contempla pozos y nacientes existentes que serían anegados, no incluye todos los elementos necesarios para la construcción y operación, y ni siquiera tiene claros los derroteros que delimitan las obras. 11. Asimismo, el presupuesto parece haberse quedado muy cono, dejando por fuera gran parte de la inversión que se requerirá para construir la planta hidroeléctrica, para adquirir terrenos de reposición, para mitigar el daño ambiental, para prevenir el riesgo de desastres, etc. 12. Aunque se reconoce el riesgo de inundación, se minimiza el riesgo sísmico de una zona llena de fallas geológicas, que está bajo amenaza permanente de terremoto. Magnitudes de 6.7 a 7.9 podrían reventar la presa, liberando una cabeza de 85 millones de toneladas de agua que barrería todo a su paso hasta llegar al mar. No es difícil imaginar la gran cantidad de vidas humanas que se perderían y la catástrofe ambiental que ocasionaría en la región. Estudio de Impacto Ambiental Proyecto Abastecimiento de Agua para la Cuenca Medial río Tempisque y Comunidades Costeras (PAACUME) Cuadro n° 7. 101 Escenarios sísmicos específicos relacionados con el sitio de presa y valores de aceleración horizontal pico para cada uno de ellos. (Climent et al., 2016). Fuente Sísmica Magnitud máxima Profundidad (km) Distancia (Km) Aceleración Pico (cm/s2) Duración del movimiento fuerte (s) rEPI rRUP Falla Bagaces Segmento norte 6.7 12 12.3 6 603 7.7 Segmento sur 6.5 10 4.5 2 855 6 Falla Montenegro Segmento norte 6.6 10 9.4 6.7 611 7.2 Falla Chiripa 6.6 10 40 41 128 11.6 Falla Cote Arenal 6.6 10 41 42 122 11.7 Falla Caño Negro 7.1 12 50 52 153 14.2 Subducción Zona de Papagayo 7.5 35 62 48 316 17 Zona de Nicoya 7.5 35 35 44 548 14 De acuerdo a (sic) los resultados obtenidos en cuadro n° 7.102, se determina que la amenaza sísmica en el campo cercano, en el sector donde se encuentra el sitio de presa del proyecto, está controlada por la ocurrencia de un evento de magnitud 6.5 en la falla Bagaces (segmento sur), y cuyo valor máximo de aceleración horizontal pico se ha estimado en 855 cm/s2 (0.84g), valor obtenido del promedio de los valores estimados para cada uno de los modelos de predicción utilizados. Otro escenario importante, es el planteado para la zona de subducción, ya que si un evento de magnitud 7.9 ocurre en esta zona sísmica de Nicoya, se presentaría una aceleración pico de 548 cm/s2 (0.56 g), el cual es un nivel de intensidad bastante importante (Climent et al., 2016). 13. Se está ignorando la recomendación de los expertos japoneses de descartar este proyecto por el impacto que puede ocasionar al medio ambiente y el bajo índice de retorno de la inversión por su alto costo. El impacto ambiental de PAACUME se debe a su efecto sobre el Parque Nacional Palo Verde al alterar la cuenca del Río Piedras y desviar el 40% de su caudal: AGENCIA DE COOPERACIÓN INTERNACIONA DEL JAPÓN (JICA) ESTUDIO DEL PROYECTO DE DESARROLLO RURAL DE LA CUENCA MEDIA DEL RÍO TEMPISQUE (…) SEPTIEMBRE DE 2002 PACIFIC CONSULTANTS INTERNATIONAL NAIGAI ENGINEERING CO.LTD. B. Presa Piedras Perfil del Proyecto: Consiste en construir una presa en la cuenca alta del Río Piedras con una altura de presa de 35 m y capacidad efectiva de almacenaje de 83 millones de metros cúbicos. Esta presa permitiría regar unas 6.500 ha con un caudal adicional de 6,5 m³/s. Se podría utilizar para regar la margen izquierda del Río Tempisque, por lo que la población beneficiaria incluye aproximadamente 100 familias de los pequeños y medianos productores. Limitaciones: La Presa Piedras traerá un importante impacto sobre el entorno, incluyendo el Parque Nacional Palo Verde de la cuenca baja, por alterar la cuenca derivando un 40% del caudal total disponible en la cuenca del Río Piedras a la cuenca del Río Tempisque. La geografía y la geología local tampoco favorecen la implementación del proyecto, y se requiere ampliar un tramo y construir otro de un canal de conducción de 40 km, lo cual encarece el proyecto. El costo de distribución de agua en la margen derecha resulta alto. Evaluación: Esta opción no será recomendada en el presente Proyecto debido al impacto que puede ocasionar al medio ambiente y por su bajo índice de la economía del Proyecto. Aunque aquí no se mencione, la ampliación y construcción de un tramo de 40 km para extender el Canal Oeste atravesando los corredores biológicos, interrumpirán el paso e intercambio de fauna. 14. Se ignora el estudio del IICA-BID que también señala la vulnerabilidad del proyecto a los desastres naturales (sismos, vulcanismo e inundaciones y destaca la importancia de proteger Palo Verde. Se perpetúan los errores del pasado, ya que no se plantean soluciones al sobreuso del recurso hídrico. Aunque no evalúa el impacto del riego sobre la vegetación y la vida silvestre, denuncia que se continúa con la sobreexplotación y contaminación de los acuíferos que tanto afecta la vida marina del Golfo de Nicoya. PROYECTO DE RIEGO ARENAL-TEMPISQUE PROGRAMA DE RIEGO EN PEQUEÑAS ÁREAS DICIEMBRE DE 1993 BANCO INTERAMERICANO DE DESARROLLO (BID) CONVENIO IICA/BID ATH/3185-RE. En cuanto al recurso agua, en la zona de riego, se está sobreusando las aguas del río Tempisque, lo que causa problemas serios sobre la vida marina del Golfo de Nicoya. Tanto en la zona de captación de aguas, como en la zona bajo riego, se mencionan casos de contaminación con órganoclorados, por aspersiones aéreas de agroquímicos en peces y camarones que colonizan los canales de riesgo. A pesar de que el efecto de riego sobre la vegetación y la vida silvestre no se está evaluando, informes orales indican que piches (aves provenientes de Palo Verde) y otras aves de rapiña afectan la siembra del cultivo de arroz y consumen peces de estanquen diseñados para su crianza. También se menciona la disminución de poblaciones de insectos polinizadores de melón aparentemente por abuso de agroquímicos. En cuanto a las barreras rompevientos, de 25 km plantados quedan en buen estado aproximadamente 6 km. En el presente la coordinación entre empresas estatales encargadas de reforestación y conservación de recursos naturales son muy débiles y deberá cambiarse la actitud para lograr resultados más efectivos. En lo que respecta al impacto del medio sobre el proyecto hay dos aspectos que interesan vivamente, uno es la vulnerabilidad del proyecto mismo a las catástrofes naturales, sismos, vulcanismo e inundaciones (ICE, 1980), y el peligro de la sobreexplotación de acuíferos. 2.40 Integrar el Parque Nacional de Palo Verde, las áreas protegidas en el área de influencia del proyecto y las áreas silvestres protegidas en el Área de Conservación Arenal y los planes de reforestación dentro del Plan de Manejo Integrado de Riego Arenal-Tempisque. Existe experiencia en este sentido que no debe dejar de considerarse, sobre todo cuando se trata de integrar la vegetación al sistema de barreras rompevientos. 15. Esto nos deja un sabor muy amargo en la boca y nos lleva al convencimiento de que los últimos Gobiernos se han ido de cabeza, de buenas a primeras y sin mayor estudio, para aprobar precipitadamente un proyecto mal planificado, que hace uso de bienes de dominio público. El Poder Ejecutivo está olvidando su deber de velar por el patrimonio natural de todos los ciudadanos y garantizar un ambiente sano y ecológicamente equilibrado. Pretende que los costarricenses, además de perder parte de la herencia de las futuras generaciones, paguemos de nuestros bolsillos este desatino”. 13.- Por escrito incorporado a las 15:47 horas de 11 de marzo de 2019 se apersona Luis Renato Alvarado Rivera, en su condición de Ministro de Agricultura y Ganadería. Indica que formula “ coadyuvancia negativa ”. Pide que se le tenga como coadyuvante de SENARA, pues ejerce como ministro del sector agropecuario al que pertenece dicho ente. Señala que el PAACUME impactará a 500,000 personas, en su mayoría pequeños y medianos agricultores, por lo que llevará agua a las zonas costeras de Carrillo y de Santa Cruz, lo cual permitirá la recuperación de los mantos acuíferos y el riego de 18.800 hectáreas agroproductivas, como una medida de adaptación al cambio climático, de manera que la producción agropecuaria sea sostenible y constante, gracias a los sistemas de riego que se desarrollarán. Consideran que los accionantes se encuentran legitimados, de acuerdo con el párrafo segundo del artículo 75 de la Ley de la Jurisdicción Constitucional, únicamente en cuanto los reclamos relacionados con la violación al derecho a un ambiente sano y ecológicamente equilibrado, así como al principio de equilibrio presupuestario. Acotan que no existe interés difuso en cuanto a la alegada violación al derecho de propiedad privada y o se comprueba que exista algún asunto previo en el que se haya invocado la inconstitucionalidad alegada. Consideran que la acción es admisible solo en cuanto a los alegatos relacionados con la violación del derecho a un ambiente sano y ecológicamente equilibrado y al principio de equilibrio presupuestario, e inadmisibles los reproches relativos a la violación al derecho de propiedad privada. Exponen los siguientes antecedentes: “El Proyecto de Abastecimiento de agua para la cuenca media del río Tempisque y Comunidades Costeras, PAACUME, es un Proyecto que viene a complementar con aguas de la Laguna Arenal, la disponibilidad de recurso hídrico para distintos usos que actualmente suministran las fuentes naturales a la margen derecha del Río Tempisque (cantones de Carrillo, Santa Cruz y Nicoya) y que en definitiva, no son suficientes para suplir las necesidades cada vez mayores de recurso hídrico, tanto para uso humano (agua potable) como para uso en agricultura (riego) que permita darle sostenibilidad al suministro del agua durante todo el año. La región Chorotega en general, tiene un régimen natural de precipitación que presenta más de 5 meses de déficit hídrico al año, sin considerar efectos naturales extremos, como el caso de sequías más prolongadas ocasionadas por el fenómeno del niño o el cambio climático, que son cada vez más frecuentes y recurrentes (v.g. la sequía del 2014 al 2016) que afectan severamente a las comunidades y la actividad productiva y económica en general y que por primera vez en Costa Rica, requirió una declaratoria de emergencia por sequía, según Decreto Ejecutivo N° 38642-MP-MAG del 30 de noviembre de 2014. El Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento (Senara), es la institución responsable de la ejecución del PAACUME. Es una institución autónoma creada mediante Ley 6877 de julio de 1983 y se le confían los siguientes objetivos en artículo 2: • “Fomentar el desarrollo agropecuario en el país, mediante el establecimiento y funcionamiento de sistemas de riego, avenamiento y protección contra inundaciones. • Contribuir a desarrollar preferentemente aquellos proyectos de desarrollo agropecuario que se sustenten en una justa distribución de la tierra • Procurar que en el territorio beneficiado por la creación de distritos de riego y avenamiento, se efectué una modificación racional y democrática en la propiedad de la tierra (Ley 6877) El PAACUME representa una excelente iniciativa de aprovechamiento de las aguas almacenadas en la Laguna Arenal y que alimentan el Sistema Hidroeléctrico Arenal DengoSandillal (ARDESA) operado por el ICE, en actividades generadoras de valor como el riego, en la actividad de producción agropecuaria y el riego en desarrollos turísticos costeros, así como para agua potable y generación hidroeléctrica, lo cual lleva implícito, una gran oportunidad de crecimiento y desarrollo a la provincia de Guanacaste, con un impacto a nivel nacional. Para este Proyecto, se estaría utilizando la infraestructura existente para captación y conducción de agua en el Distrito de Riego Arenal Tempisque operado por el SENARA (presa Miguel Pablo Dengo y Canal Oeste Tramo I) y construyendo obras como la presa de almacenamiento en el río Piedras, la ampliación y mejoras en el Canal Oeste desde el río Piedras hasta el río Tempisque (55 kms de longitud) y las redes de conducción y distribución de agua en la margen derecha del río Tempisque (alrededor de 300 kms de líneas de conducción por gravedad y bombeo). A partir del almacenamiento en el embalse río Piedras, el PAACUME permitirá abastecer de agua a una zona históricamente seca, que por razones de variabilidad y cambio climático, ha aumentado su condición de sequía, en muchos casos a sequía extrema, limitando la sostenibilidad y desincentivando el crecimiento socioeconómico de la región y del país en general. Dicho proyecto está constituido por cuatro componentes; a saber: el embalse río Piedras (el cual incluye la automatización del sistema, la casa de máquinas y la presa y el embalse propiamente dicho), la ampliación del Canal Oeste desde el río Piedras hasta el río Tempisque con una longitud de aproximadamente 55 kms, la construcción de la red de distribución en la margen derecha del río Tempisque (aproximadamente 300 kms de longitud) y la propuesta de implementación de un Plan de Desarrollo Regional para el área directa e indirectamente afectada por el Proyecto, proceso que está en etapa de conceptualización y formulación. El PAACUME, como proyecto de inversión pública se encuentra vinculado, según la clasificación establecida en el Decreto Ejecutivo N° 38536-MP-PLAN del Reglamento Orgánico del Poder Ejecutivo publicado el 25 de julio de 2014, al sector Desarrollo Agropecuario y Rural por su importancia e impacto en la seguridad alimentaria y el desarrollo social del área de influencia y al sector Ambiente, Energía, Mares y Ordenamiento Territorial por su valor como medida de adaptación al cambio climático y el efecto sobre la disponibilidad de agua en la zona de impacto. Adicionalmente, el PAACUME está incluido en el Plan Nacional de Desarrollo y uno de los principales proyectos conceptualizados como prioritarios para la reactivación económica del país. Con la construcción del conjunto de obras que comprende PAACUME, se beneficiarán de manera directa a productores agropecuarios, ubicados en los cantones de: Carrillo, Santa Cruz y Nicoya, así como beneficiarios de agua para consumo humano, riego para zonas verdes en empresas turísticas. Entre los beneficiarios directos se encuentran productores grandes, medianos y pequeños. En esta última categoría se hace referencia, en su mayoría, a adjudicatarios en asentamientos campesinos y que se caracterizan por una mayor necesidad de apoyo por parte de las instituciones del sector agropecuario. El área de riego para la producción agropecuaria se estima en 18.639 hectáreas en donde se podrían beneficiar 746 productores entre grandes, medianos y pequeños propietarios. (SENARA, 2018 Estudio de Factibilidad PAACUME). Este proyecto reviste vital importancia para la colectividad por cuanto se destinarán, 2 metros cúbicos por segundo de agua para consumo humano (cuyo tratamiento y distribución estará a cargo del Instituto Costarricense de Acueductos y Alcantarillados). Con respecto al suministro de agua para consumo humano, es importante indicar que el caudal establecido para este sector es con una proyección de demanda proyectada a 50 años. Se estima que para el 2025 habrá una población, dentro del área del proyecto, equivalente a más de 220.000 habitantes los cuales se convierten en usuarios de los acueductos principales de la zona. Los acueductos rurales atienden actualmente una población mayor a las 139.000 personas. Adicional a la población que se estará abasteciendo de agua para consumo humano, que se estima que unos 200.000 habitantes de la región, se estará beneficiando de forma indirecta, toda aquella población inserta en el sector de bienes y servicios. De igual manera, a las personas que sean contratadas para atender las nuevas áreas bajo riego en las diferentes etapas de productivas, así como nuevos actores que logren consolidar actividades de producción y comercialización. Otro sector beneficiario es el dedicado al turismo, para el cual, el PAACUME procurará abastecer de agua para riego en un área estimada en 1.213 hectáreas distribuidas entre las 171 empresas turísticas debidamente identificados en la zona costera y que muestren su disposición de pertenecer al Proyecto, con lo cual, también se está tratando de disminuir la presión que se genera en la extracción de aguas subterráneas de los acuíferos de la costa (SENARA, 2018 Estudio de Factibilidad PAACUME). También podrá el PAACUME generar electricidad en la presa Río Piedras (7 MW por año), como un beneficio del Proyecto que implica un óptimo aprovechamiento del recurso hídrico disponible. Como se mencionó anteriormente, la infraestructura planteada en el PAACUME contempla tres componentes principales: el embalse en el río Piedras compuesto por el embalse propiamente dicho, la presa, el vertedor de excedencias, la obra de toma y la casa de máquinas para la generación de electricidad; la red de principal conducción, que va del Embalse río Piedras al río Tempisque (55 kms de longitud) y por último, la red distribución compuesta por la red de canales en la margen derecha del río Tempisque, donde se realizará la distribución de los 20 m3/seg que se extraerán del embalse río Piedras provenientes de la Laguna Arenal. La construcción de la presa río Piedras generará un embalse con una extensión (espejo de agua) de aproximadamente 850 hectáreas. El sitio donde se ubicará la presa corresponde al río Piedras, específicamente entre las coordenadas Longitud Oeste 358930, Latitud Norte 1163180 y Longitud Oeste 359690, Latitud Norte 1155330 a una elevación de nivel de agua máxima de 50.00 m.s.n.m.. El agua de la Laguna Arenal captada en la Presa derivadora Miguel Pablo Dengo B. es conducida hasta el río Piedras por medio del Canal Oeste Tramo I, el que tiene una longitud de 21 km, y una capacidad hidráulica de 55 m3/seg. Es importante destacar que antes de que el Canal Oeste Tramo I interseque con el río Piedras se da una caída natural, es precisamente esta caída la que permite concebir el sitio de almacenamiento que genera el embalse en el río Piedras. Así las cosas, la ubicación de la presa en el Río Piedras obedece a una condición topográfica única que no permite ser trasladada a otro sitio, por tanto, esta ubicación y esta diferencia de nivel entre la entrada del canal que lo abastece y la salida del canal que permitirá llevar el agua hasta el río Tempisque, determinan el nivel máximo de embalse y la capacidad del mismo para abastecer con 20 m3/seg al PAACUME para que sean distribuidos en la Margen Derecha del Río Tempisque. En algún momento se valoró la posibilidad de construir un dique para evitar la inundación de esta área de la RBLB y un túnel de más de 2 kilómetros para evacuar la aguas, sin embargo, resultó que el sitio del dique que se debería construir coincide con una falla geológica que haría imposible su construcción por el alto riesgo que esta genera a la obra. En conclusión, no existe posibilidad de reubicar o disminuir el volumen de embalse sin afectar significativamente el alcance del PAACUME, con lo cual, se determina la urgente e indispensable necesidad de contar con las 113 hectáreas de la Reserva Biológica Lomas Barbudal para ser inundadas, resultando un elemento esencial para la construcción de la presa en el Río Piedras y siendo la presa en este sitio la única posibilidad del PAACUME de almacenar el agua disponible, proveniente de la Laguna Arenal. Siendo así, la Ley N° 9610 “Modificación de límites de la Reserva Biológica Lomas Barbudal para el Desarrollo del Proyecto Abastecimiento de Agua para la Cuenca del Río Tempisque y Comunidades Costeras” resulta indispensable para poder ejecutar dicho Proyecto. Por tanto, la construcción de la presa en el río Piedras es un elemento esencial del PAACUME que requiere la vigencia de la Ley N° 9610 a fin de poder satisfacer el interés público, de poder brindar soluciones a diversas necesidades tales como agrícolas, productivas, y de abastecimiento de agua para consumo de agua en una zona dónde cada vez es más escaso el recurso hídrico”. Expone que, con vista en lo anterior, la norma impugnada resulta fundamental para brindar soluciones a los poblados de la cuenca del Tempisque y las Comunidades Costeras de Guanacaste, como por ejemplo Sardinal, impactadas por problemas de abastecimiento, salinización de acuíferos, situaciones que han provocado el conocimiento por parte de esa Sala Constitucional de múltiples recursos de amparo en procura de la defensa del recurso hídrico. Manifiesta que el rol del SENARA ha permitido la correcta protección del recurso hídrico y, en este caso, garantizará el correcto aprovechamiento y fomento del recurso hídrico, impactando positivamente la cuenca del Tempisque y las zonas costeras de Guanacaste. Solicita a la Sala Constitucional valorar el interés público y la importancia trascendental de la norma impugnada para los poblados costeros y de la cuenca del Tempisque beneficiados con el proyecto PAACUME, para el cual es absolutamente necesario contar con la ley n.° 9610. En relación con el fondo de la acción reproduce argumentos que ya fueron expuestos por la Procuraduría General de la República y SENARA. 14.- Mediante resolución de las 10:03 horas de 14 de marzo de 2019, la Presidencia de la Sala le previno a Juan Carlos Peralta Víquez, dentro del plazo de tres días, aportar certificación de personería jurídica de la Asociación para el Bienestar y Amparo de los Animales del Cantón de San José. 15.- Por constancia de 21 de marzo de 2019, Vernor Perera León y Karen Cubero Barquero, por su orden Secretario a.i. y Técnica de Sala de la Corte, ambos de la Sala Constitucional, hicieron saber: “Que revisado, en el SISTEMA COSTARRICENSE DE GESTIÓN DE DESPACHOS JUDICIALES el CONTROL DE DOCUMENTOS RECIBIDOS; y, hecha una minuciosa revisión del expediente en que se tramita esta ACCIÓN DE INCONSTITUCIONALIDAD, no aparece que del catorce al veinte de marzo del dos mil diecinueve, la Asociación para el Bienestar y Amparo de los Animales del Cantón de San José, representada por Juan Carlos Peralta Víquez haya presentado escrito o documento alguno, para cumplir con lo prevenido en la resolución de las diez horas y tres minutos de catorce de marzo de dos mil diecinueve”. 16.- Mediante resolución de las 15:23 horas de 21 de marzo de 2019, la Presidencia de la Sala resolvió: “Vistos los escritos presentados en la Secretaría de esta Sala los días 06, 08 y 11 d e marzo de 2019, por los cuales, Mario Andrés Boza Lorí a, cédula de identidad No. 1-0297-0932, Jorge Arturo Lobo Segura, cédu la de identidad No. 1- 0526-0636, Juan Carlos Peralta Ví quez, cédula de identidad No. 3-0229-0629, quien afirma ser el presidente con facultades de representante judicial de la Asociación para el Bienestar y Amparo de los Animales del Cantó n de San José, c édula de persona jurídica No. 3-002-248601, y Luis Renato Alvarado Rivera, cédula de identidad No. 1-0561-0205, en su condición de Ministro de Agricultura y Ganadería, solicitan se les tenga como coadyuvantes en esta acción; se resuelve: El artí culo 83 de la Ley de Jurisdicción Constitucional señala qu e en los quince días posteriores a la primera publicación del aviso a que alud e el párrafo segundo del artí culo 81, las partes que figuren en los asuntos pendientes a la fecha de la interposición de la acción, o aquellos con interés legí timo, podrán aperso narse dentro de é sta, a fin de coadyuvar en las alegaciones que pudieren justificar su procedencia o improcedencia, o para ampliar, en su caso, los motivos de relación con el asunto que les interesa. En el caso concreto, los gestionantes Mario André s Boza Loría y Jorge Arturo Lobo Segura se apersonaron, respectivamente, los dí as 06 y 08 de marzo de 2019 y solicitaron se les tuviera como coadyuvantes activos, por ostentar ambos un interés legítimo, en tanto alegan que la normativa impugnada infringe el artículo 50 constitucional. Mientras que Luis Renato Alvarado Rivera, en su condició n de Ministro de Agricultura y Ganadería, se apersonó el 11 de marzo de 2019 y solicitó se le tuviera como coadyuvante pasivo, por ostentar un interés legítimo, como mini stro rector del sector agropecuario. En consecuencia y siendo qu e la primera publicación del aviso se dio el 19 de febrero de 2019, lo procedente es tener a los anteriores gestionantes como coadyuvantes dentro de este asunto. Se advierte a los interesados que -en cuanto a los efectos de la coadyuvancia-, al no ser el coadyuvante parte prin cipal del proceso, no resultaran directamente perjudicados o beneficiados por la sentencia, es decir, la eficacia de la sentencia no alcanza al coadyuvante de manera direc ta e inmediata, ni le afecta cosa juzgada, no le alcanzan, tampoco, los efectos inmediatos de ejecució n de la sentencia, pues a través de la coadyuvancia no se podrá obligar a la autoridad jurisdiccional a dictar una resolución a su favor, por no haber sido parte principal en el proceso. Lo que sí puede afectarle, pero no por su condició n de coadyuvante, sino como a cualquiera, es el efecto erga omnes del pronunciamiento. La sentencia en materia constitucional, no beneficia particularmente a nadie, ni siquiera al actor; es en el juicio previo donde esto puede ser reconocido. Respecto de la solicitud de coadyuvancia formulada por Juan Carlos Peralta, quien indicó acudir en representación de la Asociación para el Bienest ar y Amparo de los Animales del Cantón de San José, la misma debe ser rechazada, dado que, pese a la prevención que le fue efectuada, por medio de resolució n de las 10:03 horas de 14 de marzo de 2019, para que aportara la respectiva certificación de personería jurídica en que se acreditara su co ndición de representante de dicha entidad –bajo bajo apercibimie nto de denegarle el trámite a su petición, en caso de incumplimiento-, lo cierto es que el gestionante no aportó la documentación prevenida. Se tienen por contestadas las audiencias conferidas al Procurador General de la República, al presidente de la Asamblea Legislati va, al Minist ro de Ambiente y Energía y al gerente general del Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento, en la resolución de las 11:05 horas de 23 de enero de 2019. Listos los autos, se turna esta acción de inconstitucionalidad al Magistrado P aul Rueda Leal, a quien por turno corresponde el estudio de fondo de la misma”. 17.- Por escrito incorporado al expediente digital a las 18:52 horas de 3 de mayo de 2019, se apersonan los accionantes. Indican que formulan las siguientes consideraciones: “OBSERVACIONES SOBRE LA CONTESTACIÓN DE LA PROCURADURÍA GENERAL DE LA REPÚBLICA (PGR) La Procuraduría General de la República refuerza nuestro argumento, que además ha sido desa rrollado en extenso a través de la jurisprudencia de la Sala, de que existe un principio de irreductibilidad de las áreas silvestres protegidas, según el cual este tipo de espacios protegidos no pueden disminuirse o modificarse si no se cumplen los requisitos fijados al efecto. Lo anterior tiene una clara relació n con los pri ncipios de no regresión en materia ambiental, de objetivación de la tutela ambiental, preventivo y precautorio . Esos requisitos son los siguientes: 1- Que se haga mediante una ley; 2- Que de previo a la aprobació n de la ley se cuente con estudios técnicos suficientes que justifiquen la medida; y 3- Que se dé una compensación del área suprimida con otra de igual tamaño y características. Sabemos que la reducció n del área de la RESERVA BIOLÓGICA Lomas Barbudal (RBLB) se realizó por ley, cumpliendo de esa mane ra con el requisito nú mero 1. Esa ley es precisamente la que estamos impugnando mediante esta acción de inconstitucionalidad. Como nota al margen, resaltamos en mayú scula las palabras “reserva biológica” para llamar la atención en el senti do de que no es cualquie r tipo de á rea silvestre protegida. Estamos hablando de una (sic) área que tiene un nivel de protección comparable con la de un parque nacional, que es de protección absoluta, y ademá s, en el caso de la RBLB, estamos hablando de una área que tiene una protecció n internacional al formar parte del Humedal RAMSAR de Palo Verde. En relación con los otros 2 requisitos, se deben contestar las siguientes preguntas: ¿Cuenta con estudios técnicos suficientes que justifique la medida? ¿Cumple el Estudio elaborado por la OET, cuyos términos de referencia fueron fijados por el SENARA, con los criterios establecidos por la Sala Constitucional? ¿Demues tra ese Estudio, mediante un análisis científico e individualizado, el grado de impacto de la desafec tación de esas 113 hectáreas de la RBLB en el ambiente? ¿Plantea recomendaciones orientadas a menguar el impacto negativo en el ambiente? ¿Demuestra có mo la desafectación de las 113 hectáreas implica un de sarrollo que satisface las necesidades del presente sin poner en peligr o la capacidad de las generaciones futuras para atender sus propias necesidades? ¿Cumple con el requisito de que se compense el área suprimida de la RBLB con otra de igual tamaño y cara cterísticas? Sobre esas preguntas, la Procuraduría señala que no puede valorar técnicamente el estudio de la OET, ni la forma en que se definió la propuesta final de compensació n del área desafectada de la RBLB. Sin embargo, es clara la Procuradurí a al indicar que en caso de determinarse que el estudio de la OET y la propuesta final de compensación del á rea silvestre protegida sean insuficientes técnicamente, la ley impugnada resultaría inconstitucional por violació n al principio de objetivación de la tutela ambiental. Pero también señala la PGR que aunque se constate la sufic iencia del estudio de la OET y de la propuesta final de compensación, debe advertirse que ese estudio técnico ú nicamente justificaría la validez de la compensación practicada, y, como tal, no es un estudio técnico que justifique directamente la decisión de desafectar una parte de la RBLB. La Procuraduría es contundente en este tema, cuando señala que … “atendiendo a la jurisprudencia constitucional sobre el tema, el estudio que ex ige el artículo 38 de la Ley Orgánica del Ambiente para justificar la reducció n de un área silvestre protegida debería ser un estudio que determine la necesidad y conveniencia de adoptar ese tipo de medida.”(el su brayado y resaltado no es del original). En este caso, un estudio en ese sentido, serí a aquel que fundamente técnicamente la necesidad y conveniencia de desafectar parte de la RBLB. Es decir, un estudio que determine que la única alternativa para desarrollar el proyecto PAACUME y el embalse Río Piedras, es desafectando parte de la Reserva Biológica. Dicho sea de paso, dicho estudio no se ha realizado. Señala la Procuraduría, que si no se constata la necesidad y conveniencia de desafectar 113 hectáreas de la RBLB, la Ley 9610 debe declararse inconstitucional por violación a los principios de irreductibilidad de las áreas silvestres protegidas, objetivación a la tutela ambiental y de no regresión. En esa dirección es muy relevante la mención que hace la PGR a lo señalado por el el (sic) Consejo Regional del Área de Conservación Tempisque (CORACAT), el cual, a l referirse al estud io de la OET, indicó que "esta instancia considera que aún no se ha demostrado que existan otras alternativas del proyecto PAACUME, sin que necesariamente se tenga que desafectar un área de la actual RBLB. Si efectivamente estas alternativas no son viables, será necesario valorar la tercera medida que es la compensación." (Oficio No. SINAC-CORACAT-SE-041 de 7 de julio de 2017, folios 1492-1497 del expediente legislativo). Y, ese mismo Consejo, después de aprobado el proyecto de ley en segundo debate, indicó que " es necesario que existan los estudios técnicos ambientales, jurí dicos y financieros suficientes que justifiquen la selección adecuada tanto del á rea a desafectar, como de las área s que servirían como compensación. Debe verificarse la existencia de estos est udios dentro del expediente de este proyecto de ley, ya que a la fecha este Consejo no cuenta con tal información ." (Oficio No. SINAC-CORACAT-049-2018 de 9 de setiembre de 2018, folios 2641-2644). (El resaltado no es del origi nal) Por otro lado, la PGR indica que algunos de los funcionarios que comparecieron a las sesiones de la Comisión Legislativa que tramitó el proyecto (a travé s del trámite acelerado que se le dio a ese proyecto mediante un procedimiento establecido en una moción ví a artículo 208 bis de l Reglamento de la Asamblea Legislativa) indicaron que técnicamente el proyecto PAACUME no podía desarrollarse sin desafectar e inundar parte de la RBLB. Pero por otro lado, en el documento denominado "Consulta Obligatoria a las Comunidades Locales. Propuesta de Compensación para la Reserva Biológica Lomas Barbudal" (Folios 622-726), ante una de las preguntas formuladas por uno de los participantes, se indicó que "si no se logran obtener las 113 hectáreas de la RBLB, el proyecto c ambia totalmente, ya que sin estas 113 hectá reas de la RBLB las condiciones de la presa, la cantidad de agua a embalsar, el costo del proyecto y el diseño tendría que cambiar totalmente . " (Folio 661). (Resaltado no es del original). Aquí aplica aquello de que a confesión de parte, r elevo de pruebas. De lo dicho por funcionarios de SENARA puede concluirse entonces que el proyecto PAACUME, tal y como está concebido actualmente, no podría realizarse si no se inundan 113 hectáreas de la RBLB, ya que el proyecto tendrí a que cambiar. “Sin estas 113 hectáreas de la RBLB las condiciones de la presa, la cantidad de agua a embalsar, el costo del proyecto y el diseño tendría que cambiar totalmente” . ¿ QUÉ SIGNIFICA ESO? ¡QUE HAY OTRAS OPCIONES! Por ejemplo, podría co nstruirse UN EMBALSE MÁS PEQUEÑO, priorizando el acceso AL AGUA POTABLE (que dicho sea de paso, en el proyecto PAACUME corresponde al 10% del caudal de agua que se espera desviar hacia el margen derecha del rí o Tempisque); combinado con CIERTAS PERFORACIONES DE MANTOS ACUÍ FEROS (como el del Acueducto de NIMBOYORES, el cual está pronto a iniciar operaciones abasteciendo con 188 litros por segundo a más de 50.000 personas en el cantón de Santa Cruz, o el Acueducto de SARDINAL-EL COCO- OCOTAL, que entró en operaciones recientemente en el c antón de Carrillo, para suministrar agua potable a 30.000 personas); E INCLUSO PERMITIR LA DESALINIZACIÓN DE AGUA DEL MAR PARA I RRIGACIÓN EN PROYECTOS TURÍSTICOS (como ya se está haciendo en el desarrollo turístico de Playa Co nchal con el aval del Instituto de Acueductos y Alcantarillados), que supuestamente sería uno de los usos del agua del proyecto PAACUME. La PGR es muy clara en sus conclusiones. Dice así: “En caso de determinarse que el estudio de la OET y la propuesta final de compensació n de la RBLB son insuficientes técnicamente, la ley impugnada resultaría inconstitucional por violación a los principios de objetivación de la tutela ambiental, precautorio, preventivo y de irreductibilidad de las áreas silvestres protegidas, pues no se estaría garantizando que la variación de los lí mites aprobada no afecta la integridad de la RBLB y no se estaría mitigando adecuadamente el impacto ambiental generado por la desafectació n de una parte de dicha Reserva Biológica. Tambié n, ello resultarí a contrario a la obligación que establece el artículo 3 de la Convención RAMSAR de favorecer la conservación de las zonas húmedas inscritas en la lista de humedales de importancia internacional.” También señ ala la PGR que debe “… valorarse si existe sustento técnico s uficiente para justificar la necesidad de desafectar parte de la RBLB para ser utilizada en la ejecución del proyecto PAACUME. Si no se constata ese fundamento, la Ley 9610 debe declararse inconstitucional por violación a los principios de irreductibilidad de las áreas silvestres protegidas, objetivación a la tutela ambiental y de no regresión, y por no comprobarse el motivo de urgente interés nacional al que la Convención RAMSAR sujeta la posibilidad de modificar el área de los sitios d e importancia intern acional.” Por otro lado, también recomienda la PGR que se requiera el criterio del Instituto Geográfico Nacional en cuanto a si la Ley impugnada consideró las imprecisiones hechas sobre las coordenadas y la localización geográfica y si esas imprecisiones tienen a lguna consecuencia en la delimitación adecuada del área desafectada y de las á reas que se incluyen en la Reserva y que deben ser expropiadas, pues ello podría impedir que se materialice la compensación propuesta. Pero especial énfasis deseamos hacer a la observació n que hace la PGR para el caso en que el proyecto PAACUME no sea desarrollado, al menos, no en los términos que está planteado actualmente. Si por alguna razón el proyecto no es desarrollado y tampoco se ejecutan las expropiaciones necesarias para efectuar la compensación propuesta, la Ley 9610 habría desafectado la RBLB en vano, sin existir una justificación válida y sin haber compensado y mitigado los efectos generados por esa disminución. Ello constituiría una violació n al principio de ir reductibilidad de las áreas silvestres protegidas, precautorio, preventivo y de no regresió n, e, incluso, una violación a la Convención RAMSAR al no existir un motivo de urgente necesidad para justificar la disminución del área de un o de los sitios de importancia internacional. Lo anterior, a menos que se interprete que la desafectació n que autoriza surtirá efectos hasta el momento en que el proyecto se ejecute y se expropien los terrenos necesarios para que opere la compensació n prop uesta. Sin embargo, esa interpretación no se desprende de la lectura de la ley aprobada, ni de la exposición de motivos del proyecto que culminó con dicha ley. OBSERVACIONES SOBRE LA COADYUVANCIA DE JORGE LOBO SEGURA Si bien es cierto, la PGR señaló que no puede valorar técnicamente el estudio de la OET, ni la forma en que se definió la propuesta final de compensación del área desafectada de la RBLB, el coadyuvante Jorge Lobo Segura, quien es un biólogo con una gran trayectoria en su campo profesional y profesor de la Facultad de Biología de la Universidad de Costa Rica, sí hizo una valoración técnica del estudio y concluyó que la respuesta es NO a todas las preguntas mencionadas en el apartado anterior sobre si se cuenta con estudios técnicos suficientes para justificar esa desaf ectación de 113 hectáreas de la RBLB. El estudio que consta en el expediente legislativo, denominado "Establecimiento de la Línea base de Biodiversidad para la Reserva Biológica Lomas d e Barbudal y Finca Adyacente", el cual fue realizad o por la Organización para Estudios Tropicales (OET), tuvo como objetivo determinar las caracterí sticas biológicas y geofísicas del á rea de la RBLB que sería sustituida por el área del embalse y evaluar lo s componentes de biodiversidad en UNA FINCA adyacente perteneciente a l a socie dad ASETREK Tres Azul S.A., escogida por SENARA sin ningún criterio té cnico, con el fin de valorar su potencial para compensar el área afectada de la RBLB. El estudio no e ra para buscar en los terrenos colindantes con la RBLB un área para compensar con car acterísticas ambientales lo más parecidas al área a inundar. Es decir, dicho estudio estuvo destinado a determinar la posibilidad de compensar el área de la RBLB que sería desafe ctada con una finca en particular, que es sobre la que se hicieron los estudio s, que dicho sea de paso los estudios se realizaron sobre un área de 114 hectáreas de esa finca que mide más de 700 hectáreas. S ENARA fue la que determinó que debía hacers e el estudio sobre esa parte de la finca de ASETREK. El estudio de la OET NO realizó un análisis cientí fico e individualizado del grado de impacto en el ambiente de la desafectación de las 113 hectáreas de esa Reserva Biológica. El estudio de la OET NO realizó un estudio de los terrenos adyacentes a la RBLB para determinar cuá l terreno es el que reunía las mejores condiciones para compensar las 113 hectáreas que se desafectarían de la Reserva Biológica. El estudio de la OET NO plantea recomendaciones orientadas a menguar el impacto negativo en el ambiente. El e studio de la OET NO demuestra có mo la desafectación de las 113 hectáreas implica un desarrollo que satisface las necesidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades. Ese estudio de la OET finalmente determinó que para compensar el área de 113 hectáreas desafectadas de la RBLB debían incluirse dentro de la Reserva Biológica 444 hectáreas de la finca ASETREK, sin realizar el estudio de más de 300 hectáreas de esa finca ya que se concentró el estudio en 114 hectá reas. Menciona además el estudio de la OET que como compensació n deberían incorporarse también las 86 hectá reas de la finca Brindis de Amor, sin hacer un estudio como correspond e sobre las caracterí sticas de esa finca, y además, utilizar el embalse Río Pi edras como parte de la compensación, de igual manera, sin ningún estudio. También se incorpora como compensación al área de la RBLB una porción de la finca de SP Hacienda Ciruelas, sobr e la cual NO se hizo ningún estudio. Ese Estudio ta mpoco cumple con el requisito de que se compense el área suprimida de la RBLB con otra de igual tamaño y características. Sobre este tema, el coadyuvante Jorge Lobo Segura, biólogo experto en esa materia, deja claro que: “el informe o estudio de la OET es insuficiente, parcial e incorpora un principio de compensación, supuestamente cuantitativo, donde modificando el tamañ o de un área de compensación se puede igualar el área perdida dentro un área protegida. Esto es equivocado, ya que las poblaciones o espec ies afectadas por la pérdida de un área protegida no necesariamente aparecerán, en su abundancia original en un área de compensación, aunque se aumente muchas veces su área, al no existir en el área de compensación los hábitats y recursos requeridos por esta especie, o los nú cleos poblacionales o las fuentes para la migración de poblaciones que garanticen su repoblamiento. Diferencias drá sticas en la calidad del hábitat, especialmente en el grado de alterac ión humana de los ecosistemas, como las que se detectaron entre Lomas de Barbudal y la finca ASETREK, no se equilibran con el aumento del área de esta última. Esta inflación del área para compensar menos biodiversidad no va a resultar en que las especies a fectadas van a restaurarse en el área de compensación, especialmente si en el área de compensación tenemos hábitats muy diferentes al área afectada dentro del Parque Nacional o Reserva Bioló gica. En el área que será inundada de Lomas de Barbudal hay bosques riparios, y posiblemente otros hábitats no cua ntificados por el estudio, que no están representados en ASETREK.” Luego de todas las razones expuestas demostrando que el estudio té cnico que se utilizó para justificar la desafectación de las 113 hectáreas de la RBLB NO realizó un análisis cientí fico e individualizado del grado de impacto en el ambiente de la desafectación de las 113 hectáreas de esa Reserva Biológica; NO realizó un estudio de los terrenos adyacentes a la RBLB para determinar cuál ter reno es el que reunía las mejores condiciones para compensar las 113 hectáreas que se desafectarían de la Reserva Bioló gica; NO plantea recomendaciones orientadas a menguar el impacto negativo en el ambiente; NO demuestra cómo la desafectación de las 113 hectárea s implica un desarrollo que satisface las necesidades del presente sin poner e n peligro la capacidad de las generaciones futuras para atender sus propias necesidades; NO cumple con el requisito de que se compense el á rea suprimida de la RBLB con otra de igual tamañ o y características. Sería un precedente p reocupante que la Asamblea Legislativa, la SETENA y la Sala Constitucional consideraran este estudio como válido. Si eso fuera así, podrí a abrirse un porti llo, más bien un portón, que llevaría a propiciar la afectación de los límites de más á reas protegidas, fundamentados en la compensació n con fincas privadas de área mayor, pero con ecosistemas mucho más alterados de los protegidos. La contabilidad ecosisté mica y el método Hábitat por Hectárea, avalarían e ste tipo de compensaciones. Como conclusión, es evi dente que el estudio de la OET y la propuesta final de compensació n son insuficientes y tienen falencias técnicas, por lo que la ley impugnada claramente violentaría el principio de irreductibilidad de las áreas silvestres protegidas, pues no se estaría garantizando que la variació n de los límites aprobada no afecta la integridad de la RBLB y no se estarí a mitigando adecuadamente el impacto ambiental generado por la desafectación de una parte de dich a Reserva Biológica. Consecuentemente, se violentaría el p rincipio precautorio , principio preventivo y no existiría respaldo técnico de que la medida legislativa adoptada no afecta el derecho a un ambiente sano y ecoló gicamente equilibrado. Como bien señal a el coadyuvante Jorge Lobo Segura, “…no hay estudios que se hayan presentado en el e xpediente legislativo contemplando otras opciones como podría ser la de terminar la construcción de los canales de riego pendientes para aprovechar el agua del embalse del Arenal, ni tampoco estudios sobre la capacidad hí drica de los mantos acuíferos dispo nibles para explotación en los cantones de Nicoya, Santa Cruz y Carrillo. Dicho sea de paso, se acaba de inaugurar el acueducto Sardinal-El Coco-Ocotal, con una inversión de aproximadamente $3 millones para dotar de agua potable a casi 30.000 personas mediante la perforación para acceder a mantos acuíferos subterráneos. Muchísimo menos dinero que los $500 millones de dólares proyectados para el desarrollo del proyecto PAACUME contemplando la construcción de una represa para embalsar agua y luego cana lizarla mediante 350 kilómetros de canales.” Mientras ese acueducto se habilitó en el cantó n de Carrillo recientemente, está a punto de entrar en operaciones otro acueducto, el d e Nimboyores, en el cantón de Santa Cruz, con una capac idad de 188 litros por segundo para abastecer de agua potable a 50.000 personas. Eso significa que entre los dos acueductos se está suministrando agua potable a 80.000 personas, que es casi la mitad de las personas que en un plazo de 50 años tendrían acceso a agua potable a trav és del megaproyecto de PAACUME, y construidos ya por una fracción de los $500 millones de dólares que en teoría costaría el proyecto de PAACUME. OBSERVACIONES SOBRE LA COADYUVANCIA DE MARIO ANDRÉS BOZA LORÍA En su coadyuvancia, el señor Mario André s Boza Loría in cluye como anexo a sus argumentos, un resumen del comunicado de prensa del Frente por las Áreas Silvestres Protegidas de Costa Rica, mediante el cual señalan que se ha pro movido como principal objetivo del proyecto el garantizar el agua para las com unidades de Guanacaste. Sin embargo, de acuerdo con el proyecto mismo, sólo un 10% de la producción de agua tendrá ese fin. Este punto es muy relevante ya que en las argumentaciones del SENARA y especialmente en las del SINAC del MINAE, se habla de dos fines públ icos de igual valor, como lo son la conservación y protección ambiental de la RBLB por un lado, y el acceso al agua potable por otro. Del análisis de toda la documentación que re spalda el proyecto PAACUME se concluye que de los 20 metros cúbicos por segundo que se trasegarían para la margen derecha del río Tempisque para llevar agua a los cantones de Carrillo, Santa Cruz y Nicoya, ÚNICAMENTE EL 10 %, SEAN 2 METROS CÚ BICOS POR SEGUNDO SON PARA CONSUMO HUMANO DE AGUA POTABLE. Por ot ro lado, en dicho comunicado se indica que se ha publicitado mucho que el PAACUME favorecerá al turismo, sin embargo sólo un 7.5% de la cantidad de agua se destina para tal fin. Pero, debe hacerse una precisió n sobre el uso de esa agua, ya que esa agua es para IRRIGACIÓ N de propiedades vinculadas al turismo, no para el consumo humano que estarí a contemplado dentro del 10% mencionado en el párrafo anterior. Eso significa que el 82.5% de la producción de agua del proyecto PAACUME se destinará a riego para agr icultura, especialmente de monocultivos de los grandes productores. El Frente por las Áreas Silvestres Protegidas de Costa Rica señala que el proyecto de PAACUME “lo venden” como un proyecto salvador para Guanacaste por el embalse que se haría dentro de la Reserva Biológica, pero no se señala que el agua ya está embalsada en el Lago Arenal , el reservorio más grande del país, que tiene ese como uno de sus propósitos, que ya surte de agua a la margen izquierda de la cuenca del Río Tempisque y nada impide que surta de agua al res to de la provincia guanacasteca. ¿Por qué no se usa directamente? Eso significaría cambiar el diseño del proyecto de PAACUME como bien reconocen los mismos funcionarios de SENARA , en el sentido de que si no pueden disponer de las 113 hectáreas de la RBLB para inu ndarlas, deberían entonces cambiar el proyecto para embalsar una menor cantidad de agua y complementar con otras medidas. Como v emos, sí es posible llevar agua potable a la margen derecha del Tempisque sin necesidad de cercena rle 113 hectáreas de gran valor ecoló gico a la RBLB. Esas razones compartidas por el coadyuvante Mario Boza apuntalan aún más las razones que hemos esgrimido para que se declare la inconstitucionalidad de la ley #9610. OBSERVACIONES SOBRE LA RESPUESTA DE SENARA Para entender los alcances de la respuesta de SENARA a nuestra acció n de inconstitucionalidad, es vital entender que el proyecto PAACUME ha sido desarro llado conceptualmente por esa institución autónoma desde hace muchos años. Es como “ un hijo” de SENAR A muy querido, y como sucede a veces con padres de familia cuando sus hijos son criticados o cuestionados, estos realizan la defensa de sus hijos en forma fanática y no objetiva. Vamos por partes: Quiere hacer ver el SENARA que sin el proyecto de PAACUME, tal y como ellos lo concibieron, no habrá habla potable para los cantones de Nicoya, Santa Cruz y Carrillo. Esto es falso y descontextualizado con la realidad. Cuando SENARA concibió el proyecto de PAACUME había problemas de abastecimiento de agua potable en Carrillo y Santa Cruz, PERO, dichos problemas ya se resolvieron mediante acueductos que tardó muchos años el Instituto Costarricense de Acueductos y Alcantarillados (ICAA) de construir. Nos referimos a los acueductos de SARDINAL- EL COCO- OCOTAL en el cantón de Carrillo, y el de NIMBOYORES en el cantón de Santa Cruz. Entre ambos acueductos se abastecerá de agua potable a 80.000 personas, aparte de las 140.000 personas que ya reciben agua potable por medi o de ASADAS. Eso cubre la totalidad de la población de esos cantones. Por otro lado, señ ala SENARA, en la página 8 de su contestación, que no existe posibilidad de reubicar o disminuir el volumen del embalse sin afectar significativamente el alcance del PAACUME. ¿ Qué quiere decir esto? Que sí existe otr as formas de llevar agua a la margen derecha del río Tempisque, pero deberí a replantearse el proyecto. De hecho, una de las justificaciones del PAACUME más efectistas era el tema del acceso al agua potable de los habitantes de los cantones de Santa Cruz, Nicoya y Carrillo. Incluso en la pá gina 9 de su respuesta señalan con dramatismo que el PAACUME servirá para llevar agua a SARDINAL de Carrillo, demostrando de esta forma los personeros de SENARA que están desactualizados sobre ese tema, ya que, como hemos señalado en el párrafo anterio r, esa escasez de agua fue resuelta por el ICAA. La otra justificación, que es el agua para irrigación de proyectos turí sticos costeros, también ya está siendo resuelta por el IC AA, el cual autorizó a uno de esos proyectos turísticos a utilizar agua del ma r desalinizá ndola. Como se puede apreciar, las necesidades han cambiado. No se vale entonces hacer creer a la Sala Constitucional y a la opinió n pública que estamos ante dos fines pú blicos de igual rango (acceso al agua potable y la protección del ambiente a travé s de una Reserva Biológica única en el país que incluso tiene protección internacional). PAACUME no trata entonces de ag ua potable. Ya ese tema, que de todas maneras representa el 10% del total del agua de PAACUME, fue resuelto por el ICAA. Entonces todo se reduce a afectar la RBLB para permitir desarrollar ese proyecto para irrigar terrenos de desarrollos turí sticos (que podrían irrigarse mediante desalinización del agua del mar), y la utilizació n de agua para proyecto s agrícolas. SENARA sostiene q ue la ley impugnada no viola el artículo 7 de la Constitució n Polí tica ni la Convención de RAMSAR. Señala que lejos de reducir el área del humedal de Palo Verde más bien se amplía con los lí mites aumentados de la RBLB y las 850 hectá reas del Embalse. Pero, ¿qué sucederí a si el proyecto PAACUME no se realiza por diferentes circunstancias, como por ejemplo que los diputados no aprueb en el empréstito de $500 millones, o que SETENA no apruebe el Estudio de Impacto Ambiental, al cual, dicho sea de paso dicha entidad le hizo casi 100 observaciones muy serias? En el caso de que no se hiciera el proyecto de PAACUME, y no se materializare la expropiación de los terrenos de compensació n, se estaría ante una reducción del área de la RBLB en 1 13 hectáreas, violándose claramente el artículo 7 de la Constitución y la Convención RAMSAR, como bien lo señala la PGR, además de las otras violaciones al artí culo 50 de la Constitución y los principios d e irreductibilidad de las áreas silvestres protegidas, precautorio, preventivo y de no regresión en materia ambiental. En la página 12 de su respuesta, SENARA indica que el estudio para el Establecimiento de la línea de Base de Biodiversidad para la RBLB y finca adyacente sí se realizó, contrario a lo que nosotros indicamos en nuest ra acción de inconstitucionalidad. SE EQUIVOCA NUEVAMENTE SENARA, ya que una buena parte de nuestra argumentación en la acción de inconstitucionalidad es precisamente sobre ese estudio y sus falencias. En relació n con la consulta a las comunidades, de acuerdo a lo dispuesto por el artículo 72 del Reglamento de la Ley de Biodiversidad, ÚNICAMENTE se consultó a 51 personas. Si se toma en cuenta la cantidad de personas que habitan en esas comunidades, esa consulta resulta irrisoria. En la pá gina 20 de la respuesta de SENARA hay una confesión de esa entidad en el sentido de que no hubo criterios té cnicos para definir la cantidad de hectáreas que finalmente se incorporaron de la finca ASETREK. El estudio de la OET recomendó incorpora r 332 hectáreas y SENARA decidió , sin criterio técnico , incorporar 444 hectáreas de ASETREK. Adicionalmente se indica que la incorporació n a la propuesta de c ompensación de las fincas Brindis de Amor y Hacienda Ciruelas, se realizó por recomendación del señor Manrique Montes Obando, Administrador de Lomas de Barbudal, o sea, sin criterio técnico. Por otro lado, en la página 21 se señ ala que se incorpora como humedal las 850 hectáreas de espejo de agua del Embalse, y nuevamente sin criterio técnico. Si no hubo criterio técnico en esos casos, tampoco hubo estudio para determinar si no había otra opción para llevar agua a la margen derecha del río Tempisque. Tal es la inexistencia de ese tipo de estudio, que al respecto, el Consejo Regional del Área de Conservació n Tempisque, al referirse al estudio de la OET, indicó que "esta instancia considera que aún no se ha demostrado que existan otras alternativas del proyect o PAACUME, sin que necesariamente se tenga que desafectarse un á rea de la actual RBLB. Si efectivamente estas alternativa s no son viables, será necesario valorar la tercera medida que es la compensació n." (Oficio No. SINAC-CORACAT-SE-041 de 7 de julio de 2017, folios 1492-1497 del expediente legislativo). Ese pá rrafo lo que significa es que no se ha demostrado que la Ú NICA forma de realizar el proyecto PAACUME es mediante la desafectación de las 113 hectáreas de la RBLB para inundarlas. Existen otras opciones de llevar agua a la cuenca media del rí o Tempis que y comunidades costeras que no se han valorado adecuadamente y que l leven a la conclusión de que la construcción del Embalse de Río Piedras es la Ú NICA opció n. Y, ese mismo Consejo, después de aprobado el proyecto de ley en segundo debate , indicó que "e s necesario que existan los estudios técnicos ambientales, jurídicos y financieros suficientes que justifiquen la selección adecuada tanto del área a desafectar, como de las áreas que servirían como compensació n. Debe verificarse la existencia de estos estudios dentro del expediente de este proyecto de ley, ya que a la fecha este Consejo no cuenta con tal información." (Oficio No. SINAC-CORACAT-049-2018 de 9 de setiembre de 2018, folios 2641-2644). (Subrayado no es del original). Por otro lado, en el documento denominado "Consulta Obligatoria a las Comun idades Locales. Propuesta de Compensación para la Reserva Bioló gica Lomas Barbudal" (Folios 622-726), ante una de las preguntas formuladas por uno de los part icipantes, se indicó que "si no se logran obtener las 113 hectá reas de la RBLB, el proyecto cambia totalmente, ya que sin estas 113 hectáreas de la RBLB las condiciones de la presa, la cantidad de agua a embalsar, el costo del proyecto y el diseñ o tendría que cambiar totalmente." (Folio 661). ¿Qué significa eso? Que sí es posible llevar agua a la cuenc a media del río Tempisque y a comunidades costeras, pero el diseño del proyecto PAACUME tendría que cambiar. Ese estudio es el que falta, lo que hace que la l ey 9610 sea inconstitucional por violación a los principios de irreductibilidad de las áreas silvestres protegidas, objetivació n a la tutela ambiental y de no regresión en materia ambiental. Por otro lado, en relación con el dinero que se requiere para pagar las tierras privadas con las cuales se pretende compensar las 113 hectáreas desafectadas de la RBLB, nuevamente SENARA nos vuelve a dar la razó n, al reconocer en la página 30 de su escrito de contestación que al día de hoy no se cuenta con los avalúos respectivos para determinar el monto exacto a cancelar. SENARA realizó una estimación global, sin criterio té cnico, y con base en esa estimación realizó el presupuesto extraordinario número 3, aprobado mediante el oficio DFOE-AE-0602 fechado 20 de diciembre del 2018 por la Contraloría General de la Repúbli ca, e incorporado al presupuesto de SENARA de este año. Obsérvese que dicho monto (2.851 millones de colones) obedece a una estimación que hizo SENARA sin ningún criterio técnico, y que dicha partida presupuestaria era inexistente cuando se aprobó el proyecto de ley. En relación con la incorporación de las fincas denominadas BRINDIS DE AMOR y HACIENDA CIRUELAS, así como en la escogencia de la finca ASETREK para hacer la compensación de las 113 hectáreas desafectadas de la RBLB, SENARA falta a la verdad reit eradamente en su escrito de contestación. En la página 31 menciona que se hizo un estudio sobre las fincas BRINDIS DE AMOR Y HACIENDA CIRUELAS lo que es falso. Como se demostró en la acción que interpusimos y luego enfatizó el coadyuvante Jorge Lobo Segura, sobre la finca de Brindis se hizo una mención superficial en el estud io de la OET (en ese estudio de casi 300 páginas le dedica 6 pá ginas que incluyen fotografías a esa finca), reconociendo ese estudio y también el CORACAT que habría que hacer un estudio a profundidad sobre esa propiedad. En el oficio SINAC-CORACAT- SE-041, aportado como prueba por el SENARA, en la página 58 de su contestación a esta acción de inconstitucionalidad, se indica claramente que “Respecto a la finca Brindis de Amor, también este Consejo estima que los estudios no se realizaron con la misma profundidad de análisis con respecto al estudio inicial, ni en el tiempo suficiente que sustente técnicamente la calidad de los componentes ab ordados desde el inicio de la investigación. Es necesario que se profundice más los estudios en esta propiedad o cualquier otra que se considere como propuesta de compensación, para que este Consejo pueda emitir un criterio fundamentado.” Lo señalado por el CORACAT ratifica nuestro argumento de que no se hizo un estudio serio y objetivo sobre la propiedad de Brindis de Amor. Es má s, la escogencia que hace el SENARA de esa propiedad, sin criterio té cnico, tambié n incumple varios de los requisitos de los parámetros a tomar en cuenta para definir las áreas de compensación, los cuales se mencionan en la pá gina 67 de su respuesta. Hay un o de ellos que se incumple en forma grosera, es el número 7, que indica que un parámetro fundamental es “Uniformizar el lindero de la propiedad, para que el área de compensación permita el adecuado manejo por parte de la administració n del SINAC en la RBLB.” Pues bien, en el croquis que aparece en la página 71 de su escrito de contestación pueden apreciar los señores magistrados, que la finca de Brindis de Amor NO CUMPLE CON ESE PARÁMETRO. Esa finca es la que se indica en la parte superior del croquis, con una parte inclusive totalmente aislada de la RBLB, alargando inclusive dicha reserva en lugar de ayudar a darle una forma má s circular, como señala ese documento que aportan como prueba. Es más, en la página 69 del escrito de contestació n de SENARA, en el ú ltimo pá rrafo, parece estar parte de la respuesta del por qué SENARA escogió esa propiedad. Dice así: “… también debe considerarse que esta finca cuenta con una serie de infraestructuras que pueden ser utilizadas por la admin istración de la RBLB (S INAC) como un sitio de control para la misma.” El caso de la incorporación de la propiedad de HACIENDA CIRUELAS es aún más dramático. E l estudio de la OET hace una mención de esa finca en 3 renglones. Por otro lado, en la página 32 de su respuesta SENARA indica q ue se hizo análisis de campo de esa finca, lo cual es totalmente falso. Eso lo reitera SENARA en la página 70. ¿Habí a otras propiedades adyacentes a la RBLB que pudieron haber sido consideradas para compensación? La respuesta es sí. Por ahí debió haber ini ciado SENARA a realizar un estudio técnico para identificar cuáles serí an esas propiedades que fueran lo más parecidas en cuanto a las caracterí sticas biológicas con las 113 hectá reas que se desafectarían de la RBLB. En nuestra acción de inconstitucionalid ad aportamos la información sobre varias de esas propiedades. Inclusive SENARA lo reconoce al aportar el oficio SINAC-CORACAT- S E-041 en su escrito de contestación, donde puede o bservarse en la página 47 del escrito de SENARA, la consignación que se hace de las manifestaciones del señor Wilfrá n Murillo, quien indicó que “ se podría aprovechar para la redefinición de los límites que tiene Lomas, con respecto a otro terreno que no es ASETREK, ni Brindis de Amor. Sería la oportunidad para agregar esos terrenos que el INDER ha trasladado al SINAC.” Ese tema es relevante, ya que como indicáramos en nuestra acción de inconstitucionalidad, se pudo haber considerado compensar el á rea a inundar mediante el cambio de categoría de terrenos de entidades pú blicas adyacentes a la RBLB, incorporándolos dentro de los límites de la Reserva Biológica. Es muy probable que esos terrenos tuvieran una mejor condición ecológica que los terrenos particulare s que se ha insistido en incorporar a la RBLB, sin tener que desembolsa r dinero para las expropiaciones que se pretende realizar. Después de todo lo mencionado sobre las propiedades que se incorporan como c ompensación de la desafectación de las 113 hectáre as de la RBLB, debe quedar claro que: 1- La finc a ASETREK fue previamente seleccionada por SENARA. No hubo ningún criterio técnico que señalara que esa era la propiedad más idó nea. A partir de ahí hay un grave error en la génesis del estudio que posteriormente elaboró la OET. 2- El estudio de la OET se hizo sobre una porción de tierra de la finca ASETREK de un poco más de 100 hectá reas. No sobre las 332 hectáreas que como mínimo recomendó la OET adquirir para compensar. 3- La incorporación de la finc a de Brindis de Amor se hizo sin haber realizado ningún estudio, y más bien parece motivado el SENARA por echar mano de las obras de infraestructura que existen en dicha finca. 4- La incorporación de la finca de Hacienda Ciruelas también se hizo sin que se hubiere realizado ningún estudio ni visita de campo. 5- No se hizo un estudio para determinar cuáles propiedades adyacentes a la RBLB eran las má s idóneas para la compensación por las características ecosistémicas de esas propiedades. Por otro lado, convi ene recordar lo que la PGR ha señalado en relación con el Estudio de la OET. Para la PGR, aunque se constate la suficiencia del estudio de la OET y de la propuesta final de compensación, debe advertirse que ese es tudio té cnico únicamente justificaría la validez de la compensació n practicada, y, como tal, no es un estudio técnico que justifique directamente la decisión de desafectar una parte de la RBLB. La Procuraduría es contundente en este tema, cuando señala que … “atendiendo a la jurisprudencia constitucional sobre el tema, el estudio que exige el artículo 38 de la Ley Orgánica del Ambiente para justificar la reducción de un á rea silvestre protegida debería ser un estudio que determine la necesidad y conveniencia de adoptar ese tipo de medida. ”(el subrayado y r esaltado no es del original). En este caso, un estudio en ese sentido, sería aquel que fundamente técnicamente la necesidad y conveniencia de desafectar parte de la RBLB. Es decir, un estudio que determine que la única alternativa para desarrollar el proyecto PAACUME y el embalse Río Piedras, es desafectando parte de la Reserva Biológica. Dicho sea de paso, dicho estudio no se ha realizado. Señala la Procuraduría, que si no se constata la necesidad y conveniencia de desafectar 113 hectáreas de la RBLB, la Ley 9610 debe declararse inconstitucional por violación a los principios de irreductibilidad de las áreas silvestres protegidas, objetivación a la tutela ambiental y de no regresión. OBSERVACIONES SOBRE LA RESPUESTA DEL MINISTERIO DE AMBIENTE Y ENERGÍA (MINAE) El ministro del MINAE dedica las primeras páginas de su contestación a describir e (sic) proyecto PAACUME, y ya en la página 6 hace su primera aseveración que no es cierta. Indica que SENARA, “a través de mú ltiples estudios ha demostrado que esta extensió n de embalse, incluida la zona dentro de la Reserva Lomas de Barbudal (113 hectáreas), es la única vía para hacerlo con el fin de atender la demanda hídrica en el á mbito del proyecto de forma sostenible.” ESTO NO ES CIERTO. El mismo Consejo Regio nal del Área de Conservación Tempisque (CORACAT), vinculado al Sistema de Áreas de Co nservación del MINAE se encarga de desmentir lo señalado por el ministro. No hay tales mú ltiples estudios. Tal es la inexistencia de esos estudios, que al respecto, el CORACAT, a l referirse al estudio de la OET, indicó que "es ta instancia considera que aún no se ha demostrado que existan otras alternativas del proyecto PAACUME, sin que necesariamente se tenga que desafectarse un área de la actual RBLB. Si efectivamente estas alternativas no son viables, será necesario valorar la tercera medida que es la compensación." (Oficio No. SINAC-CORACAT-SE-041 de 7 de julio de 2017, folios 1492-1497 del expediente legislativo). Ese pá rrafo lo que significa es que no se ha demostrado que la ÚNICA forma de realizar el proyecto PAACUME es mediante la desafectación de las 113 hectá reas de la RBLB para inundarlas. Existen otras opciones de llevar agua a la cuenca media del río Tempisque y comunidades costeras que no se han valorado adecuada mente y que lleven a la conclusión de que la construcción del Embalse de Rí o Piedras es la Ú NICA opción. Por otro lado, en el documento denominado "Consulta Obligatoria a las Comunidades Locales. Propuesta de Compensación para la Reserva Biológica Lomas Barbudal" (Folios 622-726), ante una de las preguntas formuladas por uno de los participantes, se indicó que "si no se logran obtener las 113 hectáreas de la RBLB, el proyecto cambia totalmente, ya que sin estas 113 hectáreas de la RBLB las condiciones de la presa, la cantidad de agua a embalsar, el costo del proyecto y el diseño tend ría que cambiar totalmente." (Folio 661). ¿Qué significa eso? Que sí es posible llevar agua a la cuenca media del río Tempisque y a comunidades costeras, pero el diseño del proyecto PAACUME tendría que cambiar. Ese estudio es el que fal ta, lo que hace que la ley 9610 sea inconstitucional por violación a los principios de irreductibilidad de las áreas silvestres protegidas, objetivació n a la tutela ambiental y de no regresión en materia ambiental. En relación con la inconstitucionalidad alegada por nosotros vincula da a la violación del artículo 7 de la Constitución Política y la Convención RAMSAR, el MINAE señ ala que dicha violació n no se da porque, en parte, se le agregarán al humedal con protección y categoría mundial de Palo Verde, las 850 hectá reas de espejo de agua del embalse de Río Piedras. Nos extraña que una aseveración como esa provenga del MINAE, el cual tiene claro cuáles son las características de un humedal. Jamá s, un e mbalse donde el agua de este se canalizará a través de 350 kilómetros de canales hasta la margen derecha del río Tempisque hasta llegar a los cantones de Carrillo, Santa Cruz y Nicoya, puede considerarse un humedal. Es como pretender darle categoría de humedal al lago del Arenal o al de Cachí . Sencillamente, dichos embalses, por las profun didades de estos y el uso y velocidad de salida del agua que almacenan no pueden jamás considerarse un humedal. Dicho eso, no debe quedar duda de que la desafectació n de las 113 hectá reas de la RBLB, en caso de no realizarse el proyecto PAACUME en e l alcance que se tiene pensado en estos momentos, y de no materializarse las expropiaciones de las propiedades privadas incorporadas como compensació n en la ley impugnada por esta vía, resultaría en una clara violación de nuestros compromisos internacional es al registrar nuestro país el humedal de Palo Verde como sitio RAMSAR. Por otro lado, en relación con los supuestos estudios que respaldan la ley impugnada, el MINAE señala que las instituciones involucradas en este proyecto han realizados los estudios correspondientes, así como las acciones que compensan las áreas en las que se desarrollara el proyecto. SE EQUIVOCA NUEVAMENTE EL MINAE. La misma PGR lo advierte al señalar que, aunque se constate la suficiencia del estudio de la OET y de la propuesta final de compensació n, debe advertirse que ese estudio técnico únicamente justificaría la validez de la compensación practicada, y, como tal, no es un estudio técnico que justifique directamente la decisión de desafectar una parte de la RBLB. La Procuraduría es contundente en este tema, cuando señala que … “ atendiendo a la jurisprudencia constitucional sobre el tema, el estudio que exige el artículo 38 de la Ley Orgánica del Ambiente para justificar la reducció n de un área silvestre protegida debería ser un estudio que determine la necesidad y conveniencia de adoptar ese tipo de medida.”(el subrayado y resaltado no es del original). El estudio técnico que se utilizó para justificar la desafectació n de las 113 hectáreas de la RBLB NO realizó un análisis científico e individualizado del grado de impacto en el ambiente de la desafectación de las 113 hectáreas de esa Reserva Biológica; NO realizó un estudio de los terrenos adyacentes a la RBLB para determinar cuál terreno es el que reunía las mejores condiciones para compensar las 113 hectáreas que se desafectarí an de la Reserva Biológica; NO plantea recomendaciones orientadas a menguar el impacto negativo en el ambiente; NO demuestra cómo la desafectación de las 113 hectáreas implica un desarrollo que satisface las ne cesidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades; NO cumple con el requisito de que se compense el á rea suprimida de la RBLB con otra de igual tamaño y característ icas. Serí a un precedente preocupante que la Asamblea Legislativa, el MINAE, la SETENA y la Sala Constitucional consideraran este estudio como válido. Si eso fuera así, podría abrirse un portillo, más bien un portón, que llevaría a propiciar la afectación de los límites de más áreas protegidas, fundamentados en la compensación con fincas privadas de área mayor, pero con ecosistemas mucho más alterados de los protegidos. La contabilidad ecosistémica y el método Há bitat por Hectárea, avalarían este tipo de compensaciones. Hemos demostrado, y también lo ha hecho el coadyuvante Jorge Lobo Segura, que el estudio de la OET y la propuesta final de compensación son i nsuficientes y tienen falencias técnicas, por lo q ue la ley impugnada claramente violentaría el principio de irreductibilidad de las áreas silvestres protegidas, pues no se estaría garantizando que la variación de los límites aprobada no afecta la integridad de la RBLB y no se estaría mitigando adecuadamente el impacto ambiental generado por la desafectac ión de una parte de dicha Reserva Biológica. Consecuentemente, se violentaría el principio precautorio, principio preventivo y no existiría respaldo técnico de que la medida legislativa adoptada no afecta el derecho a un ambiente sano y ecológicamente equilibrado. Tampoco existen es tudios que determinen que la única alternativa para desarrollar el proyecto PAACUME y el embalse Río Piedras, es desafectando pa rte de la Reserva Biológica. OBSERVACIONES SOBRE L A RESPUESTA DE LA ASAMBLEA LEGISLATIVA En las primeras 20 pá ginas de su escrito de contestación a la acción de inconstitucionalidad, la presidente de la Asamblea Legislativa repasa en qué consiste el proyecto PAACUME e incurre en los errores de los Ministros del MINAE y MAG, así como en los errores de SENARA, al indicar que e l Estudio para el Establecimiento de la línea de Base de Biodiversidad para la RBLB y finca adyacente es el estudio que la legislación ambiental y la jurisprudencia de la Sala Constitucional ha establecido como requisito para reducir los lí mites de un Área Silvestre Protegida. Caben acá todas las explicaciones que hemos hecho en los segmentos anteriores demostrando que dicho estudio no es el estudio al que se refiere la jurisprudencia constitucional, como bien señaló la PGR. El estudio t écnico que se utilizó para justificar la desafectació n de las 113 hectáreas de la RBLB NO realizó un aná lisis científico e individualizado del grado de impacto en el ambiente de la desafectación de las 113 hectáreas de esa Reserva Biológica; NO realizó un estudio de los terre nos adyacentes a la RBLB para determinar cuál terreno es el que reuní a las mejores condiciones para compensar las 113 hectáreas que se desafectarí an de la Reserva Biológica; NO plantea recomendaciones orientadas a menguar el impacto negativo en el ambiente; NO demuestra có mo la desafectació n de las 113 hectáreas implica un desarrollo que satisface las necesidades del presente sin poner en peligro la capacidad de las generaciones f uturas para atender sus propias necesidades; NO cumple con el requisito de que se compense el área suprimida de la RBLB con otra de igual tamaño y características. Donde sí hace unas observaciones relacionadas con su nivel de competencia, como lo es el pro cedimiento parlamentario seguido para aprobar el proyecto que culminó con la ley que estamos impugnando, la presidente de la Asamblea Legislativa señala lo siguiente: “En su escrito, los accionantes alegan que la Ley Número 9610, "Modificación de límites de la Re serva Biológica Lomas de Barbudal para el desarrollo del proyecto de abastecimiento de agua para la cuenca media del río Tempisque y comunidades costeras" padece de un vicio esencial de procedimiento legisl ativo porque fue conocido y votado con base en un procedimiento especial acordado conforme con el art ículo 208 bis del Reglamento de la Asamblea Legislativa. El vicio consiste, según exponen los accionantes, en que este tipo de procedimientos abreviados no puede pueden ser aplicados a iniciativas que requieran para su aprobación de una mayoría califica da. Para esto se apoyan en el informe AL-DEST-DJU-068-2018 del 30 de julio del año 2018 del Departamento de Servicios Té cnicos de la Asamblea Legislativa.” So bre ese tema, lo que nosotros argumentamos en la acción de inconstitucionalidad es que una buena parte del procedimiento legislativo que culminó con la aprobación de ese proyecto de ley que da origen a la ley 9610, se hizo a través del procedimiento especial acelerado del artículo 208 bis aprobado por el plenario legislativo en la sesión ordinaria número 28 del 20 de junio del año 2018. En ningún momento señalamos que la votación final se habí a hecho de conformidad con lo establecido en el procedimiento aprobado del 208 bis. Continúa diciendo la presidente de la Asamblea Legislativa: “Con base en esas regl as, el expediente legislativo número 20.465 fue asignado a la comisión especial número 20.869 'Comisión Especial que será la encargada de analizar, estudiar y dictaminar el Expediente No. 20.465 “Ley para la Modificación de límites de la Reserva Biológica Lomas de Barbudal para el desarrollo del Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras"; órgano que dictaminó la iniciativa. En consideración de estos hechos y a la argumentació n jurídica de varios diputados y diputadas, en la sesión ordinaria del Plenario número 46 del martes 7 de agosto del añ o 2018, los señores y señoras diputados acordaron aprobar una moción de orden que estableció de forma literal: ‘ Para que se deje sin efecto el procedimiento especial aprobado vis artículo 208 bis al expediente legislativo No. 20.465 "LEY PARA LA MODIFICACIÓN DE LIMITES DE LA RESERVA BIOLÓGICA LOMAS DE BARBUDAL PARA EL DESARROLLO DE PROYECTOS DE ABASTECIMIENTO D E AGUA PARA LA CUENCA MEDIA DEL RIO TEMPISOUE Y COMUNIDADES COSTERAS ’, por encontrarse roces de constitucionalidad en el trámite que lo hacen incompatibles con la aplicación de un procedimiento especial y que en adelante , continú e su trá mite legislativo ordinario". (lo resaltado no es del original). ¿Qué signi fica eso? Que luego de sesionar por un mes seguido, con muchas sesiones semanales para ello, recibiendo en audiencia a una gran cantidad de personas para mejorar el criterio de los diputados en el proc eso de toma de decisión, y colocando en el primer lugar de primeros debates de la age nda del plenario legislativo dicho proyecto, ya que así lo disponía la moció n de procedimiento especial vía artículo 208 bis que se aprobó, los diputados toman conciencia de que lo que hicieron el 20 de junio había sido en violación de las disposiciones de l artículo 208 bis del Reglamento ya que le aplicaron ese artí culo a un proyecto que requería mayoría calificada para su votació n en el plenario legislativo. Por eso, el MARTES 7 DE AGOSTO aprueban la moció n para que EN ADELAN TE se siga con el trámite pero con el procedimiento ordinario. Según la presidente de la Asamblea Legislativa, eso significa que la Asamblea “ desconoció todos los acuerdos tomados en razón del procedimiento e special especial antes mencionado y procedió a cono cer el proyecto de ley con base en las reglas del procedimiento ordinario de formació n de ley.” SE EQUIVOCA ROTUNDAMENTE LA PRESIDENTE DE LA ASAMBLEA. La moció n es clara, en el sentido de que en adelante al martes 7 de agosto se seguiría con el procedimiento ordinario para la tramit ación de proyectos de ley. En ningún momento se indica en la moció n que se deja sin efecto lo tramitado mediante el procedimiento abreviado. Tampoco habla la moción de devolver el trá mite de ese proyecto al estado procesal legislativo en el que se e ncontraba de previo a la aprobación de la moción del 20 de junio del 2018. Tampoco habla de dejar sin efecto la conformación de la Comisió n Especial para dictaminar ese proyecto de ley que se creó mediante el procedimiento abreviado (Comisión especial #20.869 Comisión Especial que será la encargada de analizar, estudiar y dictaminar el Expediente No. 20.465 “Ley para la Modificació n de límites de la Reserva Biológica Lomas de Barbudal pa ra el desarrollo del Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras”). En la siguiente sesió n de la Asamblea Legislativa que conoce proyectos de ley, la sesión del jueves 9 de agosto, el proyecto fue votado afirmativamente en primer debate, situación que lleva a la presidente de la Asamblea Legislativa a afirmar que no hubo ninguna violación al procedimiento parlamentario y por lo tanto no hubo ningún quebran to constitucional con dicho proceder. Por el contrario, nosotros alegamos que sí lo hubo, y que de no declararse así por l a Sala Constitucional se abriría un portillo para violentar el principio democrático en el proceso de formación de las leyes, ya que una mayoría coyuntural de la Asamblea Legislativa podría aprobar tramitar proyectos de ley a través del procedimiento abreviado establecido en el artículo 208 bis en clara violación de las prohibiciones establecidas en ese artículo. Enviar proyectos entonces a una Comisión Especial conformada según el criterio de esa mayorí a coyuntural para tramitarlos aceleradamente, recibie ndo en audiencias a quienes se considere necesario y hacer consultas, tramitar las mociones con los plazos de presentación y argumentac ión establecidos en el procedimiento abreviado, sin dar posibilidad a diputados de bancadas minoritarias de participar en esas sesiones por la cantidad de sesiones que se programan a la semana, para finalmente dictaminarlo. Luego, en el plenario, siguen adelante hasta agotar los días de presentación de mo ciones ví a artículo 137, y cuando están a punto de votar por el fondo e l proyecto en el plenario, aprueban una moción para “seguir adelante” con el procedimiento ordinario para la discusión final del proyecto por el fondo (20 minutos de argumentació n por cada diputado) antes de la votación de primer debate, y luego 10 minutos de arg umentación para la votación de segundo debate. Ese tipo de artimañ a, con la cual una mayoría coyuntural en la Asamblea Legislati va podrí a imponer su punto de vista sobre las posiciones de diputados que no lo compartan, serí a una especie de FRAUDE DE LEY. Precisamente por esa razó n es que hemos señ alado esa evidente inconstitucionalidad en la tramitación del proyecto de ley. Lo que debieron hacer en todo caso, fue retrotraer la tramitació n del proyecto de ley al 7 de junio de 2018, al momento antes de aprobar la moción que claramente violentaba el artículo 208 bis del Reglamento de la Asamblea Legislativa, el cual es parámetro de constitucionalidad. OBSERVACIONES SOBRE LA COAYUVANCIA PASIVA O NEGATIVA DEL MINISTERIO DE AGRICULTURA Y GANADERÍA (MAG) El ministro del MAG, al comparecer como coadyuvante pasivo, consignó como razones de su coadyuvancia los mismos alegatos del SENARA. Por lo tanto, nuestros comentarios sobre esa coadyuvancia son los mismos que hicimos sobre las observaciones del SENARA ”. 18.- Por escrito incorporado al expediente digital a las 10:02 horas de 2 de noviembre de 2019, se apersona Henry José Picado Cerdas. Manifiesta interés de apersonarse al expediente. 19.- Mediante resolución de las 12:28 horas de 28 de mayo de 2020, como prueba para mejor resolver, se dio audiencia a Mahmood Sasa Marín sobre lo alegado por la parte accionante, la Presidencia de la Asamblea Legislativa, el Ministro de Ambiente y Energía, el Servicio Nacional de Agua Subterránea y la Procuraduría General de la República, en relación con el estudio que él coordinó denominado “Establecimiento de la línea Base de Biodiversidad para la Reserva Biológica Lomas de Barbudal (RBLB) y finca adyacente ”. 20.-Mediante resolución de las 16:04 horas de 28 de mayo de 2020, el presidente de la Sala Constitucional programó vista oral para las 9:00 horas de 11 de junio de 2020 y convocó a María del Milagro Gamboa Miranda, a Gary Douglas Stewart Postel, al Procurador General de la República, al Presidente de la Asamblea Legislativa, al Ministro de Ambiente y Energía, a la Gerenta General del Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento, a Mario Andrés Boza, a Jorge Arturo Lobo Segura, al Ministro de Agricultura y Ganadería, y a Mahmood Sasa Marín . Al respecto, dispuso que la audiencia se llevaría a cabo de forma virtual a través de la aplicación Microsoft Teams y para tales efectos les previno aportar un correo electrónico tanto para el registro correspondiente como para hacerles llegar la información necesaria para la conexión. Finalmente, expuso la forma en que se iba a desarrollar la vista. 21.- Por escrito incorporado al expediente digital a las 12:49 horas del 1o de junio de 2020, se apersona Julio Jurado Fernández, en su condición de Procurador General de la República. Indica que participará en la audiencia con la procuradora Elizabeth León Rodríguez. Señala que los correos electrónicos para el registro de la plataforma [email protected] y [email protected]. 22.- Por escrito incorporado al expediente digital a las 10:56 horas de 2 de junio de 2020, se apersona Gary Douglas Stewart Postel. Aporta el correo electrónico [email protected] para su registro en la plataforma. 2 3.- Por escrito incorporado al expediente digital a las 16:00 horas de 2 de junio de 2020, se apersona María del Milagro Gamboa Miranda, Aporta el correo electrónico [email protected] para su registro en la plataforma. Menciona que la acompañarán Jorge Lobo Segura, portador de la cédula de identidad n.o 105260636 y Otto Guevara Guth portador de la cédula de identidad número 105440893 con los correos electrónico, cuyos correos electrónicos son respectivamente [email protected] y [email protected]. 24.- Por escrito incorporado al expediente digital a las 12:02 horas de 3 de junio de 2020, se apersona Patricia Quirós Quirós, en su condición de gerenta general de SENARA. Indica que va a participar en la vista y que el correo para registrar en la plataforma es [email protected] . Señala que la va a acompañar Giovanni López Jiménez, cuyo correo electrónico es [email protected]. 25.- Por escrito incorporado al expediente digital a las 17:45 horas de 5 de junio de 2020, se apersona Luis Renato Alvarado Rivera, en su condición de ministro de Agricultura y Ganadería. Indica que va a participar en la vista programada con Yadira Vega Blanco, quien es la abogada de la institución. Señala que los correos para el registro en la plataforma son [email protected] y [email protected]. 26.- Por escrito incorporado al expediente a las 18:37 horas de 8 de junio de 2020, se apersonan Mahmood Sasa Marín, en su condición de investigador de la Organización de Estudios Tropicales y catedrático de la Escuela de Biología de la Universidad de Costa Rica, así como Fabián Bonilla Murillo, en su condición de investigador del Instituto Clodomiro Picado de la Universidad de Costa Rica. Exponen las siguientes consideraciones en atención a la resolución de las 12:28 horas de 28 de mayo de 2020: “1. La compensació n ambiental ante un impacto ambiental es una medida última, que debe realizarse únicamente en caso de que no pueda evitarse dicho impacto o que este no pueda mitigarse adecuadamente. En consecuencia, cuando los impactos de un proyecto requieren compensació n, se está ante una situación en la que es inevitable resarcir un potencial impacto. En esa circunstancia, la discusión no debe centrarse en si se puede o no compensar, sino en cómo lograrla de manera que haya ganancias ambientales. El principio fundamental en el que se basa la compensación ambiental es que el resarcimiento no puede ser menor al costo del impacto, ambientalmente hablando. De hecho, debe ser deseable que en la compensación haya ganancia a nivel ambiental. Este último punto no es trivial: la compensación debe asegurar un ambiente mejor al existente antes del impacto. 2. Para realizar compensaciones por impacto ambiental no existe una metodología única. Tampoco existe una metodologí a simple que permita de manera precisa definir la compensació n. Si el objetivo es asegurar que el resarcimiento sea justo y –en lo posible– maximizar ganancia ambiental, se debe recurrir a diferentes estrategias. Este es un punt o muy importante, puesto que los detractores de nuestro estudio parecen esperar una metodologí a infalible y universal para ello, sin que algo así exista. Para maximizar las ganancias ambientales el abordaje debe ser dinámico y estar dispuestos a emplear varios criterios a la hora de establecer un plan de compensació n. En diversos países se han empleado distintos procedimientos, la mayoría de ellos compensando a partir de la sustitución de área superficial. Así , el resarcimiento se realiza a partir de una sustitución del área impactada por un área que será ambientalmente equivalente (o mejor). Esta equivalencia se refiere a que los elementos bióticos (especies, comunidades) y abióticos (suelo, geomorfología, etc), estructura del hábitat y procesos ecoló gicos sean similares por área y contexto paisajístico. La equivalencia NO implica que exactamente los mismos elementos y sus mismas abundancias sean idénticos entre los sitios, situación que a todas luces sería imposible en sistemas complejos como los ambientes tropicales. El procedimiento tratará de maximizar la ganancia ambiental en la compensación. 3. Algunos de los procedimientos empleados en países para la compensación am biental son meras sustituciones basados en área superficial, sin q ue medie cuantificación de otros factores. Otros, se basan en la cuantificación de una serie de indicadores (bióticos o abió ticos) y estimaciones de la “equivalencia ecológica” entre el siti o a impactar y el sitio potencial a usar en la compensación. Entre estos últimos, los enfoques denominados métodos estandarizados de puntuación son los más ampliamente utilizados. En estos esquemas, cada indicador tiene un peso sobre la calificación final y los especialistas asignan puntajes sobre las cuantificaciones realizadas entre el sitio de compensación y el sitio a impactar. Estos métodos tienen la ventaja de permitir la racionalización del proceso de evaluació n y ofrecer valoraciones más predecibles y repetibles (aspectos que deberían ser importantes desde el punto de vista legal). 4. En Costa Rica, el tema de compensación ambiental no ha sido suficiente discutido y no hay directrices claras de cuándo y có mo debe realizarse, cuáles metodologías emplear, ni cómo debe evaluarse. Si bien es cierto que disponemos de algunas leyes y reglamentos que tangencialmente tocan el tema de compensación y se refieren a medidas de compensación, las referencias sobre el resarcimiento ambiental en nuestra legislación son muy generales y el marco legal carece del nivel de especificidad sobre compensación. Esto lo exponemos en nuestro informe (pág. 32–37). Como consecuencia de esta situación, no se dispone de mayor experiencia en la compensación ambiental, especialmente en aquella que involucra áreas silvestres protegidas. En ese sentido nuestro estudio debe considerarse un trabajo pionero en este tema. 5. El estudio que realizó nuestro equipo de la Organizació n para Estudios Tropicales, cuyos resultados y recomendaciones se presentan en el informe “Establecimiento de la línea base de biodiversidad para la Reserva Biológica Lomas de Barbudal y finca adyacente”, tení a como objetivo determinar las características biológicas y geofí sicas de un área dentro de la zona protegida Reserva Biológica Lomas de Barbudal (RBLB) que potencialmente sería inundada de establecerse el embalse sobre el Río Piedras como parte del proyecto de irrigación PAACUME del SENARA. Además de esta caracterizació n, se solicitó evaluar el potencial de compensación que tendría una propiedad adyacente de realizarse este impacto, denominada en el informe ASETREK. Para realizar esta evaluació n, nuestro grupo se decantó por una metodología basada en un enfoque de puntuación, denominada Hábitat/Hectárea. Sin embargo, también se emplearon criterios distintos a los derivados de esta metodología para llegar a sugerir un plan de compensación. 6. Nuestro estudio trata de responder tres preguntas concretas : (1) Que características bióticas y abióticas tienen el sitio potencial de impacto en RBLB y el sitio seleccionado como potencial compensación; (2) son o no equivalentes ambientalmente; y (3) si lo fueran, cómo debe realizarse la compensación con un gane ambiental de ocurrir el impacto. El nuestro es un estudio de línea base y compensació n. Las sugerencias, observaciones o críticas a dicho estudio deben ser enfocadas a sus alcances y dimensiones. Nuestro estudio no contempla, ni pretende hacerlo, una valoración del impacto ambiental del proyecto embalse del Rio Piedras ni del Proyecto PAACUME. Tampoco constituye una valoración de la aprobació n social de ese proyecto o sus impactos. Los objetivos del estudio siguieron los lineamientos solicitados por SENARA en sus “términos de referencia”. Estos objetivos y la metodologí a planteada por nuestro equipo fueron aprobados por el Área de Co nservación Arenal-Tempisque (ACAT) del SINAC. 7. Los métodos de puntuación son algoritmos para, de la manera más objetiva posi ble, evaluar y calcular la compensación. Pero como cualquie r otra metodología no están exentos de limitaciones. Las limitaciones del método Há bitat/Hectárea son expuestas en nuestro informe. Entre las má s notorias son: (1) el método requiere que cada indicador tenga un peso en el puntaje final, lo que hace que ese paso pueda ser criticado. (2) El método requiere similitud en las coberturas que se comparan. (3) La premisa del método es que, las carencias ambientales de uno de los sitios serán equilibradas a partir de un incremento de su área. Hay varias formas de lidiar con el primer inconveniente: asignar pesos iguales a todos los in dicadores, o hacer la asignación de pesos por consenso. El razonamiento es que si los pesos de los i ndicadores son asignados a priori, la calificación del ambiente se hace de una forma relativamente objetiva y repetible. En nuestro caso, los pesos de los indicadores fueron seleccionados por consenso entre los profesionales que integran el equipo investigador, y presentados y avalados por SETENA y el SINAC, a través de ACAT. Respecto a la segunda limitación, el ambiente a comparar entre el área de impacto en la RBLB y ASETREK son lo suficientemente similares (ambos sitios están cubiertos por una mayoría de bosque deciduo alterado con á reas abiertas en estadios de sucesión temprana en la zona de vida Bosque Tropical Seco), de manera que consideramos que sí se puede emplear el algoritmo. A pesar de que más del 73% de la superficie en ambos sitios está cubiert a por esta vegetación decidua, nosotros deliberadamente distinguimos tres tipos de coberturas, basados en nuestras observaciones de campo y la capa de coberturas del inventario nacional forestal (SIREFOR, 2012-2013). Las coberturas resultantes fueron nombradas: bosque deciduo, bosque secundario y bosque ripario y se procedió a realizar la calificación de cada indicador de manera individual en ellas. De esta manera maximizamos el contraste entre el ambiente en el sitio de impacto y el del sitio de compensación. El tercer inconveniente se sustenta en la idea que los ambientes a comparar s ean lo suficientemente similares para que el equilibrio se logre con área. Este sin duda es uno de los aspectos más débiles de la metodología, porque similitud entre ambientes es un tema que genera debate. Sin embargo, consideramos que otras propuestas metodológicas eran aún má s subjetivas en cuanto al estimar el área a resarcir, por lo que decidimos decantarnos por Hábitat/Hectárea debido a la relativa similitud y proximidad de los sitios a comparar. 8 . La metodología Hábitat/Hectárea original se enfoca en la comparació n de estructura de hábitat (número de árboles, troncos caído s, etc) nosotros implementamos también una comparación de diversidad en distintos grupos taxonómicos. Es decir, en nuestro estudio evaluamos no sólo la estructura de há bitat sino también la composición de especies (de plantas, vertebrados e insectos de sotobosque), siguiendo un algoritmo similar, pero manteniendo los análisis separados. En nuestro informe esos análisis aparecen en el capítulo II (pág. 47–111) y capí tulo III (112–206) . De estas evaluaciones, obtuvimos el estimado de entre 220 y 332 hectáreas en el caso del análisis de estructura de hábitat y de 290 hectáreas en el caso del análisis de componentes de diversidad. Debi do al principio de que la compensación debe maximizar la ganancia al ambiente, la figura que manejamos es de 332 hectáreas de un ambiente similar al encontrado en ASETREK para compensar lo que se perdería en el sitio de impacto en RBLB. Esa es la razón de la proporció n 3:1 que se indica en el informe. 9. Una recomendació n en nuestro informe, que ha generado mucha crítica y confusió n, y que parece ser la razón del recurso de inconstitucionalidad, es la incorporació n de las propieda des Brindis de Amor y Ciruelas al plan de compensación. Como se menciona anteriormente, siguiendo la metodología propuesta se concluye un resarcimiento de tres hectáreas de ASETREK por cada una perdida en RBLB. Sin embargo, en la página 209 de nuestro informe indicamos la conveniencia de emplear ademá s otras propiedades que dispusieran de elementos importantes para la conservación, adicionales al área en ASETREK. Incluso se indica (pág. 217) las razones por las que consideramos que el embalse que se formaría en la zona de inundación debería ser parte de la compensació n. Aunque estas áreas no fueron analizadas con la profundidad que lo hicimos en ASETREK, hacem os énfasis en que emplear estas propiedades mejora la propuesta de compensació n. Nuestro razonamiento una vez más está basado en maximizar en lo posible las ganancias para el ambiente. La selección de Brindis de Amor no es casual, ni arbitraria como se intenta hacer creer en los documentos enviados. A esa propiedad, ubicada en el extremo noroeste de la RBLB, la atraviesa uno de las pocas quebradas permanentes de la zona (río Cabu yo) y mantiene una breve cobertura riparia. La vegetación en este sitio sí fue evaluada , como se indica en las páginas 210 –216 de nuestro informe. Además, tal y como también indicamos en el informe, los estudios ininterrumpidos por más 25 añ os en el área de la Dr. Susan Perry (Universidad de California, Los Ángeles) señalan que tropas de monos carablanca (Cebus capuccinus ) de la Reserva Biológica Lomas de Barbudal utilizan los bosq ues dentro de Brindis de Amor como sitios de alimentación y descanso. Es decir, hay evidencia de un constante flujo de animales desde y hacia la Reserva. El empleo de Brindis de Amor como sitio de forrajeo demuestra la importancia biológica de esta propied ad y lo acertado que sería protegerla. El anexar una fracción de la Hacienda Ciruelas obedece a evitar dejar una península en el contorno de la RBLB de anex arse Brindis de Amor, lo que contravendría las nociones bá sicas del diseño de reservas, que trata de minimizar el efecto de borde y su afectación a las especies que se desean proteger. Además, esa fracció n contiene también un fragmento de cobertura riparia. En nuestro propio informe indicamos que, de tener que decantarse entre una de esas dos propiedades, se sugiere que se adquier a Brindis de Amor puesto que Ciruelas ya está manteniendo alguna protección en esa zona de su propiedad. Nuestros detractores indican que el estudio no evaluó esas propiedades. Eso no es del todo correcto, pues como se menciona anteriormente si hubo una e valuación de vegetación en la propiedad Brindis de Amor. La razó n por la que no se evaluaron otros grupos taxonómicos (fauna) es que: (1) ya hay evidencia de la importancia de ese lugar para la fauna de la RBLB; (2) el incluir esta propiedad complementa la propiedad de ASETREK; (3) Brindis de Amor efectivamente fue identificada después de que se apostara por compensar con ASETREK. El fragmento en la Hacienda Ciruelas (llamado por error Rancho Wilson en nuestro informe) efectivamente no fue evaluado. Sin embargo, vuelvo a reiterar que asumir la protección tanto esta propiedad como Brindis de Amor vendrí a a dar un mejor servicio al ambiente que pretende conservar la RBLB. 10. Como otros estudios ambientales que se realizan, como instrumentos de e valuación y análisis sobre los cuales basar decisiones de manejo, los estudios de compensación deben completarse en un periodo de tiempo razonable y con un presupuesto restringido. Esto significa que los estudios tienen limitaciones en cuanto al tiempo de monitoreo pero también en cuanto a los grupos taxonómicos y variables a ser contempladas. Siempre será posible incorporar más informació n a partir de extensiones del periodo o de variables a la hora de realizar un estudio ambiental, pero en l a práctica es claro que un estudio no puede extenderse ni en tiempo ni en presupuesto ilimitadamente. Por esta razón, consideramos que emitir objeciones sobre estos aspectos no aporta mayor información a la hora de evaluar este tipo de trabajos. 11. En alg unos párrafos de los documentos analizados, y en particular en las opiniones del Dr. Jorge Lobo, se hacen cuestionamientos directos a la capacidad del equipo de trabajo de la OET para la identificación de ciertos grupos, en particular plantas. Este juicio no es de recibo. Por un lado, la Organización para Estudios Tropicales t iene presencia científica en el área desde 1970, cuando se crea la Estación Biológic a Palo Verde en lo que hoy es el Parque Nacional Palo Verde. Esa estación ha contribuido con la generación del grueso de conocimiento en la Cuen ca Baja del Tempisque, y sus directores científicos, incluyéndome, han representado un importante apoyo a la ges tión del SINAC en la región. Entre otros importantes insumos científicos, la estación meteorológica y el Herbario Ulises Chavar ría brindan los acervos de información sobre clima y flora tanto para Lomas de Barbudal como para Palo Verde. Además, el equipo formado por la OET para abordar este estudio incluye a dos profesores de la Escuela de Biologí a, con grado de doctorado y con sólida experiencia en sus grupos de especialidad, así como la colaboración de un tercer catedrático de esta misma escuela para la identificación de Hymenoptera, que incluyen polinizadores. Además, se incluyen tres especialistas con grado acadé mico de Maestría, uno de ellos también funcionario de la Universidad de Costa Rica, así como tres profesionales independientes. Nuestro proyecto fue inscrito en la Vicerrectoría de Investigación de la Universidad de Costa Rica (Proyecto 741-B6-A02) y el informe final fue aprobado por el Consejo de Investigación del Instituto Clodomiro Picado. En ningú n momento recibimos nosotros copia de las declaraciones del Dr. Lobo o de la Direcció n de la Escuela de Biología en contra del estudio realizado. S uponer que el estudio es débil sólo porque alguien de una unidad académica tiene objeciones sin mucho fundamento es no querer reconocer que otras unidades de la misma institución sí lo respaldan. 12. Finalmente, para entender nuestra posición en este debat e, es importante que se distinga entre juicios basados en opinió n y juicios basados en evidencia. La opinión es una estimación o concepto basado en la experiencia, que puede o no apegarse a la realidad y por lo tanto no se tiene la confianza total sobre la verdad del conocimiento. Los juicios basados en evidencia se realizan sobre hechos o bases tangibles, por lo que deben ser interpretados como má s apegados a la realidad. Consideramos que el esfuerzo realizado en el estudio de línea base y la estimación de compensación sobrepasa con creces estudios similares realizados para otros proyectos, y nuestras bases de datos, especí menes de museo y herbario así lo testifican. Los juicios que emitimos en nuestro informe se basan en evidencia. 13. En nuestro estudio, maximizamos el contraste entre el ambiente a impactar en la Reserva Lomas de Barbudal y áreas de potencial compensación. Nuestra posició n es que, de realizarse el embalse sobre el Rio Piedras y con ello la consecuente inundació n en 113 hectáreas de la reserva, se compense ese impacto con las propiedades ASETREK, Brindis de Amor y Ciruelas, y que desde el inicio se maneje el humedal artificial que se establecerá en el á rea de impacto. Esta es una ganancia real y sustantiva. Hacer objeciones menores para soca var el estudio es perder la perspectiva de qué es exactamente lo que se está planteando. Del mismo modo, pretender argumentar en contra de la metodología po r temor a sentar un precedente que permita el redibujar los límites de otras á reas protegidas nos hace perder la perspectiva del punto en cuestión: de necesitarse, efectivamente se puede lograr una compensación positiva en términos ambientales en la Reserva Biológica Lomas de Barbudal. A continuación procederemos a contestar las observaciones que se refi eren a nuestro estudio en el Documento 0001-01-09-2019 (Acción de Inconstitucionalidad contra la ley #9610) enviado. Dado que los otros 7 documentos repiten mucha de esta esa información, y se refieren más a la contestació n de diferentes Instituciones y Organismos a la misma acció n de inconstitucionalidad y no platean dudas o nuevas interrogantes sobre nuestro informe, consideramos que con estas respuestas a transcripciones literales de la acción de inconstitucionalidad abarcamos todas las posibles interrogantes planteadas: Documento 0001-01-09-2019. ACCIÓN DE INCONSTITUCIONALIDAD Contra la ley #9610, “MODIFICACIÓN DE LÍMITES DE LA RESERVA BIOLÓGICA LOMAS BARBUDAL PARA EL DESARROLLO DEL PROYECTO DE ABASTECIMIENTO DE AGUA PARA LA CUENCA MEDIA DEL RÍO TEMPISQUE Y COMUNIDADES COSTERAS”, publicada en el Alcance #199 de La Gaceta del 23 de noviembre del 2018. • “ Página 9. R/ Se externa opinión infundada de que el estudio es superficial y sesgado, dado que los términos de referencia del estudio fueron definidos por SENARA. Además se indica que la selecció n de compensación en ASETREK fue arbitraria. Esto no es c orrecto. Los términos de referencia se basan en las obser vaciones del SINAC. Además la selección de la propiedad ASETREK se basa en la recomendación del SINAC, dado que es la propiedad má s cercana al sitio de afectación con cobertura vegetal y estructura d e hábitat que valieran la pena evaluar.” • “Pá ginas 9 y 10. R/ Se indica que no hubo revisión de todas las propiedades adyacentes al RBLB para buscar aquellas que potencialmente pudieran compensar las pérdidas por el impacto en la reserva. Nuestro equipo hizo una revisión mediante análisis de imá genes para confirmar la elección de ASETREK como área potencial de compensació n. Además, personal del SINAC ya previamente habían realizado un ejercicio similar antes de decantarse por ASETREK. La metodología seguida (Hábitat/Hectárea) fue aprobada por SI NAC y SENARA. Siguiendo esta metodología concluimos que: (1) Si es posible hacer una equivalencia ecológica entre los dos sitios (RBLB y ASETREK); (2) Que la compensación en área es una proporció n de 3:1. Sin embargo, tal como especificamos en nuestro informe, nuestra rec omendación fue solicitar aún más para resarcir las pé rdidas en la reserva, en aras de mejorar el resarcimiento en té rminos del ambiente. La incorporación de estas dos propiedades en nuestra recomendación final no requería mayor evaluación pues constituyen una anexión complementaria más no esencial dada la metodología trazada. Si bien es cierto que la pro piedad de Ciruelas no fue evaluada, es importante aclarar que en la propiedad de Brindis de Amor realizamos un levantamiento de la estructura y composición vegetal tal como se especifica en nuestro informe.” • “Página 10. Se indica que “ Ni en el Estudio de la OET, ni en el proceso de discusión del proyecto en la Asamblea Legislativa, consta que se hubiera hecho consulta a las comunidades adyacentes a la RBLB sobre la afectación que ese cambio en los lí mites de la reserva biológica podría ocasionarles”.” R/ Este comentario evidencia que no hay claridad en las dimensiones y alcances del estudio de la OET, situació n indicada en el considerando # 6 arriba. • “Página 10 y 11. El Estudio de la OET que se utiliza para justificar la desafectació n de las 113 hectáreas es un estudio que no cumple con los requisitos que ha establecido la Sala Constitucional para esos propósitos. Tiene gran cantidad de falencias de índol e técnico y científico según lo señala la Facultad de Biología de la Universidad de Costa Rica.” R/ No es claro a qué se refiere con “requisitos que ha establecido la Sala Constitucional”. Respecto a las falencias de orden técnico y científico señaladas p or la Escuela de Biología, uno supondría que la Escuela se pronunciaría directamente a la OET o a alguno de los investigadores que realizaron este estudio y que a su vez son personal docente de la Escuela. Si hay observaciones, lo correcto es que estas se le hicieran llegar a las instancias indicadas, pero este no es el caso: nos encontramos en la emisión de juicios de opinión. El proyecto de hecho fue inscrito a la Vicerrectoría de Investigación de la Universidad de Costa Rica y aprobado en Consejo de Investigació n del Instituto Clodomiro Picado, también de la misma Universidad. Si la Escuela de Biología tiene reservas en cuanto a aspectos técnicos de este proyecto, otras instancias no parecen tenerlo. • “Páginas 12 y 13. Dice “ Una de las consecuencias de la aprobación de esa ley, así como de la represa, el embalse con un espejo de agua de 850 hectáreas, y má s de 300 kilómetros de canales que se pretenden construir a partir de esta ley, es la afectación del humedal de Palo Verde, el cual tiene un nivel de protección internacional mediante el Convenio RAMSAR. Para la desafectación de 113 hectá reas de la RBLB, la cual forma parte del Humedal de Palo Verde, no se procedió con el procedimiento establecido en ese instrumento internacional para desafectar el área a inundar” . Eso mismo señala el Consejo Regional del Área de Conservación Arenal Tempisque (CORACAT) mediante oficio SINAC-CORACAT-049-2018: “…Según se señaló en el acuerdo 3 del acta de la sesión extraordinaria 04-2017 del Consejo Nacional de Áreas de Conservació n (CONAC), es necesario que se comunique a la Convención Relativa a los Humedales de Importancia Internacional especialmente como Hábitat de Aves Acuáticas, conocida como Convenio de Ramsar, la intención de realizar este proyecto y activar cualquier otro procedimiento para cumplir con los compromisos país. Además, es importante tomar en consideración que, al amparo de la Convenció n sobre la Protección del Patrimonio Mundial, Cultural y Natural, c onocida como Convención de Patrimonio Mundial de la UNESCO, el sitio patrimonio mundial Área de Conservació n Guanacaste se encuentra bajo monitoreo por parte de la UNESCO. En la sesión má s reciente del Comité de Patrimonio Mundial, este órgano decidió soli citar al país una evaluación ambiental estratégica de la zona, que permita prever los posibles impactos directos o indirectos de los proyectos en el sitio patrimonio mundial, aun cuando estos se encuentren fuera de sus límites. Si bien este proyecto de ley no impacta de manera directa el sitio patrimonio mundial, la Reserva Biológica Lomas Barbudal colinda con el Corredor Biológico Morocochas, el cual a su vez colinda con el Parque Nacional Rincó n de la Vieja incluido en el sitio patrimonio mundial. Por ello, es necesario que se analice si el Proyecto de abastecimiento de agua para la cuenca media del Río Tempisque y Comunidades Costeras puede tener algún impacto indirecto en el sitio patrimonio mundial, y valorar la activación de los mecanismos pertinente para comunicar al Centro de Patrimonio Mundial esta inic iativa.” Esto último tampoco fue considerado en el estudio de la OET, el cual es omiso sobre el procedimiento para desafectar un área que forma parte de un humedal que cuenta con protección internacional, según se desprende de documentos oficiales de RAMSAR. Dicho convenio establece en el Artículo 4 inciso 2 que cuando una Parte Contratante, por motivos urgentes de interés nacional, retire de la lista o reduzca los límites de un humedal incluido en ella, deberá compensar en la medida de lo posible, la pérdida de recursos de humedales y, en particular, crear nuevas reservas naturales para las aves acuáticas y para la protección de una porció n adecuada de su hábitat original, en la misma región o en otro lugar. Dicho sea de paso, la modificación de los límites de la RBLB no ha sido declarada de urgente interés nacional.” R/ Una vez más se muestra desconocimiento sobre los alcances del proyecto realizado por la OET . El evaluar el impacto en los entornos aledaños al sitio del proyecto, incluyendo los potenciales efectos sobre los humedales protegidos por Palo Verde, debe ser realizado con otro instrumento: el estudio de impacto ambiental. La OET no fue responsable de dicha evaluación, por lo que este punto debe ser atendido por quien así lo fuera. Por otro lado, una rápida vista al mapa de la zona aclararía que la conexión que quiere hacerse entre Lomas de Barbudal y el Parque Nacional Rincón de la Vieja como un área protegida es a todas luces falsa. • “ Página 25 y 26. Dicho estudio hace un análisis y concluye que el área a compensar está en condiciones ecológicas más deterioradas que el área a desafectar (actualmente protegida y parte de la Reserva Biológica Lomas Barbudal). A partir de ello, el mismo estudio propuso una compensación de 3 por 1 para poder garantizar las funciones ecológicas del ecosistema. Aun así, los estudios determinaron la inexistencia en las áreas propuestas para la compensació n del bosque ripario, siendo este uno de los objetos de conservació n definidos en la creación del área protegida; por ello, el criterio del ACAT desde un inicio, es que, se debe de compensar este objeto de conservación (bosque ripario); por lo que al final, el SENARA recomienda básicamente una compensación de 5 a 1, o sea, compensar con á rea 5 veces mayor a la que eventualmente se desafectaría.” R/ Tal como se indica anteriormente, la sugerencia de anexar otras propieda des fue para mejorar el resarcimiento ambiental, completando los resultados obtenidos con e l empleo de la metodología seguida en el estudio. • “Pá gina 32. Dice: “ el estudio realizado por la OET para la compensación del área desafectada no menciona el humedal de palo verde del cual forma parte la RBLB, ni detalles sobre cómo compensar el área del humedal afectada. Tampoco menciona la convención de patrimonio m undial de la UNESCO, la cual da una protección especial a toda el á rea de conservación de Guanacaste. ese estudio también es omiso en relació n con la totalidad de las propiedades que se pretenden utilizar para compensar el área desafectad a, ya que fue realizado únicamente sobre la propiedad perteneciente a la sociedad ASETREK y no sobre las otras propiedades que finalmente se incorporaron a la ley que estamos impugnando.” R/ Este párrafo muestra desconocimiento o intensió n de confundir al lector. El área d e impacto en la parte sureste de la Reserva Lomas de Barbudal no es un humedal ni está conectado con los humedales del Parque Nacional Palo Verde. Además, ni Lomas de Barbudal ni El Parque Nacional Palo Verde se encuentran en el Área de Cons ervación Guanacaste (ACG, patrimonio de UNESCO) sino en el Área de Conservación Arenal-Tempisque (ACAT). Las fincas identificadas y evaluadas como potenciales agentes de compensación no lo son tampoco. El estudio de la OET se limita a establecer cuales elementos y estruc tura hay en los ambientes del sitio de impacto y evalúa si es posible y por cuá nto se podría realizar la compensación. • “Página 37 y 38: Dice: “ Pues bien, la ley #9610 que se impugna mediante esta acción de inconstitucionalidad clar amente viola el artículo 50 de la Constitución Polí tica, ya que no incorpora un estudio serio, integral y objetivo, sobre las consecuencias de la desa fectación de 113 hectáreas de la RBLB, y la sustitución o compensación con unas 500 hectáreas de propiedades priva das que se pretende incorporar a la reserva biológica”.” R/ Opinió n no fundamentada. El argumentar que el estudio es incompleto no es de recib o, toda vez que los críticos ni siquiera indican por qué lo es. Ya se mencionó previamente el razonamiento sobre la anexión de la s propiedades de Brindis de Amor y Ciruelas a las recomendaciones seguidas en nuestro informe. • “ Página 44-72: Dicho todo lo anterior, corresponde determinar si el Estudio de la OET cumple a cabalidad con el criterio té cnico y científico establecido por la Sala Constitucional como requisito para reducir el área de un área protegida. Ese requerimiento de estudios té cnicos no es una mera formalidad, sino que se trata de un requisito material, es decir materialmente se tien e que demostrar, mediante un análisis científico e individualizado, el grado de impacto de la medida correspondiente en el ambiente, plantear recomendaciones orientadas a menguar el impacto negativo en este, y demostrar cómo tal medida implica un desarrollo que satisface las necesidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades.” R/ Otra vez, se confunde el alcance del estudio realizado por la OET con el estudio de impacto ambiental del proyecto. El mezclar las dimensiones de estos estudios pareciera una estrategia planteada con alevosía para llegar a unas conclusiones prestablecidas. • “Pues bien, en el caso concreto, consta en el tomo dos del expediente legislativo que dio origen a la ley aquí impugnada, un estudio realizado por la Organizació n de Estudios Tropicales (OET), que corresponde a un estudio de línea base de b iología, con el que se pretende justificar la adquisición de la finca conocida como ASETREK, para reponer las 113 hectáreas de bosque que se desafectan con la ley que se está impugnando mediante esta acció n de inconstitucionalidad. (Ver Anexo 6 de esta acción de inconst itucionalidad).” R/ Correcto en que el estudio realizado por la OET es el estudio de línea base. Si el resultado de ese estudio así lo refrenda, entonces se podría plantear la adquisición de la finca ASETREK. Tal fue el caso. • “Dicho estud io no es completo, ni objetivo, ni científico, ni técnico, ya que adolece de muchas omisiones y debilidades. Para empezar, el alcance del estudio fue determinado por SENARA, quien fue la entidad que contrató a la OET para su elaboración. En el oficio SENARA-INDEP-172-2017 del 28 de marzo de 2017, suscrito por el Ing. Marvin Coto, Director de Ingeniería y Desarrollo de Proyectos del SENARA, este le hace un recuento a la gerente general de esa institución, Patricia Quirós, sobre el proceso de selección de la finca de compensació n y del proceso de licitación para contratar el Estudio de Línea de Base, como se puede leer en el siguiente segmento: “…En el año 2015, se promovió en dos ocasiones la licitación para la realización del estudio técnico qu e permitiera gestionar la compensación y desafectación del á rea requerida de la RBLB. Sin embargo, dichas licitaciones fueron declaradas desiertas por falta de oferentes, por lo que, después de varias reuniones se logró un acuerdo y se suscribió en enero de 2016 el “Convenio entre la Organizació n para Estudios Tropicales (OET) y el SENARA para realizar el Estudio para el establecim iento de la línea base de biodiversidad para la RBLB y finca adyacente”, en el marco del Proyecto Sistema de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras (PAACuMe). El estudio tiene el objetivo de elaborar y definir la línea base que permita determinar la integridad ecológica, relevancia y fragilidad de los ecosistemas presentes, así como la biodiversidad existente, en el á rea de la RBLB a ser impactada directamente por el Embalse Rí o Piedras. A la vez, se efectúa un análisis comparativo entre un área de la RBLB y terrenos aledaños previamente seleccionados (finca ASETREK Tres Azul S.A.), para conocer las condiciones de similitud y factibilidad de utilizarse como zona de reemplazo y que sea ecológicamente equivalente. Es importante señalar que la propiedad fue seleccionada por su relación de conectividad con la RBLB, ya que es fundamental para el manejo y la administración por parte del Sistema Nacional de Áreas de Conservació n (SINAC). Esta propiedad se encuentra a nombre de ASETREK Tres Azul S.A., cédula jurí dica N° 3-101-370259, con Ramón Aguilar Facio como apoderado generalísimo, cédula de i dentidad N° 9-0001-0541, plano catastrado N° 5- 666-1976, folio real N° 034932-000, situada en el distrito primero Bagaces, del cantón cuarto Bagaces, de la provincia de Guanacaste, con un área de registro de 751 hectáreas….”.” R/ Otra vez se emiten la s opiniones no basadas en evidencia sobre lo incompleto del estudio y se menciona que tiene debilidades y deficiencias sin indicarlas. Estos pá rrafos pretenden desacreditar a portas el estudio realizado por la OET, por haber atendido la solicitud de SENARA . El estudio fue efectivamente solicitado por SENARA a la OET y no hay pecado en ello. Desde el inicio, se le indicó al Ing. Marvin Coto, entonces encargo del proyecto por parte del SENARA, que la OET haría un estudio los más objetivo posible, apegado a sus conocimientos té cnicos, y que los resultados serían presentados tal cual. Además uno de los requisitos planteados por OET para participar, fue el de hacer transparentes los datos e información que se generarían en el estudio. Esto ha sido respetado desde el primer momento por parte de nuestra Organización. • “Hacia el final del estudio de 237 pá ginas, la OET hace una mención de dos fincas más: Brindis de Amor (que es la propiedad perteneciente a la sociedad 3-101-734726 S.A., la cual es conocida como Bri ndis de Amor, o Brindis de Amor en Liberia), y Hacienda Ciruelas. A ninguna de ellas se le hizo el estudio de línea base de biología, que permita determinar científicamente, que se trata de propiedades que efectivamente cuentan con características medioambientales que reempl acen las funciones eco sistémicas del área que se va a desafectar. En caso de la propiedad perteneciente a Hacienda Ciruelas es aún más dramá tico, ya que solo se menciona en 8 renglones del estudio de 237 pá ginas.” R/ Ya se ha mencionado el razonamiento que se empleó en incorporar estas dos propiedades en la sugerencia final para compensació n. Indico aquí, que se sigue tratando de invisibilizar el esfuerzo qu e realizamos para caracterizar la vegetación y estructura en Brindis de Amor. • “Específicamente en la página 215 del Estudio d e la OET refiriéndose a la propiedad perteneciente a Hacienda Ciruelas SP S.A. como Rancho Wilson. En conclusió n, ese Estudio de la OET no incorporó estudios sobre las condiciones biológicas de dos de tres fincas con las que se pretende compensar las 113 h ectáreas que se desafectan con la ley.” R/ Efectivamente fue mi error en la redacción de un texto de 267 páginas al emplear el nombre antiguo de la propiedad en lugar del actual Hacienda Ciruelas SP S.A. Se insiste en desatender el razonamiento expuesto en nuestro informe final, sobre la razó n de peso de por qué se anexaron las fincas Ciruela y Brindis de Amor a la propuesta. • “Así las cosas, resulta materialmente imposible que haya certeza científica sobre la idoneidad de las tierras que fueron anexadas a la Reserva Biológica Lomas de Barbudal, por lo tanto, la decisió n legislativa de reemplazar las hectáreas que desafectan de la R eserva Biológica Lomas Barbudal, no resiste el control de constitucionalidad, por no tener el sustento té cnico suficiente para justificar su adopción, y claramente viola el principio de no regresividad en materia ambiental.” R/ Creo que antes de llegar a esas conclusiones y recomendaciones, quien redacta este párrafo debe leer el informe final de nuestro estudio y tratar de comprenderlo. • “ La Sala Constitucional hace pocos años consideró que el proyecto de ley denominado "Ley de reconocimiento de los derechos de los habitantes del caribe sur", expediente legislativo número 18.207, era inconstitucional por violació n al artículo 50 de la Constitución Política, toda vez que se sustenta en un estudio incompleto porque no determinaba técnica y científicamente cuál iba a ser el impacto real sobre el ambiente, vicio que es de carácter esencial del procedimiento legislativo. (Exp: 12-011721-0007-CO, Res. Nº 2012013367, SALA CONSTITUCIONAL, a las once horas y treinta y tres minutos del veintiuno de setiembre del dos mil doce.) Eso exactamente es lo que sucede con esta ley, ya que el estudio que acompañ a al expediente legislativo para justificar la desafectación de 113 hectáreas de una RESERVA BIOLÓGICA, está claramente incompleto y no determina técnica ni científicamente cuá l será el impacto sobre el ambiente de esa desafectación para posteriormente inundar esa cantidad de tierra. El estudio no solo no se hizo sobre 2 de las 3 propiedades que se pretenden utilizar como compensación, sino que tampoco analizó la afectación que podrí a ocasionarle al Parque Nacional de Palo Verde, el cual es un Humedal con p rotección internacional brindada por la Convención de RAMSAR, del cual forma parte la RBLB según se desarrolló en el punto A) anterior sobre la Fundamentación de Derecho de esta acció n de inconstitucionalidad.” R/ Otra vez el autor de estas líneas trata de confundir el estudio de impacto ambiental con el estudio de compensación. Y otra vez se refieren a las dos propiedades (Brindis de Amor y Ciruelas) que fueron recomendadas para la compensación además de las tierras de ASETREK. • “En el párrafo anterior, se resaltaron las palabras RESERVA BIOLÓG ICA, para hacer ver a los señores magistrados que estamos precisamente ante un á rea de protección que tiene una categoría comparable con la de un Parque Nacional, que es de PROTECCIÓN ABSOLUTA. No es una zona protectora o un refu gio de vida silvestre. Es una RESERVA BIOLÓGICA. Por lo tanto, el tipo de Estudio para permitir una desafectación de una porción tan grande como 113 hectáreas debe ser té cnicamente muy sólido y completo, debe ser integral y comprensivo de todos los posibles impactos ambientales, y especialmente debe ser muy riguroso con el estudio sobre el área a compensar. Eso no sucedió con el estudio de la OET contratado por SENARA con los términos de refe rencia definidos por esa entidad.” R/ Se equivocan en varios puntos. Primero el estudio de compensación y el estudio de impacto ambiental son diferentes instrumentos. En este caso el primero fue realizado por nosotros como un estudio de la OET, el segundo fue realizado por el ICE. Segundo, los términos de referencia fueron previamente consultados por SENARA a SINAC, por lo que tenían el aval de la autoridad en materia de áreas protegidas en el país. • “Para ratificar lo mencionado, solo basta con leer algunos extractos del informe del Dr. Jorge Lobo Segura, comisionado po r la Escuela de Biología de la Universidad de Costa Rica para responder a un requerimiento de información de la Secretaría Técnica N acional Ambiental (SETENA) relacionada con el proyecto PAACUME, el cual fue diseñ ado a partir de un embalse (podrían haber buscado otras opciones) que requiere inundar 113 hectáreas de la RBLB. El Dr. Lobo Segura señala una gran cantidad de falencias desde el punto de vista técni co y científico del estudio de la OET, como se observa al leer la secció n “1.1 Observaciones al estudio de la OET para la compensación del á rea inundable por el embalse” en su informe. Esas falencias claramente permiten mostrar que la desafectación de las 113 hectáreas de la RBLB no cumple con los parámetros establecidos por la Sala Constitucional para determinar si se puede reducir un área protegida, y má s tratándose de una reserva biológica que tiene un nivel de protección absoluta comparable con la de un parque nacional.” R/ No es claro a qué se refiere con “los parámetros establecidos por la Sala Constitucional para determinar si se puede reducir un área protegida”. En primer lugar la legislación es clara que no se puede reducir un área protegida; lo que faculta es a modificar sus límites pero sin reducir su superficie. · “A continuación, se procede a transcribir esa sección del informe del Dr. Lobo, resaltando en negrita lo que se considera má s relevante, igual que lo que señala el Dr. Lobo en la carta de remisión de su informe al director de la Escuela de Biología, el M. Sc. Daniel Briceñ o. “A su solicitud, adjunto mis observaciones al Estudio de Impacto Ambiental del Proyecto de Riego PAACUME (D1-21601-2017-SETENA), según solicitud del Secretario General de la Setena, MSc. Sergio Bermúdez Muñoz, del 12 de julio del presente año. Aunque la solicitud or iginal de la SETENA era la presentación por parte de la Escuela de Biología de alguna restricción, limitante o recomendación especí fica sobre este proyecto, preferí entregar mis observaciones como observaciones generales del Estudio Impacto Ambiental, particularmente sobre el impacto bioló gico. En el documento se desarrollan algunos de los impactos ambientales potenciales del proyecto que a mi modo de ver no han sido considerados en el E.I.A., así como una crítica a los criterios de compensación por la inun dación de 113 has de la Reserva Biológica de Lomas de Barbudal por el embalse Rí o Piedras, parte substancial del proyecto de riego PAACUME.” R/ Aquí se hace referencia otra vez a la opinión de nuestro colega Dr. Jorge Lobo. Es claro que lo solicitado por SETENA a la Escuela de Biología fue referente al Estudio de Impacto Ambiental. El Dr. Lobo confunde en su respuesta aspectos de ese estudio sobre el de compensación realizado por nosotros. • “Es evidente que, en mi criterio, la restricció n más importante que la Escuela de Biología puede presentar a este proyecto de riego es la afectación de esta á rea protegida, así como de los bosques secos en fincas privadas que quedará n inundados por un embalse de 850 has. La propuesta de compensación del E.I.A., consistente en la adición de nuevas á reas a la RBLB como substitución de las tierras que serán inundadas, son a mi criterio un procedimiento insuficiente en relació n a los daños ambientales que un embalse de tales dimensiones ocasionará sobre la integridad ecológica de esta importante á rea protegida del bosque seco de nuestro país. Atentamente Dr. Jorge Arturo Lobo Segura Escuela de Biología”. R / Efectivamente, el crear un embalse tendría un impacto negativo sobre el ambiente que sería inundado. Por eso se necesitaría compensar. La pregunta que debería plantearse es cómo hacer esa compensación de modo que sea justa con el ambiente e incluso maximice la ganancia ambiental. Aquí una crítica que podría hacerse al Dr. Lobo y la respuesta de la Escuela de Biología es que no hacen ningú n esfuerzo en proponer soluciones al problema. • “Consecuencias bioló gicas del embalse PAACUME: Uno de los impactos ambientales más importantes del proyecto de riego PAACUME será la inundación de aproximadamente 850 has para la formación del embalse. El á rea del embalse incluye 113 has de la Reserva Biológica de Lomas de Barbudal. El E.I.A., en diversos capítulos, menciona el estudio “Establecimiento de la línea base de biodiversidad para la Reserva Biológica Lomas de Barbudal (RBLB) y finca adyacente” elaborado por l a Organización de Estudio Tropicales (OET) en enero del 2017, como fundamento para la compensación de los daños ambientales a esta Reserva Biológica. El documento de la OET propone la incorporación de nuevas áreas pertenecientes a fincas privadas colindantes a la Reserva. Este estudio es par te sustancial del E.I.A. de PAACUME, y está incluido como el Anexo No. 8.2 del Tomo II del E.I.A. A seguir se presentan algunas observaciones al estudio de la OET, para seguidamente desarrollar algunos aspectos que me parecen no ha sido considerados para la compensación o mitigación de los efectos del embalse.” R/ Efectivamente en el Estudio de Impacto Ambiental hay referencia al estudio de compensació n realizado por nosotros (OET). Pero, como se ha mencionado, son dos estudios distintos que persiguen objetivos distintos y que abarcan zonas distintas. • “ Observaciones al estudio de la OET para la compensación del á rea inundable por el embalse. 1.1.1 Marco teórico. El estudio adopta, como metodología para calcular el área d e compensación, la cuantificación del valor relativo de diferentes aspectos de los ecosistemas, asignando un valor numérico a diferentes variables ecosistémicas. Este ejercicio se realiza para el área inundable de Lomas de Barbudal y su correspondiente eco sistema comparable en la finca ASETREK, propiedad donde se encuentran las posibles á reas de compensación. Para realizar la comparación numérica de la calidad de há bitat se divide el área de cada sitio en tres ecosistemas principales: bosque ripario maduro, bosque deciduo y bosque secundario. Se asignan puntajes según el número de especies de diferentes grupos taxonómicos, o según la cobertura de bosque, número de estratos, etc. Se contabilizan los puntajes en cada á rea, para después obtener los totales. Como en muchos casos la finca ASETREK tiene menor puntaje que el ecosistema correspondiente de Lomas de Barbudal, se calcula el área necesaria de la finca de compensación para nivelar el puntaje del área afectada. Así llegan al cálc ulo final que se requerirían 252 has (después se mencionan 330 has, en esto hay una cierta confusió n al final del estudio) de una finca como ASETREK para compensar las 113 has inundadas de Lomas de Barbudal. Mi opinió n es que este marco teórico es un ejercicio numérico que lleva a u na contabilidad peligrosa, poco fundamentada biológicamente. Las categorías para definir puntaje, los aspectos del ecosistema que fueron comparados, y los valores numéricos otorgados a cada categorí a son en buena parte arbitrarios, están sobrevalorando algunos aspectos y subvalorando otros, como se podrá ver más adelante con algunos ejemplos. El problema principal es establecer un principio de compensación, supuestamente cuantitativo, DONDE MODIFICANDO EL TAMAÑO DE UN AREA DE COMP ENSACION SE PUEDE IGUALAR EL AREA PERDIDA DENTRO UN AREA PROTEG IDA. Esto es equivocado, y los autores dejan escapar dudas sobre este procedimiento en las páginas finales del informe. LAS POBLACIONES O ESPECIES AFECTADAS POR LA PERDIDA DE UN AREA PROTEGIDA NO NECESARIAMENTE APARECERAN, EN SU ABUNDANCIA ORIGINAL EN UN AREA DE COMPENSACION, AUNQUE SE AUMENTE MUCHAS VECES SU AREA, AL NO EXISTIR EN EL AREA DE COMPENSACION LOS HABITATS Y RECURSOS REQUERIDOS POR ESTA E SPECIE, O LOS NUCLEOS POBLACIONALES O LAS FUENTES PARA LA MIGRACION DE POBLACIONES QUE GARANTIZEN SU REPOBLAMIENTO.” R/ Es correcto el resumen de la metodologí a, y como bien se indica en nuestro informe, como cualquier otra esta metodología tiene ventajas y limitaciones. Ahora, el Dr. Lobo confunde resultados de nuestro procedimiento. En el caso del análisis de estructura de hábitat, la compensación se realizaría con 330 has (la fuente de la relación 3:1 que se ha mencionado anteriormente). En el caso del análisis de com posición biótica (que incluye identidad de especies y su comparació n entre sitios) la compensación se realizaría con menor área. El Dr. Lobo indica claramente que lo que sigue es su opinión, y no muestra evidencia de datos concretos que la sustente. Contrario a eso, nuestro estudio cuenta con bases de datos só lidos y concretos sobre las especies que existen en esas áreas a comparar. Además, por su comentario pareciera que el Dr. Lobo visualiza compensación como un resarcimiento en términos de igualdad de especies y condiciones, cuando ya hemos explicado de lo que se trata es de encontrar la equivalen cia entre ellas. Donde sí coincidimos con el Dr. Lobo es que efectivamente el tema de incrementar á rea no necesariamente asegura la mejor equivalencia ecoló gica y que este es un tema que requiere más estudio. Sin embargo, y como indicamos en nuestro consid erando #7 arriba, esa fue la metodología seguida en nuestro estudio pues consideramos que otras serí an más subjetivas. • “Diferencias drástica s en la calidad del hábitat, especialmente en el grado de alteración humana de los ecosistemas, como las que se detectaron entre Lomas de Barbudal y la finca ASETREK, no se equilibran con el aumento del área de esta última. Esta inflació n del área para compensar menos biodiversidad no va a resultar en que las especies afectadas van a restaurarse en el área de compensación, especialmente si en el área de compensació n tenemos hábitats muy diferentes al área afectada dentro del Parque Nacional o Reserva Biológica. En el á rea que será inundada de Lomas de Barbudal hay bosques riparios, y posiblemente otros há bitats no cuantificados por el estudio, que no están representados en ASETREK.” R/ La primera parte de este párrafo expresa duda sobre si la diferencia ambiental entre los sitios pude equilibrarse con un aumento de á rea. Esta idea es precisamente la lógica detrás del método de Há bitat/Hectárea seguido en nuestro estudio. Coincidimos con el Dr. Lobo que esta idea puede explorarse mejor empleando investigación. Pero recordamos a la Sala que el procedimiento seg uido aquí fue previamente aprobado por SINAC. Por otro lado, el Dr. Lobo continúa haciendo referencia a hábitats no cuantificados por el estudio, pero no indica cuales son. Aseverar que hay ambientes que no hayan sido cubier tos por nuestros esfuerzos sin presentar evidencia de ello no parece ser un argumento sustentado en evidencia. El Dr. Daniel Janzen, reconocido ecó logo del bosque seco, visitó el sitio de estudio y recomendó compensar con el máximo de área posible. Esto porque un aspecto fundamental que hay que contemplar es que los ambientes registrados no son estáticos sino que dinámicos, por lo que con el tiempo se puede lograr modificaciones positivas en el ecosistema. Por ejemplo, la cobertura denominada “bosque decid uo” en nuestro estudio es un estadio más temprano de sucesió n, que con suficiente protección tendería a transformarse en un ambiente similar al denominado “bosque secundario” en nuestro informe. • “ Sería un precedente preocupante que la Asamblea Legislativa o la SETENA consideraran este estudio como válido, porque esta prá ctica podría llevar a propiciar la afectación de los límites de más á reas protegidas, fundamentados en la compensación con finc as privadas de área mayor, pero con ecosistemas mucho más alterados de los protegidos. La contabilidad ecosistémica, y m étodo Hábitat/Hectárea (sección 1.1.3 del Estudio de la OET), avalarí an este tipo de compensaciones.” R/ Creemos que el Dr. Lobo extralimita los alcances y aplicaciones de la metodología empleada. Nadie ha pretendido que el mé todo Hábitat/Hectá rea sea empleado en todas las situaciones. Coincidimos con el temor del Dr. Lobo de que este caso particular pueda ser empleado como ejemplo en el futuro para afectar otras áreas protegidas. Incluso tenemos nuestras propias interrogantes sob re el proyecto PAACUME. Pero como científicos debemos tratar de ser objetivos en nuestros juicios. Se seleccionó una metodología que consideramos puede ser empleada para estimar el área a resarcir en caso de que el embalse se realice y se llegue a afectar 113 has en el límite sureste de la Reserva Lomas de Barbudal. Estimamos el área y sugerimos que esta sea complementada con dos propiedades má s así como el manejo del embalse. De seguirse esta recomendación, la reserva se vería beneficiada ambientalmente. N o podemos basar nuestro juico en situaciones hipotéticas futuras en otras zonas del país. · “ 1.1.2 Contabilidad de servicios ecosistémicos. Un aspecto que genera d udas la contabilidad ambiental del estudio de la OET es la contabilidad de servicios ecosisté micos, y la comparación de ambas áreas en relación a estos servicios. La contabilidad de s ervicios ecosistémicos se realizó seleccionando aquellos servicios que: ”(1) que sean productos o beneficios claramente distinguibles y cuantificables en escalas métricas; (2) que no tengan relación directa entre sí , para evitar redundancia de criterios; …”, (página 99) entre otros criterios. Este criterio deja por fuera servic ios importantísimos que los ecosistemas naturales prestan a los ambientes humanos y silvestres, pero que son difícilmente cuantificables, y que están relacionados entre sí , porque al final de cuentas la cobertura boscosa, la calidad del suelo, y la biodive rsidad son elementos comunes a todos los servicios ecosisté micos. Siempre habrá “redundancia de criterios”. Debido a est os criterios de selección, servicios ecosistémicos tan importantes como polinización, protección del suelo, protección de acuí feros, control de plagas y otros no entraron en la contabilidad comparativa de Lomas de Barbudal con ASETREK. Debo recalcar que los servicios de polinización del área inundable de Lomas de Barbudal deben ser substanciales, dada la gran diversidad de abejas que motivaron en buena parte su creación en el año 1986.” R/ Efectivamente el estudio de línea base deja por fuera la cuantificació n de muchos servicios ecosistémicos, así como muchísimos grupos taxonó micos. Para realizar estudios ambientales, debe limitarse el núm ero de objetos de estudio, de otra manera el ejercicio serí a interminable y no cumpliría uno de los requisitos básicos de un estudio sobre el que basar decisiones de manejo: el de ser realizado en un tiempo prudencial. Los servicios indicados se selecciona ron siguiendo una serie de criterios mencionados en la pá gina 99 de nuestro informe. El Dr. Lobo menciona que un servici o ecosistémico relevante es el de polinizadores. No queda claro si fue su omisión o si hace esta observación con otras intenciones, pero parece olvidar que uno de los grupos que específicamente se tratan en este estudio es precisamente el de los polinizadores, identificados todos por el Dr. Paul Hanson de la Escuela de Biología de la Universidad de Costa Rica. Aclarado este punto, el juicio emitido carece de base. • “ 1.1.3 Limitaciones del muestreo de campo. Para un estudio que pretende evaluar la diversida d ecosistémica y biológica de dos áreas medianamente extensas (en la escala de cientos de hectáreas), 10 meses de trabajo parecen insuficientes para hacer una verdadera valoración de la diversidad bioló gica de un sitio, a pesar de que el esfuerzo fue muy intensivo. Para algunos casos, como los muestreos de vegetación, a pesar de fundamentarse en un buen número de parcelas, la curva de acumulación de especies (págin a 125) muestra que aún falta más muestreo para estabilizar los conteos de diversidad de especies. Aquí puedo expresar mis dudas sobre las tablas de especies de plantas presentadas en este capítulo, donde aparentemente todas las muestras fueron identificad as a nivel de especie, lo que a mi parecer requiere un extenso traba jo en los herbarios nacionales.” • “En lo que se refiere al muestreo de especies de aves, no se dice el número de conteos fueron realizados, aunque se reconoce que “Debido a la corta duraci ón de este estudio, no se logró completar la información con muestreos en la é poca de llegada de especies migratorias del hemisferio norte, que sucede en la región durante los meses de Agosto-Mayo" (página 145). Debe señalarse que estudios a lar go plazo de poblaciones de aves, realizados por el Dr. Gary Stiles en Costa Ri ca y Colombia, muestran cambios temporales anuales y supra-anuales muy fuertes, provocando que durante inventarios de muchos años aún sigan presentándose especies nuevas, mientras otras desaparecen.” R/ Es correcto la observación que en este, como en todos los estudios a corto plazo , no se logra llegar al punto máximo de la curva de saturació n de especies de fauna, por lo que los estimados de diversidad para cada grupo taxonó mico se restringen a la metodología y periodo empleados. Sin embargo, esto no impide que se puedan hacer comparaciones entre sitios. La sugerencia del Dr. Lobo en ese sentido, de requerir muestreos mucho más prolongados y con más grupos, no necesariamente alteraría las co nclusiones. Indicamos aquí que ese tipo de argumentos prevendría un abordaje con estos grupos en proyectos ambientales a corto o mediano plazo. • “Una crític a semejante se podría aplicar a los muestreos de entomofauna (insectos), ya que est os se limitaron a la colocación de dos trampas Malaise (trampas hechas con cortinas y frascos) permanentes en cada sitio, de donde se colectaron insectos durante un año. Limitar este muestreo a esta técnica es insuficiente, muchos insectos de gran importancia ecosistémica no son eficientemente colectados con este mé todo, como mucha de la entomofauna de suelo, abejas, hormigas, etc. Un ejemplo es el número limitado de individuos capturados de la familia Apidae (abejas) (cuadro 56, página 195). Este cuadro muestra que dentro de Lomas de Barbudal no se colectó ningú n individuo de esta familia y sólo 11 abejas en ASETREK. Este resultado es totalmente equivocado. Estudios detallados en la región muestran que en un sólo árbol, durante su floración, puede colectars e de 30-70 especies de abejas y miles de individuos.” R/ Exacto. El nuestro es un estudio ambiental. No tiene ni el nivel de detalle ni intensidad de estudios de investigación. Los trabajos con abejas del Dr. Gordon Frankie por ejemplo se han realizado d esde principio de los años ochenta. No podemos comparar estudios cortos con el nivel de detalle que puede dar una serie de estudios por más de 30 años. Tampoco podemos esperar tener estudios a largo plazo para poder basar decisiones de manejo. • “1.1.4 Limitaciones del sistema de puntuación. El fraccionamiento de los ecosistemas en hábitats y elementos individuales, y la distribución, un poco arbitraria, de a cada elemento y nivel de semejanza entre el área afectada y el á rea de compensación, hace perder, desde mi punto de vista, la perspectiva general de cada sitio, creando una contabilidad que deja escapar diferencias importantes entre Lomas de Barbudal y ASETREK. Un ejemplo d e este problema es la diferencia de pendientes entre ambos sitios. En la pági na 52 del informe se reconoce que el área dentro de Lomas de Barbudal está entre los 10-80 msnm de altitud, con pendientes menores a 5%, mientras que ASETREK muestra elevaciones mayores a 85 msnm, incluyendo una meseta con elevación media de 140 msnm (pág 53). No se informa de la pendiente promedio de ASETREK. Esta diferencia es otra vez resaltada en la pág 214 del info rme, donde se discute la posibilidad de incluir otra finca (Brindis de Amor) como parte de la compensació n, ya que “en contraste con ASETREK, la propiedad Brindis de Amor tiene una pendiente leve”. Diferencias de pendientes son muy importantes, deberían de afectar el puntaje final según la filosofí a adoptada por los consultores. Sin embargo, en página 58, los consultores asignan 4 pts (de un máximo de 5) a los atri butos geofísicos de ASETREK. La gran diferencia de pendiente y alti tud sólo significó un punto menos en la contabilidad del estudio.” R/ Como anotamos en el considerando #7, los pesos de los indicadores pueden alterar la calificació n final y es una de las limitaciones de la metodología empleada. La preocupación del Dr. Lobo es genuina, en el sentido que el sistema de puntuació n podría oscurecer diferencias entre ambientes. Es precisamente por esta razón que en nuestro estudio contempla acciones como: (1) separar los análisis entre las diferentes coberturas; (2) incluir análisis de biodiversidad además de estructura de hábitat; (3) recomendar otras á reas para la compensación. En gran medida, el obsesionarse con la metodología empleada hace que se pierda la perspectiva de lo que se pretende realizar aquí: (1) Saber si se puede compensar el ambiente de un área con el de otra; y (2) determinar cuánto del área se debe emplear en la compensación. • “Otro ejemplo de como la contabilidad del estudio dejó escapar elementos importantes, fue la cuantificación de la importancia de las fuentes de agua. En la página 105 del estudio, en la secció n de “Fuentes de Agua”, se dice que dos fuentes de agua fueron identificadas en los sitios de estudio: Quebrada Viscoyol y Quebrada sin nombre. Después, en la misma página, concluyen: “De nuestras o bservaciones en el campo se concluye que, en término de fuentes de agua, accesibilidad a ellas y producción, ambos sitios son similares. Por lo tanto, siguiendo los criterios señalados en e l cuadro 16, ASETREK recibe un puntaje de 3 pts para este indicador. ". Sin embargo, en la pá gina 183 del informe, los responsables del análisis de la ictiofauna reconocen, al tratar de explicar la menor cantidad de especies de peces en ASETREK: “Esta notable diferencia en composición posiblemente refleje las diferencias en elevació n y en las cualidades de los microambientes acuáticos entre los sitios comparados: el de RBLB presenta una mayor número y más profundidad en pozas y remansos mientras que en el s istema de quebradas en el sitio de compensación en ASETREK el agua fluye más somera. Esta clase de observaciones se repite al final del estudio (pag 214), donde se dice “El sitio de compensación en ASETREK no posee quebradas permanentes…” . Aunque estas diferencias no fueron cuantificadas, es claro que el agua en superfici e prevalece un mayor tiempo en RBLB, efecto especialmente notable durante los meses de est ación seca”. La presencia de una fuente de agua con mayor permanencia en la época seca es un elemento importantísimo en la ecologí a del bosque seco, y debió de afectar en mayor proporción el puntaje. Sin embargo, fuera de las diferencias de ictiofauna, el efecto de esta variable fue indirecto, y no fue contabilizada directamente.” R/ Recordemos que la q uebrada Viscoyol es el límite entre la propiedad de ASETREK y Lomas de Barbudal. La quebrada no es permanente, sino que temporal o intermitente dependiendo d el año. El Dr. Lobo observa atinadamente que hay una discrepancia entre nuestra cuantificación de agua superficial y los resultados de ictiofauna. Sin embargo, recordemos que en nuestra metodología, los pesos de los indicadores se establecen antes de realizar el estudio. Cuando cuantificamos el agua, no encontramos mayores diferencias entre sitios. El puntaje asignado es similar. En el caso de ictiofauna sí observamos diferencias. Aquí el puntaje asignado difiere, “castigando” al sitio de menor diversidad. Si bien es cierto que segú n nuestro criterio estas diferencias deben deberse a los cuerpos de agua, recalificar los puntajes para cuerpos de agua no sería apropiado. • “ Un ejemplo más de este problema: en el capítulo 4.2. “Otras alternativas de compensació n”, se reconoce que ASETREK ha estado sujeto a talas y fuegos recurrentes, una observación que no habí a aparecido y ni había sido cuantificada en el resto del estudio .” R/ Esta aseveración del Dr. Lobo es incorrecta y denota cierta intencionalidad. Tanto Lomas de Barbudal, en el sitio de estudio, como ASETREK han sido sujetos a incendios recientes, tal y como se indica en las páginas 67, 81, 97 de nuestro informe. La figura 23B en la página 98 de nuestro informe muestra un tronco quemado en el potencial sitio de inundación en la reserva. Ambos ambientes está n muy degradados por el fuego y por la cacería, como tambié n lo indica el informe. • “Finalmente, no se consideraron variables relacionadas con la importancia paisajística de Lomas de Barbudal, como cuales son los ecosistemas protegidos y cuanto quedan de estos ecosistemas en la provincia de Guanacaste . Sería posible que concluir que Lomas de Barbudal protege “ ecosistemas en extinción”, a partir de la siguiente afirmació n del estudio, en sus conclusiones:“La reserva se ubica dentro de la Cuenca Hidrográfica del Río Tempisque y protege los remanentes de ambientes naturales que prácticamente han desaparecido de su entorno, como son los bosques riparios y el bosque seco maduro de bajura.” Esta categorización n o aparece en todo el estudio. Hubiera sido interesante cuantos “bosques secos maduros de bajura” y “bosques riparios” quedan en la provincia de Guanacaste, para valorar el sitio en su contexto paisajístico.” R/ Efectivamente la RBLB cumple una importantísima funció n en la protección de ambientes. Sería interesante poder cuantificar los tipos de cobertura que quedan en Guanacaste pero no es el objetivo del estudio. • “1.1.5 El marco teórico inicial es abandonado para hacer ajustes finales en las conclusiones del estudio. Al final de cuentas los autores advierten que la finca ASETREK se muestra insuficiente para compensar las pérdidas de hábitat en Lomas de Barbudal, un hecho que podrí a haber sido corroborado con análisis más integrales y no necesariamente con tables. Los autores no parecen satisfechos con la ecuación Há bitat/Hectárea, a pesar de ser el marco teórico del estudio. De este cálculo se origina la recomendación de comprar 252 has (despué s se menciona la cifra de 330 has, página 208) de la finca ASETREK para que se nivelen los puntajes finales. Sin embargo, los autores reconocen que ASETREK no posee bosques riparios, y por lo tanto proponen, sin estudios detallados, un á rea adicional de com pensación que sí contiene este hábitat. Queda la duda de có mo se justifica la recomendación de 252 o 330 has de ASETREK, siendo que ahora se piensa agregar otra propiedad cuyo puntaje no fue calculado, ni mucho menos restado, al saldo de hectá reas originalmente propuestas.” R/ Efectivamente, el método de há bitat/hectárea aplicado concluye un resarcimiento de 330 hectáreas aproximadamente. Ahí pudo terminar el estudio con la metodología aprobada. Sin embargo, en aras de maximizar la ganancia propusimos incor porar Brindis de Amor por las razones expuestas anteriormente. Esto no significa que dudemos de la metodología seleccionada, sino que somos conscientes de sus limitaciones. Recordemos que, si hay que compensar, debemos maximizar la ganancia ambiental. • “Debe resaltarse que, a pesar de esas dudas, los autores mantienen una conclusión tajante sobre la viabilidad de la compensación “ 7. Pese a las diferencias en calidad de ambiente, es posible compensar las pérdidas en el sitio pote ncial de inundación en RBLB a partir de la incorporación de há bitats evaluados en ASETREK (y otros sitios, como se señala más adelante)". No hay justificación a esta conclusión, especialmente si las propias valoraciones de los autores ponen en duda la equiparación de á reas.” R/ Esa interpretación de nuestras conclusiones es errada. Tanto el sitio de inundació n en la reserva como el sitio en ASETREK consisten en ambientes degradados, dominados por una cobertura decidua de sucesión temprana como se indica en el Cuadro 12 de nuestro inf orme (pág. 66). Empleamos la metodología Habitat/Hectárea, trat ando de maximizar el contraste entre sitios. Resulta en una compensación de 330 hectá reas aproximadamente. Eso es real y sería lo justo dado la metodologí a seguida. Sin embargo, el principio de maximizar las ganancias ambientales nos hacen recurrir a otros criterios para seleccionar áreas que pudieran adicionarse a esa propuesta de compensación. Brindis de Amor y Ciruelas poseen características que las hacen valiosas desde el punto de vista de conservació n. Se recomienda su incorporación en el plan de compensación. No hay que esperar que nuestra metodología de Hábitat/Hectaria lo resuelva. Los criterios son otros, pero igualmente válidos. El problema fundamental de los detractores de nuestro estudio es que está n obsesionados con la metodología seguida y pierden la perspectiva de lo que se está sugiriendo. A la pregunta, ¿puede ser compensado el ambiente en RBLB que sería inundado con el embalse?, la respuesta es sí. Pero una mejor compensación vendría de adicionar otras á reas. • “Al final del es tudio, se presenta la posibilidad de añadir la propiedad “Brindis de Amor”, con una extensión total de 86 Has, por poseer 15.8 has de bosque ripario, en el sector norte de la Reserva de Lomas de Barbudal. Esta á rea se adicionaría a las 252 has de ASETREK, como un área adicional que compensaría la pérdida del bosque ripario de Lomas de Barbudal por inundación. Esto agregaría una faja de bosque, como una pení nsula aislada, en el norte de la Reserva (Fig 51 del estudio). Los autores reconocen que el análisis de este fragmento adicional fue superficial (pá g 213), y no se hicieron los extensos inventarios físicos y bioló gicos practicados en ASETREK. Podrá observarse que “ Brindis de Amor” quedaría como una isla aisl ada del resto de la Reserva, creando una geometría más alargada y estrecha del sector norte de Barbudal, algo no conveniente por el importante efecto de borde que tendrí a esta sección de la reserva.” R/ De hecho el no crear esa península es lo que nos llevó, junto con el SINAC, a solicitar la incorporación de esa área de la Hacienda Ciruelas. En nuestro informe sin embargo, reconocemos los esfuerzos que se han realizado en esta última propiedad por mantener los fragmentos de bosque, de modo que de no poder incorporarla directamente se podría pensar en un arreglo para seguir manteniendo el bosque. • “1.1.6 El embalse Rí o Piedras como parte de la compensación. Al final del estudio, se adiciona una nueva idea: la consideració n del Embalse Río Piedras como parte de la compensació n del área inundada de Lomas de Barbudal, ya que podría declararse como un humedal bajo la categoría de Refugio de Vida Silvestre, constituyendo un área protegida nueva que podría contabilizarse como parte de la compensación. NO SE DAN M AYORES DETALLES DE LAS CARACTERISTICAS DEL EMBALSE Y DE SUS EFE CTOS EN ELAMBIENTE. Se trataría de un intercambio entre dos ecosistemas totalmente diferentes (un ecosistema boscoso por un humedal). Es una idea poco desarrollada en el estudio. Además, es ta propuesta desconoce los impactos ambientales del embalse, entre ellos sobre el propio río Piedras (ver sección 2. Impactos Ambientales no abordados por el E.I.A.).” R/ No. No se pretende sustituir un área con ambientes terrestres con un área con ambientes acuáticos. Lo que se sugiere claramente e n nuestro texto es que así como se tiene ASETREK+Brindis+Ciruelas se podría pensar en adicionar el Embalse como parte de la compensació n. • “ 1.1.7 Compensación biológica o traspaso de tierras al estado? De la informació n aportada por el estudio de compensación de la OET, se observa que el área de las fincas ASETREK, Brindis de Amor y Ciruelas está en mayor parte cubierta por diferentes tipos de ecosistemas forestales (bosques maduros, secundarios o deciduos). Son áreas de bosques existentes, que representan remanentes o regeneración de bosques despué s del intenso período histórico de desforestación en la provincia de Guanacaste, durante los años entre las décadas de 1950 al 1990, proceso que ha cambiado hacia la regeneración secundaria en los últimos 10-20 añ os (ver por ejemplo: Calvo- Alvarado et. al. .2009. "Deforestation and forest restoration in Guanacaste, Costa Rica: Putting conservation policies in context". Forest Ecology and Managemen t, 258, 931-940).Los propietarios de la finca ASETREK han man ifestado interés en vender sus propiedades al estado, o a mantenerlas bajo cobertura forestal para explotación turística o protección (caso de la propiedad Brindis de Amor). Pareciera muy probable que bajo un programa de incentivos a la protecció n (PSA, proyectos ecoturísticos) y bajo la actual legislación forestal, esos bosques no está n sujetos a procesos de cambio de uso de suelo inminentes o inmediatos.” R/ Tal como lo plantea el Dr. Lobo, uno podría suponer que el pago de servicios ambientales podrí a ser un estímulo para mantener las coberturas existentes en esas propiedades. Sin embargo esta es una suposición. Los PSA son efímeros, y no puede asegurarse en el tiempo que ese recurso siempre estará disponible. Por otro lado, nosotros mismos evidenciamos el impacto que el dueñ o de ASETREK hacía de su cobertura boscosa una vez finalizado el periodo de su PSA (pág. 98, Figura 23A de nuestro informe), lo que muestra que esta estrategia no es del todo efectiva. • “ Por otro lado, si se visualiza la cobertura forestal en el sector de la cuenca del río Piedras que será afectado por el proyecto PAACUME, antes y después de la ejecución del proyecto, se podrí a contabilizar que va a ocurrir una reducción drástica neta de la cobertura forestal (pérdida de 450 has de cobertura forestal, transformadas en un espejo de agua), sin ningún aumento de cobertura forestal previsible en los próximos años. Aunque 459 has de bosques dentro de fincas privadas pasarían a manos del estado por el progra ma de compensación, esto no altera el panorama de pérdida neta de cobertura forestal. No está ocurriendo una compensación bioló gica real, sólo un traspaso de tierras entre diferentes propietarios. Este traspaso sería aceptable como compensación si las tierras privadas estuvieran bajo la a menaza de pérdida de cobertura, situación que no parece probable. Al final, la situación final para las especies dentro del futuro embalse es una pérdida drá stica de hábitat, sin posibilidades para sus poblaciones, presentes y futuras, de ocupar nuevas áreas de una dimensión semejante a las perdidas por la inundación del embalse.” R/ Aquí concordamos con el Dr. Lobo. El impacto en los ambientes fue ra de la RBLB debe ser evaluado y compensado. Totalmente de acuerdo con este p unto. Pero nótese que esto debe ser parte del Estudio de Impacto Ambiental, al tratarse de los ambientes fuera de la reserva. • “Pareciera má s lógico que un programa de compensación sirviera para adicionar NUEVAS áreas de bosque a la RBLB, o a fincas privadas, que establecieran un equilibrio entre pérdida de hábitat y ganancia de hábitat. Compensar áreas de bosque dentro de un área protegida, con otras áreas de bosque fuera del área protegida, no parece un canje que resulte en una verdadera compensación eco lógica para las especies silvestres, solo una compensación territorial a un á rea protegida, un objetivo loable pero insuficiente.” R/ De acuerdo en que el resarcimiento por las pérdidas que ocasionaría el proyecto como un todo debe contemplar compensar las pérdidas en la Reserva Bi ológica Lomas de Barbudal más las pérdidas fuera de ella. Esto debe existir en el plan de compensación del proyecto. · “1.1.8 Conclusiones general sobre el estudio de la OET. El informe aportado por la OET es insuficiente para definir el cambio de lí mites de Lomas de Barbudal, y no demuestra que este cambio será plenamente compensado por áreas adicionales en otros sector es de la Reserva. La finca ASETREK, estudiada con más detalle por los consultores, al final se reconoce como insuficiente para justificar el canje de tierra, y se acude precipitadamente a otras fincas cercanas para balancear la compensació n, a mi parecer un ejercicio poco serio porque no está debidamente fundamentado. Además, el desconocimiento de los impactos ambientales del embalse Río Piedras sobre la Reserva Biológica y sobre todos los ecosistemas de humedales del Bajo Tempisque debe ser conocido antes de aceptar la inundación de un sector de la Reserva de Lomas de Barbudal y de en general de los ecosistemas afectados por el futuro embalse de PAACUME.” (Ver Anexos 5 A y 5 B de esta acción de inconstitucionalidad).” R/ Ya se ha explicado el razonamiento de la anexió n de las otras propiedades. Y se insiste en mezclar el estudio de compensació n con el estudio de impacto ambiental. Tal vez lo que sea poco serio, sea emitir juicios desde el escritorio, sin conocer los sitios que integran este debate. Invitamos al Dr. Lobo a visitar la parte sur de la Reserva Biológica Lomas de Barbudal para que vea el estado real del ambiente allí . “Como se pudo observar de lo expuesto en este apartado, el Estudio de la OET de junio de 2017, es omiso en demostrar mediante un análisis cientí fico e individualizado el grado de impacto de la desafectación de 113 hectá reas de la RBLB.” R/ Como ya se mencionó anteriormente y explicado en repetidas ocasiones se confunde el Estudio de Línea Base con El Estudio de Impacto Ambiental. RE SUMEN Y CONCLUSIONES FINALES. El estudio de la OET intenta determinar las pé rdidas en el sitio de inundación del embalse Rio Piedras en la porción sureste de la Reserva Biológica Lomas de Barbudal y el valor potencial del ambiente una propiedad con coberturas similares que se ubica colindante al sitio. Las críticas y observaciones al estudio realizado por la OET se basan principalmente en objeciones al método empleado para cuantificar el área de compensació n y a un pobre entendimiento de por qué anexar otras áreas para la resarcir el daño. Los detractores del estudio claramente tienen una posición determinada y previa, y encontra rán objeciones siguiendo esa o cualquier otra metodología. Refrenda ese juicio el hecho que no hay ninguna propuesta de có mo realizar la compensación, qué metodologí a seguir, o incluso qué alternativas posibles se pueden plantear al proyecto, de parte del personal de la Escuela de Biología que con tanta vehemencia critican nuestros procedimientos. En el procedimiento seguido en nuestro informe, que incluye la aplicació n del método hábitat/hectárea así como sopesar criterios de la importancia de propiedades anexas para lograr un plan de compensació n que consideramos satisfactorio, se maximizan las diferencias entre el sitio de impacto en la reserva y los potenciales sitios de compensación. Sin embargo, basta ver las coberturas y la información que proviene de nuestros aná lisis de fauna y flora para darse cuenta que el grueso del ambiente en estos sitios es relativamente similar, lo que ju stifica su empleo para calcular el área a compensar. De real izarse el proyecto del embalse, nuestro trabajo habrá aportado información no sólo de las pérdidas en la reserva, sino que podría emplearse como un punto de partida para la compensación sobre ell as. Los números que exponemos en nuestro informe no deben int erpretarse como un absoluto, sino como lo mínimo que deberí a exigirse para compensar las pérdidas por el impacto de la inundación en esta área protegida. La discusión de si el proyecto PAACUME y su consecuente embalse sobre el Rio Piedras es conveniente para Guanacaste, debe realizarse en todas sus dimensiones, y no basarse en la posibilidad de sustituir los límites de la reserva biológica o el mecanismo utilizado para ello. De igual manera, si se debe o no modificar los límites de áreas silvestres protegidas es un análisis y discusión que deben darse ajenos a las pro puestas metodológicas de cómo realizarlos. Por ú ltimo nuestro estudio presenta un trabajo científico y objetivo, el cual no solo valida una zona un á rea de compensación sino que refiere una serie de recomendaciones para que sean tomadas en cuenta por los t omadores de decisiones”. 27.- Por escrito incorporado al expediente digital a las 10:12 horas de 9 de junio de 2020, se apersona Mahmood Sasa Marín. Indica que el correo solicitado es [email protected]. 2 8.- Por escrito incorporado al expediente digital a las 6:40 horas de 11 de junio de 2020, se apersona Mahmood Sasa Marín. Señala que no ha recibido información para conectarse a la vista oral. 29.- El 11 de junio de 2020 se celebró la audiencia programada. 30.- Por escrito recibido en la Secretaría de la Sala a las 15:55 horas de 15 de junio de 2020, se apersona Patricia Quirós Quirós, en su condición de gerenta general del Servicio Nacional de Aguas Subterráneas. Indica que, concluida la vista, debe efectuar las siguientes aclaraciones: “ I. EL SITIO CONOCIDO COMO CRUCE RIO (sic) PIEDRAS ES EL UNICO (sic) LUGAR DONDE TECNICAMENTE (sic) SE PUEDE HACER EL EMBALSE. Desde los años 70s se han hecho estudios técnicos con la idea de aprovechar la diferencia de nivel que se generaba entre la llegada y la salida del Canal Oeste al Río Piedras para construir un embalse, se viene analizando desde hace cuarenta año (sic) aproximadamente, incluyéndose como tal en Plan Maestro del Proyecto de Riego de la Cuenca Baja del Río Tempisque en mil novecientos setenta y ocho. En el año 1984 SENARA amplio (sic) los estudios del Embalse Río Piedras, por medio del Consorcio BEL-TAHAL, estudio que vino reforzar la intención de utilizar el Embalse como almacenamiento y regulación de las aguas provenientes de la Laguna del Arenal. Posteriormente, se han realizado una serie de estudios sobre la disponibilidad de recurso hídrico en la cuenca del Río Tempisque y zona costera de Guanacaste, como son: 1) 2002 Estudio de Desarrollo Rural de la cuenca del Río Tempisque, elaborado por la Agencia de Cooperación Internacional de Japón (JICA); 2) 2008 Convenio entre SENARA y el Instituto Costarricense de Acueductos y Alcantarillados, para elaborar un estudio de pre factibilidad denominado "Incremento de la disponibilidad del recurso hídrico en la cuenca del Río Tempisque y zona costera de Guanacaste", 3) 2010 Estudio de factibilidad y diseño preliminar para la construcción de la presa Embalse Río Piedras. En el año 2014 se emite el Decreto Ejecutivo N° 38665-MP-MIDEPLA-MINAE-MAG del 12 de noviembre del 2014, por medio del cual se crea una comisión para liderar el Proyecto de Agua para Guanacaste (Pacífico Norte) denominado PIAAG, el cual contenía cuatro ejes fundamentales: Seguridad hídrica para las comunidades, Seguridad alimentaria, Necesidades de agua para los ecosistemas, Gestión de aprovechamiento sostenible. En el marco de dicho proyecto SENARA propuso la creación del proyecto PAACUME, para impulsar el proceso de pre inversión y posterior ejecución del proyecto. En el marco del estudio realizado por el ICAA en el año 2006, en donde se planteó como objetivo identificar y analizar alternativas que permitieran abastecer de agua potable y para riego a las comunidades, proyectos turísticos y zonas agrícolas ubicadas en la cuenca del Río Tempisque y zonas costeras norte de la Península de Nicoya, se obtuvieron como posibles propuestas: 1) Trasvase Orosi, pero presentaba problemas de valores menores a los 100 l/s durante la mayor parte del año y en época seca el escurrimiento de los ríos en ese sector es menor de 1 m3/s., 2) Trasvase Dos Ríos. En este caso se presentaba problemas de contaminación con minerales tóxico limitando su utilización de las aguas para consumo humano y para agricultura, 3) Trasvase Santa María. El máximo aporte del río Jalapiedras sería de 1 m3/s, representando un alto costo económico y ambiental, al tener que transitar por un área de parque con suelos inestables y fuerte pendiente, conllevando un elevado costo de mantenimiento de las obras, 4) Presa La Cueva. Esta presa presenta problemas de implementación al requerir inundar una importante área de protección ambiental, reubicar el poblado de Irigaray y un tramo de la carretera interamericana y, problemas de carácter ambiental en su funcionamiento, 5) PAACUME. En este caso se tomarán las aguas provenientes del Embalse Arenal y remanentes del DRAT (Distrito de Riego Arenal Tempisque), para llevarlas hasta el embalse en el Río Piedras, conduciéndolas posteriormente por la margen derecha del Río Tempisque y distribuirlas en áreas de vocación agropecuaria (18.639 hectáreas), riego en zonas verdes para proyectos turísticos desde el Golfo de Papagayo hasta Pinilla y, acueductos en los cantones de Carillo, Santa Cruz y Nicoya, proveyendo agua potable para unas 500.000 personas para los próximos 50 años, mejorará el desarrollo socioeconómico de la provincia de Guanacaste, convirtiendo a PAACUME como la mejor opción de solución para el suministro de agua para varios usos de forma sostenible. (ver páginas 14 a 27 del Estudio de Factibilidad) Por otra parte, de acuerdo con los estudios técnicos realizados por el ICE atendiendo al contrato interadministrativo suscrito entre SENANA-ICE-MINAE 201600011 y sus adendas, Río Piedras tiene las condiciones ideales para la construcción de un embalse de gran capacidad, dadas las condiciones de topografía del área, la elevación del primer tramo del Canal Oeste y de las tierras que serán regadas en el segundo tramo del canal. (ver páginas 141 y siguientes del Estudio de Factibilidad) II. EL ESTUDIO DE LAS FINCAS CONOCIDAS COMO HACIENDA CIRUELAS Y BRINDIS DE AMOR TUVO COMO PROPOSITO (sic) ESPECÍFICO ESTUDIAR EL TEMA FORESTAL PARA COMPENSAR EL AREA (sic) DE BOSQUE RIPARIO. La necesidad de inundar 113 hectáreas de la RBLB, conllevó la realización de un estudio de línea de Base de Biodiversidad para la Reserva Biológica Lomas de Barbudal. Dicho estudio fue realizado por la Organización de Estudios Tropicales OET, para determinar la integridad ecológica, relevancia y fragilidad de los ecosistemas presentes, así como biodiversidad existente en el área de la RBLB por el impacto del embalse Río Piedras, haciendo a la vez estudios en la finca adyacente ASETREK TRES AZUL S.A., finca seleccionada por su conectividad con la reserva. Aun cuando el área propuesta de ASETREK en 444.04 hectáreas para compensar las 113 hectáreas a inundar de la RBLB, se determinó en el estudio de la OET que era necesario solventar una deficiencia en el área de bosque ripario de compensación. Así en conjunto con funcionarios de la OET y SINAC se identificó una segunda finca potencial para compensar ubicada en el lindero noroeste de la reserva a nombre de 3-101-734726 S.A. (Brindis de Amor), finca sobre la cual se diagnosticó cuenta con 15.87 hectáreas de bosque ripario. La propuesta de compensación (ASETREK, y 3-101-734726 S.A.) se remitió al MINAE para que se diera el trámite del Reglamento a la Ley de Biodiversidad artículos 71 y 72, sin embargo, el CORAC consideró que la propuesta de bosque ri pario era menor, por lo que propusieron cubrir la diferencia con la finca Hacienda Ciruelas, así la propuesta de compensación para la RBLB quedaría con 444 .04 hectáreas de ASETREK TRES AZUL S.A., 80.20 hectá rea de finca 3-101-734726 S.A. y 25 hectáreas de Hacienda Ciruelas SP S.A. (ver pá ginas 293 a 300 del estudio de Factibilidad) III. EL IMPACTO AMBIENTAL EN LA RESERVA BIOLOGICA (sic) LOMAS DE BARBUDAL POR EL CAMBIO DE uso DE LAS 113 HECTAREAS (sic) QUE SE INUN DARIAN ( sic) , ESTAN (sic ) CONTEMPLADAS EN EL ESTUDIO DE IMPACTO AMBIENTAL DEL PROYECTO PAACUME QUE ESTA (sic) SIENDO ANALIZADO POR LA SETENA. Entre los años 2016 y 2017 se trabajó en el Estudio de Impacto Ambiental, desarrollad o por el ICE, amparado al contrato interinstitucional SENANA-ICE-MINAE 201600011 y sus adendas. El Estudio de Impacto Ambiental, se presentó ante la Secretaría Técnica Ambiental el 07 de diciembre del 2017, expediente nú mero D1-21601-2017-SETENA. El estudio contiene entre otras cosas la definición del área de influencia, impactos del proyecto, metodología l a identificación y valoración de impactos, acciones correctivas o de mitigación, plan de gestión, compromisos ambientales. El estudio de impacto ambie ntal se encuentra en estudio ante la SETENA, siendo que el 25 febrero del 2020, se presentó el ANEXO UNICO (sic) al estudio cumpliendo con los requerimientos de la SETENA contenidos en la resolución 1338-2019 SETENA. IV. LA AUTORIZACION (sic) LEGISLATIVA PARA LA DESAFECTACIÓN DEL uso DEL SUELO DE LAS 113 HECTAREAS (sic ) DE LA RESERVA BIOLÓ GICA LOMAS DE BARBUDAL, ERA REQUISITO PREVIO PARA LA APROBACION (sic ) DEL ESTUDIO DE IMPACTO AMBIENTAL DEL PROYECTO PAA CUME. El Estudio de Impacto Ambiental del Proyecto Paacu me presentado a la aprobación de la SETENA contempla dentro de los componentes del proyecto la inundació n de 113 hectáreas que forman parte de la Reserva Biológica Lomas de Barbudal, en consecuencia para poder aprobar dicho estudio por parte de la SETENA era necesaria la autorización legislativa para desafectar esas 113 hectáreas del régimen de protecció n como reserva biológica y cambiar su uso por el de embalse, el cual tal y como se dispuso en la Ley No. 9610 pasaría a constituirse como un embalse y el SINAC definirí a la protección ambiental del mismo y estaría en tod o caso bajo la administración y tutela del SINAC en cuanto a la parte ambiental se refiere . Por tal razón, la Ley No. 9610 que autoriza la desafectació n, tiene como presupuesto indispensable para su ejecució n, que se apruebe el EsIA, componente necesario para la ejecució n integral del Proyecto PAACUME, puesto que el proyecto no se podría ejecutar sin la aprobación del Estudio de Impacto Ambiental, lo cual contempla como requisito indispensable la autorización legislativa para el cambio de uso de suelo de las citadas 113 hectáreas. V. OFRECIMIENTO DE PRUEBA PARA MEJOR RESOLVER Conforme se solicitó en la Audiencia realizada el día 11 de junio del 2020, y para los efectos correspondientes, se aporta en este acto en calidad de prueba, el Estudio de Factibilidad realizado por SENARA en octubre del 2017, el Estudio de Impacto Ambient al de Octubre 2017 y ANEXO UNICO (sic) de febrero del 2020 ”. 31.- Mediante resolución de las 14:50 horas de 17 de junio de 2020, se solicitó al Presidente de la Asamblea Legislativa copia certificada del expediente legislativo n.o 20.465 que dio origen a la ley n.o 20.465. 3 2.- Por escrito recibido en la Secretaría de la Sala a las 14:11 horas de 23 de junio de 2020, se apersona Eduardo Newton Cruickshank Smith, en su condición de Presidente de la Asamblea Legislativa. Envía copia certificada del expediente legislativo n.o 20.465 que dio origen a la ley n.o 20.465. 3 3.- Por escrito incorporado al expediente digital a las 12:51 horas de 2 de julio de 2020, se apersonan los accionantes. Indican que, luego de analizar las pruebas aportadas por la OET, la Asamblea Legislativa y el SENARA, así como la participación de quienes asistieron a la vista oral, formulan las siguientes observaciones: “I- OBSERVACIONES SOBRE EL ESTUDIO TÉCNICO PARA DESAFECTAR LA RBLB La jurisprudencia de la Sala Constitucional ha desarrollado extensamente el principio de irreductibilidad de las áreas silvestres protegidas , según el cual este tipo de espacios protegidos no pueden disminuirse o modificarse si no se cumplen los requisitos fijados al efecto. Lo anterior tiene una clara relación con los principios de no regresión en materia ambiental, de objetivación de la tutela ambiental, preventivo y precautorio . Uno de los requisitos esenciales es el siguiente: Que de previo a la aprobación de la ley se cuente con estudios técnicos suficientes que justifiquen la medida. En su jurisprudencia, la Sala Constitucional ha establecido que esos estudios técnicos deben al menos: 1- realizar un análisis científico e individualizado del grado de impacto en el ambiente de la desafectación pretendida de un área silvestre protegida; 2- realizar un estudio de los terrenos adyacentes al área protegida a desafectar para determinar cuál terreno es el que reúne las mejores condiciones para compensar las hectáreas que se desafectarían; 3- plantear recomendaciones orientadas a menguar el impacto negativo en el ambiente; 4- demostrar cómo la desafectación de las hectáreas implica un desarrollo que satisface las necesidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades; y 5- cumplir con el requisito de que se compense el área suprimida con otra de igual tamaño y características. Las preguntas que debemos contestar entonces son las siguientes: ¿Cuenta con estudios técnicos suficientes que justifique la medida de desafectación de 113 hectáreas de la RBLB con afectación consecuente sobre el Humedal de Palo Verde que tiene protección internacional según Convención de RAMSAR? ¿Cumple el Estudio elaborado por la OET, cuyos términos de referencia fueron fijados por el SENARA, una entidad dedicada a las Aguas Subterráneas, Riego y Avenamiento, con los criterios establecidos por la Sala Constitucional? ¿Demuestra ese Estudio, mediante un análisis científico e individualizado, el grado de impacto de la desafectación de esas 113 hectáreas de la RBLB en el ambiente? ¿Plantea recomendaciones orientadas a menguar el impacto negativo en el ambiente? ¿Demuestra cómo la desafectación de las 113 hectáreas implica un desarrollo que satisface las necesidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades? ¿Cumple con el requisito de que se compense el área suprimida de la RBLB con otra de igual tamaño y características? • CARACTERÍSTICAS DEL ESTUDIO DE LA OET El estudio que consta en el expediente legislativo, denominado "Establecimiento de la Línea base de Biodiversidad para la Reserva Biológica Lomas de Barbudal y Finca Adyacente", el cual fue realizado por la Organización para Estudios Tropicales (OET), SEGÚN LOS TÉRMINOS DE REFERENCIA DEFINIDOS POR SENARA (Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento) tuvo como objetivo determinar las características biológicas y geofísicas del área de la RBLB que sería sustituida por el área del embalse y evaluar los componentes de biodiversidad en UNA FINCA adyacente perteneciente a la sociedad ASETREK Tres Azul S.A., escogida por SENARA sin ningún criterio técnico , con el fin de valorar su potencial para compensar el área afectada de la RBLB. El estudio no era para buscar en los terrenos colindantes con la RBLB un área para compensar con características ambientales lo más parecidas al área a inundar. Es decir, dicho estudio estuvo destinado a determinar la posibilidad de compensar el área de la RBLB que sería desafectada con una finca en particular, que es sobre la que se hicieron los estudios, que dicho sea de paso los estudios se realizaron sobre un área de 114 hectáreas de esa finca que mide más de 700 hectáreas. SENARA fue la que determinó que debía hacerse el estudio sobre esa parte de la finca de ASETREK. El estudio de la OET NO realizó un análisis científico e individualizado del grado de impacto en el ambiente de la desafectación de las 113 hectáreas de esa Reserva Biológica. El estudio de la OET NO realizó un estudio de los terrenos adyacentes a la RBLB para determinar cuál terreno es el que reunía las mejores condiciones para compensar las 113 hectáreas que se desafectarían de la Reserva Biológica. SENARA debió haber realizado un estudio técnico para identificar cuáles serían esas propiedades que fueran lo más parecidas en cuanto a las características biológicas con las 113 hectáreas que se desafectarían de la RBLB. En nuestra acción de inconstitucionalidad aportamos la información sobre varias de esas propiedades. Inclusive SENARA lo reconoce al aportar el oficio SINAC-CORACAT- SE-041 en su escrito de contestación, donde puede observarse en la página 47 del escrito de SENARA, la consignación que se hace de las manifestaciones del señor Wilfrán Murillo, quien indicó que “se podrí a aprovechar para la redefinición de los límites que tiene Lomas, con respecto a otro terreno que no es ASETREK, ni Brindis de Amor. Sería la oportunidad para agregar esos terrenos que el INDER ha trasladado al SINAC.” Ese tema es relevante, ya que como indicáramos en nuestra acción de inconstitucionalidad, se pudo haber considerado compensar el área a inundar mediante el cambio de categoría de terrenos de entidades públicas adyacentes a la RBLB, incorporándolos dentro de los límites de la Reserva Biológica. Es muy probable que esos terrenos tuvieran una mejor condición ecológica que los terrenos particulares que se ha insistido en incorporar a la RBLB, sin tener que desembolsar dinero para las expropiaciones que se pretende realizar. El estudio de la OET NO plantea recomendaciones orientadas a menguar el impacto negativo en el ambiente. El estudio de la OET NO demuestra cómo la desafectación de las 113 hectáreas implica un desarrollo que satisface las necesidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades. Ese estudio de la OET finalmente determinó que para compensar el área de 113 hectáreas desafectadas de la RBLB debían incluirse dentro de la Reserva Biológica 332 hectáreas de la finca ASETREK, sin realizar el estudio sobre esa área, ya que se concentró el estudio en 114 hectáreas. Menciona además el estudio de la OET que como compensación deberían incorporarse también las 86 hectáreas de la finca Brindis de Amor, sin hacer un estudio como corresponde sobre las características de esa finca, y además, utilizar el embalse Río Piedras como parte de la compensación, de igual manera, sin ningún estudio. También se incorpora como compensación al área de la RBLB una porción de la finca de Hacienda Ciruelas SP, sobre la cual NO se hizo ningún estudio. El estudio de la OET recomendó incorporar 332 hectáreas y SENARA decidió, sin criterio técnico , incorporar 444 hectáreas de ASETREK. Adicionalmente, la representante del SENARA reconoce tanto en la vista como en documentación aportada al expediente, que la incorporación a la propuesta de compensación de las fincas Brindis de Amor y Hacienda Ciruelas, se realizó por recomendación del señor Manrique Montes Obando, Administrador de Lomas de Barbudal, o sea, sin criterio técnico. Ese Estudio tampoco cumple con el requisito de que se compense el área suprimida de la RBLB con otra de igual tamaño y características. •“A CONFESIÓN DE PARTE RELEVO DE PRUEBAS”: OPINION DE MAHMOOD SASA MARÍN, coordinador general del Estudio elaborado por la OET, mediante documento presentado como prueba para mejor proveer, así como su participación en la vista El representante de la OET indicó lo siguiente al inicio de su respuesta a la Sala Constitucional: “En Costa Rica, el tema de compensación ambiental no ha sido suficiente discutido y no hay directrices claras de cuándo y cómo debe realizarse, cuáles metodologías emplear, ni cómo debe evaluarse. Si bien es cierto que disponemos de algunas leyes y reglamentos que tangencialmente tocan el tema de compensación y se refieren a medidas de compensación, las referencias sobre el resarcimiento ambiental en nuestra legislación son muy generales y el marco legal carece del nivel de especificidad sobre compensación. Esto lo exponemos en nuestro informe (pág. 32-37). Como consecuencia de esta situación, no se dispone de mayor experiencia en la compensación ambiental, especialmente en aquella que involucra áreas silvestres protegidas. En ese sentido nuestro estudio debe considerarse un trabajo pionero en este tema .” (el subrayado no es del original) Obsérvese que el representante indica que el estudio de la OET es un estudio que por PRIMERA VEZ se realiza en el país, y que este es únicamente sobre COMPENSACIÓN AMBIENTAL. Continúa diciendo él en la respuesta a ese Tribunal Constitucional lo siguiente: “El estudio que realiza nuestro equipo de la Organizaci ón para Estudios Tropicales, cuyos resultados y recomendaciones se presentan en el informe “Establecimiento de la línea base de biodiversidad para la Reserva Biológica Lomas de Barbudal y finca adyacente”, tenía como objetivo determinar las características biol ógicas y geofísicas de un área dentro de la zona protegida Reserva Bioló gica Lomas de Barbudal (RBLB) que potencialmente sería inundada de establecerse el embalse sobre el Río Piedras como parte del proyecto de irrigación PAACUME del SENARA. Además de esta caracterizació n, se solicitó evaluar el potencial de compensación que tendría una propiedad adyacente de realizarse este impacto, denominada en el informe ASETREK. Para realizar esta evaluación, nuestro grupo se decantó por una metodología basada en un enfoque de puntuación, denominada Hábitat/Hectárea. Sin embargo, también se emplearon criterios distintos a los derivados de esta metodología para llegar a sugerir un plan de compensación. El nuestro es un estudio de línea base y compensación. Las sugerencias, observaciones o críticas a dicho estudio deben ser enfocadas a sus alcances y dimensiones. Nuestro estudio no contempla, ni pretende hacerlo, una valoración del impacto ambiental del proyecto embalse del Rio Piedras ni del Proyecto PAACUME. Tampoco constituye una valoración de la aprobación social de ese proyecto o sus impactos. Los objetivos del estudio siguieron los lineamientos solicitados por SENARA en sus “términos de referencia” (el subrayado no es del original) En relación a (sic) la incorporación de las propiedades de BRINDIS DE AMOR y de HACIENDA CIRUELAS, el representante de la OET señala claramente que en el caso de la propiedad de BRINDIS DE AMOR solo hubo una evaluación de vegetación, la cual incluso fue muy superficial, y el fragmento en la HACIENDA CIRUELAS efectivamente no fue evaluado. Incluso indica que la propiedad de BRINDIS DE AMOR efectivamente fue identificada después de que se apostara por compensar con ASETREK. En el documento que el señor representante de la OET presente a la Sala Constitucional como prueba para mejor proveer, este se concentró en comentar sobre las observaciones que hizo el coadyuvante Lobo al estudio de la OET. Llama la atención que incluso el representante de la OET coincide con el coadyuvante Lobo en varias de las observaciones que este hizo, dentro de las cuales citamos las siguientes que son muy relevantes para confirmar el alcance limitado del estudio técnico elaborado por la OET. Veamos: El Dr. Lobo señaló en su coadyuvancia lo siguiente: “Por o tro lado, si se visualiza la cobertura forestal en el sector de la cuenca del río Piedras que será afectado por el proyecto PAACUME, antes y despué s de la ejecución del proyecto, se podría contabilizar que va a ocurrir una reducción dr ástica neta de la cobertura forestal (pérdida de 450 has de cobertura forestal, transformadas en un espejo de agua), sin ningún aumento de cobertura forestal previsible en los próximos añ os. Aunque 459 has de bosques dentro de fincas privadas pasarían a manos del estado por el programa de compensación, esto no altera el panorama de pérdida neta de cobertura forestal. No está ocurriendo una compensación biológica real, sólo un traspaso de tierras entre diferentes propietarios. Este traspaso sería aceptable como compensación si las tierras privadas estuvieran bajo la amenaza de pérdida de cobertura, situación que no parece probable. Al final, la situación final para las especies dentro del futuro embalse es una pérdida drástica de hábitat, sin posibilidades para sus poblaciones, presentes y futuras, de ocupar nuevas áreas de una dimensión semejante a las perdidas (sic) por la inundación del embalse”. El representante de la OET manifestó que coincide con esa observación del Dr Lobo. En su documento presentado ante este tribunal constitucional, indicó que efectivamente el impacto en los ambientes fuera de la RBLB debe ser evaluado y compensado, enfatizando además que eso debe ser parte del Estudio de Impacto Ambiental, al tratarse de los ambientes fuera de la reserva. En esa aseveración, el representante de la OET señala claramente cuál fue el alcance del estudio contratado por SENARA con la OET, y que el impacto ambiental fuera de la RBLB debería ser realizado mediante otro tipo de estudio. En otro apartado de su coadyuvancia, el Dr. Lobo indica lo siguiente: "1.1.8 Conclusiones general sobre el estudio de la OET. El informe aportado por la OET es insuficiente para definir el cambio de límites de Lomas de Barbudal, y no demuestra que este cambio será plenamente compensado por áreas adicionales en otros sectores de la Reserva. La finca ASETREK, estudiada con más detalle por los consultores, al final se reconoce como insuficiente para justificar el canje de tierra, y se acude precipitadamente a otras fincas cercanas para balancear la compensación, a mi parecer un ejercicio poco serio porque no está debidamente fundamentado. Además, el desconocimiento de los impactos ambientales del embalse Río Piedras sobre la Reserva Biológica y sobre todos los ecosistemas de humedales del Bajo Tempisque debe ser conocido antes de aceptar la inundación de un sector de la Reserva de Lomas de Barbudal y de en general de los ecosistemas afectados por el futuro embalse de PAACUME." Ante esa observación del coadyuvante, el representante de la OET señaló lo siguiente: "Ya se ha explicado el razonamiento de la anexión de las otras propiedades. Y se insiste en mezclar el estudio de compensación con el estudio de impacto ambiental. " (subrayado no es del orig inal) Otra de las observaciones del Dr. Lobo en su coadyuvancia es la siguiente: "Como se pudo observar de lo expue sto en este apartado, el Estudio de la OET de junio de 2017, es omiso en demostrar mediante un análisis científico e individualizado el grado de impacto de la desafectación de 113 hectáreas de la RBLB." Ante esa observación, el representante de la OET vuelve a salir al paso indicando que el Dr. Lobo confunde el Estudio de Línea Base con El Estudio de Impacto Ambiental. Señala de esa manera que el estudio realizado por la OET es de un alcance muy limitado, ya que es un estudio únicamente para compensar el área a inundar de la RBLB. Por otro lado, nos parece importante resaltar una respuesta que dio el representante de la OET ante preguntas de los señores magistrados en la vista realizada sobre las limitaciones que tuvo el estudio que ellos realizaron relacionadas con el plazo para hacer el estudio. Precisamente ese es uno de los diferentes cuestionamientos que hizo el Dr. Lobo en su coadyuvancia y que vino a ratificar el representante de la OET en la vista. Claramente indicó que el plazo que SENARA les fijó para realizar el estudio fue muy corto para poder hacer un estudio a profundidad sobre toda la biodiversidad que sería irreparablemente afectada por la inundación. Por lo señalado en los párrafos anteriores es que decimos que a confesión de parte, relevo de pruebas. El representante de la OET reconoció que su trabajo no fue un estudio sobre el impacto ambiental de las consecuencias ni las razones para desafectar 113 hectáreas de la RBLB. Que su estudio fue para compensar área a inundar por otras áreas. También indicó que tuvieron limitaciones en cuanto al plazo para realizar la investigación y que no se hizo ningún tipo de estudio sobre la propiedad de HACIENDA CIRUELAS y que sobre la propiedad de BRINDIS DE AMOR solo se realizó un estudio muy superficial de vegetación (no se estudió la biodiversidad de esa propiedad relacionada con insectos, aves, mamíferos, peces en los cuerpos de agua, etc). • OPINION DE LA PGR SOBRE EL ESTUDIO DE LA OET La Procuraduría señaló que no puede valorar técnicamente el estudio de la OET, ni la forma en que se definió la propuesta final de compensación del área desafectada de la RBLB. Sin embargo, es clara la Procuraduría al indicar que en caso de determinarse que el estudio de la OET y la propuesta final de compensación del área silvestre protegida sean insuficientes técnicamente, la ley impugnada resultaría inconstitucional por violación al principio de objetivación de la tutela ambiental. Pero también señala la PGR que aunque se constate la suficiencia del estudio de la OET y de la propuesta final de compensación, debe advertirse que ese estudio técnico únicamente justificaría la validez de la compensación practicada, y, como tal, no es un estudio té cnico que justifique directamente la decisión de desafectar una parte de la RBLB. En otras palabras, una cosa es un ESTUDIO PARA COMPENSAR ÁREAS, y otra es el ESTUDIO PARA JUSTIFICAR LA DECISIÓN DE DESAFECTAR. La Procuradurí a es contundente en este tema, cuando señala que ... " atendiendo a la jurisprudencia constitucional sobre el tema, el estudio que exige el artículo 38 de la Ley Orgánica del Ambiente para justificar la reducción de un área silvestre protegida debería ser un estudio que determine la necesidad y conveniencia de adoptar ese tipo de medida."(el subrayado y resaltado no es del original). Señala la Procuraduría, que si no se constata la necesidad y conveniencia de desafectar 113 hectáreas de la RBLB, la Ley 9610 debe declararse inconstitucional por violación a los principios de irreductibilidad de las áreas silvestres protegidas, objetivación a la tutela ambiental y de no regresión. ESE ESTUDIO PARA JUSTIFICAR LA DECISIÓN DE DESAFECTAR, PARA DETERMINAR LA NECESIDAD Y CONVENIENCIA DE ADOPTAR ESE MEDIDA, NO SE HIZO, Y POR LO TANTO TAMPOCO FORMA PARTE DEL EXPEDIENTE LEGISLATIVO DE LA LEY QUE ESTAMOS IMPUGNANDO. Adicionalmente, la PGR, ha sido muy clara al señalar lo siguiente: ''En caso de determinarse que el estudio de la OET y la propuesta final de compensación de la RBLB son insuficientes técnicamente, la ley impugnada resultaría inconstitucional por violación a los principios de objetivación de la tutela ambiental, precautorio, preventivo y de irreductibilidad de las áreas silvestres protegidas, pues no se estaría garantizando que la variación de los límites aprobada no afecta la integridad de la RBLB y no se estaría mitigando adecuadamente el impacto ambiental generado por la desafectación de una parte de dicha Reserva Biológica. También, ello resultaría contrario a la obligación que establece el artículo 3 de la Convención RAMSAR de favorecer la conservación de las zonas húmedas inscritas en la lista de humedales de importancia internacional." También señala la PGR que debe "... valorarse si existe sustento técnico suficiente para justificar la necesidad de desafectar parte de la RBLB para ser utilizada en la ejecución del proyecto PAACUME. Si no se constata ese fundamento, la Ley 9610 debe declararse inconstitucional por violación a los principios de irreductibilidad de las áreas silvestres protegidas, objetivación a la tutela ambiental y de no regresión, y por no comprobarse el motivo de urgente interés nacional al que la Convención RAMSAR sujeta la posibilidad de modificar el área de los sitios de importancia internacional." Pero especial énfasis deseamos hacer a la observación que hace la PGR para el caso en que el proyecto PAACUME no sea desarrollado, al menos, no en los términos que está planteado actualmente. Si por alguna razón el proyecto no es desarrollado y tampoco se ejecutan las expropiaciones necesarias para efectuar la compensación propuesta, la Ley 9610 habría desafectado la RBLB en vano, sin existir una justificación válida y sin haber compensado y mitigado los efectos generados por esa disminución. Ello constituiría una violación al principio de irreductibilidad de las áreas silvestres protegidas, precautorio, preventivo y de no regresión, e, incluso, una violación a la Convención RAMSAR al no existir un motivo de urgente necesidad para justificar la disminución del área de uno de los sitios de importancia internacional. • REVISIÓN DEL EXPEDIENTE LEGISLATIVO SOLICITADO COMO PRUEBA PARA MEJOR PROVEER PARA DETERMINAR QUÉ TIPO DE ESTUDIOS SE PRESENTARON COMO JUSTIFICACIÓN PARA DESAFECTAR LAS 113 HECTÁREAS DE LA RBLB, ASÍ COMO LA NO DISPOSICIÓN DE LOS DIPUTADOS DE RECIBIRNOS EN AUDIENCIA O CONSIDERAR AL MENOS LAS OBSERVACIONES QUE LES HICIMOS POR ESCRITO Y QUE CONSTAN EN EL EXPEDIENTE LEGISLATIVO. De la revisión del expediente legislativo de más de 2.600 folios puede observarse que los únicos estudios que constan en ese voluminoso expediente son precisamente el Estudio preparado por la OET; un Documento Perfil del Proyecto PAACUME elaborado por el SENARA (visible a partir del folio 505); y un documento también elaborado por el SENARA sobre una consulta que se hizo en junio de 2017 supuestamente en las comunidades cercanas al embalse que se construiría en la zona de Río Piedras y que inundaría 850 hectáreas de las cuales 113 hectáreas son de la RBLB. Obsérvese que en la única asamblea que se hizo para explicar sobre ese proyecto llegaron 51 personas. En otras palabras, SENARA consultó a 51 personas sobre el proyecto de la represa, del embalse y de la propuesta de compensación. . (visible a partir del folio 622 del expediente). Llama poderosamente la atención que no se consultó a los vecinos de la RBLB, dentro de los cuales estamos nosotros, como representantes de HACIENDA CIRUELAS y de BRINDIS DE AMOR. Se pretende inundar 113 hectáreas de la RBLB con la cual colindamos y no nos consultan. Tampoco se consultó a los otros vecinos de la RBLB. Es más, según puede observarse en los folios 1500 y 1501, los suscritos solicitamos una audiencia a la Comisión Especial Legislativa de Guanacaste que tramitó el expediente del proyecto de ley que se convirtió en la ley que estamos impugnando. En esa nota solicitando la audiencia le hicimos ver a los diputados de la Comisión que las coordenadas registradas en el proyecto relacionadas con la finca BRINDIS DE AMOR estaban incompletas ya que estaban ignorando una servidumbre de paso a través de las 87 hectáreas para dar acceso a otra propiedad enclavada en el centro del área geográfica de la propiedad de BRINDIS DE AMOR. También se les hice (sic) ver en la nota que no existía ningún tipo de estudio sobre la propiedad de la Hacienda Ciruelas. Posteriormente, y antes de la votación en segundo debate, enviamos otra nota a todos los diputados, al Presidente de la República y a los ministros del MINAE, MAG, PRESIDENCIA y HACIENDA, haciéndoles ver que mediante la aprobación del proyecto de ley se estaría incurriendo en un gasto por concepto de expropiaciones que podrían rondar los DIEZ MILLONES DE DÓLARES y que existían otras opciones mucho menos onerosas, incluyendo unos terrenos del Estado a los cuales podría cambiársele la categoría de manejo y convertirlos en parte de la RBLB donde la protección de esos terrenos es total, comparable incluso con la categoría de manejo que tiene un Parque Nacional. Mediante esa nota, que puede observarse en el expediente legislativo entre los folios 1936 y 1955, solicitábamos se devolviera el expediente a primer debate para hacerle las modificaciones correspondientes. Lamentablemente, tanto diputados como miembros del Poder Ejecutivo hicieron caso omiso de nuestra petición. En relación con el requerimiento de la legislación ambiental y la jurisprudencia constitucional sobre el tema, en el expediente legislativo NO EXISTE EL ESTUDIO TÉCNICO QUE SE REQUIERE PARA VALORAR SI SE DESAFECTA O NO UN ÁREA SILVESTRE PROTEGIDA. Ese estudio que se requiere, y que no está en el expediente legislativo, debe al menos cumplir con los siguientes lineamientos establecidos por ese tribunal constitucional y la legislación ambiental: 1.- realizar un análisis científico e individualizado del grado de impacto en el ambiente de la desafectación pretendida de un área silvestre protegida; 2.- realizar un estudio de los terrenos adyacentes al área protegida a desafectar para determinar cuál terreno es el que reúne las mejores condiciones para compensar las hectáreas que se desafectarían; 3.- plantear recomendaciones orientadas a menguar el impacto negativo en el ambiente; 4.- demostrar cómo la desafectación de las hectáreas implica un desarrollo que satisface las necesidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades; y 5.- cumplir con el requisito de que se compense el área suprimida con otra de igual tamaño y características. No solo no está en el expediente legislativo, sino tampoco se le suministró al Consejo Regional del Área de Conservación Tempisque (CORACAT) , el cual, después de aprobado el proyecto de ley en segundo debate, y luego de que la Asamblea Legislativa no les ampliara el plazo para referirse a la versión final del proyecto, indicó, mediante nota enviada a la Secretaría del Directorio Legislativo para que se incorporara al expediente, que "es necesario que existan los estudios técnicos ambientales, jurídicos y financieros suficientes que justifiquen la sele cción adecuada tanto del área a desafectar, como de las áreas que servirí an como compensación. Debe verificarse la existencia de estos estudios dentro del expediente de este proyecto de ley, ya que a la fecha este Consejo no cuenta con tal informac ión." (Oficio No. SINAC-CORACAT-049-2018 de 9 de setiembre de 2018, folios 2641-2644 del expediente legislativo). (El resaltado y subrayado no es del original) II.- OBSERVACIONES SOBRE LAS RESPUESTAS DE PATRICIA QUIRÓS, REPRESENTANTE DEL SENARA, EN LA VISTA, ASÍ COMO SOBRE LA PRUEBA PARA MEJOR PROVEER APORTADA POR EL SENARA Revisando lo que la representante del SENARA indicó en la vista, así como de los documentos aportados como prueba para mejor proveer queda claro que fue SENARA quien contrató a la OET. Que fue SENARA quien fijó el plazo y términos de referencia para ese trabajo que debía hacer la OET. Que el Estudio para la desafectación de las 113 hectáreas no se hizo. Que lo que hizo SENARA fue contratar un estudio para compensar las 113 hectáreas que se pretende inundar, con otras tierras escogidas por SENARA. Que lo que SENARA tiene, y no se presentó en el expediente legislativo es un ESTUDIO DE FACTIBILIDAD SOBRE LA REPRESA DEL RIO PIEDRAS realizado por el ICE, el cual nada tiene que ver con el Estudio que se requiera para valorar la desafectación de un área silvestre protegida. Que existe un Estudio de Impacto Ambiental, también elaborado por el ICE, pero para el proyecto de PAACUME, el cual tampoco consta en el expediente legislativo, pero en todo caso tampoco versa sobre el tipo de estudio que se requiere para desafectar un área silvestre protegida. El mismo Procurador General de la República, cuando contestó algunas preguntas de los señores magistrados, fue claro al señalar que ese tipo de estudios elaborados por el ICE no son los estudios que se requieren para desafectar un área silvestre protegida, y adicionalmente el ICE no tiene esas competencias. Dicho sea de paso, existe un pronunciamiento de la PGR de hace unos 5 años señalando que el ICE no tiene competencias legales para realizar actividades fuera del ámbito de acción de su ley constitutiva y reformas, así como de la ley de fortalecimiento del ICE. III.- OBSERVACIONES SOBRE LA PARTICIPACIÓN DEL COADYUVANTE JORGE LOBO SEGURA EN LA VISTA El coadyuvante Jorge Lobo Segura, bió logo experto en esa materia, volvió a señalar lo que había indicado en su escrito de coadyuvancia, que "el informe o estudio de la OET es insuficiente, parcial e incorpora un principio de compensación, supuestamente cuantitativo, donde modificando el tamaño de un área de compensación se puede igualar el área perdida dentro un área protegida. Esto es equivocado, ya que las poblaciones o especies afectadas por la pérdida de un área protegida no necesariamente aparecerán, en su abundancia original en un área de compensación, aunque se aumente muchas veces su área, al no existir en el área de compensación los hábitats y recursos requeridos por esta especie, o los núcleos poblacionales o las fuentes para la migración de poblaciones que garanticen su repoblamiento. Diferencias drásticas en la calidad del hábitat, especialmente en el grado de alteración humana de los ecosistemas, como las que se detectaron entre Lomas de Barbudal y la finca ASETREK, no se equilibran con el aumento del área de esta última. Esta inflación del área para compensar menos biodiversidad no va a resultar en que las especies afectadas van a restaurarse en el área de compensación, especialmente si en el área de compensación tenemos hábitats muy diferentes al área afectada dentro del Parque Nacional o Reserva Biológica. En el área que será inundada de Lomas de Barbudal hay bosques riparios, y posiblemente otros hábitats no cuantificados por el estudio, que no están representados en ASETREK." Para el coadyuvante Lobo, luego de analizar a profundidad el Estudio realizado por la OET, es claro que dicho estudio utilizado para justificar la desafectación de las 113 hectáreas de la RBLB, NO realizó un análisis científico e individualizado del grado de impacto en el ambiente de la desafectación de las 113 hectáreas de esa Reserva Biológica; NO realizó un estudio de los terrenos adyacentes a la RBLB para determinar cuál terreno es el que reunía las mejores condiciones para compensar las 113 hectáreas que se desafectarían de la Reserva Biológica; NO planteó recomendaciones orientadas a menguar el impacto negativo en el ambiente; NO demostró cómo la desafectación de las 113 hectáreas implica un desarrollo que satisface las necesidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades; NO cumplió con el requisito de que se compense el área suprimida de la RBLB con otra de igual tamaño y características. Lo más relevante de su participación en la vista fue su aseveración de que sería un precedente preocupante que la Asamblea Legislativa, la SETENA y la Sala Constitucional consideraran este estudio como válido. Si eso fuera así, podría abrirse un portillo, más bien un portón, que llevarí a a propiciar la afectación de los límites de más áreas protegidas, fundamentados en la compensación con fincas privadas de área mayor, pero con ecosistemas mucho más alterados de los protegidos. La contabilidad ecosistémica y el método Hábitat por Hectárea, avalarían este tipo de compensaciones . Es evidente entonces que el estudio de la OET y la propuesta final de compensación son insuficientes y tienen falencias técnicas, por lo que la ley impugnada claramente violentaría el principio de irreductibilidad de las áreas silvestres protegidas, pues no se estaría garantizando que la variación de los límites aprobada no afecta la integridad de la RBLB y no se estaría mitigando adecuadamente el impacto ambiental generado por la desafectación de una parte de dicha Reserva Biológica. Consecuentemente, se violentaría el principio precautorio, principio preventivo y no existiría respaldo técnico de que la medida legislativa adoptada no afecta el derecho a un ambiente sano y ecológicamente equilibrado. IV.- OBSERVACIONES SOBRE LA PARTICIPACIÓN DEL PRESIDENTE DE LA REPÚBLICA, EL MINISTRO DEL MINAE Y EL MINISTRO DE AGRICULTURA Y GANADERÍA El Presidente de la República y sus ministros señalaron que de este proyecto depende el agua para Guanacaste, señalando que sin el proyecto de PAACUME no habrá agua para consumo humano, tampoco habrá agua para la agricultura ni para los desarrollos inmobiliarios residenciales, comerciales y de turismo, en la cuenca media del Tempisque y los poblados costeros de Carrillo, Santa Cruz y Nicoya, LO QUE ES ABSOLUTAMENTE FALSO. Consideramos que mediante esa aseveración pretenden ejercer una presión psicológica y social sobre los magistrados que conocen de esta acción de inconstitucionalidad, tratando de ponerlos en una situación de que si fallan a favor de la acción de inconstitucionalidad estarían dejando sin agua a esos cantones de la provincia de Guanacaste afectando seriamente su desarrollo. Veamos por qué no es cierto lo que señalan. Por un lado, el mismo proyecto de PAACUME indica que sólo un 10% de la producción de agua tendrá la finalidad de satisfacer necesidades de consumo de agua potable. Este punto es muy relevante ya que en las argumentaciones del SENARA y especialmente en las del SINAC del MINAE, se habla de dos fines públicos de igual valor, como lo son la conservación y protección ambiental de la RBLB por un lado, y el acceso al agua potable por otro. Del análisis de toda la documentación que respalda el proyecto PAACUME se concluye que de los 20 metros cúbicos por segundo que se trasegarían para la margen derecha del río Tempisque para llevar agua a los cantones de Carrillo, Santa Cruz y Nicoya, ÚNICAMENTE EL 10 %, SEAN 2 METROS CÚBICOS POR SEGUNDO SON PARA CONSUMO HUMANO DE AGUA POTABLE. Por otro lado, se ha publicitado mucho que el PAACUME favorecerá al turismo, sin embargo sólo un 7.5% de la cantidad de agua supuestamente se destinaría para tal fin. Pero, debe hacerse una precisión sobre el uso de esa agua, ya que esa agua es para IRRIGACIÓN de propiedades vinculadas al turismo, no para el consumo humano que estaría contemplado dentro del 10% mencionado en el párrafo anterior. Eso significa que el 82.5% de la producción de agua del proyecto PAACUME se destinará a riego para agricultura, especialmente de monocultivos de grandes productores. Así las cosas, es falso lo que afirman, pero adicionalmente está totalmente descontextualizada la información, ya que la realidad de los requerimientos de agua potable para los cantones de Nicoya, Santa Cruz y Guanacaste es muy distinta hoy de cuando fue concebido por parte de SENARA ese proyecto hace mucho más de 10 años. Cuando SENARA concibió el proyecto de PAACUME había problemas de abastecimiento de agua potable en Carrillo y Santa Cruz, PERO, dichos problemas ya se resolvieron mediante acueductos que tardó muchos años el Instituto Costarricense de Acueductos y Alcantarillados (ICAA) de construir. Nos referimos a los acueductos de SARDINAL- EL COCO- OCOTAL en el cantón de Carrillo, y el de NIMBOYORES en el cantón de Santa Cruz. Entre ambos acueductos se abastecerá de agua potable a 80.000 personas por los siguientes 50 años, aparte de las 140.000 personas que ya reciben agua potable por medio de ASADAS. Eso cubre la totalidad de la población de esos cantones. Adicionalmente, ya se autorizó la operación de una planta desalinizadora en Playa Conchal para abastecer de agua los requerimientos del desarrollo inmobiliario y turístico en esa zona del cantón de Santa Cruz. El costo de ambos pozos y acueductos fue de una fracción del costo del megaproyecto de PAACUME el cual se estima sea superior a los $500 millones de dólares proyectados para el desarrollo del proyecto PAACUME contemplando la construcción de una represa para embalsar agua y luego canalizarla mediante 350 kilómetros de canales. Por otro lado, conviene traer nuevamente a colación lo manifestado por la organización denominada "Frente por las Áreas Silvestres Protegidas de Costa Rica" la cual señala que el proyecto de PAACUME "lo venden" como un proyecto salvador para Guanacaste por el embalse que se haría dentro de la Reserva Biológica, pero no se señala que el agua ya está embalsada en el Lago Arenal, el reservorio más grande del país, que tiene ese como uno de sus propósitos, que ya surte de agua a la margen izquierda de la cuenca del Río Tempisque y nada impide que surta de agua al resto de la provincia guanacasteca. ¿Por qué no se usa directamente? Eso significaría cambiar el diseño del proyecto de PAACUME como bien reconocen los mismos funcionarios de SENARA, en el sentido de que si no pueden disponer de las 113 hectáreas de la RBLB para inundarlas, deberían entonces cambiar el proyecto para embalsar una menor cantidad de agua y complementar con otras medidas. Como vemos, sí es posible llevar agua potable y de riego a la margen derecha del Tempisque sin necesidad de cercenarle 113 hectáreas de gran valor ecológico a la RBLB. Incluso, conviene repasar lo que señaló oportunamente el coadyuvante Lobo sobre este tema al indicar que "...no hay estudios que se hayan presentado en el expediente legislativo contemplando otras opciones como podría ser la de terminar la construcción de los canales de riego pendientes para aprovechar el agua del embalse del Arenal, ni tampoco estudios sobre la capacidad hídrica de los mantos acuíferos disponibles para explotación en los cantones de Nicoya, Santa Cruz y Carrillo." No se vale entonces hacer creer a la Sala Constitucional y a la opinión pública que estamos ante dos fines públicos de igual rango (acceso al agua potable, que en todo caso sería del 10% del total del agua del proyecto PAACUME y la protección del ambiente a través de una Reserva Biológica única en el país que incluso tiene protección internacional). Si se quieren contraponer fines públicos, debería ser entonces AGUA PARA RIEGO, O LA PROTECCIÓN DEL AMBIENTE, específicamente, la protección de una RESERVA BIOLÓGICA ÚNICA EN COSTA RICA con categoría de protección equivalente a un PARQUE NACIONAL, y además forma parte del Humedal de Palo Verde el cual le brinda adicionalmente una protección internacional. • ¿EXISTEN OTRAS OPCIONES PARA LLEVAR AGUA PARA RIEGO A LA CUENCA MEDIA DEL RIO TEMPISQUE Y AGUA POTABLE PARA LOS CANTONES DE NICOYA, SANTA CRUZ Y CARRILLO, O EL PROYECTO DE PAACUME ES LA ÚNICA OPCIÓN? Por lo que consta en el expediente legislativo y en los documentos aportados a esta acción de inconstitucionalidad, el mismo SENARA, en la página 8 de su contestación de nuestra acción de inconstitucionalidad señala que no existe posibilidad de reubicar o disminuir el volumen del embalse sin afectar significativamente el alcanc e del PAACUME. ¿Qué quiere decir esto? Que sí existe otras formas de llevar agua a la margen derecha del río Tempisque, pero debería replantearse el proyecto. De hecho, una de las justificaciones del PAACUME más efectistas era el tema del acceso al agua potable de los habitantes de los cantones de Santa Cruz, Nicoya y Carrillo. Incluso en la página 9 de su respuesta señalan con dramatismo que el PAACUME servirá para llevar agua a SARDINAL de Carrillo, demostrando de esta forma los personeros de SENARA que están desactualizados sobre ese tema, ya que, como hemos señalado anteriormente, esa escasez de agua fue resuelta por el ICAA. La otra justificación, que es el agua para irrigación de proyectos turísticos costeros, también ya está siendo resuelta por el ICAA, el cual autorizó a uno de esos proyectos turísticos a utilizar agua del mar desalinizándola. Como se puede apreciar, las necesidades han cambiado. PAACUME no trata entonces de agua potable. Ya ese tema, que de todas maneras representa el 10% del total del agua de PAACUME, fue resuelto por el ICAA. Entonces todo se reduce a afectar la RBLB para permitir desarrollar ese proyecto para irrigar terrenos de desarrollos turísticos (que podrían irrigarse mediante desalinización del agua del mar), y la utilización de agua para proyectos agrícolas. Claramente no hubo un estudio para determinar si había otra opción para llevar agua a la margen derecha del río Tempisque. En el documento denominado "Consulta Obligatoria a las Comunidades Locales. Propuesta de Compensación para la Reserva Biológica Lomas Barbudal" (visible a los Folios 622-726 del expediente legislativo), ante una de las preguntas formuladas por uno de los participantes, el representante del SENARA en esa actividad indicó que " si no se logran obtener las 113 hectáreas de la RBLB, el proyecto cambia totalmente, ya que sin estas 113 hectá reas de la RBLB las condiciones de la presa, la cantidad de agua a embalsar, el costo del proyecto y el diseñ o tendría que cambiar totalmente." ( ver Folio 661 del expediente legislativo). ¿QUÉ SIGNIFICA ESO? Que sí es posible llevar agua a la cuenca media del río Tempisque y a comunidades costeras, pero el diseño del proyecto PAACUME tendría que cambiar . ¡Ese estudio es el que falta! Eso hace que la ley #9610 sea inconstitucional por violación a los principios de irreductibilidad de las áreas silvestres protegidas, objetivación a la tutela ambiental y de no regresión en materia ambiental. Por otro lado, conviene recordar lo que la PGR ha señalado en relación con el Estudio de la OET. Para la PGR, aunque se constate la suficiencia del estudio de la OET y de la propuesta final de compensación, debe advertirse que ese estudio técnico únicamente justificaría la validez de la compensación practicada, y, como tal, no es un estudio técnico que justifique directamente la decisión de desafectar una parte de la RBLB . La Procuraduría es contundente en este tema, cuando señala que ... " atendiendo a la jurisprudencia constitucional sobre el tema, el estudio que exige el artículo 38 de la Ley Orgánica del Ambiente para justificar la reducción de un área silvestre protegida debería ser un estudio que determine la necesidad y conveniencia de adoptar ese tipo de medida."(el subrayado y resaltado no es del original). En este caso, un estudio en ese sentido, sería aquel que fundamente técnicamente la necesidad y conveniencia de desafectar parte de la RBLB. Es decir, un estudio que determine que la única alternativa para desarrollar el proyecto PAACUME y el embalse Río Piedras, es desafectando parte de la Reserva Biológica. Dicho sea de paso, dicho estudio no se ha realizado. Señala la Procuraduría, que si no se constata la necesidad y conveniencia de desafectar 113 hectáreas de la RBLB, la Ley 9610 debe declararse inconstitucional por violació n a los principios de irreductibilidad de las áreas silvestres protegidas, objetivación a la tutela ambiental y de no regresión. V.- CONCLUSIÓN Por todo lo anterior, así como por las argumentaciones presentadas en nuestra acción de inconstitucionalidad y en la respuesta que hicimos de los alegatos presentados en el expediente por los coadyuvantes activos, el coadyuvante pasivo, la Procuraduría General de la República, el Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento y el Ministerio de Ambiente y Energía, solicitamos respetuosamente a este Tribunal declarar la inconstitucionalidad de la Ley #9610, “MODIFICACIÓN DE LÍMITES DE LA RESERVA BIOLÓ GICA LOMAS BARBUDAL PARA EL DESARROLLO DEL PROYECTO DE ABASTECIMIENTO DE AGUA PARA LA CUENCA MEDIA DEL RÍ O TEMPISQUE Y COMUNIDADES COSTERAS”, publicada en el Alcance #199 de La Gaceta del 23 de noviembre del 2018, por violar los artículos 7, 11, 45, 50, y 176 de la Constitución Política; el procedimiento establecido en el artículo 208 bis del Reglamento de Orden, Dirección y Disciplinalnterior (sic) de la Asamblea Legislativa para el proceso de formación de la ley, el cual esparámetro (sic) de constitucionalidad; ylos (sic) principios constitucionales de no regresividaden materia ambiental, in dubio pro natura, razonabilidad y proporcionalidad, economía, y eficiencia y equilibrio presupuestarios”. 34.- En los procedimientos se han cumplido las prescripciones de ley.

Redacta el Magistrado Castillo Víquez ; y,

Considerando:

I.- Objeto de la acción. Los accionantes cuestionan la constitucionalidad de la ley n.º 9610 de 17 de octubre de 2018, denominada “Modifica límites de la Reserva Biológica Lomas de Barbudal para el desarrollo del proyecto de abastecimiento de agua para la cuenca media del río tempisque y comunidades costeras”, p or considerarla contraria a los artículos 7, 11, 45, 50 y 176 de la Constitución Política, así com o a los principios constitucionales de no regresividad en mate ria ambiental, in dub io pro natura, razonabilidad y pr oporcionalidad, economía y eficiencia, equilibrio presupuestario y seguridad jurí dica. Agregan, además, que en la tramitación de la ley se violentó el artículo 208 bis del Reglament o de la Asamblea Leg islativa, por haber sido aplicado de forma improcedente. II.- Sobre la admisibilidad de la acción y la legitimación de los accionantes. La acción de inconstitucionalidad es un proceso con determinadas formalidades, que deben ser satisfechas a los efectos de que la Sala pueda válidamente conocer el fondo de la impugnación. El artículo 75 de la Ley de la Jurisdicción Constitucional establece los presupuestos de admisibilidad de la acción de inconstitucionalidad. En primer término, se exige un asunto previo pendiente de resolver, sea en vía judicial o administrativa (en el procedimiento para agotarla), en que se haya invocado la inconstitucionalidad como medio razonable para amparar el derecho o interés que se considera lesionado. En el párrafo segundo y tercero, la ley establece, de manera excepcional, presupuestos en los que no se exige el asunto previo, tales como: inexistencia de lesión individual y directa por la naturaleza del asunto, defensa de intereses difusos o colectivos, o bien, cuando sea formulada directamente por el Contralor General de la República, el Procurador General de la República, el Fiscal General de la República y el Defensor de los Habitantes. Ahora, en cuanto a la necesidad de un asunto previo pendiente de resolver en sede administrativa, es necesario, que este trate del procedimiento que agota la vía administrativa, el cual, de conformidad con el artículo 126 de la Ley General de la Administración Pública, se da a partir del momento en que se interponen los recursos ordinarios ante el superior jerarca del órgano que dictó el acto final, pues de lo contrario la acción resultaría inadmisible. Asimismo, existen otras formalidades que deben ser cumplidas, a saber, la determinación explícita de la normativa impugnada, debidamente fundamentada, con cita concreta de las normas y principios constitucionales que se consideren infringidos, la autenticación por abogado del escrito en el que se plantea la acción, la acreditación de las condiciones de legitimación (poderes y certificaciones), así como la certificación literal del escrito en el que se invocó la inconstitucionalidad de las normas en el asunto base, requisitos todos que, en caso de no ser aportados por la parte accionante, pueden ser prevenidos para su cumplimiento por la Presidencia de la Sala. En el caso particular, para fundamentar su legitimación, los accionantes alegan la defensa de un interés que atañ e a la colectividad en su conjunto, como lo es el derecho de gozar de un ambiente sano. Sin embargo, formulan diversos tipos de alegatos, por lo que resulta necesario analizar su admisibilidad de forma separada en cada uno de ellos: 1)En cuanto a la acusada violación a los artículos 7, 11 y 50 de la Constitución Política y a los principios constitu cionales de no regresividad en materia ambiental e in dubio pro n atura, la acción resulta admisible, ya que los argumentos formulados se encuentran directamente relacionados con la tutela y protecció n del ambiente; supuesto en el cual la Sala ha reconocido en su jurisprudencia la existenc ia de un interés difuso para procur ar su tutela. 2)Sobre la transgresión reclamada al artí culo 176 de la Constitució n Política y a los principios de equilibrio presupuestario, razonabilidad y proporcionalidad, y econom ía y eficiencia, este Tribunal considera que la acció n resulta admisible, pues, en el fondo, se cuestiona la disposición y buen manejo de fondos públicos, lo que, al estar referido a la actividad financiera del Estado y al cumplimiento de criterios de economía y eficiencia, ha sido aceptado por la Sala como presupuesto de legitimación. 3) En relación c on la acusada violación al artículo 45 de la Constitución Política, al numeral 208 bis del Reglamento de la Asamblea Legislativa y al principio de seguridad jurí dica, la acció n se declara i nadmisible. Sobre este punto , los accionantes acusan que la ley n.º 9610 violenta el artículo 45 de la Constitución Política, ya que se priva, sin indemnización previa, de la propiedad privada a tres personas jurídicas para incorporarle a la RBLB casi 500 hectáreas de propiedades pri vadas como compensación. Reclaman que la aprobación de la ley que impone tales limitaciones requiere de 38 votos y, en el caso concreto, si bien se superó esa cantidad, bu ena parte del procedimiento parlamentario se realizó mediante un procedimiento abreviado basado en el artí culo 208 bis del Reglamento de la Asamblea Legislativa, lo que implica la inconstitucionalidad de la ley por violación al procedimient o parlamentario, ya que ese procedimiento abreviado está vedado para proyectos que requieren para su aprobació n el voto de una mayoría calificada de diputados. Mencionan que por la forma en que se decide expropiar la propiedad de Brindis de Amor para incorporarla a la RBLB, se deja por fuera y enclavada dentro de la reserva, una propiedad de aproximadamente 14 hectá reas perteneciente a la socie dad Inversiones y Desarrollos Costa Rica Pacífico del Mar CMP S.A. Acusan que existe una nota que el Instituto Geográfico Nacional envió a la Asamblea Legislativa (oficio DIG-0388-2018) en respuesta a la consulta que se le hizo me diante oficio AL-DSDI-OFI-0313-2018, de la que se deriva una violación al principio de seguridad jurídica; lo anterior, por cuanto se constata l a existencia de inconsistencias y errores en las coordenadas incluidas en la ley finalmente aprobada, que impiden tener certeza sobre cuá ntas hectáreas deben expropiarse y cuáles son los límites verdaderos de la reserva. Cuestionan , además , que no se haya i ndemnizado previamente las propiedades privadas afectadas. Al respe cto, la Sala descarta la existencia de algún t ipo de interés difuso o colectivo en esos alegatos de los accionantes. Todos esos argumentos se encuentran r elacionados de una u otra forma con el derecho de propiedad privada y su ev entual transgresión , lo que requeriría de la exis tencia de un asunto base en el que se hubiera invocado la inconstitucionalidad como medio para amparar el derecho o interé s reclamado, lo que se echa de menos en este caso. Por consiguiente, tales alegatos, no son susceptibles de ser analizados por el fondo. A mayor abundamiento, en lo referente específicamente a las acusadas inconsistencias y errores en cuanto a la debida definición o delimitación de los linderos de la RBLB, tambi én debe tomarse en consideració n que tanto la president a de la Asamblea Legislativa como SENARA argumentan que las coordenadas de delimitación de la reserva biológica señaladas en la ley cuestionada son correctas. Se alega, en particular, que en un trabajo conjunto entre el MINAE y el SENARA se realizaron los estudios y replanteamientos topográficos de campo necesarios, lo que permitió una adecuada precisión geográfica de ubicación y delimitación real del área de la reserva de interés, mediante el uso de instrumentos tecnológicos de precisión geográfica. Se constata con lo anterior, que en el sub lite se plantea una discusión eminentemente técnica sobre la debida ubicación y delimitación geográfica de tales linderos. En cuyo caso, resolver tal controversia, previa revisión y ponderación de los diversos parámetros técnicos que rigen la materia e, incluso, evacuar y valorar el pertinente material probatorio, supone una discusión que excede, sobradamente, el propósito y la naturaleza del control de constitucionalidad, en los términos de los artículos 10 de la Constitución Política y 73 y siguientes de la Ley de la Jurisdicción Constitucional. Por el contrario, tal discusión en propia de ventilarse en las vías ordinarias, con la respectiva amplitud probatoria. III.- Sobre las coadyuvancias. El artículo 83 de la Ley de la Jurisdicción C onstitucional establece que en el plazo de 15 días posteriores a la primera publicación del edicto a que se refiere el párrafo segundo del artículo 81, las partes que figuren en los asuntos pendientes a la fecha de la interposición de la acción, o aquellos con interés legítimo, podrán apersonarse a fin de coadyuvar en las alegaciones que pudieren justificar su procedencia o improcedencia, o para ampliar, en su caso, los motivos de inconstitucionalidad en relación con el asunto que les interesa. En la especie, mediante resolución de las 15:23 horas de 21 marzo de 2019, la Presidencia de la Sala aceptó las coadyuvancias activas de Mario Andrés Boza Loría y Jorge Artu ro Lobo Segura y la coadyuvancia pasiva de Luis Renato Alvarado Rivera, Ministro de Agricultura y Ganadería; además, rechazó la coadyuvancia formulada por Juan Carlos Peralta, quien manifestó a personarse en representación de la Asociación para el Bienestar y Amparo de los Animales del Cantó n de San José, por no aportar la personería jurídica que acr editara su condición, a pesar de que se le previno . En este acto, se rechaza la solicitud de coadyuvancia planteada por Henry José Picado Cerdas, toda vez que se apersonó extemporáneamente. La primera publicación de la resolución de curso de esta acción en el Boletín Judicial se efectuó el 19 de febrero de 2019; sin embargo, el señor Picado remitió su escrito el 2 de noviembre de 2019. IV.- Sobre la exposición de motivos del proyecto de ley n.° 20.465 que posteriormente dio origen a la ley n.° 9610. De previo a resolver los alegatos de fondo, se considera pertinente exponer los motivos que sustentaron esa iniciativa legislativa, en el proyecto legislativo n.° 20.465: “Guanacaste es una zona de vital importancia para el desarrollo social y económico del país. En los últimos años ha experimentado un crecimiento exponencial del sector turismo con un desarrollo inmobiliario significativo; además de ser una zona agrícola con características especiales, donde las condiciones climáticas y topográficas permiten tener una rotación de cultivos según la época del año, variando desde la producción de arroz, caña de azúcar, hasta la producción intensiva de melón y sandía, sin dejar de lado la producción ganadera y acuícola. Estas condiciones han propiciado un incremento en la demanda de agua, tanto por el crecimiento vegetativo de la población como para satisfacer las necesidades de todas las actividades productivas, en la región climática más seca del país y afectada en gran medida por las sequías cada vez más frecuentes producidas por el fenómeno El Niño. Ante lo anterior, una eficiente gestión del agua se torna clave en la planificación del desarrollo de dicha región. La Estrategia Nacional para la Gestión Integrada de los Recursos Hídricos (Egirh, 2005) señaló que las competencias por el uso del recurso hídrico en esta zona (y otras del país) podrían devenir en conflictos entre usuarios si no se aplicaban las medidas correctivas necesarias. Al respecto, se hace hincapié en la necesidad de una inversión significativa en infraestructura hídrica, la que requiere la provincia con apremio. El retraso en una inversión sostenida en materia de infraestructura hídrica por varios años ha propiciado que ya se manifiesten varios conflictos por el uso del agua como, por ejemplo, los relacionados a pretendidos aprovechamientos de agua de los acuíferos Sardinal y Nimboyores, con el Acueducto Sardinal – El Coco – Ocotal y el hoy Acueducto de Abastecimiento de las Comunidades Costeras de Santa Cruz, respectivamente. Esta situación obliga a priorizar, y ejecutar con celeridad, políticas públicas para la gestión integrada del recurso hídrico y que se garantice la seguridad hídrica en la provincia. Este tipo de políticas debe establecer un aprovechamiento controlado y sostenible mediante infraestructura de regulación que contribuya a disminuir los impactos derivados del estrés en la disponibilidad de agua, tanto en hogares residenciales, sectores productivos y zonas de desarrollo inmobiliario. La gestión debe ir enfocada en administrar la oferta hídrica en los meses de mayor lluvia para mejorar la condición en época seca. El Plan Nacional para la Gestión Integrada de los Recursos Hídricos (PNGIRH, 2008) dispuso como acción inmediata implementar el llamado Plan de Abastecimiento de Agua para Guanacaste en la línea estratégica 8.3.3.2, bajo el objetivo de “Regular la oferta hídrica para permitir su disponibilidad durante todo el año y atender la vulnerabilidad al cambio climático”. Como resultado de la mesa de trabajo por Guanacaste: Agua e Infraestructura Hídrica, implementada por la Administración Solís Rivera, se retoma y dispone la ejecución de este proyecto. Esta Administración le ha dado una visión integral a la problemática del agua en Guanacaste, con el fin de asegurar una gestión integrada del agua en el país y, en particular, en esta provincia y atender la seguridad hídrica y alimentaria a largo plazo. Por su importancia, esta línea de acción estratégica fue incluida dentro del Plan Nacional de Desarrollo 2015-2018 “Alberto Cañas Escalante”, bajo la línea programática 1.9 del sector ambiente, siendo que bajo el ejercicio de rectoría del sector ambiente, energía, mares y ordenamiento territorial se contempla el desarrollo e implementación del Programa Integral de Abastecimiento de Agua para Guanacaste - Pacífico Norte (Piaag), que integra actividades, obras y proyectos en el inmediato, corto, mediano y largo plazos. El Piaag integra una serie de acciones estratégicas para el desarrollo de proyectos de infraestructura hidráulica de regulación y control de agua para satisfacer la demanda de agua para las poblaciones y el uso en riego en las llanuras del Tempisque. Además, contiene acciones de monitoreo e investigación de agua subterránea, así como promoción y desarrollo de alternativas tecnológicamente novedosas, acciones de conservación y uso eficiente del agua, y la adaptación al cambio climático. El Piaag tiene como objetivo asegurar el aprovechamiento óptimo del recurso hídrico en la provincia de Guanacaste para satisfacer las demandas de agua por parte de las comunidades y las distintas actividades productivas, mejorando el acceso al agua en cantidad y calidad adecuada. Para ello contempla cuatro ejes estratégicos: I- Seguridad hídrica para las comunidades (derecho humano acceso al agua - sistemas de AyA y acueductos comunales - asadas). II- Seguridad alimentaria (incremento de la producción alimentaria con sistemas de riego). III- Necesidades de agua de los ecosistemas (promover la sostenibilidad de los ecosistemas. IV- Gestión de aprovechamiento sostenible (mejorar el aprovechamiento del agua disponible, con prioridad el agua subterránea). Conforme a los ejes I y II, el Servicio Nacional de Agua Subterránea, Riego y Avenamiento (Senara) desarrolla el Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras (Paacume), que se constituye, por su ámbito y alcance en beneficios, en el proyecto más robusto y estratégico. PROYECTO DE ABASTECIMIENTO DE AGUA PARA LA CUENCA MEDIA DEL RÍO TEMPISQUE Y COMUNIDADES COSTERAS (PAACUME) El Paacume tiene como objetivo potenciar el desarrollo socioeconómico de la provincia de Guanacaste mediante un mejor aprovechamiento de los recursos hídricos provenientes del Sistema Hidroeléctrico Arenal-Dengo-Sandillal (Ardesa) y demás fuentes disponibles, como medidas de adaptación al cambio climático en un marco de sostenibilidad y equidad. El proyecto consiste en generar las condiciones técnicas y tecnológicas para un mejor aprovechamiento de las aguas en el Distrito de Riego Arenal Tempisque (DRAT), las cuales provienen de la generación hidroeléctrica del Instituto Costarricense de Electricidad (ICE) en el Sistema Hidroeléctrico Arenal, Dengo, Sandillal (Ardesa). Contiene la automatización de la Presa Derivadora Miguel Pablo Dengo B y Canal Oeste Tramo I hasta el embalse Río Piedras, contemplando la construcción de un embalse de almacenamiento en el río Piedras, ampliación y construcción del Canal Oeste Tramos II y III desde este hasta río Tempisque. Además, las líneas de conducción secundarias y terciarias para riego agropecuario y áreas de desarrollo turístico, obras de entrega de agua para las poblaciones que será administrada por el Instituto Costarricense de Acueductos y Alcantarillados, todo desde la planicie del río Tempisque hasta la zona costera. Igualmente, integra el proyecto la construcción de casa de máquinas para generación eléctrica en el punto de presa. El objetivo fundamental es la provisión de agua, accesible en cantidad, calidad y oportunidad -de 20 metros cúbicos por segundo- para diferentes usos potenciales. Se proyecta beneficiar al menos a 204 mil personas y cubrir al menos 17 mil hectáreas bajo riego. De este caudal quedarán disponibles 2 metros cúbicos por segundo para el abastecimiento a largo plazo de comunidades de cantones de Santa Cruz, Nicoya y Carrillo y que será administrada por el Instituto Costarricense de Acueductos y Alcantarillados. Además, el proyecto contempla al menos 1.5 metros cúbicos por segundo de agua para riego como apoyo a la actividad turística en la zona costera y con ello beneficiar las comunidades costeras con la liberación de aguas subterráneas hoy usadas en riego. Este proyecto no solo permitirá el acceso sostenible al agua por parte de las comunidades y el sector productivo, sino que además pretende armonizar y regular la explotación racional de los principales recursos subterráneos en acuíferos en la margen derecha de la cuenca media del río Tempisque, pues permitirá al Estado la regulación del uso máximo de pozos para estas actividades. La construcción de la presa sobre el río Piedras implica un embalse con un espejo de agua de aproximadamente 850 hectáreas, de las cuales, conforme al levantamiento de campo realizado por el Senara, 113 hectáreas se encuentran dentro de la Reserva Biológica Lomas Barbudal (RBLB). El sitio de presa se ubicará en un estrechamiento natural del cauce de este río entre las coordenadas longitud oeste 358930, latitud norte 1163180 y longitud oeste 359690, latitud norte 1155330 a una elevación de nivel de agua máxima de 50.50 m.s.n.m. Esta presa tendrá como función crear un represamiento para el almacenamiento del agua, que será captada por el Senara en la presa Miguel Pablo Dengo ubicado en el río Santa Rosa. A partir de este sitio será conducida el agua por medio del Canal Oeste, Tramo I, que tiene una longitud de 21 km y una capacidad hidráulica de 55 metros cúbicos por segundo. Es importante destacar que antes que el Canal Oeste Tramo I interseque con el río Piedras se da una caída natural, es precisamente esta caída la que permite concebir un sitio de almacenamiento. El proyecto se ubicará en la región Chorotega, provincia de Guanacaste. Su área de influencia comprende los cantones de Bagaces, Carrillo, Santa Cruz y Nicoya. Sin embargo, el área de riego solo cubre algunos distritos de los cantones de Carrillo, Santa Cruz y Nicoya. Ubicación: Cantón Distrito Cantón Distrito Nicoya San Antonio Carrillo Filadelfia Santa Cruz Santa Cruz Palmira Bolsón Belén Cartagena Sardinal Diriá Así las cosas, la ubicación de la presa en el río Piedras obedece a una condición topográfica única que no permite ser trasladada a otro sitio; por tanto, esta ubicación y diferencia de nivel entre la entrada del canal que lo abastece y la salida del canal que permitirá llevar el agua hasta el río Tempisque determinan el nivel máximo de embalse y la capacidad de este para abastecer con 20 metros cúbicos por segundo al Paacume. En algún momento se valoró la posibilidad de construir un dique para evitar la inundación de esta área de la Reserva Biológica Lomas Barbudal y un túnel de más de 2 kilómetros para evacuar las aguas; sin embargo, resultó que el sitio del dique coincide con una falla geológica que haría imposible su construcción por el alto riesgo que genera a la obra. No existe posibilidad de reubicar o disminuir el volumen del embalse sin afectar significativamente el alcance del Paacume y con ello los beneficios para la población guanacasteca, con lo cual se determinó la necesidad de contar con 113 hectáreas a de la Reserva Biológica Lomas de Barbudal para ser inundadas. Resulta de vital importancia que este embalse se desarrolle a plenitud, para lo cual es indispensable tener como área inundable esta extensión. Senara ha demostrado que esta extensión de embalse, incluida la zona dentro de la Reserva Lomas de Barbudal (113 hectáreas), es la única vía para hacerlo con el fin de atender la demanda hídrica en el ámbito del proyecto de forma sostenible. Beneficiarios del proyecto Con Paacume se beneficiarán con riego tres cantones de la provincia de Guanacaste, a saber: Carrillo, Santa Cruz y Nicoya. Adicionalmente, Paacume destinará 2 metros cúbicos por segundo de agua para consumo humano (cuyo tratamiento y distribución estará a cargo del AyA), lo que implica solucionar el déficit con un horizonte de 50 años de aproximadamente 500.000 personas, además de que con la generación hidroeléctrica en sitio de presa de producirán 7 MW por año y en materia de riego cubrirá un área estimada en 1.875 ha en el sector turístico en la zona costera, liberando agua subterránea hoy usada con este fin. Esto además del agua dispuesta para el riego productivo. Tabla 1. Proyección de la población del período 2016-2020 Por cantón y distrito Cantón/distrito 2016 2017 2018 2019 2020 Nicoya 54396 54958 55512 56053 56591 Nicoya 25727 25971 26216 26454 26693 Mansión 5737 5745 5756 5760 5768 San Antonio 6933 6974 7015 7055 7091 Quebrado Honda 2565 2573 2579 2580 2587 Sámara 4309 4373 4436 4499 4561 Nosara 6241 6405 6559 6720 6873 Belén de Nosarita 2884 2917 2951 2985 3018 Santa Cruz 64118 63345 66561 67758 68939 Santa Cruz 25739 26134 26518 26901 27278 Bolsón 1977 2010 2047 2081 2113 Veintisiete de Abril 8112 8313 8519 8717 8912 Tempate 5770 5888 6007 6123 6240 Cartagena 4510 4620 4727 4834 4935 Cuajiniquil 2285 2350 2416 2476 2543 Diriá 4530 4609 4684 4762 4834 Cabo Velas 3896 3979 4060 4141 4223 Tamarindo 7299 7442 7583 7723 7861 Carrillo 42325 43251 44157 45047 45939 Filadelfia 8425 8527 8618 8711 8804 Palmira 5986 6144 6296 6445 6594 Sardinal 17720 18119 18517 18909 19296 Belén 10194 10461 10726 10982 11245 Total 160839 163554 166230 168858 171469 Fuente: INEC,2016. Los beneficiarios potenciales del proyecto están compuestos por la población general de la provincia de Guanacaste. Esta provincia cuenta con una población proyectada por el Instituto Nacional de Estadística y Censos (INEC) de 371.375 habitantes para el 2.016, más la población flotante que está compuesta por el turismo nacional y extranjero estimándose en más de un millón de personas al año, a esto se le suma otra población compuesta por trabajadores de las diferentes empresas que incluye el turismo y que permanecen entrando y saliendo del área. El Instituto Nacional de Acueductos y Alcantarillados (AyA) ha estimado que para el 2025 habrá una población, dentro del área del proyecto, equivalente a más de 220.000 habitantes como usuarios de los acueductos principales de la zona (Senara, 2006). En el año 2002 se registró el ingreso de 1.113.359 turistas. La tendencia al crecimiento es constante, ya que para el 2014 se duplicó el número de visitación al país. Contrario al panorama de pobreza de la región Chorotega, esta es una de las zonas que mayor desarrollo turístico ha experimentado. En sus costas se asientan los principales complejos hoteleros que existen en el país. Se estimó, en el año 2005, que la capacidad instalada en los hoteles de la zona del proyecto era para 140.812 personas en temporada alta y se proyectaba que para el año 2025 alcanzará las 230.900 personas (Senara, 2006). Debe señalarse que el recurso más amenazado en la actualidad es el agua debido principalmente a la sobreexplotación de los acuíferos para consumo humano, aspecto que se agrava aún más en las zonas turísticas por la amenaza de salinización de los pozos. Con la capacidad instalada en el 2005 la demanda promedio de agua potable se estimó en 570 l/s y con el crecimiento sostenido al 2025 alcanzaría los 935 l/s. El área de riego agropecuario se estima en 17000 ha en donde se podrían beneficiar 1.067 productores agropecuarios entre grandes, medianos y pequeños. La distribución de los propietarios se presenta en la tabla 2. Tabla 2. Distribución de productores por cantón Cantón Nú mero de beneficiarios Nicoya 84 Santa Cruz 482 Carillo 505 Total 1067 Fuente: Sena ra, 2017 Tabla 3. Distribución del uso actual del suelo en el á rea de influencia del PAACUME. Por cantó n en hectáre as Uso actual del suelo Carrillo (ha) Nicoya (ha) Santa Cruz (ha) Tot al (ha) Total (%) Áreas de protección 962 188 2396 3546 8.5 Áreas protegidas 327 269 596 1.4 Arroz 874 507 1380 3.3 Bosque 659 448 1355 2462 5.9 Caña de Azúcar 11282 616 1612 13510 3 2.6 Charral 90 203 293 0.7 Forestales 19 33 52 0.1 Frutales 25 7 95 352 0.8 Industria 32 32 0.1 Melón 3 91 391 0.9 Pacas 1814 1814 4.4 Palma 46 46 0.1 Pastos 4945 1464 9960 16370 39. 5 Sorgo 37 37 0.1 Urbano 328 268 596 1.4 ÁREA TOTAL 20166 2716 18595 414 77 100 ÁREA REGABLE 17749 2080 14071 33900 81 .7 Fuente: Senara. 2016. Trabajo de campo re alizado en el mes de febrero de 2016. Esta tabla 3 refleja el área total de cobertura del proyecto que corresponde a 41.477 hectáreas y el área regable, en la que se excluyen para los tres cantones las áreas de protección, áreas protegidas, bosque, charral, forestales, industria y la zona urbana, que suman un total de 33.900 hectáreas potencialmente regables. Uso propuesto del suelo A partir de la oferta de agua que introduce el Paacume, se identifica el área que efectivamente se va a regar. Para las áreas que no sean posibles de abastecer con el proyecto se deberá buscar y analizar posteriormente la opción que resulte factible y viable dentro de las potenciales alternativas de solución. En el caso del abastecimiento de agua para consumo humano, lo que se está proponiendo es una reserva a futuro sobre un uso que es prioritario. Con base en la determinación de los cultivos que se ubican dentro del área regable del proyecto y considerando que el área potencial de riego supera el área posible de regar con el agua disponible, se determinará una propuesta de cultivos a regar a partir del uso del suelo, la cual se utilizará como referencia para la determinación de la demanda de agua y para la valoración financiera y económica del proyecto. En la tabla 4 se presenta el uso propuesto del suelo ajustado según la disponibilidad de la oferta de agua para uso agropecuario. De acuerdo con el caudal disponible, la demanda de agua puede variar según las épocas de siembra propuestas, eficiencia del método de riego y disponibilidad de agua. Tabla 4. Uso propuesto del suelo, épocas de siembra y cosecha segú n la oferta de agua disponible Cultivos Época siembra É poca cosecha Total (has) Total (% ) Arroz Enero-Julio Abril, noviembre 1 400 8.2 Caña de Azúcar Dic-abril 8500 50 Forrajes Mayo Enero-dic 600 3.5 Frutales febrero-abril 400 3.5 Hortalizas E nero-Mayo, Jul, Set, Nov, Dic Enero-setiembre nov 400 2.4 Melón Nov-Enero Enero-Mayo 600 2.4 Pacas Mayo Enero-Dic 4000 23.5 Raíces y tubérculos Noviembre-Febrero Febrero-Abril Junio-Noviembre 700 4.1 Sandía Nov, Marzo, Abril En, Feb, Marzo, Mayo, Jun, Jul, Agost o 400 2.4 TOTAL 17.000 100 Uso potencial del suelo La tabla de uso potencial del suelo refleja una propuesta de cultivos en un tiempo estimado de tres años plazo después de iniciada la operación del sistema de riego, en la cual se mantienen los mismos cultivos, y las épocas de siembra. Hay un aumento de área de producción, porque se considera que se optimiza la operación del sistema de riego y aumenta la eficiencia de los métodos de riego utilizados. En la tabla 5 se desglosa el área de siembra de cada uno de los diferentes sistemas de producción y se observa que se incrementan las áreas sembradas de caña de azúcar, frutales, pacas, raíces y tubérculos y sandía. Tabla 5. Cultivos potenciales, épocas de siembra, cosecha y áreas potencialmente regables Cultivos Época siembra É poca cosecha Total (has) Total (%) Arroz Enero-Julio Abril, noviembre 1400 7.5 Caña de Azúcar Dic-abri l 8500 45.2 Forrajes Mayo Enero-dic 1000 5.3 Frutales Febrero-abril 1000 5.3 Hortalizas Enero-mayo, jul, set, nov, dic Ene ro-setiembre nov 400 2.1 Melón Nov-enero Enero-mayo 1000 5.3 Sandía Nov, marzo, abril En, feb, marzo, mayo, jun, ju l, agosto 500 2.7 Pacas Mayo Enero-dic 4000 21.3 Raíces y tubérculos Noviembre-febrero Febrero-abril junio-noviembre 1000 5.3 TOTAL 18.800 100 Las 18.800 hectáreas tienen su máxima demanda en el mes de abril con un total de 16,35 m3 /s. Teniendo en cuenta lo anterior, nos encontramos ante una obligada decisión de realizar la desafectación de un área silvestre protegida, que según estipula la Ley Orgánica del Ambiente solo podrá reducirse mediante una ley de la República, después de realizar los estudios técnicos que justifiquen esta medida. En este sentido, la Sala Constitucional ha emitido vasta jurisprudencia con respecto al artículo 38 de la ley citada, al establecer que para la reducción de las áreas silvestres protegidas se necesitan dos requisitos esenciales: una ley de desafectación y la previa realización de estudios técnicos suficientes que justifiquen la medida… …En ese sentido, la propuesta que se plantea se considera no contraviene el principio de irreductibilidad y de no regresión contenido en los instrumentos internacionales como el Convenio de Diversidad Biológica y el Convenio de Washington, ya que la desafectación territorial o espacial del área protegida es un acto excepcional y reforzado, que cumple con los requisitos técnicos y legales que tienen como fin impedir todo tipo de regresión en esta materia. Los estudios técnicos y la necesidad de desafectar el área protegida ha sido de conocimiento de las instancias regionales y nacionales y cuenta con la aprobación en primera instancia del Consejo Regional del Área de Conservación (Corac), según acuerdo número 01 en sesión extraordinaria celebrada el día 5 de julio del año 2017 y posteriormente por el Consejo Nacional de Áreas de Conservación (Conac), en sesión extraordinaria número 3-2017 del día 11 de julio de 2017, han valorado dichos estudios y realizan observaciones de importante consideración. En virtud de lo anterior, el Consejo Regional del Área del Conservación Arenal Tempisque del Sistema Nacional de Áreas de Conservación valoró los estudios técnicos respectivos de acuerdo con la recomendación dada por el Comité Técnico, a la luz de lo dispuesto por el artículo 38 de la Ley Orgánica del Ambiente N.° 7554 (y el desarrollo jurisprudencial -Voto 2014-0121287 Sala Constitucional- y antecedentes de análisis en la materia -Oficio N.º 09082 CGR y el Informe de Servicios Técnicos de la Asamblea Legislativa AL-DEST- IJU-117- 2016) y siendo que mediante el Decreto Ejecutivo 16849-MAG, de 23 de enero de 1986, publicado en La Gaceta N.° 45 de 5 de marzo de 1986, se crea la Reserva Biológica Lomas Barbudal, identificándose en el cuerpo considerativo de dicho decreto los siguientes objetos de conservación: 1) Flora y fauna de la sabana seca arbolada de bajura. 2) Bosque ripario de tierras bajas. 3) Bosque caducifolio de tierras bajas. 4) Al menos 10 nacientes y parte de la cuenca del río Cabuyo. 5) Fauna entomológica única. Esta instancia procedió a analizar de acuerdo con el estudio presentado los posibles impactos que podrían generarse en estos objetos de conservación según el estudio presentado por la Organización de Estudios Tropicales. Aunado a ello, tales objetos de conservación se han homologado a los actuales elementos focales de manejo del área protegida, establecidos en el Plan General de Manejo emitido mediante resolución R-Sinac-Conac-24-2016 vigente desde fecha 3 de noviembre de 2016, llegando dicho órgano colegiado a las siguientes conclusiones resumidas en la tabla 6: Tabla 6. Conclusiones del Corac Arenal-Tempisque Objeto de conservación según decreto ejecutivo Relación con los elementos focales establecidos en Plan General de Manejo Conclusión técnica Flora y fauna de la sabana seca arbolada de bajura Bosque seco No se verá afectada, ya que el área a inundar no contempla este tipo de ecosistema (sabana seca arbolada) Bosque ripario de tierras bajas Bosques siempre verdes al interior de la eco-región y bosques de galería El tipo de cobertura bosque ripario, es de suma preocupación en el tema de escasa representatividad a nivel de la RBLB. Esta cobertura está representada únicamente en un 8,0% (216,17 has) de área total de la RBLB. Los estudios determinaron que el bosque ripario dentro del sitio de inundación en la reserva corresponde a un 11,4% (24,64 has) del área total de esa cobertura en la RBLB. El área de bosque ripario en la finca Brindis de Amor representa un 7,40 % (15,87 has). Esto sumado a las 2,2 has de Asetrek suman 18.07 has de bosque ripario como propuesta de compensación. Presentándose una diferencia de aproximadamente 6,57 has de bosque ripario para compensar este tipo de ecosistema Bosque caducifolio de tierras bajas Bosque seco Considerando el resultado obtenido por la aplicación de la metodología, tanto para calidad de hábitat como para diversidad y composición de comunidades, el sitio de compensación Asetrek es inferior en calidad de ambiente, composición y biodiversidad al sitio de la RBLB que sería inundado por el Embalse Río Piedras, razón por la cual, al Objeto de conservación según decreto ejecutivo Relación con los elementos focales establecidos en Plan General de Manejo Conclusión técnica considerar la condición más adecuada para la RBLB, la OET recomienda que se adquieran como mínimo 332 hectáreas de la Finca Asetrek para compensar las 113 ha que deberán ser desafectadas de la Reserva Biológica. Según (Quesada, 2008), “para revertir áreas de pastos en bosques a través de métodos de regeneración natural, deben tener una ubicación estratégica a fuentes semilleras y cercanía a parches boscosos”, condiciones que presenta el área propuesta en las fincas Asetrek y Brindis de Amor Al menos 10 nacientes y parte de la cuenca del río Cabuyo Sistema fluvial de la cuenca baja del Tempisque El área a inundar no afectaría ninguna naciente, por el contrario, las nacientes principales del río Cabuyo y quebrada Amores se ubican algunas dentro de la finca Brindis de Amor y otras en la propiedad colindante Fauna entomológica única Bosque seco Bosques siempre verdes al interior de la eco-región y bosques de galería Sistema fluvial de la cuenca baja del Tempisque Este tipo de fauna no se verá afectada, ya que los ecosistemas asociados se están contemplando en la propuesta de compensación. Los resultados del estudio brindan datos importantes respecto la composición de comunidades Asimismo, según se lee en el mismo acuerdo del Consejo Regional (acuerdo 01 de la sesión extraordinaria de 5 de julio de 2017) dicha instancia ha verificado que el informe técnico remitido a esta instancia para su consideración ha cumplido con el contenido requerido por los numerales 71 y 72 del Decreto Ejecutivo 34433-Minae, Reglamento a la Ley de Biodiversidad, y concluye que salvo las consideraciones realizadas en el objeto de conservación denominado bosque ripario, técnicamente se puede afirmar que: a) Los objetos de conservación que fundamentan la creación de la Reserva Biológica Lomas Barbudal no están siendo afectados, y b) Que el área es compensada por otra de igual tamaño que cumple con los mismos fines y semejantes condiciones ecosistémicas. Finalmente, señalan que mediante ley de la República se autorice la desafectación del área de la Reserva Biológica Lomas de Barbudal y consecuentemente se dé la compensación con la compra del área correspondiente, así definido por los estudios técnicos. De igual manera, al ser Costa Rica parte de la Convención Ramsar se al Ministerio de Ambiente y Energía (Minae) realizar la comunicación respectiva a la Secretaría de la Convención Ramsar, ya que el área a desafectar es tanto un área silvestre protegida como un Sitio Ramsar así designado en diciembre de 1991 dentro del Sitio Ramsar Palo Verde… …En cumplimiento de lo anterior, de conformidad con la Ley Orgánica del Ambiente, el estudio de impacto ambiental a desarrollar para la eventual construcción de la obra establecerá las medidas necesarias a fin de reducir al máximo los posibles efectos que sobre el ambiente genere la construcción del sistema de abastecimiento de agua para la cuenca media del río Tempisque y comunidades costeras… …En enero de 2016 el Senara suscribió el convenio entre la Organización para Estudios Tropicales (OET) y el Senara para realizar el estudio para el establecimiento de la línea base de biodiversidad para la RBLB y finca adyacente. El objetivo del estudio consistió en elaborar y definir la línea base que permita determinar la integridad ecológica, relevancia y fragilidad de los ecosistemas presentes, así como la biodiversidad existente en el área de la Reserva Biológica Lomas de Barbudal a ser impactada directamente por el Embalse Río Piedras. A la vez, se efectúa un análisis comparativo entre un área de la RBLB y terrenos aledaños previamente seleccionados para conocer las condiciones de similitud y factibilidad de utilizarse como zona de reemplazo y que sea ecológicamente equivalente. Área de compensación Los terrenos evaluados para el área de compensación son propiedad nombre de Asetrek Tres Azul S.A., cédula jurídica N.° 3-101-370259, cuyo representante es el Sr. Ramón Aguilar Facio, cédula de identidad N.° 9-0001-0541, plano catastrado N.° 5-666-1976, folio real N.° 034932-000, situada en el distrito primero Bagaces, del cantón cuarto Bagaces, de la provincia de Guanacaste, con un área de registro de 751 hectáreas. El procedimiento realizado por la OET para la evaluación de la compensación se basa en una metodología llamada: Hábitat/Hectárea, un sistema de puntajes, desarrollado por investigadores australianos, el cual identifica una serie de indicadores de calidad de ambiente y asigna valores a cada uno de los factores de los hábitats a evaluar. Se realizaron dos evaluaciones de compensación de forma independiente, una basada en indicadores de calidad de hábitat y la otra basada en diversidad y composición de comunidades, ambas adaptadas al bosque seco tropical. Adicionalmente, la metodología usada por la OET fue modificada con el fin de incluir otros indicadores (geofísicos, servicios ecosistémicos, entre otros). El puntaje final resulta de la suma de los valores determinados para cada indicador y representa la calidad de hábitat o la composición de comunidades en relación con el hábitat de referencia (RBLB). A partir del resultado obtenido en el estudio fue posible estimar el número de hectáreas que se requieren para lograr un nivel de calidad como el de la referencia y así compensar las 113 hectáreas por inundar en la RBLB. Es importante señalar que el estudio realizado por la OET consideró un área en la RBLB de 131,07 hectáreas, pues fue durante la ejecución de este que el Senara realizó el trabajo de campo en topografía para elaborar el plano definitivo sobre el área efectiva requerida para el embalse, que dio como resultado las 113 hectáreas, todas incluidas dentro de las 131,07 hectáreas estudiadas por la OET. El estudio realizado por la OET (sobre 131,07 hectáreas), al considerar el área establecida determinó que este sector de la RBLB cuenta con tres tipos de cobertura forestal: bosque deciduo en 96,05 hectáreas, bosque secundario en 9,13 hectáreas y bosque maduro en 24,71 hectáreas. Este último en adelante será llamado bosque ripario, debido a que está relacionado con los cauces de la zona y compuesto por remanentes de vegetación que subsisten en las riberas de los ríos y quebradas, constituido por especies siempre verdes. Además, la finca cuenta con 1,18 hectáreas en área no forestal y pastos. El área de bosque ripario en Asetrek corresponde a pequeñas áreas fragmentadas, situación que llevó a no considerar su existencia para efectos de la asignación de puntajes en la evaluación realizada en el estudio para determinar el área de compensación requerida. Las conclusiones del estudio revelan, según la calidad de hábitat, que es necesario un área equivalente entre 290 y 332 hectáreas para compensar el área a inundar en la RBLB, debido a que la finca estudiada representa entre el 34,00% y el 51,20% del sitio de referencia, que corresponde a las 113 hectáreas de la RBLB. Estas diferencias indican que la finca Asetrek Tres Azul S.A. ha sido más perturbada y al no contar con cobertura de bosque ripario se requerirán 332 hectáreas para la compensación, considerando el valor máximo probable que da como resultado la metodología aplicada. Por otra parte, aplicando la metodología para diversidad y composición de comunidades, Asetrek contiene 30,90% de la referencia (113 hectáreas de la RBLB), es decir, la reserva cuenta con una riqueza de especies mayor de los grupos taxonómicos estudiados, por lo que se necesitan 290 hectáreas para compensar la pérdida en la RBLB. En conclusión, considerando el resultado obtenido por la aplicación de la metodología, tanto para calidad de hábitat como para diversidad y composición de comunidades, el sitio de compensación Asetrek Tres Azul S.A. es inferior en calidad de ambiente, composición y biodiversidad al sitio de la RBLB que sería inundado por el Embalse Río Piedras, razón por la cual al considerar la condición más adecuada para la RBLB, la OET recomendó que se adquieran como mínimo 332 hectáreas de la Finca Asetrek Tres Azul S.A. para resarcir las pérdidas de la RBLB. La finca Asetrek Tres Azul S.A., como extensión para la compensación y estudiada por la OET, tiene un área total de 751 hectáreas, de las cuales una parte importante está dedicada a la producción agrícola y ganadera. Al considerar el área de compensación propuesta como resultado del estudio elaborado se realizó un análisis del sitio para valorar la extensión que se debería proponer para la compensación de las 113 hectáreas a inundar de la RBLB, atendiendo a los siguientes parámetros fundamentales: 1- Cumplir con el área mínima requerida para la compensación obtenida del estudio, que corresponde a 332 hectáreas. 2- Considerar que el área por adquirir para compensación cuente con la cantidad de bosque suficiente, según los tipos de cobertura que se encuentran en el área por inundar de la RBLB. 3- Que el área a comprar incluya las 189,30 hectáreas que fueron estudiadas por la OET para las respectivas comparaciones entre el sitio potencial de compensación y el sitio de referencia (RBLB). 4- Que el área se pueda integrar adecuadamente al resto de la RBLB, respetando entre ellas el mayor porcentaje de colindancia posible. 5- Que el área propuesta para la compensación permita la conectividad de la RBLB con las áreas de protección que se considera dejar alrededor del futuro Embalse Río Piedras como anillo de protección, principalmente en la margen izquierda de este. 6- Que se limite al máximo el lindero del área propuesta con áreas con cobertura no forestal, potreros o pastos, ya que estos pueden incrementar y facilitar el riesgo de incendios dentro de la RBLB. 7- Uniformizar el lindero de la propiedad, para que el área de compensación permita el adecuado manejo por parte de la administración del Sinac en la RBLB. Una vez analizados los parámetros anteriores, el resultado obtenido denota que el área que se debería comprar de la Finca Asetrek Tres Azul S.A. es de 444,04 hectáreas. De estas se estima una presencia de bosque deciduo en 286,67 hectáreas, bosque secundario en 59,50 hectáreas, pastizales en 73,23 hectáreas y un área no forestal, es decir, un área de pastos con otras hierbas nativas de 18,50 hectáreas. Es importante indicar que el área seleccionada de la finca cuenta además con un área de bosque ripario de 6,14 hectáreas, distribuida en pequeñas secciones que, por su no conectividad o por encontrarse en la zona de impacto directo del embalse, no se consideraron para la aplicación de la metodología utilizada en el estudio para determinar el área de la compensación. Si bien es cierto que el área propuesta de 444,04 hectáreas como compensación a las 113 hectáreas que serían inundadas de la RBLB cumple con los requerimientos establecidos con base en los resultados de la metodología de calidad de hábitat aplicada en el estudio por parte de la OET, la realidad es que esta área solo tiene un área de 2,2 hectáreas de un bosque maduro o ripario con características similares al encontrado en el área por inundar en la RBLB. En estas circunstancias, se estimó pertinente la búsqueda de una superficie adicional que pueda solventar esta deficiencia de bosque ripario del área de compensación en la Finca Asetrek Tres Azul S.A., cumpliendo con los parámetros mencionados anteriormente, identificándose luego de un trabajo de campo conjunto entre expertos de la OET, funcionarios de la RBLB del Sinac y del Senara, dos fincas potenciales para compensación, ubicadas en el lindero noroeste de la RBLB. Estas propiedades se encuentran a nombre de Brindis de Amor en Liberia S.A. y Hacienda Ciruelas SP S.A. En este sentido, y según las inspecciones de campo realizadas en forma conjunta de expertos de la OET, Sinac y Senara, apoyados en imágenes aéreas tomadas con un dron volando a baja altura, se determinó que las propiedades de Brindis de Amor poseen un estimado inicial de 16,41 hectáreas de bosque ripario y Hacienda Ciruelas SP S.A. posee un estimado de bosque ripario de 8,49 hectáreas, conformado por una cobertura boscosa constituida por especies siempre verdes y que es comparable en calidad con el encontrado en el sitio potencial de inundación en la RBLB. El área de bosque ripario en Brindis de Amor representa un 7,40% del área cubierta por ese tipo de bosque dentro la RBLB actualmente; de ahí la importancia de incorporar esta área a la RBLB. Otro aspecto importante es que el área de bosque ripario en esta finca puede constituirse un área núcleo de especies para repoblar otros ambientes riparios en la propiedad. Aunque esta situación no es cronológicamente correspondiente a la pérdida en la RBLB, según la OET, sí es una considerable ventaja ya que esta área núcleo permite a corto plazo una restauración e incorporación de nuevos bosques riparios, situación que no se estaría dando en la propiedad de Asetrek Tres Azul S.A. El bosque deciduo (45,74 hectáreas), así como el secundario (6,63 hectáreas) en Brindis de Amor han sido protegidos por al menos veinte años y no hay registros de talas ni fuegos recientes, por lo que están en mejor condición de estructura y composición que los encontrados en el sitio de potencial impacto en la RBLB o en la propiedad de Asetrek Tres Azul S.A. Aunque no es el objetivo principal, la anexión de este tipo de bosque de Brindis de Amor a la RBLB implica una ganancia significativa en estas coberturas forestales también. El estudio de línea base de biodiversidad para la RBLB evidenció el incremento en diversidad de diferentes grupos taxonómicos como respuesta a fuentes de agua más permanentes, condición que se ve muy favorecida en la Finca Brindis de Amor que posee varias fuentes de agua permanentes, incluyendo el río Cabuyo y sus afluentes, lo que da un valor agregado a esta finca. Existen estudios de la Dra. Susan Perry (Universidad de California, Los Ángeles), los cuales señalan que tropas de monos carablanca (Cebus capuccinus) de la RBLB utilizan los bosques dentro de Brindis de Amor como sitios de alimentación y descanso, es decir, hay evidencia de un constante flujo de animales entre la RBLB y Brindis de Amor como sitio de forrajeo, lo que demuestra la importancia biológica de esta propiedad para ser incorporada a la RBLB. Finalmente, es importante mencionar que el estudio realizado por la OET establece un área de compensación que considera la condición actual de los terrenos que se están valorando, sin hacer referencia a las mejoras que a futuro tendrán al incorporarse a un régimen de protección como lo es la reserva. Ante ello, se procedió a identificar un área de bosque ripario que permita compensar el faltante en hectáreas para este tipo de ecosistema, manteniendo la conectividad ecosistémica del área protegida, concluyendo que la propiedad de Hacienda Ciruelas SP S.A. presenta tales condiciones y permite compensar un área de 8,49 hectáreas de bosque ripario. Adicionalmente, se concluye que, la mejor opción, para completar la compensación del bosque ripario es necesario adquirir un área de 40,00 hectáreas propiedad de Hacienda Ciruelas SP S.A., la cual contiene 8,49 hectáreas de bosque ripario. Según las capas de cobertura mencionadas anteriormente, esta finca posee un total de 33,64 hectáreas de bosque ripario, donde la mayoría de este tipo de bosque se encuentra bordeando la quebrada Amores, donde el área seleccionada para compensación posee un área de 8,49 hectáreas de bosque ripario, 2,44 hectáreas de bosque secundario, 26,91 hectáreas de bosque deciduo y 2,16 hectáreas de pastos. Por su parte, es de esperar que dentro de los beneficios que a futuro tendrá la regeneración de pastizales que posee Asetrek Tres Azul S.A. se encuentra la contribución al establecimiento de bosque secundario, la fijación de carbono (CO2), protección de suelos, ganancia de cobertura, protección de la biodiversidad y de la belleza escénica del lugar, protección de fuentes de agua, a la vez que contribuye a aumentar su valor ecológico, económico y social, es decir, la nueva superficie establecida bajo el régimen de protección tendrá una tendencia a mejorar su condición actual, tanto en calidad de hábitat como en diversidad y composición de comunidades. Según indica Quesada, R. (2008), en su Manual para promover la regeneración natural en pastos degradados en el Pacífico central y norte de Costa Rica, “para revertir áreas de pastos en bosques a través de métodos de regeneración natural deben tener una ubicación estratégica a fuentes semilleras y cercanía a parches boscosos”, condiciones que presenta el área propuesta en las fincas Asetrek Tres Azul S.A. y Brindis de Amor en Liberia S.A. Estas condiciones hacen predecir que si bien en la actualidad las 91,74 hectáreas (zona de pastizales de 73,23 hectáreas y un área no forestal de 18,51 hectáreas) en Asetrek Tres Azul S.A., 18,18 hectáreas de pastos en Brindis de Amor y 2,16 hectáreas de Hacienda Ciruelas SP S.A., en pocos años, bajo un régimen de protección como el de la RBLB y un manejo controlado de fuegos, estas superficies podrán incorporarse a las distintas etapas de sucesión de bosques secundarios. Así las cosas, de acuerdo con los resultados expuestos en el estudio realizado por la OET y lo planteado en la comisión de alto nivel del Piaag, la propuesta definitiva de compensación es: 1.- De la finca Asetrek Tres Azul S.A un total de 444,04 hectáreas, conforme al plano del área propuesta. 2- La totalidad de la Finca Brindis de Amor en Liberia S.A., con un área de registro de 86,96 hectáreas conforme al plano. 3- Un área de la finca de 40,00 hectáreas de Hacienda Ciruelas SP S.A. En total, la compra de 571 hectáreas, lo que representa un factor de 5 veces el área que se verá afectada en la RBLB, con una equivalencia directa en tipos de bosques, conforme a lo que se indica en la tabla 7. Tabla 7. Comparación de área por tipo de bosque entre el área afectada de la RBLB y el área propuesta para compensación Tipo de cobertura Área afectada en la RBLB (Ha)¹ Área de ASETREK Tres Azul S.A. (Ha) Área de Brindis de Amor S.A. (Ha) Área de la finca Hacienda Ciruelas SP S.A.

Área total propuesta de compensación (Ha) Bosque maduro (Ripario) 24,71 6,14 16,41 8,49 31,04 Bosque secundario 9,13 59,5 6,63 2,44 68,57 Bosque deciduo 96,05 286,67 45,74 26,91 359,32 Pastos 0,79 73,23 18,18 2,16 93,57 Áreas no forestales 0,39 18,5 - - 18,5 TOTALES 131,07 444,04 86,96 40 571 ¹A pesar de que el área requerida de la RBLB es de 113 hectáreas, la OET realizó el estudio sobre 130,64 hectáreas, razón por la cual se usa este valor para realizar la comparación. Con las medidas de compensación propuestas se alcanza el objetivo de conservación y, por ende, se puede afirmar: 1.- Que los objetos de conservación que fundamentan la creación del “área protegida” no están siendo afectados. 2- Que el área es compensada por otra de igual tamaño que cumple con los mismos fines y semejantes condiciones ecosistémicas. Así, con base en todo lo anterior, sometemos a conocimiento de la Asamblea Legislativa de la República de Costa Rica el proyecto de ley adjunto para su respectiva aprobación”. V.- Sobre la normativ a cuestionada . La ley n.° 9610, “Modifica límites de la Reserva Biológica Lomas de Barbudal para el desarrollo del proyecto de abastecimiento de agua para la cuenca media del río tempisque y comunidades costeras” aquí impugnada, dispone lo siguiente: “ARTÍCULO 1- Se rectifica y se delimita el área de la Reserva Biológica Lomas de Barbudal, creada mediante Decreto Ejecutivo N.° 16849-MAG, de 23 de enero de 1986, para el desarrollo del Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras (Paacume). El área protegida parte de un punto ubicado en el río Cabuyo de coordenadas en el Sistema CRTM05 X 350792,224 y Y 1163050,33 y continúa por el límite con la propiedad de Inversiones y Desarrollos Costa del Pacífico del Mar CPM S.A. con las siguientes coordenadas: CRTM05 X CRTM05 Y 350789,49 1163035,00 350791,24 1163029,34 350807,65 1163039,24 350860,78 1163033,04 350904,17 1162996,79 350926,55 1162988,11 350941,81 1162995,47 350955,83 1163002,42 350969,08 1163011,56 350982,63 1163018,04 351017,83 1163030,71 351012,37 1163052,81 351005,44 1163066,34 351003,92 1163079,71 350984,98 1163093,58 350972,68 1163107,21 350950,56 1163126,09 350943,93 1163156,21 350952,93 1163181,98 350970,50 1163210,11 350992,89 1163237,45 CRTM05 X CRTM05 Y 351024,23 1163256,00 351033,66 1163260,80 351044,41 1163269,24 351055,66 1163284,78 351070,84 1163295,85 351112,40 1163342,33 351154,71 1163329,45 351178,30 1163323,39 351208,35 1163317,78 351224,46 1163320,12 351228,50 1163327,66 351222,73 1163333,76 351207,63 1163346,77 351196,42 1163364,26 351190,92 1163377,96 351179,41 1163436,66 351174,72 1163470,39 351196,01 1163539,96 351111,00 1163557,85 351048,91 1163571,70 350995,85 1163536,09 350968,12 1163506,96 350953,66 1163484,35 350852,88 1163489,22 Hasta llegar a las coordenadas X 350776,31 y Y 1163485,43 y continúa por el límite con las propiedades de parcelas del Instituto de Desarrollo Rural (Inder) hasta las coordenadas X 350768,00 y Y 1164185,00 con calle pública, continuando por este límite con las siguientes coordenadas X351032, 34 - Y 1164082,68, hasta llegar a las coordenadas X 351196,45 y Y 1164006, 78 para continuar por el límite con la propiedad de Brindis de Amor de Liberia S.A. con las siguientes coordenadas: CRTM05 X CRTM05 Y 351208,40 1163948,88 351205,07 1163930,87 351183,76 1163885,51 351168,33 1163875,81 351162,81 1163867,47 351142,57 1163854,77 CRTM05 X CRTM05 Y 351134,59 1163853,31 351125,57 1163854,38 351118,39 1163824,72 351104,14 1163812,39 351084,83 1163798,46 351077,45 1163786,20 351072,85 1163765,75 351085,49 1163750,30 351088,12 1163731,90 351119,83 1163700,82 351132,15 1163661,14 351157,15 1163654,53 Hasta llegar a las coordenadas X 351206,67 y Y 1163648,75 y continúa por el límite con la propiedad de Pijije Land & Catlle S.A. por este límite con las siguientes coordenadas: CRTM05 X CRTM05 Y 351253,78 1163364,28 351258,30 1163280,40 351220,93 1162997,48 351222,96 1162988,68 351247,63 1162954,13 351256,53 1162934,68 351269,15 1162918,67 Hasta llegar a las coordenadas X 351302,12 y Y 1162871,48 y continúa por el límite con la propiedad de Hacienda Ciruelas SP S.A. con las siguientes coordenadas: CRTM05 X CRTM05 Y 351365,34 1162759,02 351440,05 1162595,92 351448,83 1162554,72 351449,11 1162533,02 351454,11 1162478,50 351472,15 1162355,93 351500,47 1162279,35 351518,55 1162244,91 351543,46 1162184,88 351551,79 1162158,15 351432,12 1162149,87 351209,01 1162185,45 351187,00 1162183,34 351188,09 1161793,04 351502,63 1161852,51 Hasta llegar a las coordenadas X 351515,21 y Y 1161744,31 en el borde derecho de la quebrada Amores y continúa por el borde derecho de la quebrada Amores aguas abajo, hasta llegar a la colindancia con la Reserva Biológica Lomas de Barbudal y Hacienda Ciruelas en las coordenadas X 350789,57 y Y 1161768,04 y continuar por esta colindancia por las siguientes coordenadas: CRTM05 X CRTM05 Y 350790,15 1161613,41 350785,81 1161228,86 350789,68 1161183,19 350791,04 1161167,04 350795,25 1160846,79 350800,55 1160421,99 350799,64 1160335,52 350800,14 1160281,28 350801,79 1160245,59 350800,52 1160195,69 350798,08 1160160,24 350801,03 1160107,03 350800,36 1160028,38 350801,19 1159986,81 350803,26 1159906,01 350802,27 1159826,86 350805,01 1159703,16 351310,43 1159706,98 351412,68 1159708,91 CRTM05 X CRTM05 Y 351492,03 1159704,06 Hasta llegar a las coordenadas X 351682,28 y Y 1159583,24 y continúa por el límite con la propiedad de Pecuaria Burro Blanco S.A. con las siguientes coordenadas: CRTM05 X CRTM05 Y 351693,37 1159582,02 351699,78 1159578,77 351718,51 1159556,48 351783,14 1159506,94 351822,29 1159480,03 351922,99 1159411,18 351950,86 1159396,35 351959,86 1159388,54 352044,38 1159323,76 352147,75 1159245,22 352261,23 1159159,68 352415,42 1159046,85 352466,45 1158998,81 352481,43 1158988,92 352667,28 1158924,85 352688,10 1158916,85 352753,23 1158891,79 353010,27 1158802,12 353309,73 1158468,01 353288,77 1158275,33 353233,52 1157784,00 Hasta llegar a las coordenadas X 353204,48 y Y 1157684,37 con límite con calle pública y continúa por el límite con las propiedades de parcelas del Instituto de Desarrollo Rural (Inder) con las siguientes coordenadas: CRTM05 X CRTM05 Y 353301,19 1157687,26 353422,15 1157675,97 353420,74 1157670,05 353445,74 1157634,59 353446,48 1157610,47 353466,68 1157558,35 353466,54 1157511,56 353424,55 1157466,95 353404,80 1157460,50 353416,03 1157405,22 353414,27 1157357,28 353425,75 1157331,84 353411,01 1157298,58 353436,01 1157298,92 CRTM05 X CRTM05 Y 353509,38 1157310,17 353519,07 1157308,57 353529,94 1157304,06 353569,44 1157265,57 353589,23 1157270,92 353620,35 1157283,86 353655,52 1157301,51 353735,20 1157295,12 353759,24 1157291,03 353765,64 1157282,12 353788,49 1157258,82 353804,91 1157220,35 353798,51 1157186,50 353899,03 1157172,56 353948,65 1157163,91 353978,61 1157148,03 354040,93 1157083,11 354082,37 1157116,37 354113,40 1157132,84 354156,22 1157149,90 354191,82 1157140,76 354209,75 1157164,94 354239,93 1157191,03 354269,91 1157215,77 354318,98 1157255,52 354371,34 1157288,65 355152,91 1157572,73 355153,68 1157554,28 355153,42 1157541,98 355148,96 1157437,83 355162,22 1157411,32 Hasta llegar a las coordenadas X 355186,96 y Y 1157380,57 y continúa por el límite con la propiedad de Asetrek Tres Azul S.A. con las siguientes coordenadas: CRTM05 CRTM05 Y 355267,66 1157319,23 355280,54 1157302,05 355290,98 1157267,12 CRTM05 CRTM05 Y 355306,74 1157213,48 355358,68 1157137,98 355393,26 1157136,98 355520,54 1157135,06 355527,56 1157134,33 355529,22 1157133,83 355532,28 1157131,76 355576,16 1157100,42 Hasta llegar a las coordenadas X 355640,83 y Y 1157053,32 y continúa por el límite con área el Embalse Piedras con las siguientes coordenadas: CRTM05 X CRTM05 Y 357387,23 1157808,22 357568,01 1157570,98 357654,97 1157519,88 357839,97 1157485,68 357951,98 1157473,56 357970,95 1157439,54 357889,84 1157355,61 358042,96 1157438,46 358161,70 1157177,29 358138,59 1157068,30 358323,74 1157185,12 358359,72 1157159,08 358509,60 1157014,90 358502,54 1156966,90 358448,49 1156921,94 358391,46 1156907,00 358424,27 1156713,93 358123,11 1156617,23 358011,88 1156412,31 358013,80 1156339,30 357943,72 1156272,36 357787,65 1156234,51 357581,33 1155961,68 357330,18 1155862,93 357166,23 1155935,11 356796,13 1155423,58 CRTM05 X CRTM05 Y 356819,57 1155441,85 356848,69 1155473,36 356898,70 1155480,31 356927,72 1155495,28 356964,77 1155536,25 357010,81 1155560,20 357067,86 1155605,15 357280,75 1155463,90 357276,71 1155424,90 357266,69 1155402,91 357237,65 1155369,93 357206,61 1155339,96 357168,58 1155319,00 357137,55 1155292,02 357089,55 1155300,07 357061,53 1155283,10 356971,49 1155263,19 356906,45 1155239,25 356881,44 1155236,28 356844,33 1155135,30 356938,29 1155080,19 357096,38 1155132,04 357192,39 1155131,94 357451,44 1155133,67 357534,47 1155151,58 357613,47 1155134,50 357679,40 1155052,42 357831,44 1155071,26 357861,68 1155289,27 357873,84 1155441,28 357893,89 1155492,27 357961,96 1155546,21 358009,07 1155643,18 358070,07 1155629,11 358100,99 1155550,06 358176,98 1155521,98 358255,05 1155574,91 358296,03 1155555,86 358254,92 1155450,89 358303,83 1155361,82 CRTM05 X CRTM05 Y 358352,78 1155306,76 358422,83 1155341,69 358460,82 1155327,65 Hasta llegar a las coordenadas X 358468,82 y Y 1155324,64 y continúa por el límite con la propiedad de Martillos del Pacífico S.A. e Inversiones Campos Bastos S.A. con las siguientes coordenadas: CRTM05 X CRTM05 Y 358078,42 1153210,85 358052,54 1153079,89 358035,89 1152995,89 358027,73 1153002,71 358017,28 1152991,86 358014,03 1152985,24 358016,18 1152975,09 358028,51 1152967,54 358029,61 1152960,38 358020,05 1152917,97 Hasta llegar a las coordenadas X 358003,37 y Y 1152867,19 con el límite del Canal del Oeste y continúa por este límite con las siguientes coordenadas: CRTM05 X CRTM05 Y 357987,04 1152862,79 357965,43 1152858,83 357955,02 1152858,35 357719,07 1152857,73 357706,37 1152857,25 357693,74 1152855,87 357681,24 1152853,60 357513,20 1152816,95 357510,98 1152816,61 357508,66 1152816,51 357506,52 1152816,67 357147,55 1152865,39 357133,75 1152866,00 357119,77 1152864,18 CRTM05 X CRTM05 Y 357106,47 1152859,98 357021,10 1152824,37 357015,47 1152822,93 357009,65 1152823,18 357004,15 1152825,10 356922,84 1152867,46 356917,41 1152871,60 356913,68 1152877,32 356912,09 1152883,94 356906,42 1152972,99 356896,96 1153005,91 356874,56 1153031,90 356843,34 1153046,18 356480,00 1153124,95 356459,09 1153126,67 356438,46 1153122,90 356419,55 1153113,91 356335,74 1153059,44 356315,88 1153050,59 356294,23 1153048,28 356272,89 1153052,73 356161,24 1153094,95 356154,04 1153098,15 356147,24 1153102,13 356140,95 1153106,83 355982,04 1153240,15 355975,60 1153246,28 355969,99 1153253,17 355965,30 1153260,71 355918,25 1153348,70 355917,46 1153351,59 355917,12 1153354,39 355914,92 1153407,09 355911,92 1153425,64 355904,67 1153443,00 355893,56 1153458,20 355608,94 1153764,30 355592,44 1153777,87 355572,96 1153786,61 355551,87 1153789,91 CRTM05 X CRTM05 Y 355418,20 1153792,82 355397,48 1153796,45 355378,68 1153806,12 355363,61 1153820,93 355180,01 1154065,99 355157,53 1154086,41 355129,08 1154097,03 355098,76 1154096,31 354896,27 1154052,27 354880,94 1154050,88 354864,75 1154053,10 354849,62 1154058,94 354576,10 1154203,36 354433,03 1154324,09 354418,90 1154333,64 354403,07 1154340,00 354386,64 1154342,84 354303,13 1154348,05 354295,93 1154349,88 354289,88 1154354,22 354285,87 1154360,34 354233,16 1154488,47 354215,42 1154514,94 354188,76 1154532,44 354157,41 1154538,17 353982,68 1154534,82 353973,71 1154537,07 353771,23 1154587,77 353767,53 1154588,80 353763,90 1154590,04 353760,34 1154591,47 353736,40 1154601,84 353688,53 1154622,59 353679,19 1154625,95 353669,30 1154628,16 353659,23 1154629,10 353636,13 1154629,80 353618,11 1154636,50 353607,82 1154652,72 353609,49 1154671,81 CRTM05 X CRTM05 Y 353613,45 1154680,80 353619,92 1154706,48 353617,60 1154732,89 353606,74 1154757,11 353549,31 1154843,27 353547,79 1154846,09 353506,08 1154923,06 353462,19 1155004,07 353460,75 1155007,46 353459,94 1155011,05 353459,81 1155014,62 353461,64 1155046,29 353455,69 1155081,41 353435,04 1155110,51 353403,79 1155127,79 353362,77 1155139,63 353298,99 1155158,04 353286,40 1155160,57 353273,36 1155161,05 353260,70 1155159,46 353198,44 1155146,32 353185,58 1155147,90 353176,35 1155157,01 353114,84 1155280,55 353090,32 1155314,62 353056,21 1155339,15 353016,10 1155351,58 352980,50 1155356,55 352969,91 1155361,45 352963,84 1155371,41 352948,49 1155431,13 352877,03 1155527,85 352831,88 1155547,07 352783,14 1155551,78 352758,44 1155547,78 352735,03 1155541,19 352692,71 1155516,02 352659,82 1155479,65 352557,62 1155323,39 352552,53 1155318,10 CRTM05 X CRTM05 Y 352545,87 1155315,01 352538,52 1155314,55 352484,90 1155321,10 352470,01 1155330,88 352407,64 1155437,35 352376,05 1155467,66 352333,27 1155476,90 352292,12 1155462,29 352210,74 1155404,33 352197,79 1155400,68 352125,01 1155405,70 352108,19 1155405,09 352037,71 1155387,74 352030,91 1155387,23 352024,32 1155389,03 352018,72 1155392,93 351929,50 1155481,04 351906,65 1155496,85 351879,80 1155503,93 351852,18 1155501,43 351846,04 1155499,77 351838,64 1155499,19 351831,54 1155501,35 351714,18 1155562,53 351705,85 1155567,63 351644,04 1155611,72 351629,11 1155620,13 351612,73 1155625,17 351595,67 1155626,63 351550,03 1155625,62 351527,22 1155625,11 351501,29 1155621,91 351488,71 1155618,38 351328,47 1155564,48 351322,36 1155563,44 351316,21 1155564,32 351253,83 1155583,44 351246,79 1155587,27 351241,82 1155593,54 351210,35 1155655,52 CRTM05 X CRTM05 Y 351192,53 1155678,79 351167,53 1155694,11 351138,71 1155699,45 351029,02 1155699,35 351022,62 1155700,39 351016,88 1155703,43 351012,41 1155708,13 350977,52 1155759,40 350974,91 1155764,87 350974,06 1155770,86 350974,50 1155809,95 350972,36 1155829,23 350965,62 1155847,44 350954,68 1155863,50 350872,71 1155957,11 350868,46 1155965,00 350868,09 1155973,94 350894,78 1156116,68 350886,57 1156169,18 350847,17 1156205,02 350794,06 1156208,32 350771,95 1156202,04 350763,75 1156201,47 350755,99 1156204,25 350750,00 1156209,90 350714,12 1156261,53 350710,83 1156269,57 350711,26 1156278,23 350769,74 1156489,41 Hasta llegar a las coordenadas X 350773,38 y Y 1156507,46 y se continúa con el límite de parcelas del Instituto de Desarrollo Rural (Inder) con las siguientes coordenadas: CRTM05 X CRTM05 Y 350774,41 1156525,86 350772,82 1156544,23 350749,41 1156691,18 350743,74 1156713,66 CRTM05 X CRTM05 Y 350734,16 1156734,78 350720,96 1156753,88 350670,90 1156814,09 350670,96 1156816,33 350671,80 1156844,73 350656,92 1156910,13 350650,99 1156925,02 350634,00 1156973,49 350628,28 1156985,85 350611,44 1157013,47 350599,04 1157044,34 350571,18 1157098,51 350541,95 1157132,54 350424,28 1157312,46 350387,20 1157428,88 350383,26 1157511,27 350264,65 1157646,88 350234,20 1157669,67 350192,72 1157696,17 350182,62 1157707,58 350162,29 1157729,07 350153,29 1157746,74 350150,06 1157755,22 350141,71 1157794,53 350124,72 1157814,01 350108,98 1157829,52 350096,88 1157843,03 350019,73 1157869,57 349992,99 1157871,40 Hasta llegar a las coordenadas X 349929,76 y Y 1157901,11 límite del Canal Oeste y se continúa este límite con las siguientes coordenadas: CRTM05 X CRTM05 Y 349926,74 1157911,94 349906,38 1157937,12 349877,70 1157952,17 349540,73 1158048,80 349528,32 1158059,14 CRTM05 X CRTM05 Y 349497,01 1158122,27 349495,16 1158134,22 349525,20 1158328,26 349529,02 1158342,63 349574,56 1158461,26 349574,73 1158520,15 349537,05 1158562,77 349478,58 1158569,81 349452,04 1158563,21 349437,09 1158561,16 349422,05 1158562,37 349407,61 1158566,78 349340,69 1158595,39 349330,89 1158600,53 349322,03 1158607,16 349314,31 1158615,10 349222,77 1158725,62 349212,94 1158736,23 349202,02 1158745,68 349190,07 1158753,86 348949,14 1158899,96 348941,36 1158908,67 348939,77 1158920,24 348944,91 1158930,73 349006,62 1158996,71 349018,80 1159013,75 349026,14 1159033,37 349028,14 1159054,23 349026,51 1159099,54 349012,33 1159142,20 348977,37 1159170,48 348932,68 1159175,44 348903,20 1159170,24 348888,68 1159173,26 348880,24 1159185,46 348882,55 1159200,11 348886,94 1159207,60 348895,67 1159228,89 348897,99 1159251,78 348893,69 1159274,38 CRTM05 X CRTM05 Y 348876,13 1159325,30 348873,12 1159337,48 348825,21 1159643,42 348820,26 1159657,91 348813,64 1159671,71 348785,35 1159722,75 348783,07 1159729,47 348783,28 1159736,57 348822,94 1159924,80 348826,45 1159936,36 348874,51 1160056,54 348883,53 1160072,57 348896,40 1160085,70 348912,25 1160095,02 349017,67 1160139,59 349034,45 1160149,22 349048,43 1160162,60 349058,78 1160178,95 349075,11 1160213,31 349082,83 1160245,69 349076,69 1160278,41 349057,77 1160305,80 349051,90 1160311,35 349043,46 1160323,18 349043,35 1160333,77 349048,67 1160342,93 349067,25 1160361,20 349091,49 1160395,64 349102,00 1160436,43 349097,43 1160478,30 349056,90 1160597,13 349031,79 1160631,69 348999,44 1160659,69 Hasta llegar a las coordenadas X 348956,78 y Y 1160688,89 con límite de la calle pública que comunica el poblado de San Ramón de Bagaces y se continúa este límite con las siguientes coordenadas: CRTM05 X CRTM05 Y 349060,09 1160695,02 349080,77 1160703,77 349095,03 1160718,99 349154,41 1160824,72 349200,75 1160910,96 349215,26 1160946,13 349218,97 1160961,76 349244,63 1161071,69 349367,55 1161254,50 349390,20 1161296,86 349389,51 1161329,14 Hasta llegar a las coordenadas X 349384,50 y Y 1161343,08 con límite parcela del Instituto de Desarrollo Rural (Inder) y se continúa este límite con las siguientes coordenadas: CRTM05 X CRTM05 Y 349404,67 1161348,56 349428,08 1161371,77 349480,63 1161385,52 349521,00 1161435,85 349627,32 1161459,23 349757,40 1161533,12 349823,97 1161624,17 349828,29 1161733,09 349783,25 1161817,49 349760,83 1161816,80 Hasta llegar a las coordenadas X 349752,43 y Y 1161825,58 con el río Cabuyo, continuando aguas arriba hasta llegar a las coordenadas iniciales X 350792,224 y Y 1163050,33. ARTÍCULO 2- Se autoriza el cambio de uso del suelo y la desafectación de los artículos 13 y 33 de la Ley N.° 7575, Ley Forestal, de 13 de febrero de 1996, para el Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras (Paacume), incluyendo el área desafectada que está comprendida dentro de los límites que se describen a continuación: Se parte de un punto ubicado en el límite entre Asetrek Tres Azul S.A. y la Reserva Biológica Lomas de Barbudal en coordenadas X 356819,57 y Y 1155441,85 y continúa por el límite del Embalse Piedras con las siguientes coordenadas: CRTM05 X CRTM05 Y 356848,69 1155473,36 356898,70 1155480,31 356927,72 1155495,28 356964,77 1155536,25 357010,81 1155560,20 357067,86 1155605,15 357280,76 1155463,90 357276,71 1155424,90 357266,69 1155402,91 357237,65 1155369,93 357206,61 1155339,96 357168,58 1155319,00 357137,55 1155292,02 357089,55 1155300,07 357061,53 1155283,10 356971,49 1155263,19 356906,45 1155239,25 356881,45 1155236,28 356844,33 1155135,30 356938,29 1155080,19 357096,38 1155132,04 357192,39 1155131,94 357451,44 1155133,67 357534,48 1155151,58 357613,47 1155134,50 357679,40 1155052,42 357831,45 1155071,26 357861,68 1155289,27 357873,84 1155441,28 357893,90 1155492,27 357961,96 1155546,21 358009,07 1155643,18 358070,07 1155629,11 358100,99 1155550,06 358176,98 1155521,98 358255,05 1155574,91 358296,03 1155555,86 358254,92 1155450,89 358303,83 1155361,82 358352,78 1155306,76 358422,83 1155341,69 358460,82 1155327,65 Hasta llegar a las coordenadas X 358468,82 y Y 1155324,64 límite con la propiedad de Martillos del Pacífico S.A. y continuando en línea recta dirección norte, por el límite con Martillos del Pacífico S.A. a las coordenadas X 358653,97 y Y 1156392,64. A partir de esas coordenadas se continúa por el límite con Asetrek Tres Azul S.A. y la quebrada sin nombre aguas arriba por las siguientes coordenadas: CRTM05 X CRTM05 Y 358638,97 1156393,65 358568,95 1156384,72 358493,90 1156352,80 358431,91 1156368,86 358361,88 1156350,93 358331,87 1156354,97 358294,84 1156327,00 358277,79 1156287,01 358229,74 1156248,05 358196,69 1156202,08 358168,68 1156198,11 358116,63 1156155,16 358106,59 1156126,16 358095,58 1156112,17 358073,58 1156113,19 358033,60 1156141,24 358006,61 1156156,27 357979,61 1156158,30 357945,58 1156137,33 357898,56 1156126,38 357864,55 1156121,41 357830,52 1156104,45 357786,48 1156066,49 357768,44 1156039,50 357772,36 1155955,48 357750,30 1155909,49 357720,29 1155896,52 357686,32 1155932,57 357634,32 1155948,62 357607,28 1155914,65 357601,25 1155883,65 357573,22 1155855,67 357559,21 1155848,68 357526,22 1155862,72 357488,21 1155860,76 357484,21 1155863,76 357471,20 1155857,78 357447,20 1155859,80 357429,17 1155838,82 357315,07 1155763,92 357281,07 1155769,96 357265,06 1155762,98 357199,02 1155731,04 357169,01 1155725,07 357145,01 1155730,09 357089,98 1155709,15 357032,92 1155664,20 357019,90 1155646,21 356890,78 1155555,33 356831,73 1155514,38 356829,70 1155485,38 Hasta llegar a las coordenadas iniciales X 356819,57 y Y 1155441,85 ubicadas en el límite entre Asetrek Tres Azul S.A. y la Reserva Biológica Lomas de Barbudal. ARTÍCULO 3- Se autoriza al Sistema Nacional de Áreas de Conservación (Sinac) el uso, para fines propios, de la madera aprovechable extraída del área del embalse de almacenamiento río Piedras del Proyecto de Abastecimiento de Aguapara la Cuenca Media del Río Tempisque y Comunidades Costeras (Paacume). Asimismo, podrá autorizar la donación a los ministerios, sus órganos desconcentrados, las instituciones autónomas y semiautónomas, los gobiernos locales o las asociaciones de desarrollo integral, previa solicitud por escrito ante el Área de Conservación Arenal Tempisque. ARTÍCULO 4- El Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento (Senara) será la entidad responsable de realizar el estudio ambiental del Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras (Paacume), que deberá incluir las medidas de prevención, mitigación y compensación del área desafectada afecta en el artículo 2 de la presente ley, las cuales deben ser implementadas por el desarrollador. El estudio de impacto ambiental deberá considerar la línea base aprobada por las entidades y avalada por el Consejo Regional de Áreas de Conservación del Sistema Nacional de Áreas de Conservación (Sinac), sin perjuicio de los términos de referencia que emita la Secretaría Técnica Nacional Ambiental (Setena), conforme al marco jurídico correspondiente. ARTÍCULO 5- El área del Embalse Río Piedras, que incluye el anillo de protección, forma parte integral del Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras (Paacume) que desarrollará el Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento(Senara), que permitirá el almacenamiento y la regulación del agua proveniente del Complejo Hidroeléctrico Arenal Dengo Sandillal (Ardesa) con posterior conducción y distribución equitativa para abastecer las necesidades de consumo productivo agropecuario, generación hidroeléctrica, fomento turístico y el abastecimiento poblacional, este último por medio del Instituto Costarricense de Acueductos y Alcantarillados (AyA), además de aquellas otras actividades que sean necesarias para el cumplimiento de los objetivos propuestos por Paacume. Del canon que cobre el Ministerio de Ambiente y Energía (Minae) a los usuarios por concepto de uso y aprovechamiento de agua, se destinará un cincuenta por ciento (50%) al Sistema Nacional de Áreas de Conservación (Sinac) para la implementación del Plan General de Manejo de Uso Sostenible y Racional. ARTÍCULO 6- Finalizadas las obras de construcción y puesto en operación el Embalse Río Piedras por parte del Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento (Senara), el área de embalse, que incluye el anillo de protección, se constituirá en un ecosistema de humedal administrado por el Sistema Nacional de Áreas de Conservación (Sinac) y conforme a lo establecido en el artículo 33 de la Ley N.° 7575, Ley Forestal, de 13 de febrero de 1996. Deberá existir estricta coordinación con Senara para la utilización del agua conforme a diversos usos requeridos. El Poder Ejecutivo, mediante el Sinac, realizará los estudios necesarios para otorgar a dicho espacio una categoría de manejo, que no deberá contraponerse al uso que se le dé al agua producto del Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras (Paacume). Para la elaboración del Plan General de Manejo de Uso Sostenible y Racional, se conformará una comisión con representación del Sinac, Senara y la Municipalidad de Bagaces. TRANSITORIO ÚNICO- El Poder Ejecutivo realizará las modificaciones al Plan General de Manejo de la Reserva Biológica Lomas Barbudal, y dictará las reglamentaciones necesarias para la autorización de acciones de rehabilitación ecosistémica y gestión adaptativa en las áreas de compensación que requieran acciones de esta naturaleza, en el plazo de un año a partir de la inscripción a nombre del Ministerio de Ambiente y Energía (Minae). Rige a partir de su publicación. Dado en la Presidencia de la República, San José a los diecisiete días del mes de octubre del año dos mil dieciocho ”. VI.- Sobre los alegatos de inconstitucionalidad. A los efectos de resolver los cuestionamientos planteados, se procederán a agrupar los alegatos admisibles de los accionantes de la siguiente manera: A.- Sobre la acusada violación a los artículos 7 y 50 de la Constitución Política y a l os principios de no regresión en materia ambiental, objetivació n de la tutela ambiental , precautorio o in dubio pro natura y legalidad. Según quedó acreditado en este proceso, la desafectación del á rea que se discute , no es a los efectos de dejar ese terreno desprotegido ambientalmente, sino de darle un cambio de uso que igualmente pretende su tute la, con mayor extensió n, y al mismo tiempo, procurar de este un aprovechamiento sostenible. Ese aspecto es primordial, toda vez que muchos de los pronunciamientos de este Tribunal en relación con una desafectación, se han circunscrito a la compens ación de una desafectación, en el sentido de desprender a un ter reno, de forma absoluta, de su tutela ambiental especial para destinarla a cualquier otro fin diverso y contrap uesto al de protección ambiental . De ahí que, la jurisprudencia de este Tribunal ha sido incisiva en la necesidad de que el Poder Legislativo cuente con un estudio técnico previo que justifique el porqué, ambientalmente, ya no es necesaria esa tutela y, po steriormente dispuso, ademá s, su compensació n, como retribució n ambiental. En el s ub examine, no es posible para las autoridades del Estado alterar el hábitat de un á rea protegida, sino es dentro de los límites que acepta su propio régimen de protecció n. De ahí que, aun cuando el área que se requiere alterar siempre va a ser protegida, pero la altera fuera de esos lí mites au torizados por ley, dada su naturaleza de uso, se requi rió acudir igualmente a un proceso de desafectación legal que los autorice a real izar tales modificaciones . Este es el caso de la ley de estudio. Adviértase el contenido del artículo 6 de la norma impugn ada, en el que igualmente se concede a ese terreno desafectado un a tutela ambiental especial: “ARTÍCULO 6- Finalizadas las obras de construcción y puesto en operación el Embalse Río Piedras por parte del Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento (Senara), el área de embalse, que incluye el anillo de protección, se constituirá en un ecosistema de humedal administrado por el Sistema Nacional de Áreas de Conservación (Sinac) y conforme a lo establecido en el artículo 33 de la Ley N.° 7575, Ley Forestal, de 13 de febrero de 1996. Deberá existir estricta coordinación con Senara para la utilización del agua conforme a diversos usos requeridos. El Poder Ejecutivo, mediante el Sinac, realizará los estudios necesarios para otorgar a dicho espacio una categoría de manejo, que no deberá contraponerse al uso que se le dé al agua producto del Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras (Paacume). Para la elaboración del Plan General de Manejo de Uso Sostenible y Racional, se conformará una comisión con representación del Sinac, Senara y la Municipalidad de Bagaces. ” Ciertamente la construcción de ese proyecto, aun cuando finalmente su resultado será destinado a la protecció n ambiental, implicará un impacto para el área, dada la modificación de l hábitat de la zona a inundar para el embalse , de ahí que de ba verificarse previamente si el mismo es indispensable y compensable. Tal como quedó acreditado desde la exposició n de motivos del proyecto de ley que culminó con la normativa impugnada, la situació n de desabastecimiento del recurso hídrico en la provincia de Guanacaste, es un hecho palmario desde hace varios años. De ahí que diferentes administraciones han buscado dar soluciones a esta situación . Veamos: “Los beneficiarios potenciales del proyecto están compuestos por la población general de la provincia de Guanacaste. Esta provincia cuenta con una población proyectada por el Instituto Nacional de Estadística y Censos (INEC) de 371.375 habitantes para el 2.016, más la población flotante que está compuesta por el turismo nacional y extranjero estimándose en más de un millón de personas al año, a esto se le suma otra población compuesta por trabajadores de las diferentes empresas que incluye el turismo y que permanecen entrando y saliendo del área. El Instituto Nacional de Acueductos y Alcantarillados (AyA) ha estimado que para el 2025 habrá una población, dentro del área del proyecto, equivalente a más de 220.000 habitantes como usuarios de los acueductos principales de la zona (Senara, 2006). En el año 2002 se registró el ingreso de 1.113.359 turistas. La tendencia al crecimiento es constante, ya que para el 2014 se duplicó el número de visitación al país. Contrario al panorama de pobreza de la región Chorotega, esta es una de las zonas que mayor desarrollo turístico ha experimentado. En sus costas se asientan los principales complejos hoteleros que existen en el país. Se estimó, en el año 2005, que la capacidad instalada en los hoteles de la zona del proyecto era para 140.812 personas en temporada alta y se proyectaba que para el año 2025 alcanzará las 230.900 personas (Senara, 2006). Debe señalarse que el recurso más amenazado en la actualidad es el agua debido principalmente a la sobreexplotación de los acuíferos para consumo humano, aspecto que se agrava aún más en las zonas turísticas por la amenaza de salinización de los pozos. Con la capacidad instalada en el 2005 la demanda promedio de agua potable se estimó en 570 l/s y con el crecimiento sostenido al 2025 alcanzaría los 935 l/s. El área de riego agropecuario se estima en 17000 ha en donde se podrían beneficiar 1.067 productores agropecuarios entre grandes, medianos y pequeños … La Estrategia Nacional para la Gestión Integrada de los Recursos Hídricos (Egirh, 2005) señaló que las competencias por el uso del recurso hídrico en esta zona (y otras del país) podrían devenir en conflictos entre usuarios si no se aplicaban las medidas correctivas necesarias. El Plan Nacional para la Gestión Integrada de los Recursos Hídricos (PNGIRH, 2008) dispuso como acción inmediata implementar el llamado Plan de Abastecimiento de Agua para Guanacaste en la línea estratégica 8.3.3.2, bajo el objetivo de “Regular la oferta hídrica para permitir su disponibilidad durante todo el año y atender la vulnerabilidad al cambio climático”…Como resultado de la mesa de trabajo por Guanacaste: Agua e Infraestructura Hídrica, implementada por la Administración Solís Rivera, se retoma y dispone la ejecución de este proyecto.. Por su importancia, esta línea de acción estratégica fue incluida dentro del Plan Nacional de Desarrollo 2015-2018 “Alberto Cañas Escalante”, bajo la línea programática 1.9 del sector ambiente, siendo que bajo el ejercicio de rectoría del sector ambiente, energía, mares y ordenamiento territorial se contempla el desarrollo e implementación del Programa Integral de Abastecimiento de Agua para Guanacaste - Pacífico Norte (Piaag), que integra actividades, obras y proyectos en el inmediato, corto, mediano y largo plazos…Conforme a los ejes I y II, el Servicio Nacional de Agua Subterránea, Riego y Avenamiento (Senara) desarrolla el Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras (Paacume), que se constituye, por su ámbito y alcance en beneficios, en el proyecto más robusto y estratégico”. Es decir, la necesidad de atender esta problemá tica había sido o bjeto de estudio por varios años po r parte de las autoridades competentes. Precisamente, por Decreto Ejecutivo n.° 38642-MP-MAG del 30 de noviembre de 2014, se requirió una declaratoria de emergencia por sequía en algunos sectores del país, entre ellos l a región Cho rotega por afectación de 11 de sus cantones. Esa zona presenta más de 5 meses de dé ficit hídrico al año, dada la afectación del fenó meno del Niñ o y del cambio climático. Esta situación tampoco ha sido aje na para este Tribunal. En sentencia n.° 20 18-7758 de las 9:15 horas del 18 de mayo de 2018, por ejemplo, ante la falta de suministro d e agua potable por dí as, d e fuentes de captació n en Nicoya, y debido al problema de sal inización de esa zona, esta Sala ordenó al Instituto Costarricense de Acueductos y Alcantarillados, que en el plazo de 6 meses contado a partir de la comunic ación de esa sentencia, realizara el estudio hidrogeológico en la zona de influencia, sugerido por la Oficina Cantonal de Nicoya del ICAA, con la finalidad de buscar fuentes sostenibles en el tiempo que permit ieran la ejecución de un proyecto para satisfacer la demand a presente y futura de las comunidades de Cuesta Grande, Maquenco y Terciopelo. Luego de ello, debían proponer alguna solución temporal o permanente y ejecutarla en el plazo de los 12 meses siguientes a ese periodo previo. En el ínterin, debía n distribuir a la comunidad de Ma quenco agua potable de calidad mediante camiones cisterna u otro mecanismo alternativo, si existía faltante de líquido, hasta tanto no se lograra una solución definitiva a los hechos que dieron motivo a ese amparo. Igualment e, ha sido conocida la situació n del acueducto de Sardinal, el cual ya contaba con el estudio de “Análisis del Impacto de la Sequía en el Acuífero Sardinal 2015 ” ( véase en ese se ntido las sentencias 2016-6417 y 2017-1163). Los diversos estudios previos y el trabajo de campo realizado por vari as autoridades, precisamente derivaron en la propuesta del Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras (Paacume), y así fue expuesto y justificado a los legisladores. La exposición de motivos indica al respecto: “…el Servicio Nacional de Agua Subterránea, Riego y Avenamiento (Senara) desarrolla el Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras (Paacume), que se constituye, por su ámbito y alcance en beneficios, en el proyecto más robusto y estratégico. PROYECTO DE ABASTECIMIENTO DE AGUA PARA LA CUENCA MEDIA DEL RÍO TEMPISQUE Y COMUNIDADES COSTERAS (PAACUME) El Paacume tiene como objetivo potenciar el desarrollo socioeconómico de la provincia de Guanacaste mediante un mejor aprovechamiento de los recursos hídricos provenientes del Sistema Hidroeléctrico Arenal-Dengo-Sandillal (Ardesa) y demás fuentes disponibles, como medidas de adaptación al cambio climático en un marco de sostenibilidad y equidad. El proyecto consiste en generar las condiciones técnicas y tecnológicas para un mejor aprovechamiento de las aguas en el Distrito de Riego Arenal Tempisque (DRAT), las cuales provienen de la generación hidroeléctrica del Instituto Costarricense de Electricidad (ICE) en el Sistema Hidroeléctrico Arenal, Dengo, Sandillal (Ardesa). Contiene la automatización de la Presa Derivadora Miguel Pablo Dengo B y Canal Oeste Tramo I hasta el embalse Río Piedras, contemplando la construcción de un embalse de almacenamiento en el río Piedras, ampliación y construcción del Canal Oeste Tramos II y III desde este hasta río Tempisque. Además, las líneas de conducción secundarias y terciarias para riego agropecuario y áreas de desarrollo turístico, obras de entrega de agua para las poblaciones que será administrada por el Instituto Costarricense de Acueductos y Alcantarillados, todo desde la planicie del río Tempisque hasta la zona costera. Igualmente, integra el proyecto la construcción de casa de máquinas para generación eléctrica en el punto de presa. El objetivo fundamental es la provisión de agua, accesible en cantidad, calidad y oportunidad -de 20 metros cúbicos por segundo- para diferentes usos potenciales. Se proyecta beneficiar al menos a 204 mil personas y cubrir al menos 17 mil hectáreas bajo riego. De este caudal quedarán disponibles 2 metros cúbicos por segundo para el abastecimiento a largo plazo de comunidades de cantones de Santa Cruz, Nicoya y Carrillo y que será administrada por el Instituto Costarricense de Acueductos y Alcantarillados. Además, el proyecto contempla al menos 1.5 metros cúbicos por segundo de agua para riego como apoyo a la actividad turística en la zona costera y con ello beneficiar las comunidades costeras con la liberación de aguas subterráneas hoy usadas en riego. Este proyecto no solo permitirá el acceso sostenible al agua por parte de las comunidades y el sector productivo, sino que además pretende armonizar y regular la explotación racional de los principales recursos subterráneos en acuíferos en la margen derecha de la cuenca media del río Tempisque, pues permitirá al Estado la regulación del uso máximo de pozos para estas actividades. La construcción de la presa sobre el río Piedras implica un embalse con un espejo de agua de aproximadamente 850 hectáreas, de las cuales, conforme al levantamiento de campo realizado por el Senara, 113 hectáreas se encuentran dentro de la Reserva Biológica Lomas Barbudal (RBLB). El sitio de presa se ubicará en un estrechamiento natural del cauce de este río entre las coordenadas longitud oeste 358930, latitud norte 1163180 y longitud oeste 359690, latitud norte 1155330 a una elevación de nivel de agua máxima de 50.50 m.s.n.m. Esta presa tendrá como función crear un represamiento para el almacenamiento del agua, que será captada por el Senara en la presa Miguel Pablo Dengo ubicado en el río Santa Rosa…” Se trata de un proyecto constituido por cuatro componentes: el embalse río Piedras (el cual incluye la automatización del sistema, la casa de m áquinas y la presa y el embalse propiamente dicho), la ampliación del Canal Oeste desde el río Piedras hasta el río Tempisque con una longitud de aproximadamente 55 kilómetros, la constr ucción de la red de distribución en la margen derecha del río Tempisqu e (aproximad amente 300 kilómetros de longitud) y la propuesta de implementación de un Plan de Desarrollo Regional para el área directa e indirectamente afe ctada por el proyecto, proceso que está en etapa de conceptualización y formu lación. Resulta importan te advertir que, desde la propia exposición de motivos , se estableció con claridad, la imperiosa necesidad de realizar tal proyecto especí ficamente en esa zona, al advertirse a los legisladores lo siguiente: “ …Así las cosas , la ubicación de la presa en el río Piedras obedece a una condición topográfica única que no permite ser trasladada a otro sitio; por tanto, esta ubic ación y diferencia de nivel entre la entrada del canal que lo abastece y la salida del canal que permitirá llevar e l agua hasta el río Te mpisque determinan el nivel máximo de embalse y la capacidad d e este para abastecer con 20 metros cúbicos por segundo a l Paacume. En algún momento se v aloró la posibilidad de construir un dique para evitar la inundació n de esta área de la Reserva Biológic a Lomas Barbudal y un túnel de más de 2 kilómetro s para evacuar las a guas; sin embargo, resultó que el sitio del dique coincide con una fall a geológica que haría imposible su construcción por el alto riesgo que genera a la obra. No existe posibilidad de reubicar o disminuir el volumen del embalse sin afectar significativamente el alcance del Paacume y con ello los beneficios para la población guanacasteca, con lo cual se determinó la necesidad de contar con 113 hectáreas a de la Reser va Biológica Lomas de Barbudal para ser inundadas. Resulta de vital importancia que este embalse se desarrolle a plenitud, para lo cual es indispensable tener co mo área inun dable esta extensión. Senara ha de mostrado que esta extensión de embalse, incluid a la zona dentro de la Reserva Lomas de Barbudal (113 hectá reas), es la única vía par a hacerlo con el fin de atender la demanda hídrica en el ámbito del proyecto de forma sostenib le. Beneficiarios del proyecto. Con Paacume se beneficiarán con riego tres cantones de la provincia de Guanacaste, a saber: Carrillo, Santa Cruz y Ni coya. Adicionalmente , Paacume destinará 2 metros cúbicos por segundo d e agua para consumo humano (cuyo tratamiento y distribució n estará a cargo del AyA), lo que implica solucionar el déficit con un horizont e de 50 años de aproximadamente 500.000 personas, además de qu e con la generación hidroeléctrica en sitio de presa d e producirán 7 MW por año y en mate ria de riego cubrirá un área estima da en 1.875 ha en el sector turístico en la zona costera, liberando ag ua subterránea hoy usada con este fin. Esto además del agua dispuesta para el riego productivo.” (El resaltado no es del original). Es decir, el fundam ento para llevar a cabo la desafectación en cuestión estaba dado desde la misma exposició n de motivos. Ciertamente, la Ley Orgánica del A mbiente establece lo s iguiente: “Artículo 38.- Reducción de las áreas silvestres protegidas. La superficie de las áreas si lvestres protegidas, patrimonio natural del Estado, cualquiera sea su categorí a de manejo, sólo podrá reducirse por Ley de la Repú blica, después de realizar los estudios técnicos que justifiquen esta medida.” En el sub examine, precisamente por la parti cularidad que tiene esta desafectación para el establecimiento de otros planes de manejo de protecció n, r esulta atendible exigir un estudio técnico, pero no para que justifique q ue esa área no requier e ser protegida ambientalmente , pues, en realidad no se pretende desafectarla para desprotegerla a nivel ambiental y darle cualquier uso diverso , sino modificar su condición de tutela y de aprovechamiento ambiental sostenible, respecto de lo cual se reconoce un evidente impacto sobre esta, y por ello lo aportad o es un estudio de compensació n, que así lo garantice y ret ribuya al ambiente por una situació n de necesidad. El informe final del estudio “Establecimiento de la línea base de biodiversidad para la Reserva Biológica Lomas de Barbudal y finca adyacente”, f ue realizado por la Organización para Estudios Tropicales, a solicitud de SENARA, para que se refiriera a las especificaciones del artículo 72 del Reglam ento a la Ley de Biodiversidad ( véase el oficio del 14 de junio de 2017 adjunto al expediente). Ese reglamento , en los ordinales 71, 72 y 73 dispone lo siguiente: “Artículo 71. —Declaratoria, modificación o cambio de categorí a de manejo de áreas silvestres proteg idas. Para la declaratoria, modificación o cambio de categoría de manejo de ASP, deberá elaborarse un informe té cnico, que estará coordinado por la instancia respectiva de SINAC. Artículo 72.—Sobre el informe té cnico . El informe técn ico para los efectos del artículo anterior, deberá contener los objetivos de creación del área propuesta y recomendaciones sobre la categorí a de manejo más adecuada, con las justificaciones técnicas co rrespondientes. Dentro de los criterios utilizados para elaborar este informe, definir los objetivos y emitir tales recomendaciones, se considerará n al menos los siguientes: a) Relevan cia y fragilidad de los ecosistemas, poblaciones silvestres, atributos geoló gicos o geomorfológicos que incluye el área propuesta. b) Dimensiones estimadas de los ecosistemas más relevantes, atributos geoló gicos o geomorfoló gicos que contiene el área propuesta. c) Estado de conservación de dichos ecosistemas, poblaciones silvestres má s relevantes, atributos geológicos o geomorfológicos y potencial compr obado para la recuperación ecológica de sitios degradados dentro del área propuesta. d) Relevancia y naturaleza de los bienes y servicios ambientales que suministra el área propuesta para las comunidades locales circunvecinas. e) Potencial comprobado del área propuesta para aquellos usos que sean compatibles con la categoría de manejo recomendada. f) Régimen d e tenencia de la tierra (estatal, privada o mixta) en el área propuesta. g) Existencia de recursos financieros suficientes para adquirir los terrenos del á rea pr opuesta y asegurar su adecuada protección y manejo en el largo plazo. h) Consulta obli gatoria a poblaciones indígenas o comunidades locales que puedan ser afectadas, impactadas con la creación o modificación de á reas silvestres protegidas. Dicho informe con los documentos pertinentes deberán ser remitidos al CORAC, para su consideració n y de ser pro cedente, remitirlo al CONAC para lo que corresponda. Cuando la modificaci ón implique elevar la categoría de manejo existente, además deberá considerarse dentro d el informe técnico respectivo la exposición de las razones concretas que motivan la pr opuesta de cambio en la categoría de manejo. Artículo 73.—Restauració n, recuperación y rehabilitación de ecosistemas, especies y sus servicios ambientales. El SINAC deber á definir, desarrollar y fomentar acciones de manejo para lograr la conservación, la r estauració n, la recuperación y rehabilitación de ecosistemas y sus componentes, t eniendo como fundamento estudios científicos, planes de manejo u otros instrum entos de planificación de las áreas silvestres protegidas, en concordancia con los objetivos de su declara toria, entre ellas manejo y/o erradicación de especies exóticas invasora s, recuperación de suelos y cobertura vegetal, control y prevención de incendios forestales, mitigación de desastres naturales, y control de poblaciones de especies nativas oportun istas, y regulación de ciclos hidrológicos.” Es por ello que es e estudio fue sometido a conocimie nto del Consejo Regional del Área de Conservación Arenal Temp isque (CONAC), el cual lo aprobó en las condiciones expuestas por el criterio técnico dado por el ACAT, y estableciendo expresamente que ese estudio no es equivalente n i sustit uye al Estudio de Impacto Ambiental que debe realizarse al proyecto PAACUME. Precisamente por ello, la normativa impugnada incorpora otras disposiciones y en el artículo 4 específicamente establece su elaboración : “ARTÍCULO 4- El Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento (Senara) será la entidad responsable de realizar el estudio ambiental del Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras (Paacume), que deberá incluir las medidas de prevención, mitigación y compensación del área desafectada afecta en el artículo 2 de la presente ley, las cuales deben ser implementadas por el desarrollador. El estudio de impacto ambiental deberá considerar la línea base aprobada por las entidades y avalada por el Consejo Regional de Áreas de Conservación del Sistema Nacional de Áreas de Conservación (Sinac), sin perjuicio de los términos de referencia que emita la Secretaría Técnica Nacional Ambiental (Setena), conforme al marco jurídico correspondiente.” A partir de lo expuesto anteriormente, contrario a lo señalado por los accionantes, se denota que el proyecto de ley no careció de sustento técnico, pues se basa en los resultados de diversos estudios que denotan la necesidad de dotar de agua a esa comunidad, de la limitación de fuentes para su obtención y del estudio “Establecimien to de la línea base de biodiversidad para la Reserva Biológica L omas de Barbudal y finca adyacente”, realizado por la Organizació n para Estudios Tropicales, a fin de garantizar una debida compensación en la mod ificación de la categoría de manejo de protección de esa á rea en particular, fundamentado técnicamente conforme a la metodología optada para su elaboración. Aunado a ello, fue aportado al expediente legislativo el resultado de la consulta obligatoria ; así como la propuesta de compensación elaborada por SENARA, SINAC y el PIAAG en un estudio complementario, elaborado en marzo de 2018, de previo a la emisión por parte de la Comisión Especial Legislativa del dictamen afirmativo unánime (17 de julio de 2018) que culminó con esta ley, en el que a partir del estudio de la OET y de la valoración que hicieron de las tres propiedades en cuestión (ASETREK, BRINDIS DE AMOR y HACIENDA CIRUELAS), fueron reforzadas las razones para implementar este proyecto y modificar el uso a la zona en cuestión; así como la forma en que esta sería compensada. En ese estudio se determinó, luego de un análisis de campo, que de la finca Hacienda Ciruelas resultaba viable adquirir 25.000 ha, de las cuales 7,16 representan bosque ripario, 2,42 ha de bosque secundario, 13,13 ha de bosque deciduo y 2,28 ha de pastos, complementando la información de la finca Brindis de Amor, que había sido valorada por la OET. El informe “Establecimiento de la línea base de biodiversidad para la Reserva Biológica Lomas de Barbudal y finca adyacente”, determinó las características biológicas y geofísicas del área dentro de la zona protegida Reserva Biológica Lomas de Barbudal (RBLB) que potencialmente sería inundada de establecerse el embalse sobre el Río Piedras como parte del proyecto de irrigación PAACUME del SENARA. Además, evaluó el potencial de compensación que tendría una propiedad adyacente de realizarse este impacto, denominada en el informe ASETREK, aplicando una metodología basada en un enfoque de puntuación, denominada Hábitat/Hectárea. Ahora bien, el cuestionamiento de los accionantes y de algunos coadyuvantes es que los estándares utilizados por el estudio de cita resultan insuficientes para autorizar una desafectación del área en cuestión y de sus impactos; sin embargo, tal como se indicó, el estudio de marras estaba limitado a valorar las condiciones que debían ser compensadas, a los efectos de valorar los impactos que implicarán modificar el plan de uso de esa zona. Por otro lado, la ejecución del proyecto PAACUME, también está condicionado a la realización y aprobación de otros estudios técnicos-científicos, tal como el estudio de impacto ambiental contemplado en el ordinal 4 de la normativa impugnada. De esta forma, no solo resulta improcedente que este Tribunal revise la pericia con la cual fue realizado un estudio técnico, lo cual ameritaría una discusión de legalidad en el que diferentes expertos tengan amplitud de oportunidad para sostener sus criterios y debatirlos lo que no es propio de un proceso de constitucionalidad, sino que, lo más importante, es que esta ley igualmente sujeta la construcción y ejecución del proyecto en cuestión a la realización del estudio técnico complementario. De lo contrario esa área no podrá ser intervenida. Lo anterior, por cuanto se reitera, esta ley no desafectó esa área para ser utilizada para cualquier fin despojándola de su tutela ambiental, sino que lo hizo únicamente a los efectos de someterla a otro tipo de manejo de protección ambiental y sujetó ese proyecto a la realización previa del estudio de impacto ambiental, en el cual deberán ser previstos todos los impactos, medidas de mitigación y corroborar la compensación adecuada. Así las cosas, si bien ese estudio de impacto ambiental no se realizó de previo a la aprobación de la ley, lo cierto es que, dada la particularidad de este proyecto y en las condiciones en que se aprobó la desafectación de ese terreno para modificar su uso y protección ambiental, manteniendo su tutela fuera de cualquier uso diverso al justificado, y condicionando el mismo al resultado que eventualmente arroje el estudio de impacto ambiental, no se considera vulnerado el principio de objetivación del derecho ambiental. La necesidad técnica de suplir de agua a la región chorotega para implementar ese proyecto fue justificada a los legisladores desde su exposición de motivos. Existen decretos ejecutivos que declaran la emergencia por sequía en esa área desde el 2014, y desde años atrás las autoridades competentes han buscado diferentes opciones para atender esa problemática, aunque ello no se haya escrito en un solo y único documento, como aducen los accionantes. Es decir, el interés público de atender esa situación es una cuestión evidente y manifiesta . Asimismo, en el escrito de coadyuvancia presentado por el Ministro de Agricultura, se resumen los beneficios del proyecto en: a) un impacto positivo a favor de unos 500 mil agricultores ( en su mayoría pequeños y medianos); b) recuperación de mantos acuíferos en la zona; c) aumento en la capacidad de riego en unas 18 mil hectáreas hoy en día afectadas por las sequías y el cambio climático; d) creación de un espejo de agua de 850 hectáreas; e) reducción del déficit hídrico de la zona. También se observa durante la tramitación legislativa que se expuso a los legisladores que ese sitio en particular era el único adecuado para realizar el proyecto en cuestión, por lo que, precisamente, partiendo de los impactos que evidentemente tendrá un cambio de hábitat, se diligenció una compensación ambiental de esa zona (ver a manera de ejemplo comparecencias de folios 1326, 1327 y ss, 1332, 1334, 1335, 1342, 1351 y ss, 1357 y ss). Ciertamente, una compensación no basta con aumentar la cabida del terreno que se sustituye, toda vez que hay que procurar condiciones similares de vegetación y fauna. Sin embargo, tampoco implica que deba exigirse idénticas condiciones, pues con el tiempo podrían obtenerse incluso mayores beneficios ambientales. Según la doctrina, el principio fundamental en el que se basa la compensación ambiental, es que el resarcimiento no sea menor al costo ambiental del impacto que se vaya a producir. Su intención es compensar los servicios ambientales que prestaban los ecosistemas que fueron afectados por el cambio de uso. Para ello no existe una única metodología de medición, y lo más relevante es que deba procurarse maximizar esa ganancia ambiental. A esa condición apuntaló el estudio realizado por la OET. Partieron de que la compensación debía maximizar la ganancia al ambiente, por lo que al inicio contaron con el hecho de que un área de 332 hectáreas de un ambiente similar al encontrado en ASETREK, funcionaría para compensar lo que se perdería en el sitio de impacto en RBLB. Esa es la razón de la proporción 3:1 que se indica en el informe. Sin embargo, a fin de maximizar esa ganancia ambiental que debe procurar un plan de compensación, es que se advirtió que podía resultar conveniente emplear, además , otras propiedades que dispusieran de elementos importantes para la conservación, adicionales al área en ASETREK , igualmente por el tipo de bosque ripario. En la pág. 217 de ese estudio, se expusieron las razones por las cuales considera ron que el embalse que se formaría en la zona de inundación debía ser parte de la misma compensación. Asimismo, a unque otras áreas no fueron analizadas con la profundidad que lo hicieron en ASETREK, sugirieron otras propiedades adyacentes para mejorar la propuesta de compensación. Una de esas propiedades es Brindis de Amor, cuya selección no fue casual, sino valorada por estar ubicada en el extremo noroeste de la RBLB, la cual atraviesa uno de las pocas quebradas permanentes de la zona (río Cabuyo) y mantiene una breve cobertura riparia. La vegetación en este sitio sí fue evaluada, como se indica en las páginas 210–216 del informe. Además, tomaron en consideración en el informe, los estudios ininterrumpidos por más 25 años en el área de la Dr a. Susan Perry (Universidad de California, Los Ángeles), que señalan que tropas de monos carablanca (Cebus capuccinus) de la Reserva Biológica Lomas de Barbudal utilizan los bosques dentro de Brindis de Amor como sitios de alimentación y descanso. Es decir, hay evidencia de un constante flujo de animales desde y hacia la reserva. Por ello, el empleo de la propiedad Brindis de Amor como sitio de forrajeo demuestra la importancia biológica de esta propiedad y lo acertado que sería protegerla. La decisión de anexar una fracción de la Hacienda Ciruelas obedece a evitar dejar una península en el contorno de la RBLB de anexarse Brindis de Amor, lo que contravendría las nociones básicas del diseño de reservas, que trata de minimizar el efecto de borde y su afectación a las especies que se desean proteger. Además, esa fracción contiene también un fragmento de cobertura riparia. De manera que se trata de un criterio técnico de maximización del beneficio ambiental, que no fue tomado en cuenta solo por la extensión del terreno, sino por el recurso agregado y maximizado que implicaría mayores y mejores condiciones equivalentes de compensación. En consecuencia, para los profesionales, tal valoración inicial resultó suficiente tomándose en consideración que son anexos complementarios, no la finca principal ASETREK, y que, en todo caso, serán igualmente valoradas en el estudio de impacto ambiental posteriormente. En el estudio se acreditó que e l área de impacto en la parte sureste de la Reserva Lomas de Barbudal no es un humedal, ni está conectado con los humedales del Parque Nacional Palo Verde. Además, Lomas de Barbudal, el Parque Nacional Palo Verde y las propiedades sugeridas adicionalmente, no se encuentran en el Área de Conservación Guanacaste (patrimonio de la UNESCO), sino en el Área de Conservación Arenal-Tempisque (ACAT). Es por ello que, en el informe se hizo tal sugerencia sin demeritar la compensación ya prevista. Así lo expuso la OET: “…Siguiendo esta metodología concluimos que: (1) Sí es posible hacer una equivalencia ecológica entre los dos sitios (RBLB y ASETREK); (2) Que la compensación en área es una proporción de 3:1. Sin embargo, tal como especificamos en nuestro informe, nuestra recomendación fue solicitar aún más para resarcir las pérdidas en la reserva, en aras de mejorar el resarcimiento en términos del ambiente. La incorporación de estas dos propiedades en nuestra recomendación final no requería mayor evaluación pues constituyen una anexión complementaria más no esencial dada la metodología trazada. Si bien es cierto que la propiedad de Ciruelas no fue evaluada, es importante aclarar que en la propiedad de Brindis de Amor realizamos un levantamiento de la estructura y composición vegetal tal como se especifica en nuestro informe.” Igualmente, la incorporación de la propiedad Ciruelas fue justificada por razones de localización y corredor para las especies, lo que sí fue constatado por ese grupo de estudio, al realizar la investigación de la zona aledaña a la finca principal. La controversia de la suficiencia del periodo de estudio y de la metodología empleada, se reitera, es una cuestión técnica que no compete ser dilucidada en esta jurisdicción. En todo caso, si bien se comprobó que la realización de este estudio se programó para que se ejecutara en el plazo de diez meses y no de dos años, ello no constituye en sí mismo una falencia que lo descalifique, toda vez que, siguiendo la metodología en él diseñada, necesariamente se llegaría a la misma conclusión , independientemente del tiempo que se tarde en realizarlo. En la prueba recibida por este Tribunal en la audiencia oral, el señor Mahmood Sasa Marín, coordinador del estudio de la OET, en relación con este aspecto, señaló que los resultados no deberían cambiar ante un plazo mayor. En todo caso y a los efectos de asegurar la protección ambiental, la desafectación del área en cuestión, igualmente está sujeta a la aprobación de un estudio de impacto ambiental, que deberá ser revisado y aprobado posteriormente por SETENA. El estudio “Establecimiento de la línea base de biodiversidad para la Reserva Biológica Lomas de Barbudal y finca adyacente” valorado en su oportunidad por los legisladores, fue elaborado, a solicitud de SENARA, por la Organización para Estudios Tropicales, la cual tiene presencia científica en el país y en esa área desde 1970, cuando se creó la Estación Biológica Palo Verde , lo que hoy es el Parque Nacional Palo Verde, en el que participaron profesionales debidamente identificados y utilizaron una metodología científica específica. Además, fue avalado por el SINAC y SENARA, e inscrito en la Vicerrectorí a de Investigación de la Universidad de Costa Rica y aprobado en el Consejo de Investigación del Instituto Clodomir o Picado, también de la misma universidad, sin que l a Escuela de Biología haya manifestado sus reservas oportunamente ante sus elaboradores. Así las cosas, no resulta irrazonable que los legisladores hayan adoptado la ley en cuestión tomando en consideración el criterio técnico ahí externado, al igual que lo hace este Tribunal actualmente, al no ser instancias técnicas para cuestionar y revisar sus alcances, ni determinar el cumplimiento de cada requerimiento legal de este. Nótese que no consta siquiera la interposición de un proceso judicial de legalidad posterior a esta ley, en que se haya cuestionado y anulado ese estudio, para sugerir que deba restársele el valor técnico aportado. Asimismo, aunque se alegue que el referido estudio no fue coordinado por la instancia respectiva del SINAC, lo cierto es que el mismo sí fue avalado por este, como ya se indicó. Finalmente, la compensación ofrecida en esta ley fue de 5 a 1 para mejorar el resarcimiento ambiental, pues a cambio del uso de las 113 hectáreas actuales, la reserva recibirá más de 5 00 hectáreas, que vendrían a formar parte de esta, incluyendo esas mismas 113 has, pero con un hábitat acuático y de protección diferente. En ese sentido, no solo entra en ponderación la protección ambiental, sino también la necesidad de procurar el suministro a una gran parte de la población guanacasteca, de un líquido que es vital para los seres humanos, como el dotar de agua. De ahí que deban ser valorados todos los escenarios posibles y adoptar las medidas menos lesivas para todas las partes y los derechos involucrados, en atención a lo que procura un desarrollo sostenible. Tampoco se violenta el principio de no regresión ambiental de la reserva biológica Lomas de Barbudal, por el contrario, la normativa impugnada está garantizando un fortalecimiento en materia de protección y administración en temas ambientales, ya que se incrementa el área de la reserva, se protegen e incorporan áreas con humedales naturales (río Cabuyo y Quebrada Amores), se asignan recursos económicos para la administración y manejo de recursos naturales, se integra la coordinación entre instituciones para el manejo y elaboración de los planes correspondientes en materia ambiental, y, finalmente , incorpora un nuevo ecosistema de humedal, el cual, además de ser un nuevo destino para las aves acuáticas, será un ecosistema que contribuirá a la adaptación y al cambio climático en toda la provincia de Guanacaste. Más allá de lo sugerido en el estudio de la OET de adquirir como mínimo 332 ha, la propuesta legislativa que finalmente fue aprobada y respaldada por órganos técnicos nacionales como SENARA y el SINAC, incorporó en la propuesta de compensación de este proyecto, muchas más hectáreas, a fin de facilitar el manejo y control de incendios. Asimismo, al incorporar las propiedades Brindis de Amor y Hacienda Ciruelas, permitió contar con bosque ripario en condiciones adecuadas de conservación, y poder conservar también, al estar dentro del área del proyecto, las nacientes principales del río Cabuyo y quebrada Amores, que se encuentran en esas fincas. De otro lado, la elaboración del Plan General de Manejo de Uso Sostenible y Racional de este proyecto, estaría a cargo de una comisión que contaría con representación del SINAC, S ENARA y la Municipalidad de Bagaces, y que, según expuso el SINAC, contemplaría criterios importantes sobre la categoría de manejo especial de ese embalse y sus beneficios ecosistémicos: “•Se definiría con mayor claridad las competencias de cada institución y se definirían mejor los mecanismos y procedimientos para el ordenamiento y uso de los recursos. •Bajo la categoría de oficial de Humedal se tendría mayores oportunidades de ordenar el uso para que la sociedad local, nacional e internacional logren contar con bienes y servicios de calidad producidos por el recurso bien conservado entre ellos: educación, investigación, agua, recreación y turismo. •Permitirá prevenir y controlar con mayor eficiencia y rigurosidad diferentes actividades ilícitas como invasión de tierras y tala ilegal, cacería y pesca furtiva e incendios forestales. • Al asignar una categoría de manejo al Embalse e incorporarlo como sitio Ramsar, el país estaría cumpliendo responsablemente con los compromisos internacionales como país signatario de la Convención Relativa a los Humedales de importancia Internacional; Convención Ramsar aprobada mediante Ley número 7224 del 02 de abril de 1991. • El otorgar el estatus oficial como Humedal facilitará el proceso de ordenamiento de la actividad turística donde grupos locales y microempresarios de la zona podrían integrase a desarrollar un turismo rural sostenible, como alternativa socieconómica. • Con la creación de esta área protegida se estaría fortaleciendo una importante zona que funge como Corredor Biológico entre la Reserva Biológica Lomas Barbudal, Parque Nacional Palo Verde y el Corredor Biológico Nambiral. • Se estaría integrando la sociedad civil local e instituciones locales relacionadas para coordinar y efectuar una planificación y gestión ambiental integral a través del Consejo Local del Humedal, aprovechando de manera eficiente los recursos y capacidad instalada de cada una de las instituciones relacionadas. • La categoría de Humedal permitirá planificar, ordenar y efectuar un uso armonioso y sostenible de los recursos naturales con un nivel de fricción o conflicto bajo, como si posiblemente ocurriría si se asignara una categoría de Parque Nacional o Reserva Biológica. • El contar con un área silvestre núcleo, servirá de justificación y motivación a instancias locales, regionales y entes internacionales a cooperar técnica y financieramente para promover el desarrollo de acciones orientadas a la conservación y actividades socio productivo de carácter sostenible en el territorio de la cuenca en general. •El asignar una categoría de manejo para el ordenamiento y el uso sostenible de Embalse, estaría contribuyendo de forma significativa para la conservación de los ecosistemas y especies de la Reserva Biológica Lomas Barbudal, ya que además de favorecer la conectividad y desplazamiento de las especies, fungirá también como zona de amortiguamiento y disminución de presión hacia los recursos de la Reserva”. Se debe recordar, que los ambientes registrados de una determinada zona no son estáticos , sino dinámicos, por lo que con el tiempo se pueden lograr modificaciones, incluso más positivas en el ecosistema. Por consiguiente, la l ey cuestionada no resulta inconstitucional, contó con estudios previos y criterios técnicos expresados por las autoridades competentes a lo largo de las comparecencias legislativas, entre estos S ENARA, SINAC , MINAE, S ETENA, MAG y OET y, además, dispone la obligación de realizar un estudio de impacto ambiental, el cual deberá contemplar de previo, todos los impactos y medidas de mitigación que procedan para garantizar que, efectivamente, no sea lesionado el ambiente, así como también, determine que se producirá una compensación, no solo en tamaño, sino de naturaleza ecológica hasta donde razonablemente sea posible en este último supuesto. En criterio de este Tribunal, se trata de una ley condicionada, cuya eficacia queda supeditada a que el estudio de impacto ambiental pendiente del proyecto PAACUME, confirme los resultados previos, y se ajuste a los principios de razonabilidad y proporcionalidad, a las exigencias de un desarrollo sostenible, de equilibrio ecológico y de un ambiente sano, y al bienestar general de la población, que sirva para justificar la medida, así como para determinar que la compensación del área contemple tanto el elemento cuantitativo como el cualitativo , por lo que no llevan razón al indicar que se violenta el principio precautorio. P or otro lado, los accionantes cuestionan que no se notificó a RAMSAR sobre la desafectaci ón del á rea de la RBLB, ni tampoco del cambio en los lí mites de esa reserva bioló gica, lo que supone una omisión que infringe los compromi sos internacionales de nuestro país y, por ende, una vio lación al ar tículo 7 de la Constitució n Política. Al re specto procede indicar que, si bien la “Fic ha técnica para ampliación del Sitio Ramsar Palo Verde, Costa Ri ca” evidencia que la RBLB forma parte d e ese sitio , el inciso 2 del artículo 4 del instrumento internacional mencionado faculta a los Estados a retirar l os humedales o reducirlos, por m otivos urgentes de interés nacional, en cuyo caso debe compensarse, en la medida de lo posible, la pérdida de recursos y, en particular, crear nuevas reservas naturales para las aves acuáticas y la protección de una porción adecuada de su hábitat original, en la misma región o en otro lugar. Prec isamente, corresponde a cada Estado determinar los “motivos urgentes de interés nacional ”, por lo que no se considera irrazonable que la Asamblea Legislativa emita una ley que tenga como parte de sus fines dotar de recurso hí drico a parte de la pr ovincia de Guanacaste y así ve lar por su aprovechamiento sostenible. Asimismo, de la lectura del convenio referido no se desprende alguna obligació n (que i mplique algú n vicio de inconstitu cionalidad) de comunicar a RAMSAR previamente la desafectación del área proteg ida y, en todo caso, basta ría con realizar la notificación correspondiente, ya que el Estado, siempre y cuando cumpla con los compromisos int ernacionales que adquirió y con los p arámetros internos (como l os que ha fijado esta jurisdicción), tiene la potest ad de hacerlo. Por consiguiente, se desestiman los alegatos de los accionantes. B.- Sobre la acusada trans gresión al ar tículo 176 de la Constitución Pol ítica y a los principios de equilibrio presupuestario, razonabil idad y proporcionalidad , economía y efic iencia. Los accion antes aducen qu e no se hicieron estudi os socioeco nómicos que justifiquen po r un lado la desafectac ión y por el otr o el aumento de l a RBLB con casi 500 hectáreas de terrenos privados. Reprochan que no se contaba con el financiamiento mí nimo para adquirir el área, p rotegerla y manejarla ; y que ni siqu iera exist ía un avalúo de las p ropiedades. Manif iestan que no se cumplió con el requi sito de verificar la existencia de recursos financieros suficientes para a dquirir los terrenos del área propuesta, y que el ordinal 3 6 de la Ley del Ambiente establece que para cre ar nuevas áreas silvest res protegidas propiedad del Estado, cualquiera que sea la categoría de manejo que é l establezca, deberá cumplirse previamente, entre otros requisitos, con el financiamiento mínimo para adqu irir el área, protegerl a y manejarla. Sosti enen que ese requisito no s e cumplió en el caso de la le y n.º 9610. Indican que el presupuesto ordinario del 2018, en ejecución para cuando se apro bó la ley n.º 9610, no contenía una partida presupuestaria para pa gar las expropiaciones de las prop iedades pri vadas que se incorporaron a la RBLB. A gregan que ese incumplimiento vio lenta el principio de equilibrio presupuestario (artículo 176 de la Constitució n Política), ya que mediante esa ley se asumieron nuevas obligac iones de pago sin que estuviera n previstas en la ley de presupuesto, lo que es requ isito para ampliar á reas protegidas. A ñaden que , para poder hace r esa desafectación, se compensa con más de 500 hectáreas de terrenos privados; sin embargo, surg e el cuestionamiento de por qué se escogieron es as y no otras propiedades colindantes con la RBLB, incluso terrenos de menor valor o terrenos que ya perten ecen al Estado colindante s con la reserva bioló gica Lomas de Barbudal y que tienen u na catego ría de p rotección muy inferior a la de una reserva bioló gica (más de 300 hectá reas). Por ello, alegan la violación del principio de razonabilidad, proporcionalid ad, eco nomía y eficiencia, ya que no se justifica una erogación de dinero de miles de millones de c olones para compensar 113 hectá reas de la RBLB que s e desafectan mediante esta ley que se impugna, cuando existen opciones sin cos to o mucho menor para el Estado. M enos aún, cuando la ley obliga a expropiar más de 500 hectáreas para compensa r 113 hectáreas que se están desafectando, pudiendo perfectamente i ncorporá rsele a la RBLB más de 300 hectá reas del Estado que tienen una categoría de manejo y protecció n inferior a la de un parque n acional o reserva biol ógica, sin costo a lguno para el erario pú blico. Advierten que tam poco se revisaron todas las propiedad es adyacentes a la RBLB, para encontrar la manera de compensar a un menor costo posible. Finalmente, refieren que el aná lisis de cost o-beneficio no se hizo con todas las propiedades adyacen tes a la RBLB. A partir de lo anterior, es importante precisar, que la competencia de este Tr ibunal, en relació n con el principio del Equilibrio Pr esupuestar io derivado del numer al 176 de la Constitució n Política, se ciñe a un análisis de nivel macro, y no de una situación en particular co mo la de estudio. Tal y como lo señal a la Procuraduría G eneral de la República, la discusión acerca de si se ha incluido en el presupuesto ordinario la partida específica destinada a cubrir las expropiaciones que se requieren para la compensación de la RBLB , no está referida a la violación de este principio. Por lo demás, no puede obviarse lo ya indicado en esta sentencia, en el sentido que se está ante una ley condicionada, cuya eficacia queda supeditada a que el estudio de impacto ambiental pendiente del proyecto PAACUME, confirme los resultados previos, y se ajuste a los principios de razonabilidad y proporcionalidad, a las exigencias de un desarrollo sostenible, de equilibrio ecológico y de un ambiente sano, y al bienestar general de la población, que sirva para justificar la medida, así como para determinar que la compensación del área contemple tanto el elemento cuantitativo como el cualitativo. Por ende, si falta el referido estudio de impacto ambiental, que condiciona -según se indicó- la eficacia de la ley cuestionada y el eventual inicio de la fase de ejecución del proyecto, entonces resulta prematura la exigencia de una efectiva determinación y previsión de los recursos financieros necesarios para ejecutar una futura expropiación, en tanto aún no existe un proceso tendente a expropiar un fundo. Adicionalmente, en lo que se refiere a la adecuada protección y administración de la RBLB, debe tomarse en consideración que la propia normativa impugnada está garantizando su fortalecimiento, pues, entre otros aspectos, se asignan recursos económicos para la administración y manejo de recursos naturales. Ergo, tampoco se constata que, en cuanto a este punto, se configure una afectación o perjuicio ambiental. De otra parte , la alegada inconformidad por el supuesto alto costo econó mico para el p aís que significa desafect ar y compensar esa área con esas propiedades y no otras diferentes, tampoco confi gura un argumento susceptible de análisis d e constitucionalidad, sino de discr ecionalidad, cuestión en la que el legislador cuenta con amplio margen -libre configuración-, en este caso, siguiendo, ló gicamente, criterios té cnicos, de conveniencia y oportuni dad para la escogencia de un terreno cuando así lo impongan razón de interés público debidamente comprobado, tal y como se da en el presente caso; amén que la disminución de la cabida de un área silvestre protegida y su compensación, no debe responder únicamente a un criterio económico, sino también a los atributos ecológicos del terreno, a fin de que reúna condiciones ambientales equivalentes al área desafectada. De manera que ello implicaría igualmente un análisis técnico que no es propio de ser verificado en esta jurisdicción. VII.- Conclusión . Corolario de lo expuesto, este Tribunal considera que la acción resulta inadmisible , en relación con la acusada violación al artículo 45 de la Constitución Política, al numeral 208 bis del Reglamento de la Asamblea Legislativa y al principio de seguridad jurídica, por carecer de legitimación los accionantes. En lo demás, no se advierten las inconstitucionalidades alegadas, en el tanto lo autorizado en la normativa impugnada cuente con el estudio de impacto ambiental previo, que determine los impactos, las medidas de mitigación respectivas, garantice la protección ambiental y la debida comprensión ambiental. VIII.- Documentación aportada al expediente . Se previene a las partes que, de haber aportado algún documento en papel, así como objetos o pruebas contenidas en algún dispositivo adicional de carácter electrónico, informático, magnético, óptico, telemático o producido por nuevas tecnologías, estos deberán ser retirados del despacho en un plazo máximo de 30 días hábiles contados a partir de la notificación de esta sentencia. De lo contrario, será destruido todo aquel material que no sea retirado dentro de este plazo, según lo dispuesto en el "Reglamento sobre Expediente Electrónico ante el Poder Judicial", aprobado por la Corte Plena en sesión N° 27-11 del 22 de agosto del 2011, artículo XXVI y publicado en el Boletín Judicial número 19 del 26 de enero del 2012, así como en el acuerdo aprobado por el Consejo Superior del Poder Judicial, en la sesión N° 43-12 celebrada el 3 de mayo del 2012, artículo LXXXI. Por tanto: En relación con la acusada violación al artículo 45 de la Constitución Política, al numeral 208 bis del Reglamento de la Asamblea Legislativa y al principio de seguridad jurídica, por unanimidad se declara inadmisible la acción, porque, por un lado, no se observa algún tipo de interés difuso o colectivo, y, por otro, no existe algún asunto previo en el que se haya invocado la inconstitucionalidad como medio para amparar el derecho o interés reclamado. Igualmente, por unanimidad se declara sin lugar la acción respecto de la argüida vulneración a los ordinales 7 y 176 de la Constitución Política y a los principios constitucionales de equilibrio presupuestario, razonabilidad y proporcionalidad, y economía y eficiencia. En cuanto a la alegada lesión al derecho a un ambiente sano y ecológicamente equilibrado, contemplado en el artículo 50 de la Constitución Política, por mayoría se declara sin lugar la acción. Los Magistrados Cruz Castro, Rueda Leal y Garro Vargas salvan el voto y declaran con lugar la acción por violación a los principios precautorio, no regresión en material ambiental, irreductibilidad y objetivación de la tutela ambiental. La Magistrada Garro Vargas da razones diferentes y pone nota. La Magistrada Hernández López y el Magistrado Salazar Alvarado ponen notas separadas. Notifíquese este pronunciamiento a la parte accionante, al Procurador General de la República, al Presidente de la Asamblea Legislativa, al Ministro de Ambiente y Energía, al Ministro de Agricultura y Ganadería, al Gerente General del Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento, y a los coadyuvantes. Fernando Castillo V.

Fernando Cruz C. Paul Rueda L. Nancy Hernández L. Luis Fdo. Salazar A. Jorge Araya G. Anamari Garro V.

Nota separada de la Magistrada Hernández López En la discusión del presente asunto, me había reservado la redacción de una nota separada. Sin embargo, prescindo de la misma, por cuanto se reflejan de manera integral las observaciones que tenía sobre el tema, en la redacción de la sentencia. Nancy Hernández López Nota del Magistrado Salazar Alvarado: Vista la redacción integral de la Sentencia dictada en este asunto, prescindo de la nota que, en su momento, consideré oportuna durante la discusión y votación de esta acción de inconstitucionalidad.- Luis Fdo. Salazar A.

Voto salvado de los Magistrados Cruz Castro y Rueda Leal, con redacción del segundo. Con el respeto acostumbrado nos separamos del criterio de Mayoría y declaramos inconstitucional la ley n.º 9610 de 17 de octubre de 2018 denominada “Modificació n de límites de la Reserva Biológica Lomas de Bar budal para el desarrollo del Proyecto de Abastecimiento de Agua para la Cuenca Media del Rí o Tempisque y Comunidades Costeras ”, por violación a los principios precautorio, no regresión en material ambiental, irreductibilidad y objetivación de la tutela ambiental. En el sub e xamine, la ley cuestionada se sustentó en mayor medida, tal y como se observa en la exposición de motivos del proyecto de ley correspondiente, en el estudio de la Organización para Estudios Tropicales (en adelante OET) denominado “Establecimiento de la línea Base de Biodiversidad para la Reserva Biológica Lomas de Barbudal (RBLB) y finca adyacente” de junio de 2017. Si bien, en principio, no corresponde a la Sala evaluar técnicamente la calidad de los estudios ni definir si cuál criterio profesional debe prevalecer, no menos cierto es que este Tribunal sí interviene cuando se está ante evidentes y manifiestas inconsistencias o falencias (por ejemplo, las sentencias n 2012013367 de las 11:33 horas del 21 de setiembre de 2012 y 2013010540 de las 15:50 horas del 7 de agosto de 2013). En el sub iudice, luego de analizar el estudio de la OET, constatamos una serie de problemas que saltan a la vista a partir de su simple lectura y que evidencian de manera palmaria el incumplimiento de los requisitos constitucionales que ha establecido este Tribunal para la desafectación de áreas protegidas. Atinente a la reducció n de á reas protegidas , este Tribunal, en la sentencia n.º 2019000673 de las 12:00 horas de 16 de enero de 2019, dispuso: “ V.- Jurisprudencia sobre la reducción de áreas protegidas, la suficiencia de los informes técnicos y la debida compensación.- Sobre la reducción de zonas protegidas, de la jurisprudencia de esta Sala se tiene lo siguiente: 1. Requisitos constitucionales para la reducción de área silvestre protegida (reserva legal y estudios técnicos): En apoyo del artículo 38 de la Ley Orgánica del Ambiente (“la superficie de las áreas silvestres protegidas, patrimonio natural del Estado, cualquiera sea su categoría de manejo, sólo podrá reducirse por Ley de la República, después de realizar los estudios técnicos que justifiquen esta medida”), ha habido una sólida línea jurisprudencial, en el sentido de que para la reducción de un área silvestre protegida, en cualquiera de sus categorías de manejo (en cuenta los refugios nacionales de vida silvestre), deben cumplirse dos requisitos esenciales: “por medio de ley y previa realización de estudios técnicos suficientes que justifiquen la medida.” (Sala Constitucional, votos números 13367-2012 y 010158-2013. En similar sentido, las sentencias números 7294-1998, 11155-2007, 1056-2009, 18702-2010 y 14772-2010, entre otras). Tal como se dijo en la resolución mencionada de 1998: ““(…) una vez declarada una determinada área como zona protectora por un acto del Estado, no puede éste, simplemente, desafectarlo en todo o en parte, para proteger otros intereses -públicos o privados- en menoscabo del disfrute de un ambiente sano, de conformidad con lo dispuesto en el artículo 50 constitucional. Ahora bien, el hecho de que una norma, del rango que sea, haya declarado como zona protectora una determianda (sic) área, no implica la constitución de una zona pétrea, en el sentido de que, de manera alguna, su cabida pueda ser reducida por una normativa posterior. Sin embargo, se debe tener presente que la declaratoria y delimitación de una zona protectora, en cumplimiento de lo preceptuado en el artículo 50 constitucional, implica una defensa del derecho fundamental al ambiente y, por ello, la reducción de cabida no debe implicar un detrimento de ese derecho, situación que debe establecerse en cada caso concreto. No resulta necesariamente inconstitucional el hecho de que por medio de una ley posterior se reduzca la cabida de una zona protectora, una reserva forestal, un Parque Nacional o cualesquiera otros sitio de interés ambiental, siempre y cuando ello esté justificado en el tanto no implique vulneración al derecho al ambiente. Podría ser que, por diversas circunstancias, un determinado sitio haya perdido, al menos en parte, el interés ambiental que, en su momento, provocó, lo que, hechos los estudios del caso, justificaría su modificación o reducción, todo en aplicación del principio de razonabilidad constitucional…” (voto No. 7294-1998). Concretamente sobre la reserva legal en esta materia, en el voto No.14772-2010 se dijo: (…) no se puede modificar el destino público de un bien del demanio público sin un acto legislativo, es decir, la reducción de área de una zona protegida se encuentra bajo la garantía que proporciona el principio de reserva de ley. Si bien, de conformidad con el artículo 36 de la Ley Orgánica del Ambiente, el Poder Ejecutivo se encuentra autorizado para constituir las Áreas Silvestre Protegidas mediante el cumplimiento de los requisitos establecidos en esa norma, así, el Parque Nacional Corcovado se constituyó mediante los Decretos Ejecutivos No. 5357-A del 24 de octubre de 1975 y 1148-A del 5 de febrero de 1980, su modificación solo podrá hacerse de conformidad con lo dispuesto en el artículo 38 de la Ley Orgánica del Ambiente, previo estudios técnicos y científicos, y mediante un acto legislativo . (resaltado no corresponde al original). Asimismo, en sentencia no.1056-2009 se indicó que la reducción únicamente es posible vía legal: “cuando de la ampliación de los límites de las zonas protectoras del patrimonio forestal del Estado se trata es posible hacerlo vía reglamento, pero cuando de su reducción se trata, únicamente se puede hacer vía legal , claro está, siempre y cuando exista un criterio previo que justifique la medida.” (Sentencia de la Sala Constitucional Nº 1056-2009) Lo cual fue aplicado cuando la Sala declaró inconstitucional la norma reglamentaria (Decreto Ejecutivo Nº 32753-MINAE) mediante la cual el Poder Ejecutivo disminuyó el territorio del Refugio Gandoca-Manzanillo, sustrayendo del área y del régimen de protección, la zona urbana del Refugio. Además, en cuanto a los estudios, estos deben ser previos, suficientes, necesarios e individualizados –como se indica en el apartado siguiente-. Así se dijo en esa misma resolución de 1998: “De acuerdo con lo citado, mutatis mutandi, si para la creación de un área silvestre protectora la Asamblea Legislativa, por medio de una ley, estableció el cumplimiento de unos requisitos específicos, a fin de determinar si la afectación en cuestión es justificada, lo lógico es que, para su desafectación parcial o total, también se deban cumplir determinados requisitos -como la realización de estudios técnicos ambientales- para determinar que con la desafectación no se transgrede el contenido del artículo 50 constitucional. En este sentido, podemos hablar de niveles de desafectación. Así, no toda desafectación de una zona protegida es inconstitucional, en el tanto implique menoscabo al derecho al ambiente o amenaza a éste. De allí que, para reducir un área silvestre protegida cualquiera, la Asamblea Legislativa debe hacerlo con base en estudios técnicos suficientes y necesarios para determinar que no se causará daño al ambiente o se le pondrá en peligro y, por ende, que no se vulnera el contenido del artículo 50 constitucional. El principio de razonabilidad, en relación con el derecho fundamental al ambiente, obliga a que las normas que se dicten con respecto a esta materia estén debidamente motivadas en estudios técnicos serios, aún cuando no existiera otra normativa legal que así lo estableciera expresamente. A juicio de este Tribunal Constitucinal (sic), la exigencia que contiene el artículo 38 de la Ley Orgánica del Ambiente No. 7554, en el sentido de que para reducir un área silvestre protegida por ley formal deben realizarse, de previo, los estudios técnicos que justifiquen la medida , no es sino la objetivación del principio de razonabilidad en materia de protección al ambiente.” (resaltado no corresponde al original). 2. Estudio técnico como un análisis científico e individualizado: La Sala se ha referido a la suficiencia del estudio técnico, cuando mediante varias resoluciones ha establecido que dicho estudio debe ser un análisis científico e individualizado. Así se dijo lo siguiente: “el requerimiento de estudios técnicos no es una mera formalidad, sino que se trata de un requisito material, es decir materialmente se tiene que demostrar, mediante un análisis científico e individualizado, el grado de impacto de la medida correspondiente en el ambiente, plantear recomendaciones orientadas a menguar el impacto negativo en este, y demostrar cómo tal medida implica un desarrollo que satisface las necesidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades.” (Voto No. 13367-2012. Véase además el No. 10158-2013). De lo cual se desprende que, el estudio técnico que exige el artículo 38 de la Ley Orgánica del Ambiente y que es la objetivación del principio constitucional de razonabilidad en materia de protección al ambiente, requiere de un análisis técnico que implica un análisis individualizado, el cual debe contener como mínimo las siguientes medidas: El grado de impacto de la medida correspondiente en el ambiente; Las recomendaciones orientadas a menguar el impacto negativo en el ambiente; La demostración de cómo la medida que se toma, implica un desarrollo que satisface las necesidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades. En síntesis, dicho estudio previo debe demostrar que la desafectación es conforme con la protección constitucional al derecho al ambiente, pues como se dijo en el voto no. 18702-2010 “no se puede permitir que se titulen áreas de esta naturaleza en forma indiscriminada, ya que esto iría contra las mismas políticas conservacionistas del ambiente que ha procurado el Estado en virtud de los cometidos ordenados por la Constitución Política y los Convenios Internacionales que ha suscrito". 3. Medidas de compensación: Un área protegida solo se puede reducir si se hace mediante ley, si hay estudios técnicos y científicos que descarten el daño ambiental y si se da una compensación del área suprimida con otra de igual tamaño. No cabe duda que todas aquellas normas en los cuales hay reducción de las áreas protegidas sin el respaldo de estudios técnicos ni compensación alguna, son inconstitucionales” (voto Nos. 12887-2014, 2773-2014, 2012-13367 y 2009-1056). VI.- Sobre la normativa impugnada.- Tal como se observa, tanto la Ley para regular la creación y el desarrollo del puesto fronterizo Las Tablillas, Ley No. 8803, como su Reglamento, son impugnados en su totalidad, básicamente por dos razones: por no contar con el estudio técnico que sustente la reducción de un área protegida (en este caso un refugio nacional de vida silvestres), y por no establecer medidas de compensación. Cada uno de estos alegatos se examina por separado. SOBRE EL ESTUDIO TECNICO: El accionante indica que la Ley impugnada y su reglamento, están segregando y reduciendo varias hectáreas del Refugio Nacional de Vida Silvestres de la zona fronteriza, sin que existan estudios ambientales que justificaran esa acción. Indica que los diputados tomaron una simple recomendación que nunca puede ser considerado un estudio serio, profundo y amplio que permitiera hacer lo que se hizo. La Procuraduría General de la República en su informe indica que, ya en la Opinión Jurídica de esta Procuraduría No. O.J.-98-2009, emitida el 14 de octubre del 2009 por consulta de los Diputados, durante la tramitación del proyecto que culminó en la Ley No. 8803, analizó el estudio técnico incorporado al expediente en ese momento, considerándolo insuficiente para justificarla: “…respetuosamente debe señalarse que dicho informe técnico no reúne los requerimientos necesarios para fundamentar el proyecto que se consulta. Nótese que el mismo hace un estudio sobre las 236 hectáreas que se proponían inicialmente y concluye que el proyecto no es viable desde el punto de vista ambiental y social. Sin embargo, dicho estudio no explica en forma alguna, por qué motivo ese impacto negativo no se produce sobre las 13 hectáreas que se proponen, o en otras palabras, no existe a la fecha, un criterio técnico que se refiera a los motivos por los cuales sí es viable la segregación de las 12.3 hectáreas que se establecen en el proyecto de ley consultado…”. El Ministro de Ambiente y Energía indica que no hay inconstitucionalidad. Agrega que, no se pretendía con la ley impugnada la desafectación del dominio público de la zona en cuestión, sino autorizar la utilización de una porción del área para otro destino de interés público, que es la instalación de un puesto fronterizo y aduanal, en el entendido que se trata de construcciones del Estado y no privadas. Así el 28 de setiembre del 2007 se emite el informe técnico elaborado por la comisión caso Tablillas, denominado “Solicitud de reducción del área del Refugio Nacional Corredor Fronterizo” que propone un área a desafectar de 13 ha limítrofes con la línea fronteriza, por cuanto los funcionarios del Área de Conservación Arenal Huetar Norte consideraron inviable la segregación del área indicada de 236 ha, concluyendo el informe que: “13 hectáreas, sería una propuesta más viable desde el punto de vista de impacto a los ecosistemas presentes en el sitio y alrededores.” Dicho informe consideró aspectos biofísicos, socioeconómicos, seguridad. Concluye que, el balance del costo beneficio de establecer puestos que realicen control y ordenamiento del ingreso migratorio en dicho sector, contribuye a regular el ingreso por la franja demanial coincidente con el Área Silvestre Protegida. Los Ministros de la Presidencia y de Comercio Exterior indican que, en los folios del 76 al 94 del expediente legislativo consta el informe técnico elaborado en setiembre del 2007 por el MINAE. El sitio identificado reúne las condiciones aptas para el desarrollo del proyecto de un Puesto Fronterizo por cuanto ya había sido impactada por la acción humana, hecho que se comprueba con la no existencia de ecosistemas de importancia o frágiles, la no presencia de cobertura boscosa primera o secundaria, ni de humedales o cursos de agua, sino únicamente de pastos naturales y terreno limpio para cultivo o listo para siembra. Además el área es técnicamente estratégica para la ubicación del Puesto Fronterizo por la cercanía con la línea limítrofe y la existencia de vías de comunicación para el desplazamiento interno (caminos) y una carretera nacional conectada a la vía del lado nicaragüense de la frontera. Al respecto, esta Sala concluye que, en efecto, la Procuraduría General de la República lleva razón en su informe, no existe un estudio técnico que se refiera a la viabilidad de este proyecto, pues el que se realizó se refería a una zona de mayores dimensiones, concluyendo que no resultaba viable desde el punto de vista ambiental y social. Por ello, debía justificarse por qué la nueva propuesta no generaría problema en los humedales, en las especies de la zona, en los mantos acuíferos y no produce una problemática social, tal como se detectó en la propuesta inicial. El estudio técnico que refieren los Ministros, resulta evidentemente insuficiente, pues no explica en forma alguna, por qué motivo ese impacto negativo no se produce sobre las 13 hectáreas que se proponen, el grado de impacto de la medida correspondiente en el ambiente, las recomendaciones orientadas a menguar el impacto negativo en el ambiente, ni tampoco la demostración de cómo la medida que se toma, implica un desarrollo que satisface las necesidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades. Por otro lado, si bien puede ser cierto, como dicen los Ministros en su informe, la propiedad no está saliendo del dominio público, es lo cierto que sí está siendo desafectada, ambientalmente hablando. También puede ser cierto, como dicen los Ministros en su informe, que además del interés ambiental en la zona fronteriza, pueda haber otros intereses relevantes como la seguridad migratoria y otros. Sin embargo, ello justamente es lo que debió haber contenido el informe técnico en su fundamentación. Nótese que, como indican los Ministros, puede ser cierto que se hayan estado tomando ciertas medidas ambientales, ello no enerva el hecho de la carencia de informe técnico con el que debió contar la ley, que dejan esas medidas ambientales sin sustento técnico requerido. Así entonces, se evidencia la inconstitucionalidad alegada, de la ley impugnada –y por conexidad de su reglamento-, por la carencia de informe técnico suficiente que sustentara la reducción del Refugio Nacional de Vida Silvestre de la zona fronteriza. SOBRE LAS MEDIDAS DE COMPENSACIÓN: El accionante indica que no se estableció en la ley medidas de compensación oportunas, ante la segregación ordenada. La Procuraduría General de la República en su informe indica que, una inconstitucionalidad por violación a este principio, no se resuelve necesariamente con la anulación de la Ley, si se califica como una inconstitucionalidad por omisión, bastaría que la Sala Constitucional dispusiera en sentencia adicionar al Refugio la porción o porciones que compensen el área suprimida, lo cual podría hacerse incluso por vía reglamentaria. Los Ministros de la Presidencia y de Comercio Exterior indican que, la pretensión de demolición de la infraestructura pública causaría la inmediata desprotección del orden, la paz, la salud, el desarrollo sostenible, la vida y la dignidad humana. Además consideran que no existe una obligación del Estado de compensar un área ya deforestada e impactada con otra, toda vez que nunca se dio una reducción del bosque ni una afectación al ambiente que justificare la medida de la compensación. Al respecto, esta Sala concluye que, en efecto, también las normas impugnadas son omisas en cuanto a las medidas de compensación. Siendo evidente la segregación de alrededor de 13 hectáreas, conforme lo indica el artículo 1° de la ley impugnada, y aunque éstas no salgan del dominio público, si salieron de una categoría de manejo ambiental, lo cual obligaba a establecer medidas de compensación legales, que no fueron adoptadas, ni garantizadas, según se observa de la lectura de toda la ley. Así entonces, se evidencia la inconstitucionalidad alegada, de la ley impugnada –y por conexidad de su reglamento-, por la carencia de medidas de compensación a la reducción del Refugio Nacional de Vida Silvestre de la zona fronteriza. VII.- En conclusión.- De la jurisprudencia reiterada de esta Sala se tiene que, toda reducción de un área silvestre protegida, en cualquiera de sus categorías de manejo (en cuenta los refugios nacionales de vida silvestre), deben cumplirse tres requisitos esenciales: reserva legal (es decir, sólo por ley puede hacerse), previa realización de estudios técnicos suficientes que justifiquen la medida y establecer medidas de compensación. En este caso se evidenció que la Ley para regular la creación y el desarrollo del puesto fronterizo Las Tablillas (Ley No. 8803) y su Reglamento, procedieron a la segregación, y consecuente reducción, del Refugio Nacional de Vida Silvestre de la zona fronteriza. Sin embargo, aunque se hizo por medio de una ley, no se realizó un estudio previo suficiente que: justificara la medida, estableciera el grado de impacto de la medida correspondiente en el ambiente, las recomendaciones orientadas a menguar el impacto negativo en el ambiente, ni tampoco que demostrara cómo la medida que se toma implica un desarrollo que satisface las necesidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades, o estableciera en concreto y detalle medidas de compensación. De todo lo cual se evidencia la inconstitucionalidad por omisión. Procediéndose en este caso a declarar con lugar la acción, con un dimensionamiento de esta sentencia, tal como se indica”. Con base en el precedente de cita, consideramos que los requisitos que se deben cumplir para que resulte constitucionalmente viable la desafectación de áreas protegidas, son los siguientes: 1)La declaratoria y delimitación de una zona protectora, en cumplimiento de lo preceptuado en el artículo 50 constitucional, implica una defensa del derecho fundamental al ambiente y, por ello, la reducción de cabida no debe conllevar un detrimento de ese derecho (causar daño o ponerlo en peligro), situación que debe establecerse en cada caso concreto. 2)La reducción de un área protegida, cualquiera que sea su categoría de manejo, solo puede darse por ley, luego de estudios técnicos y científicos (previos, suficientes, necesarios e individualizados) que, en atención al principio de razonabilidad, justifiquen la medida. 3)El estudio debe demostrar materialmente, mediante un análisis científico e individualizado, el grado de impacto de la medida correspondiente en el ambiente, plantear recomendaciones orientadas a menguar el impacto negativo en este, y demostrar cómo tal medida implica un desarrollo que satisface las necesidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades. 4)La reducción de un área protegida implica una compensación del área suprimida con al menos otra de tamaño igual y condiciones equivalentes. Ahora, en relación con los problemas detectados en el estudio de marras, la propia OET señaló que para los estudios de línea base, compensación e impacto, deben ser considerados al menos dos años de ejecución. En ese sentido, indicó de modo explícito: “La recomendación es que para los estudios de línea base, compensación e impacto sean considerados al menos dos años de ejecución y que efectivamente sean considerados un componente imprescindible del proyecto”. Lo anterior resulta trascendental a los efectos de esta vía constitucional, ya que, sin que se haya logrado acreditar alguna justificación científica o técnica, el periodo de muestreo del estudio de la OET fue únicamente de 10 meses, lo cual se calculó con base en el límite de tiempo que había para el proyecto, sin que para llegar a tal cifra se advierte algún criterio técnicamente sustentado que la respalde. Al respecto, el señor Mahmood Sasa Marín, coordinador del estudio de la OET, mencionó en la audiencia celebrada en esta acción, que, en su opinión, las conclusiones mayores no cambiarían ante un plazo más largo y que: “la recomendación (…) iba en el sentido de tener soporte verdad (…) obviamente entre más datos tengamos mejor, pero yo creo que las conclusiones gruesas, digamos esa proporción de más o menos tres uno, se mantendría n”. Sin embargo, tal situación produce incertidumbre y genera duda, toda vez que el propio consultor antes había afirmado: “que muchos de esos grupos (…) en realidad no proveen suficiente información, muchos de los grupos taxonómicos (…) , muchos de los indicadores si quisiera, (…) se tenía ese plazo, se analizó, se tienen esos datos y con esos datos tejemos esa conclusión”. De ahí que, estimamos que el plazo de 10 meses de la ejecución del estudio no proporciona certeza científica suficiente como para conocer las condiciones reales de la RBLB y del área propuesta para compensar su desafectación, lo que resulta inaceptable debido al impacto a un área protegida. En otras palabras, si se indica que el plazo para los estudios de línea base debe ser de al menos dos años (es decir, se impone un mínimo) y no existe alguna justificación científica o técnica para reducirlo, la confiabilidad de los resultados es manifiestamente incierta. Por otra parte, el estudio supra mencionado tuvo como objeto inicial analizar únicamente dos sitios: “la Reserva Biológica Lomas Barbudal (RBLB) y la zona potencial de canje para compensar las potenciales pérdidas, ubicada en el extremo occidental de la finca ASETREK Tres azul S.A”. Asimismo, los capítulos II (Calidad de Hábitat) y III (Composición de Comunidades) se centran en comparar las condiciones de la RBLB con la finca ASETREK Tres Azul S.A. No fue sino hasta en el capítulo IV (Consideraciones sobre la Compensación), donde se propuso la adquisición de una propiedad denominada Brindis de Amor, con base en estas consideraciones: “4.2. Otras alternativas de compensación. Nuestras evaluaciones revelan que el sitio seleccionado en ASE TREK para compensar por las pérdidas en la Reserva Biológica Lomas de Barbudal posee ambientes de menor calidad biológica. El método de estimación de compensación que hemos seguido aquí “castiga” esos há bitats de menor calidad asignándoles puntajes más bajos, lo que se traduce en una consignación de un área superficial mayor con la que atenuar el défic it. La propuesta de compensación en ASETREK es que se segregue la porción de la propiedad que posee las coberturas de bosque y que esta sea anexada a la Reserva Bioló gica. Sin embargo, este procedimiento en sí mismo no resuelve la necesidad de obtener un h ábitat de calidad equiparable al hábitat afectado, que es actualmente vulnerable y protegi do por la Reserva Biológica. Así, siguiendo el mé todo hábitat-hectá rea, nuestros resultados apuntan a que es posible resarcir algunas de las pérdidas en Lomas de Barbudal a partir de un á rea determinada del hábitat disponible en ASETREK; pero no asegura la ganancia de todos los elementos o características que se verán afectados por el embalse. El mejor ejemplo lo proporciona la cobertura de bosque ripario que se perderá en RB LB y que no tiene correspondencia en el ambiente disponible en ASETREK. Otro inconv eniente es que ASETREK, pese a contener el fragmento boscoso má s extenso adyacente a la Reserva Biológica, no dispone de la cantidad de hectá reas con cobertura boscosa necesaria para cubrir l as 330 hectáreas mínimas solicitadas con nuestro análisis. La Figura 46 muestra los parches de bosque deciduo y secundario disponible s en el área con cobertura boscosa dentro de ASETREK (sitios 3 y 4). Estas coberturas boscosas corresponden a 292 Ha, pese a que para unirlas se requerirá segregar un área de aproximadamen te 444 Ha. Aún más, por ser inflamables y propensos a la explansión de incendios, la existencia de zonas de pastos y de uso no forestal dentro de la propiedad de ASETREK es considerada una am enaza a los fragmentos de bosque que aún quedan en esa propiedad. Estas consideraciones sugieren que otras opciones de compensación d eban analizarse como complemento al aporte que haría anexar la propiedad de ASETREK a la Reserva Biológica. En el noreste de la Reserva Bioló gica Lomas de Barbudal, existen propiedades privadas con fragmentos de bosques riparios y secundarios. De hecho, un examen rápido revela que en las cercanías de la Quebrada Amores existen condiciones boscosas que podrían se r de interés de protección. Una de ellas es Brindis de Amor , una propiedad de cerca de 86 Ha que limita con la Reserva Lomas de Barbud al y cuya cobertura boscosa ha sido protegida por su propietario Carlos Jimé nez en los últimos veinte años (Figura 47 ). (…) 4.2.1. Brindis de Amor como complemento de la co mpensación Brindis De Amor posee 15.87 Ha de bosque ripario, 8.4 Ha de bosque secundario y 45.2 Ha de bosque deciduo. El resto de la propiedad son pastizales que muestran estadios tempranos de sucesió n de bosque deciduo. La propiedad es atravesada por el río Cabuyo, que es permanente y que es la misma que irriga la Reserva Biológica adyac ente (Figura 48 ). (…) A partir de estas observaciones, los siguientes son los argumentos que consideramos justifican el empleo de Brindis de Amor como parte de la compensación para resarcir las pérdidas en RBLB por efectos del proyecto. 1. Los resultados de nuestro estudio, tanto en calida d de habitat (sic) como en composición de comunidades, revelan la necesidad de resarc ir la pérdida en Lomas de Barbudal a partir de al menos 332 Ha de hábitat boscoso. Sin embargo, para lograr ese número de hectáreas en AS ETREK, se requiere incluir parte del bosque deciduo en la ladera este de la propiedad, cuya calidad es inferior (por tener mayor pendiente) a la del lado oeste. Además no se cuenta con ningú n fragmento de bosque ripario-maduro, lo que sin duda constituye u n desacierto en la capacidad de compensación de la propiedad ASETREK evaluada en nuestro estudio. 2. La propiedad de Brindis de Amor posee 15.87 ha de bosque ripario-maduro. Aunque el análisis de la composició n de este fragmento fue preliminar, nuestras observaciones de campo indican que está constituido por especies siempreverdes similares a las encontradas en la misma cobertura en RBLB y que es comparable en área basal (Fi gura 49) a la del fragmento encontrado en el sitio potencial de inundación en Lomas de Barbudal. S i bien es cierto que la extensión del bosque ripario en Brindis de Amor es menor a la que se perdería en Lomas de Barbudal, representa una importante fracción de lo que queda en toda la región. De hecho, el á rea de bosque ripario en Brindis de Amor representa un 7.4 % del área cubierta por ese tipo de bosque dentro la Reserva Biológica actualmente. (…) 6.1. Recomendaciones finales. 6.2. RECOMENDACIONES SOBRE LA COMPENSACIÓN A SEGUIR. 1. Área de compensación en ASETREK. Tanto en término de atri butos de calidad de hábitat como e n aspectos de diversidad y composición de especies, nuestros resultados demues tran que el sitio de compensación en ASETREK representa entre el 30% y el 45 % de las calidades de la referencia, lo que se traduce en una compensación de 252 o 332 hectáreas (es timaciones tomando en cuenta composición de especies o el valor mínimo posible de calidad de hábitat, respectivamente). Para unificar criterios, nuestra sugerencia es q ue se emplee el estimado de 332 hectáreas como la medi da del área necesaria para compensar por la pé rdida debido al impacto en la Reserva Biológica. 2. Compensación debe realizarse incorporando además otras propiedades y sistemas. Una importante consideración es que la cantidad de hectá reas del hábitat evaluado requerido para nuestras estimaciones de compensación no está disponible en ASETREK. Además, como se menciona en este reporte, dicha propiedad no dispone bosque ripario para la compensación. Así las cosas, recomendamos la incorporación de la propiedad Br indis de Amor como parte de la compensación. La propuesta se resume en la Figura 51, y contemplaría al anexión de 530 Ha (444 Ha de ASETREK y 86 Ha de Brindis de Amor) a Lomas de Barbudal en compensación por las pé rdidas debidas a la inundación en el ambiente terrestr e”. En el sentido anterior, el estudio también se concluyó: “ El procedimiento para evaluación de compensa ción fue diseñado para comparar sitios con el mismo tipo de hábitat. Sin embargo, en el presente estudio la heterogeneidad encontrada en el sitio potenc ial de afectación en la Reserva Biológica obligó a promediar los valores asignados a cada una de las coberturas forestales encontradas para cada indicador. Una dificultad adicional fue el que el bosque ripario no tiene contraparte en ASETREK, por lo que se optó por asignarle un valor mí nimo a esta cobertura en cada indicador”. Como se observa, la OET reconoció que la propiedad ASETREK Tres Azul S.A. posee ambientes de menor calidad biológica y que el método de estimación de compensación (hábitat hectárea) no aseguraba la ganancia de todos los elementos o características que se verían afectados. Además, también aceptó de manera expresa que la propuesta de adquirir la propiedad denominada Brindis de Amor (como complemento de compensación) se dio por medio de un análisis preliminar. En ese sentido, el coordinador del estudio de la OET manifestó en la audiencia supra citada, que si bien, metodológicamente, la propie dad de ASETREK debería ser suficiente -pues se habí a “castigado” esa diferencia en calidad del ambiente-, en su propio criterio no lo era . Además, el mencionado profesional admite que Brindis de Amor fue e valuada a través de una serie de muestreos de vegetació n, pero no de fauna. Añ ade que el estudio fue preliminar, en el sentido de que no tiene todo el componente de fauna y en ese sentido aseveró : “a todas luces es diferente a lo que se hizo en ASETREK sí”. Lo anterior a priori permite concluir que el estudio que se efectuó para la com pensación de las potenciales pérdidas no demostró la suficiencia ni la equivalencia ecológica del área propuesta y que, sin la misma rigurosidad o minuciosidad, se recomendó la incorporación de otra propiedad. Basta contrastar la cantidad de indicadores (de calidad de hábitat y diversidad, entre ellos: atribu tos geofísicos, calidad del paisaje, estructura de la vegetación y servicios ecosistémicos; y de composición de comunidades, entre ellos: plantas vasculares, avifauna, mamíferos, herpetofauna, ictiofauna y diversidad de insectos del sotobosque) que se estudiaron en la R BLB y en ASETREK, co n el análisis preliminar efectuado en Brind is de Amor. Nótese que el propio estudio afirmó que añadir el inmueble Brindis de Amor contravenía las nociones bá sicas del diseño de reservas al no contribuir a la formación de un bloque compa cto, pese a lo cual se recomendó agregarl o a la compensació n, sin ninguna recomendación o consideración adicional formal. Ahora, aun con la inclusión anterior, el Comité Técnico del Área Conservación Arena Tempisque, de acuerdo con la minuta n.o 5-2017 de la reunión efectuada el 30 de junio de 2017, concluyó que la propuesta todavía era insuficiente: “El tipo de cobertura bosque ripario es de suma preocupación en tema de escasa representatividad a nivel de la RBLB. Esta cobertura está representada únicamente en un 8.0% (216,17 has) de área total de la RBLB. Los estudios determinaron que el boque ripario dentro del sitio de inundación en la reserva corresponde a un 11,4% (24,64 has) del área total de esa cobertura en la RBLB. El área de bosque ripario en la finca Brindis de Amor representa un 7,40% (15,87 has). Esto sumado a las 2,2 has de ASETREK suman 18.07 has de bosque ripario como propuesta de compensación. Presentándose una diferencia de aproximadamente 6,57 has de bosque ripario para compensar este tipo de ecosistema”. Incluso, también recomendó al consejo regional: “ 1. Identificar un área de bosque ripario que permita compensar el faltante en hectáreas para este tipo de ecosistema. Ya que los estudios determinaron que el boque ripario dentro del sitio de inundación en la Reserva corresponde a un 11.4% (24,64 has) del área total de esa cobertura en la RBLB, el área de boque ripario en la finca Brindis de Amor representa un 7,40% (15,87 has). Esto sumado a las 2,2 has de ASETREK suman 18.07 has de bosque ripario como propuesta de compensación, por lo que estarían faltando cerca de 6,57 has de bosque ripario para compensar este tipo de ecosistema. Según los mapas y el conocimiento del sitio, existen otras propiedades aledañas a la Reserva Biológica Lomas Barbudal con esas características”. En ese sentido, el Consejo Regional del Área de Conservación Arenal Tempisque (CORACAT), según acuerdo n.° 1 tomado en la sesión extraordinaria celebrada el 5 de julio de 2017 y, con posterioridad, el Consejo Nacional de Áreas de Conservación (CONAC), en sesión extraordinaria n.° 3 de 11 de julio de 2017, consideraron que la suma de áreas propuestas de bosque ripario era de 18,07 hectáreas, es decir, un área menor que el fragmento que se perdería en el sitio de inundación de la RBLB (24,71 hectáreas), por lo que plantearon la identificación de un área adicional para la propuesta de compensación que contemplara bosque ripario y permitiera, así, resarcir el faltante en hectáreas para este tipo de ecosistema; de ahí que, después de analizar las propuestas de posibles áreas de compensación del bosque ripario faltante y en conjunto con los funcionarios del SINAC, se consideró adicionar una parte de la finca Hacienda Ciruelas SP S.A. Sobre ello, el CORACAT, en el oficio n.º SINAC- CORACAT-SE-041, refirió : “ Existen algunos oficios enviados por SENARA, por ejemplo, SENARA-GG-0374-2017, SENARA-GG-0257-2017 y SENARA-INDER-172-2017 que indican que dentro de la propiedad de ASETREK existen 6,14 has (sic) de bosque ripario. N o obstante, este dato no es mencionado en el estudio realizado por la OET, o respaldo por algún estudio al respecto, con las mismas características del estudio inicial. Respecto a la finca Brindis de Amor, tambié n este Consejo estima que los estudios no se realizaron con la misma profundidad de análisis con respecto al estudio inicial, ni en el tiempo suficiente que sustente técni camente la calidad de los componentes abordados desde el inicio de la inves tigación. Es necesario que se profundice más los estudios en esta propiedad o cualquier otra que se considere como propuesta de compensació n, para que este Consejo pueda emitir un criterio fundamentado”. Además, la propuesta final de compensació n se definió en el oficio n.º SENARA-INDEP-441-2017 de 17 de julio de 2017, en el que se dispuso que para compensar el área desafectada y cubrir el faltante de bosque ripario se incluirían 444,04 hectáreas de la finca ASETREK Tres Azul S.A., la totalidad de la Finca Brindis de Amor en Liberia S.A. con un área de 86,96 hectáreas y un área de 40 hectáreas de la finca Hacienda Ciruelas SP S.A. Así, luego de analizar el oficio n.º SENARA-INDEP-441-2017, se observa que se compararon varias p ropiedades para proponer el ár ea de compensación adicional; sin embargo, no se efectuó un aná lisis detallado de las características biológicas y geofísicas de la pr opiedad Hacienda Ciruelas SP S.A. Además, si bien SENARA informó que en la tramitación de la ley n.º 9610 se había considerado el documento denominado " Propuesta de Compensación para la Reserva Biológica Lomas de Barbudal”, en el apartado correspondiente a la propiedad Hacienda Ciruelas también se consignó de forma expresa que sobre ella tan solo se había efectuado un análisis “preliminar”. En otro orden de ideas, no consta en el expediente que haya existido algún estudio técnico completo que justifique la decisión de desafectar la Reserva Biológica Lomas de Barbudal a los efectos de la emisión de la ley cuestionada. Al respecto, a Patricia Quirós, gerenta general de SENARA, en la audiencia se le preguntó: ¿Hubo algún estudio técnico que determinara la necesidad de desafectar la Reserva Biológica Lomas de Barbudal para el Proyecto PAACUME, algún estudio técnico que dijera es necesario precisamente esa reserva biológica afectarla para que se pueda desarrollar el proyecto PAACUME? En razón de lo anterior, ella manifestó: “ nosotros realizados una contratación directamente con el ICE para lo que fue la factibilidad de la presa y el embalse sobre el río Piedras y de acuerdo al análisis que se realizó, se determinó que el único sitio que existe para la construcción del embalse es efectivamente en el río Piedras, porque ahí se cuenta hay una depresión, una caída que permite que esa diferencia de nivel existente en la zona haga posible llevar el agua hasta la margen derecha del río Tempisque. Entonces, en la región es el único sitio posible para poder construir el embalse y para poder llevar el agua a la margen derecha”. Luego, antes de finalizar la vista, se le consultó lo siguiente: “menciona que hay un estudio técnico que justificó la desafectación de la Reserva Biológica Lomas de Barbudal y determinó necesaria la construcción del embalse en ese lugar, concretamente ¿a cuál estudio se refiere y si lo puede hacer llegar al expediente? En ese sentido, ella contestó: “el estudio técnico al que me refiero es al estudio realizado específicamente por la OET, cuando se hace la consulta yo me refiero a que el estudio realizado por el ICE se refiere específicamente al estudio ingenieril, al estudio de factibilidad de la presa y el embalse”. De igual forma, se le repreguntó: “ usted indica que hubo un estudio que dijo que solo afectando la Reserva Biológica Lomas de Barbudal se podía realizar el proyecto ¿ese estudio es el del ICE entonces? ”. Ante lo cual, ella respondió: “No, hay un estudio de factibilidad que realizó SENARA de todo el proyecto, donde se establece esa situación”. Asimismo, refirió que haría llegar una copia de tal estudio al expediente. En relación con lo anterior, luego de la revisión del estudio de la OET se observa que en él no se ha analizado propiamente la necesidad de desafectar la RBLB para la construcción del embalse, sino que tan solo constituye un estudio para establecer la línea Base de Biodiversidad de la zona por desafectar y el sitio de potencial compensación. Asimismo, el Estudio de Factibilidad que aportó SENARA luego de la audiencia, consigna expresamente que es de octubre de 2018, momento para el cual incluso ya que el proyecto de ley había sido aprobado en segundo debate (sesión plenaria extraordinaria n.o11 de 6 de setiembre de 2018), por lo que ni siquiera pudo haber sido objeto de discusión en la Asamblea Legislativa. De ahí que, aun cuando este estudio de factibilidad desarrollara la necesidad de desafectar la RBLB, cronológicamente no pudo haber servido de base para tal propósito, a los efectos de la ley cuestionada. Ahora, no está de más aclarar que el estudio referido a la desafectación de áreas protegidas no es excluyente del Estudio de Impacto Ambiental al que debe ser sometido el proyecto de PAACUME en su totalidad. Precisamente, ante SETENA se podrán analizar los diversos impactos directos o indirectos del proyecto en las áreas aledañas, así como la posible violación de la Convención para la Protección del Patrimonio Mundial Cultural y Natural de la UNESCO y los posibles efectos del proyecto PAACUME sobre el sitio declarado como Patrimonio Mundial en el Área de Conservación Guanacaste. En este último caso, si el Estudio de Impacto Ambiental establece medidas de mitigación y prevención de los impactos dentro del área silvestre protegida o su entorno, deberán tomarse las previsiones correspondientes para cumplir con esas exigencias. En conclusión, al haberse hecho un estudio sobre la Reserva Biológica Lomas del Barbudal y sobre la propiedad de ASETREK Tres Azul S.A. por un periodo menor al recomendado por la propia Organización de Estudios Tropicales, no existe certeza científica ni técnica de los resultados obtenidos. Además, el estudio no logró demostrar de forma fehaciente y sustentada, que la propiedad ASETREK Tres Azul S.A., como propuesta de compensación, fuera equivalente a la zona desafectada desde un punto de vista ambiental, pues, puntualmente, en el estudio se mencionó, que el hábitat no era equiparable, no había correspondencia con ambiente de la reserva (el mayor ejemplo de ello es la deficiencia en bosque ripario detectada) y no se aseguraba la ganancia de todos los elementos o características afectadas por el embalse. Lo anterior resulta relevante, por cuanto el propio estudio de la OET, en las conclusiones sobre el sitio de impacto y su compensación, expuso que la RBLB es una de las pocas áreas silvestres estatales que protegen los recursos naturales en la zona de vida Bosque Tropical Seco de nuestro país y que, ante semejante afectación con el impacto directo del proyecto, la compensación ambiental se volvía una medida imprescindible. En adición, como en el caso del inmueble Brindis de Amor tan solo se efectuó un análisis preliminar, consideramos que la Sala a priori no puede siquiera considerarlo, toda vez que para desafectar una reserva biológica y proponer la respectiva compensación, se deben efectuar, al menos, estudios completos y suficientes. El razonamiento anterior aplica con mucha más razón sobre la propiedad Hacienda Ciruelas, que ni siquiera fue incluida en el estudio de la OET y respecto de la cual el análisis efectuado también fue preliminar. En este sentido, consideramos que nunca podrá ser suficiente un estudio preliminar para sustentar una decisión con implicaciones ambientales de esta envergadura, como sucede en el sub lite. Finalmente, no se observa que la ley cuestionada haya tenido sustento en algún estudio científico y técnico en cuanto a la justificación de la necesidad de desafectar la RBLB, toda vez que el informe de la OET no abarcó tal aspecto y la factibilidad de PAACUME elaborada por SENARA, en todo caso, fue de fecha posterior a la aprobación de ese cuerpo normativo. Permitir la desafectación de una reserva biológica con sustento en este estudio de la OET (claramente insuficiente según se expuso supra) , en otros análisis de naturaleza preliminar, y en un estudio de factibilidad que ni siquiera pudo ser discutido en el trámite legislativo, significa un grave retroceso a la tutela ambiental, antaño ampliamente reconocida por esta Sala Constitucional. Tal retroceso resulta aún más lamentable a la luz de la reciente evolución de la jurisprudencia de la Corte Interamericana de Derechos Humanos, que en sentencia de 6 de febrero de 2020 (Comunidades indígenas miembros de la Asociación Lhaka Honhat (Nuestra Tierra) Vs. Argentina) viene a recoger de modo íntegro la Opinión Consultiva OC-23/17 de 15 de noviembre de 2017, convirtiendo así las consideraciones jurídicas de la última en jurisprudencia vinculante para los países sujetos a la jurisdicción de ese tribunal internacional. En tal sentido, resalta la Corte-IDH que “en el derecho ambiental, el principio de prevención es aplicable respecto de actividades que se lleven a cabo en el territorio o bajo la jurisdicción de un Estado que causen daños al medio ambiente de otro Estado, o respecto de daños que puedan ocurrir en zonas no sean parte del territorio de ningún Estado en particular, como por ejemplo, alta mar.” Justamente, recuerda la Corte-IDH que la “Corte Internacional de Justicia ha señalado que la obligación de prevención surge cuando hay riesgo de un daño significativo. De acuerdo a (sic) dicho tribunal, el carácter significativo de un riesgo se puede determinar tomando en cuenta la naturaleza y magnitud del proyecto y el contexto donde será llevado a cabo”. Consecuente con esta perspectiva, la Corte-IDH destaca, como elemento esencial del derecho humano a un ambiente sano y ecológicamente equilibrado, el deber de regulación, a partir del cual dada “la relación entre la protección del medio ambiente y los derechos humanos (supra párrs. 47 a 55) los Estados deben regular esta materia y adoptar otras medidas similares para prevenir daños significativos al medio ambiente.” (Destacado no corresponde al original). En aras de procurar lo antedicho, el requerimiento de estudios técnicos suficientes y previos a los efectos de la aprobación de proyectos de ley que impactan el ambiente, aplicado por la jurisprudencia constitucional de forma usual en obediencia al principio de objetivación de la tutela ambiental, con absoluta claridad configura una de esas adecuadas “medidas similares”, que se eleva a la jerarquía de exigencia del derecho internacional de los derechos humanos, merced a la jurisprudencia de la Corte-IDH. Por las consideraciones expuestas, se acredita una transgresión al numeral 50 de la Constitución Política, al principio precautorio (por la duda sobre las condiciones reales de la RBLB y de la propuesta de compensación generada por las falencias detectadas en el estudio de la OET, así como la falta de certeza en cuanto a que el ambiente sano y ecológicamente equilibrado no se vea lesionado), al principio de no regresión en material ambiental (al no acreditarse que la compensación propuesta al menos fuera equivalente a la desafectación), al principio de irreductibilidad (al reducirse una reserva biológica sin cumplir los requisitos constitucionales respectivos) y al principio de objetivación de la tutela ambiental (al utilizarse estudios meramente preliminares para sustentar propuestas de compensación y al no estar sustentada la ley cuestionada en estudios técnicos y científicos (previos, suficientes, necesarios e individualizados) que justifiquen la reducción del área protegida). Fernando Cruz C. Paul Rueda L.

Res. Nº 2020-0013836 VOTO SALVADO DE LA MAGISTRADA GARRO VARGAS

I. Consideraciones preliminares

II. Agravios de los accionantes bajo examen en el presente voto

III. Marco jurisprudencial. La justificación técnica de leyes en materia ambiental

IV. Sobre la desafectación de un área protegida

A. Marco normativo y jurisprudencial sobre la desafe ctación de áreas protegidas B. Análisis sobre la justificación técnica de la desafectación cuestionada 1. Importancia ambiental de la Reserva Bioló gica Lomas de Barbudal 2. Examen sobre la existencia de los estudios técnicos sobre la desafectación a. Exposición de motivos de la ley cuestionada b. Informes de SENARA y del Consejo Regional del Área de Conservación 3. El informe de la Procuraduría General de la República C. Conclusiones sobre el particular

V. Sobre los estudios de compensación

A. Los agravios planteados por los accionantes B. La obligación internacional de realizar estudios de compensación C. Informes de las autoridades que constan en el presente expediente 1. Informe de la Procuraduría General de la República.

2. Informe de la presidenta del Directorio de la Asamblea Legislativa 3. Informe del Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento 4. Organización de Estudios Tropicales D. Conclusiones sobre el particular

VI. Conclusiones

Consideraciones preliminares Como costarricense y como Magistrada de esta Sala comparto la preocupación sobre el gravísimo problema de acceso al recurso hídrico que sufre una importante zona de la provincia de Guanacaste. Comprendo que la ley aquí impugnada pretende ser un medio para solucionarlo. Sin embargo, muy a mi pesar, no puedo dejar de advertir que esta contiene serios vicios de constitucionalidad. Por eso, con fundamento en los argumentos que explicaré, he decidido salvar el voto respecto de la alegada lesión al derecho a un ambiente sano y declarar con lugar la acción por violación a los principios precautorio, no regresión en materia ambiental, irreductibilidad y objetivación de la tutela ambiental.

Agravios de los accionantes bajo examen en el presente voto Por lo dicho, en este voto salvado me referiré sólo a los agravios relacionados con cuestiones ambientales. Por un lado, a la decisión legislativa de desafectar 113 hectáreas de la Reserva Biológica Lomas Barbudal (RBLB) sin estudio de desafectación alguno que lo justifique y, por otro, a la pretendida justificación de la reducción de esa reserva mediante un estudio de compensación que es incompleto y sesgado. Para analizar ambos extremos es necesario de previo precisar cuál ha sido la línea de la jurisprudencia de esta Sala sobre la justificación de los proyectos de ley relacionados con la materia ambiental. Así, una vez examinados cada uno de los agravios será posible arribar a unas conclusiones debidamente fundamentadas.

Marco jurisprudencial. La justificación técnica de leyes en materia ambiental En el ejercicio de su potestad legislativa, el Parlamento está vinculado a la Constitución y a los tratados debidamente incorporados a nuestro ordenamiento. Además, la función legislativa –no sólo función administrativa del Estado- tiene un límite: el contenido de lo que establece el artículo 16 de la Ley General de la Administración Pública (LGAP):

“En ningún caso podrán dictarse actos contrarios a reglas unívocas de la ciencia o de la técnica, o a principios elementales de justicia, lógica o conveniencia”.

Esa norma recoge el principio de la interdicción de la arbitrariedad, que es un enunciado esencial del Estado de Derecho, y que supone la prohibición de tomar decisiones carentes de fundamento. Al examinar el origen de este principio, esta Sala dijo:

“Fue concebido por el jurista alemán Leibholz en 1928 como un criterio para ponderar el respeto del principio de igualdad por el legislador. Según esta formulación, el principio de interdicción de la arbitrariedad supone la prohibición de la arbitrariedad, esto es, de toda diferencia carente de una razón suficiente y justa. El principio es retomado por la doctrina española, concretamente, por García de Enterría a finales de la década de los cincuenta (1959) con un sentido más extenso –no circunscrito al principio de igualdad- al propuesto por Leibholz. Ulteriormente, el principio con ese sentido más amplio, fue acogido por la Constitución Española de 1978 en su artículo 9.3, a propuesta del senador Lorenzo Martín-Retortillo, quien justifico su iniciativa en la necesidad de tener el principio de interdicción de la arbitrariedad como una técnica o mecanismo más de control o fiscalización de los poderes públicos inherente al Estado de Derecho”. (Sentencia 11155-2007).

Ya en una sentencia anterior, la Sala había aclarado que, si bien se encuentra ubicado en la LGAP, su origen y fundamento último se encuentra en el artículo 11 de la Constitución Política que señala:

“Los funcionarios públicos son simples depositarios de la autoridad. Están obligados a cumplir los deberes que la ley les impone y no pueden arrogarse facultades no concedidas en ella” (ver sentencia 2004-14421).

Es decir, se trata de un principio que, aunque formalmente está expresado a nivel legal, tiene un contenido materialmente constitucional y rige para el ejercicio de la función pública en toda su amplitud. Por lo tanto, es posible concluir que dicho principio es de aplicación también para la labor parlamentaria. En ese sentido, la Sala en la sentencia 2003-5090 expresamente señaló lo siguiente:

“La libertad de configuración legislativa no es irrestricta, puesto que, tiene como límite el Derecho de la Constitución, esto es, el bloque de constitucionalidad conformado por los preceptos y costumbres constitucionales, los valores y principios -dentro de los que destacan los de proporcionalidad, interdicción de la arbitrariedad , no discriminación, debido proceso y defensa- de esa índole y la jurisprudencia vertida por este Tribunal para casos similares ”. (Lo destacado no es del original).

Justamente, este Tribunal ha sentado como línea jurisprudencial que el principio de la interdicción de la arbitrariedad exige que las decisiones que impactan sobre el medio ambiente estén debidamente apoyadas en criterios técnicos y científicos. De ahí ha surgido el principio de la objetivación de la tutela ambiental o principio de la vinculación a la ciencia y a la técnica. Este principio se introdujo en la línea jurisprudencial de esta Sala a partir de la sentencia 2005-14293, en la que se afirmó:

“[ El] principio ambiental "de la vinculación a la ciencia y a la técnica" que rige la materia ambiental, en tanto las decisiones administrativas que pueden tener incidencia en el ambiente requieren de un sustento técnico que las respalde, y en tal condición, limitan y condicionan la discrecionalidad de la Administración en su actuación”.

Esto fue ampliado en la sentencia 2006-17126, en la que se señaló que este principio se traduce en la necesidad de acreditar con estudios técnicos la toma de decisiones en esta materia, en relación con los actos como de las disposiciones de carácter general – tanto legales como reglamentarias–. Se entiende que la exigencia de la “ vinculación a la ciencia y a la técnica” condiciona la discrecionalidad no sólo de la Administración, sino del propio legislador. Todo lo anterior fue retomado en la sentencia 2012-12716, en la que se hicieron las siguientes consideraciones:

“La Sala hace propia opinión (sic) que sobre el caso ha brindado la Procuraduría General de la República, en el sentido de que, como principio constitucional que condiciona la actuación del Estado en la protección del ambiente, se reconoce, el principio de la objetivación de la tutela ambiental o principio de la vinculación a la ciencia y a la técnica:

“se traduce en la necesidad de acreditar con estudios técnicos la toma de decisiones en esta materia, tanto en relación con actos como de las disposiciones de carácter general –tanto legales como reglamentarias–, de donde se deriva la exigencia de la "vinculación a la ciencia y a la técnica", con lo cual, se condiciona la discrecionalidad de la Administración en esta materia.” (resolución No. 17126-2006).

“principio ambiental "de la vinculación a la ciencia y a la técnica" que rige la materia ambiental, en tanto las decisiones administrativas que pueden tener incidencia en el ambiente requieren de un sustento técnico que las respalde, y en tal condición, limitan y condicionan la discrecionalidad de la Administración en su actuación.” (voto No. 14293-2005 reiterado por el 11562-2006).

“Se parte del principio de que las normas ambientales deben tener un sustento técnico, pues su aplicación tiene que partir de límites que determinen las condiciones en las cuales debe sujetarse el uso y aprovechamiento de los recursos naturales .” (Voto No. 6322-2003).

A su vez, se relaciona con el principio de razonabilidad como parámetro de constitucionalidad:

“El principio de razonabilidad, en relación con el derecho fundamental al ambiente, obliga a que las normas que se dicten con respecto a esta materia estén debidamente motivadas en estudios técnicos serios , aun cuando no existiera otra normativa legal que así lo estableciera expresamente.” (Voto No. 7294-1998, el destacado es nuestro).

“Así, la aplicación de este principio ambiental está directamente vinculada con un parámetro de constitucionalidad de la conducta –administrativa y de los particulares– y de la normativa que rige la materia, como lo es la razonabilidad –según desarrollo de la jurisprudencia de nuestro Tribunal Constitucional– en tanto su finalidad es tender a la sostenibilidad del el [sic] uso de los recursos naturales y de los elementos que conforman el ambiente , a través de su "uso adecuado"; y en virtud de los cuales queda claro que la protección al ambiente debe encaminarse a la utilización adecuada e inteligente de sus elementos y en sus relaciones naturales, socioculturales, tecnológicos y de orden político, para con ello salvaguardar el patrimonio al que tienen derecho las generaciones presentes y futuras; en tanto a través de la producción y uso de la tecnología es que debe de promoverse que se obtengan, no sólo ganancias económicas (libertad de empresa) sino sobre todo un desarrollo y evolución favorable del medio ambiente y los recursos naturales con el ser humano, esto es, sin que se cause a éstos daño o perjuicio, como lo ha considerado nuestro Tribunal Constitucional, en su amplia jurisprudencia, inclusive desde sus orígenes, así en las sentencias supra citadas número 3705-93 y número 2006- 17126.” (Voto No. 2410-2007).

Y guarda estrecha relación también con el principio de interdicción de la arbitrariedad:

“La actuación arbitraria es la contraria a la justicia, a la razón o las leyes, que obedece al mero capricho o voluntad del agente público. La prohibición de la arbitrariedad lo que condena es la falta de sustento o fundamento jurídico objetivo de una conducta administrativa y, por consiguiente, la infracción del orden material de los principios y valores propios del Estado de Derecho. (…) En lo que se refiere a la aplicación del principio de interdicción de la arbitrariedad en el ámbito de la potestad reglamentaria, debe indicarse que al ser ésta, naturalmente, discrecional, el principio prohibitivo de la arbitrariedad cumple un papel de primer orden.” (Lo destacado corresponde a la sentencia original).

De dicha resolución conviene resaltar el precedente que invoca:

“El principio de razonabilidad, en relación con el derecho fundamental al ambiente, obliga a que las normas que se dicten con respecto a esta materia estén debidamente motivadas en estudios técnicos serios , aun cuando no existiera otra normativa legal que así lo estableciera expresamente”. (Lo destacado corresponde a la sentencia original).

Resulta evidente que los principios de objetivación de la tutela ambiental o vinculación a la ciencia y a la técnica, así como el de interdicción de la arbitrariedad, son de observancia obligatoria para la Asamblea Legislativa en la tramitación de los proyectos de ley, pues de lo contrario se violentaría el principio de la razonabilidad como parámetro de constitucionalidad.

Sobre la desafectación de un área protegida La ley impugnada establece una desafectación de la Reserva Biológica Lomas Barbudal (RBLB). Esta reserva tiene un nivel de protección absoluta, similar a la de un parque nacional. Al desafectarla se busca cambiar su uso para proceder a inundar esa gran cantidad de terreno, con el fin de realizar eventualmente el proyecto de dotación de agua denominado Paacume. Los accionantes señalan que no existe un estudio relativo a la desafectación y, en manifestaciones posteriores, como las realizadas en la vista oral, insistieron en que las autoridades involucradas, concretamente, el Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento (SENARA) lo que tiene es un estudio de factibilidad sobre la realización de la represa en el Río Piedras, ejecutado por el Instituto Costarricense de Electricidad (ICE). Arguyen que este no es el estudio que la normativa ambiental exige para determinar si se justifica la desafectación de un área silvestre protegida y que, además, no fue presentado en el expediente legislativo. Para analizar este extremo es del todo necesario precisar la normativa y la jurisprudencia aplicables.

Marco normativo y jurisprudencial sobre la desafectación de áreas protegidas La Ley Orgánica del Ambiente, al respecto, señala lo siguiente:

“Artículo 38.- Reducción de las áreas silvestres protegidas. La superficie de las áreas silvestres protegidas, patrimonio natural del Estado, cualquiera sea su categoría de manejo, sólo podrá reducirse por Ley de la República, después de realizar los estudios técnicos que justifiquen esta medida” . (Lo destacado no es del original).

Es decir, establece que de previo a la desafectación de un área protegida se lleven a cabo estudios técnicos que justifiquen esa decisión. Por su parte, este Tribunal ha sentado una sólida doctrina en esta materia, es decir, a saber, la necesidad de contar con estudios técnicos que justifiquen una decisión de desafectar una zona que, previamente, fue declarada zona protegida. Así, en la sentencia 7294-1998, la Sala Constitucional declaró con lugar la acción en la que se cuestionó la modificación de los límites de la zona protectora de Tivives. En dicha resolución se consideró lo siguiente:

“De la sentencia transcrita queda claro que una vez declarada una determinada área como zona protectora por un acto del Estado, no puede éste, simplemente, en todo o en parte, para proteger otros intereses -públicos o privados- en menoscabo del disfrute de un ambiente sano, de conformidad con lo dispuesto en el artículo 50 constitucional. Ahora bien, el hecho de que una norma, del rango que sea, haya declarado como zona protectora una área, no implica la constitución de una zona pétrea, en el sentido de que, de manera alguna, su cabida pueda ser reducida por una normativa posterior. Sin embargo, se debe tener presente que la declaratoria y delimitación de una zona protectora, en cumplimiento de lo preceptuado en el artículo 50 constitucional, implica una defensa del derecho fundamental al ambiente y, por ello, la reducción de cabida no debe implicar un detrimento de ese derecho, situación que debe establecerse en cada caso concreto” “De conformidad con las disposiciones transcritas, y tomando en consideración el caso concreto que se somete a pronunciamiento, la Asamblea Legislativa no puede aprobar válidamente la reducción de la superficie de una zona protectora, sin contar antes con estudio técnico que justifique su decisión . Dicha actuación deviene contraria a la Constitución Política por violación del principio de constitucional en relación con artículo 121, inciso 1), y 129 de la Carta Política. Sobre este tema existe un precedente de la Sala que resulta atinente, tanto por la similitud de la infracción que se invoca, como por tratarse de una hipótesis en que la no observancia de determinados requisitos tiene como efecto la de normas o principios sustanciales de rango constitucional”. (Lo destacado no es del original). (Ver, en similar sentido, los votos 1999-02988, 2008-008075).

Posteriormente, en la sentencia 2012-013367 esta Sala afirmó:

“Resulta evidente que estos dos requisitos guardan absoluta conformidad con el derecho fundamental a un ambiente sano y ecológicamente equilibrado. En primer lugar, en esta materia, el régimen jurídico exige que cualquier restricción o limitación del derecho tiene que venir impuesta por ley; por el contrario, cualquier beneficio o ampliación de la protección del derecho puede ser establecida por norma infralegal. En segundo lugar, la exigencia de estudios técnicos previos responde al principio de sometimiento de las decisiones relacionadas con el ambiente a criterios de la ciencia y la técnica, a fin de proteger el equilibrio ecológico del sistema y la sanidad del ambiente. En este sentido, la exigencia de estudios técnicos que justifiquen la aprobación de los proyectos de ley tendientes a la reducción o desafectación de un área ambientalmente protegida, debe ser satisfecha con anterioridad o durante el desarrollo del procedimiento legislativo. Además, el requerimiento de estudios técnicos no es una mera formalidad, sino que se trata de un requisito material, es decir materialmente se tiene que demostrar, mediante un análisis científico e individualizado, el grado de impacto de la medida correspondiente en el ambiente, plantear recomendaciones orientadas a menguar el impacto negativo en este, y demostrar cómo tal medida implica un desarrollo que satisface las necesidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades”.

En esa sentencia, la Sala desarrolló, además, el principio de progresividad y no regresión en materia de tutela medio ambiental. Según este Tribunal, del principio de progresividad de los derechos humanos y del principio de irretroactividad de las normas en perjuicio de derechos adquiridos y situaciones jurídicas consolidadas, recogido en el numeral 34 de la Constitución Política, se deriva el principio de no regresividad o de irreversibilidad de los beneficios o protección alcanzada. La Sala consideró que dicho principio se erige como garantía sustantiva de los derechos, en este caso, del derecho a un ambiente sano y ecológicamente equilibrado, en virtud del cual el Estado se ve obligado a no adoptar medidas, políticas, ni aprobar normas jurídicas que empeoren, sin justificación razonable y proporcionada, la situación de los derechos alcanzada hasta entonces. Este principio no supone una irreversibilidad absoluta, pues todos los Estados pueden verse sometidos a circunstancias de naturaleza económica, política, social o climática que podrían obligar a replantear la obligación de mantener los niveles de protección alcanzados. En esos casos, la reducción de los niveles de protección deberá ser justificado a la luz de los parámetros constitucionales de razonabilidad y proporcionalidad. En atención a estos principios, la Sala dijo lo siguiente:

“En consecuencia, en aplicación de estos dos principios, la Sala Constitucional ha establecido que es constitucionalmente válido ampliar por decreto ejecutivo la extensión física de las áreas de protección (principio de progresividad); sin embargo, la reducción solo se puede dar por ley y previa realización de un estudio técnico ajustado a los principios razonabilidad y proporcionalidad, a las exigencias de equilibrio ecológico y de un ambiente sano, y al bienestar general de la población, que sirva para justificar la medida. El derecho vale lo que valen sus garantías, por ello se produce una violación de estos principios cuando el estudio técnico incumple las exigencias constitucionales y técnicas requeridas. Si tal garantía resulta transgredida, también lo será el derecho fundamental que la garantía protege y es en esa medida, que la reducción de las áreas protegidas sería inconstitucional”. (Lo destacado no es del original).

Dichos principios de orden constitucional son vinculantes para el legislador. Así lo concluyó la Sala al afirmar lo siguiente:

“Dentro del marco de la Constitución, el legislador tiene la potestad y competencia para reducir las dimensiones físicas de las áreas ambientalmente protegidas. Sin embargo, con fundamento en el artículo 50 constitucional, las decisiones legislativas en esta materia deben respetar las reglas unívocas de la ciencia y la técnica, en aras de garantizar un ambiente “sano” y “ecológicamente equilibrado” y el “mayor bienestar de todos los habitantes”. El estudio técnico que exige el artículo 38 de la Ley Orgánica del Ambiente tiene que responder a estos propósitos, para cuyo efecto no basta un cumplimiento formal porque se trata de un requerimiento material, es decir que debe materialmente demostrar, mediante un análisis técnico e individualizado, el grado de impacto de la medida correspondiente en el ambiente, plantear recomendaciones orientadas a menguar el impacto negativo en este, y demostrar cómo tal medida implica un desarrollo que satisface las necesidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades”. (Lo destacado no es del original).

Posteriormente, este Tribunal agregó que para la desafectación de áreas protegidas, además de los estudios técnicos, concretos y particularizados exigidos por el artículo 38 de la Ley Orgánica del Ambiente, se requieren medidas de compensación, en aras de resguardar el derecho fundamental a un medio ambiente sano y ecológicamente equilibrado. En la sentencia 2019-663 la Sala conjuntó sus líneas jurisprudenciales y señaló lo siguiente:

“1. Requisitos constitucionales para la reducción de área silvestre protegida (reserva legal y estudios técnicos): En apoyo del artículo 38 de la Ley Orgánica del Ambiente (“la superficie de las áreas silvestres protegidas, patrimonio natural del Estado, cualquiera sea su categoría de manejo, sólo podrá reducirse por Ley de la República, después de realizar los estudios técnicos que justifiquen esta medida”), ha habido una sólida línea jurisprudencial, en el sentido de que para la reducción de un área silvestre protegida, en cualquiera de sus categorías de manejo (en cuenta los refugios nacionales de vida silvestre), deben cumplirse dos requisitos esenciales: “por medio de ley y previa realización de estudios técnicos suficientes que justifiquen la medida .” (Sala Constitucional, votos números 13367-2012 y 010158-2013. En similar sentido, las sentencias números 7294-1998, 11155-2007, 1056-2009, 18702-2010 y 14772-2010, entre otras). Tal como se dijo en la resolución mencionada de 1998:

““(…) una vez declarada una determinada área como zona protectora por un acto del Estado, no puede éste, simplemente, desafectarlo en todo o en parte, para proteger otros intereses -públicos o privados- en menoscabo del disfrute de un ambiente sano, de conformidad con lo dispuesto en el artículo 50 constitucional. Ahora bien, el hecho de que una norma, del rango que sea, haya declarado como zona protectora una determianda (sic) área, no implica la constitución de una zona pétrea, en el sentido de que, de manera alguna, su cabida pueda ser reducida por una normativa posterior. Sin embargo, se debe tener presente que la declaratoria y delimitación de una zona protectora, en cumplimiento de lo preceptuado en el artículo 50 constitucional, implica una defensa del derecho fundamental al ambiente y, por ello, la reducción de cabida no debe implicar un detrimento de ese derecho, situación que debe establecerse en cada caso concreto. No resulta necesariamente inconstitucional el hecho de que por medio de una ley posterior se reduzca la cabida de una zona protectora, una reserva forestal, un Parque Nacional o cualesquiera otros sitios de interés ambiental, siempre y cuando ello esté justificado en el tanto no implique vulneración al derecho al ambiente. Podría ser que, por diversas circunstancias, un determinado sitio haya perdido, al menos en parte, el interés ambiental que, en su momento, provocó, lo que, hechos los estudios del caso, justificaría su modificación o reducción, todo en aplicación del principio de razonabilidad constitucional…” (voto No. 7294-1998).

Concretamente sobre la reserva legal en esta materia, en el voto No.14772-2010 se dijo:

(…) no se puede modificar el destino público de un bien del demanio público sin un acto legislativo, es decir, la reducción de área de una zona protegida se encuentra bajo la garantía que proporciona el principio de reserva de ley. Si bien, de conformidad con el artículo 36 de la Ley Orgánica del Ambiente, el Poder Ejecutivo se encuentra autorizado para constituir las Áreas Silvestre Protegidas mediante el cumplimiento de los requisitos establecidos en esa norma, así, el Parque Nacional Corcovado se constituyó mediante los Decretos Ejecutivos No. 5357-A del 24 de octubre de 1975 y 1148-A del 5 de febrero de 1980, su modificación solo podrá hacerse de conformidad con lo dispuesto en el artículo 38 de la Ley Orgánica del Ambiente, previo estudios técnicos y científicos, y mediante un acto legislativo.

Asimismo, en sentencia no.1056-2009 se indicó que la reducción únicamente es posible vía legal:

“cuando de la ampliación de los límites de las zonas protectoras del patrimonio forestal del Estado se trata es posible hacerlo vía reglamento, pero cuando de su reducción se trata, únicamente se puede hacer vía legal, claro está, siempre y cuando exista un criterio previo que justifique la medida.” (Sentencia de la Sala Constitucional Nº 1056-2009) Lo cual fue aplicado cuando la Sala declaró inconstitucional la norma reglamentaria (Decreto Ejecutivo Nº 32753-MINAE) mediante la cual el Poder Ejecutivo disminuyó el territorio del Refugio Gandoca-Manzanillo, sustrayendo del área y del régimen de protección, la zona urbana del Refugio.

Además, en cuanto a los estudios, estos deben ser previos, suficientes, necesarios e individualizados –como se indica en el apartado siguiente-. Así se dijo en esa misma resolución de 1998:

“De acuerdo con lo citado, mutatis mutandis, si para la creación de un área silvestre protectora la Asamblea Legislativa, por medio de una ley, estableció el cumplimiento de unos requisitos específicos, a fin de determinar si la afectación en cuestión es justificada, lo lógico es que, para su desafectación parcial o total, también se deban cumplir determinados requisitos -como la realización de estudios técnicos ambientales- para determinar que con la desafectación no se transgrede el contenido del artículo 50 constitucional. En este sentido, podemos hablar de niveles de desafectación. Así, no toda desafectación de una zona protegida es inconstitucional, en el tanto implique menoscabo al derecho al ambiente o amenaza a éste. De allí que, para reducir un área silvestre protegida cualquiera, la Asamblea Legislativa debe hacerlo con base en estudios técnicos suficientes y necesarios para determinar que no se causará daño al ambiente o se le pondrá en peligro y, por ende, que no se vulnera el contenido del artículo 50 constitucional. El principio de razonabilidad, en relación con el derecho fundamental al ambiente, obliga a que las normas que se dicten con respecto a esta materia estén debidamente motivadas en estudios técnicos serios, aun cuando no existiera otra normativa legal que así lo estableciera expresamente. A juicio de este Tribunal Constitucional, la exigencia que contiene el artículo 38 de la Ley Orgánica del Ambiente No. 7554, en el sentido de que para reducir un área silvestre protegida por ley formal deben realizarse, de previo, los estudios técnicos que justifiquen la medida, no es sino la objetivación del principio de razonabilidad en materia de protección al ambiente.” 2. Estudio técnico como un análisis científico e individualizado: La Sala se ha referido a la suficiencia del estudio técnico, cuando mediante varias resoluciones ha establecido que dicho estudio debe ser un análisis científico e individualizado. Así se dijo lo siguiente:

“el requerimiento de estudios técnicos no es una mera formalidad, sino que se trata de un requisito material, es decir materialmente se tiene que demostrar, mediante un análisis científico e individualizado, el grado de impacto de la medida correspondiente en el ambiente, plantear recomendaciones orientadas a menguar el impacto negativo en este, y demostrar cómo tal medida implica un desarrollo que satisface las necesidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades.” (Voto No. 13367-2012. Véase además el No. 10158-2013).

De lo cual se desprende que, el estudio técnico que exige el artículo 38 de la Ley Orgánica del Ambiente y que es la objetivación del principio constitucional de razonabilidad en materia de protección al ambiente, requiere de un análisis técnico que implica un análisis individualizado, el cual debe contener como mínimo las siguientes medidas:

• El grado de impacto de la medida correspondiente en el ambiente; • Las recomendaciones orientadas a menguar el impacto negativo en el ambiente; • La demostración de cómo la medida que se toma, implica un desarrollo que satisface las necesidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades.

En síntesis, dicho estudio previo debe demostrar que la desafectación es conforme con la protección constitucional al derecho al ambiente, pues como se dijo en el voto no. 18702-2010 “no se puede permitir que se titulen áreas de esta naturaleza en forma indiscriminada, ya que esto iría contra las mismas políticas conservacionistas del ambiente que ha procurado el Estado en virtud de los cometidos ordenados por la Constitución Política y los Convenios Internacionales que ha suscrito".

3. Medidas de compensación: Un área protegida solo se puede reducir si se hace mediante ley, si hay estudios técnicos y científicos que descarten el daño ambiental y si se da una compensación del área suprimida con otra de igual tamaño. No cabe duda que todas aquellas normas en los cuales hay reducción de las áreas protegidas sin el respaldo de estudios técnicos ni compensación alguna, son inconstitucionales” (voto Nos. 12887-2014, 2773-2014, 2012-13367 y 2009-1056).” (Lo destacado no es del original).

Lo anterior fue reiterado en la sentencia 2019-012745 en la que se resumió la postura de la Sala de la siguiente forma:

“Con base en lo anterior, un área protegida solo se puede reducir si se hace mediante Ley, si hay estudios técnicos y científicos que descarten el daño ambiental y si se da una compensación del área suprimida con otra de igual tamaño o en la medida de lo posible”.

A partir de estas líneas jurisprudenciales queda evidenciado el principio de irreductibilidad de las áreas silvestres protegidas, según el cual, no resulta legítimo reducir estos espacios protegidos sino se cumplen, paralelamente, tanto lo dispuesto en el artículo 38 de la Ley Orgánica del Ambiente como los principios consolidados en la jurisprudencia de este Tribunal, a saber, de no regresión en materia ambiental, de objetivación de la tutela ambiental y precautorio.

Análisis sobre la justificación técnica de la desafectación cuestionada En los siguientes epígrafes se procurará calibrar la importancia de la desafectación aprobada mediante la ley que aquí se impugna y constatar la omisión de los estudios técnicos que justificaran esa medida. I mportancia ambiental de la Reserva Biológica Lomas de Barbudal Para contextualizar el análisis de la cuestión conviene explicar que la zona que se desafectó pertenece a la RBLB, la cual fue creada mediante decreto ejecutivo n.°16849-MAG de 23 de enero de 1986. La importancia de dicha reserva específica obedece a que es prácticamente la única en resguardar los ambientes del bosque seco tropical y su diversidad biológica, presentando tipos de fauna únicos en el país y contener sabanas secas que no están incluidas en otra unidad de conservación. Así se desprende de la parte considerativa del decreto en cuestión, que señala lo siguiente:

“1°.-Que es función esencial del Estado velar por la conservación, protección, administración y fomento de los recursos naturales del país.

2°.-Que la zona de Lomas Barbudal, en la provincia de Guanacaste, conserva muestras muy valiosas de la flora y fauna de la sabana seca arbolada de bajura, del bosque ripario de tierras bajas y del bosque caducifolio de tierras bajas, que en el pasado cubrieron extensas áreas de aquella provincia.

3°.-Que esta zona contiene al menos 10 nacientes y parte de la cuenca del río Cabuyo, de importancia para la producción agrícola y ganadera de la región, 4°.-Que el tipo de suelo de Lomas Barbudal no presenta condiciones para un desarrollo agropecuario sostenido pero que, desde el punto de vista de la investigación y del turismo, el área es importante por presentar una fauna entomológica única y por contener sabanas secas que no se encuentran protegidas en otra unidad de conservación”. (Lo destacado no es del original).

En el decreto de análisis se dispuso que la zona en cuestión sería, a partir de ese momento, una reserva biológica, que es una de las categorías de áreas silvestres protegidas, establecida concretamente en el inciso d) del artículo 32 de la Ley Orgánica del Ambiente. Asimismo, por aplicación de los numerales 13 y 14 de la Ley Forestal vigente, es integrante del patrimonio natural del Estado (PNE). Ese último caracteriza estos inmuebles como bienes de dominio público: “Artículo 14.- Condición inembargable e inalienable del patrimonio natural. Los terrenos forestales y bosques que constituyen el patrimonio natural del Estado, detallados en el artículo anterior, serán inembargables e inalienables; su posesión por los particulares no causará derecho alguno a su favor y la acción reivindicatoria del Estado por estos terrenos es imprescriptible. En consecuencia, no pueden inscribirse en el Registro Público mediante información posesoria y tanto la invasión como la ocupación de ellos será sancionada conforme a lo dispuesto en esta ley”. La Ley de Biodiversidad define a las áreas silvestres protegidas así:

“Artículo 58. Áreas silvestres protegidas Las áreas silvestres protegidas son zonas geográficas delimitadas, constituidas por terrenos, humedales y porciones de mar. Han sido declaradas como tales por representar significado especial por sus ecosistemas, la existencia de especies amenazadas, la repercusión en la reproducción y otras necesidades y por su significado histórico y cultural . Estas áreas estarán dedicadas a conservación y proteger la biodiversidad, el suelo, el recurso hídrico, los recursos culturales y los servicios de los ecosistemas en general. Los objetivos, la clasificación, los requisitos y mecanismos para establecer o reducir estas áreas se determinan en la Ley Orgánica del Ambiente, No. 7554, de 4 de octubre de 1995. Las prohibiciones que afectan a las personas físicas y jurídicas dentro de los parques nacionales y las reservas biológicas están determinadas, en la Ley de la Creación del Servicio de Parques Nacionales, No. 6084, de 24 de agosto de 1977. Durante el proceso de cumplimiento de requisitos para establecer áreas silvestres protegidas estatales, los informes técnicos respectivos deberán incluir las recomendaciones y justificaciones pertinentes para determinar la categoría de manejo más apropiada a que el área propuesta debe someterse. En todo caso, el establecimiento de áreas y categorías tomará muy en cuenta los derechos previamente adquiridos por las poblaciones indígenas o campesinas y otras personas físicas o jurídicas, subyacentes o adyacentes a ella”. (Lo resaltado no corresponde al original).

El reglamento a la Ley de Biodiversidad, n.°34433 define las reservas biológicas y establece la categoría técnica de manejo de la siguiente manera:

“Artículo 70 (…) d). Áreas geográficas que poseen ecosistemas terrestres, marinos, marino-costeros, de agua dulce, o una combinación de estos y especies de interés particular para la conservación. Sus fines principales serán la conservación y la protección de la biodiversidad, así como la investigación”.

En consecuencia, tienen una categoría de manejo muy limitada, por cuanto solamente se permite la conservación, protección e investigación. Es preciso destacar que la RBLB no es propiamente un humedal, pero, según informaron las autoridades, sí forma parte del sitio Ramsar Palo Verde, es decir, forma parte de un humedal de importancia internacional (sitio Ramsar). Como es sabido, la Convención Relativa a los humedales de Importancia Internacional, especialmente como Hábitat de Aves Acuáticas (conocida en forma abreviada como Convenio de Ramsar, debidamente aprobada mediante ley n°.7224) señala que los humedales de importancia internacional deben mantener su designación y su extensión inicial y sólo en circunstancias realmente excepcionales debería considerarse cambiarlas (artículos 2 y 4 de la Convención citados infra). Y, además, cuando se definen los sitios Ramsar, no solo se consideran los ecosistemas por sí solos, sino las interrelaciones existentes que impactan los humedales. El Parque Nacional Palo Verde fue creado mediante decreto ejecutivo n.°11541 del 30 de mayo de 1980, cuya parte considerativa consignó lo siguiente:

“1°—Que la zona que comprende la fila Catalina, la fila Pedregosa, el cerro Bocana, el cerro El Roble y el cerro Alvarado, en Guanacaste, es una de las últimas en toda la provincia que conservan bosques secos tropicales, formación ecológica muy escasa en el país.

2°—Que las lagunas Nicaragua, El Roble, Los Aromos, y Corralillos, y los sitios El Tieso, Piñuela, Cristina y otros, constituyen lugares de particular importancia para la conservación de aves migradoras y residentes, y son a la vez las áreas más ricas en avifauna en el país.

3°—Que la zona en general es particularmente diversa en fauna silvestre, y es uno de los últimos refugios para animales que existen todavía sin protección en la provincia de Guanacaste.

4°—Que se presentan también varios ecosistemas de gran diversidad y riqueza de especies florísticas, tales como los bosques sobre depósitos calizos, las lagunas herbáceas, los bosques mixtos de llanura y los bosques de palo verde sobre vertísoles”.

Esto fue ratificado por ley n.°6794 de 25 de agosto de 1982, “Ley de Creación de Parques Nacionales y Reservas Biológicas. Ratifica como Leyes Decretos Creadores de Parques Nacionales y Reservas Biológicas”. Posteriormente, mediante decreto ejecutivo 27345-MINAE, “Establece para el Parque Nacional Palo Verde Manejo Activo en sus Humedales y Áreas de Pasto y Crea Comité Asesor”, se destacó, en su parte considerativa, lo siguiente:

“III.—Que entre los objetivos fundamentales del Parque Nacional Palo Verde está el proteger, manejar, conservar y restaurar, tanto ecosistemas de humedales como de bosque tropical seco, para mantener la diversidad y poblaciones de vida silvestre.

IV.—Que la Convención Relativa a los Humedales de Importancia Internacional, conocida como Convención Ramsar, fue ratificada por Costa Rica mediante ley 7224 del 2 de abril de 1991 y que como instrumento jurídico internacional, tiene valor superior a la Ley. Que Costa Rica, como parte contratante, debe fomentar la conservación de las zonas húmedas y de las aves acuáticas, creando reservas naturales de humedales y atendiendo de manera adecuada su manejo y cuidado. Asimismo, se compromete a fomentar la investigación y el intercambio de datos relativos a humedales a fin de favorecer las condiciones para aumentar las poblaciones de aves acuáticas”. (Lo destacado no es del original).

Además, el Plan General de Manejo del Parque Nacional Palo Verde, del Sistema Nacional de Áreas de Conservación, claramente establece la inclusión de la RBLB dentro del Parque Nacional Palo Verde (ver el Acuerdo n.°20 de la Sesión Ordinaria n.°03-2016 del 28 de marzo del 2016, dictado por el Consejo Nacional de Áreas de Conservación, disponible en la página del Sistema Costarricense de Información Jurídica – SCIJ). Mediante decreto ejecutivo n.°39786-MINAE de 22 de abril de 2016, se declaró de interés público y nacional las actividades de manejo, conservación y rehabilitación de este parque:

“Artículo 3.- Declaratoria de Interés Público. Declárese de interés público y nacional las actividades de manejo activo para la conservación y rehabilitación de los ecosistemas del Parque Nacional Palo Verde, con el fin de contar con el apoyo del Estado y demás dependencias públicas, organizaciones no gubernamentales y organismos internacionales públicos y privados para su implementación”.

Al examinar con detalle el anterior marco normativo es posible advertir la gran importancia que tiene la zona en cuestión para la tutela medio ambiental. De ahí que las decisiones que se tomen, respecto a la disminución de la cabida de estas zonas o el cambio en su destino, deben estar debidamente razonadas en estudios técnicos que justifiquen apropiadamente tal determinación. Examen sobre la existencia de los estudios técnicos sobre la desafectación A partir de lo expuesto, es claro que tanto la legislación nacional como los principios constitucionales examinados y la jurisprudencia constitucional exigen, como primer elemento, que una ley que disponga la desafectación de un área silvestre protegida, integrada al PNE, debe estar razonablemente cimentada en un estudio técnico que justifique, de forma concreta, el motivo por el cual se debe desafectar una zona en particular y variar su naturaleza. Por eso, es preciso ahora examinar si la ley cuestionada contó con tal estudio.

Como se ha visto, el propósito original de salvaguardar estos terrenos es la protección de un tipo de bosque muy particular y casi único en nuestro país, a saber, el bosque seco tropical y su diversidad biológica, que no está incluido en otra categoría específica de protección. En cambio, si bien la normativa cuestionada le brinda protección ambiental y dispone que se le reconocerá como un ecosistema de humedal administrado por el Sistema Nacional de Áreas de Conservación (SINAC) (artículo 6 de la ley n.°9610 que “Modifica límites de la Reserva Biológica Lomas de Barbudal para el desarrollo del proyecto de abastecimiento de agua para la cuenca media del río Tempisque y comunidades costeras”), lo cierto es que se cambia por completo su naturaleza. Esto porque, precisamente, la finalidad última de la desafectación es hacer posible el proyecto Paacume, que conlleva inundar los espacios de estos bosques primarios. En el propio estudio de la Organización de Estudios Tropicales (OET), se evidenció lo relativo al cambio de la naturaleza del inmueble:

“Por su posición geográfica y el relieve de la zona, el embalse Rio Piedras afectaría directamente un sitio dentro de la Reserva Biológica Lomas de Barbudal, un área silvestre protegida creada en 1986 con el fin de resguardar los ambientes del bosque seco tropical y su diversidad biológica. El área en conflicto ha sido estimada en casi 113 hectáreas bajo la cota de 50 m de elevación, que quedarían inundadas una vez construido el embalse ”. (Lo resaltado no corresponde al original).

Sobre la finalidad del proyecto Paacume, la exposición de motivos del proyecto de ley expuso con detalle lo siguiente:

“El objetivo fundamental es la provisión de agua, accesible en cantidad, calidad y oportunidad -de 20 metros cúbicos por segundo- para diferentes usos potenciales. Se proyecta beneficiar al menos a 204 mil personas y cubrir al menos 17 mil hectáreas bajo riego. De este caudal quedarán disponibles 2 metros cúbicos por segundo para el abastecimiento a largo plazo de comunidades de cantones de Santa Cruz, Nicoya y Carrillo y que será administrada por el Instituto Costarricense de Acueductos y Alcantarillados. Además, el proyecto contempla al menos 1.5 metros cúbicos por segundo de agua para riego como apoyo a la actividad turística en la zona costera y con ello beneficiar las comunidades costeras con la liberación de aguas subterráneas hoy usadas en riego.

Este proyecto no solo permitirá el acceso sostenible al agua por parte de las comunidades y el sector productivo, sino que además pretende armonizar y regular la explotación racional de los principales recursos subterráneos en acuíferos en la margen derecha de la cuenca media del río Tempisque, pues permitirá al Estado la regulación del uso máximo de pozos para estas actividades”.

De este modo, y teniendo presente lo dicho por las autoridades en el trámite de acción de inconstitucionalidad, no hay duda de la urgencia e importancia de hacer posible el acceso al servicio de agua potable y de enfrentar otros problemas de sequía, desabastecimiento, desalinización de los acuíferos, entre otros (ver manifestaciones de la Presidencia de la Asamblea Legislativa, SENARA, Ministerio de Ambiente y Energía (MINAE), Ministerio de Agricultura y Ganadería (MAG)). Se señala que la dotación de agua en la zona se realizará a través de la construcción de una represa en el Río Piedras, que requerirá de un embalse con un espejo de agua de aproximadamente 850 hectáreas, de las cuales, 113 hectáreas se encuentran dentro de la RBLB, conforme al diseño realizado por SENARA. Sin embargo, revisada la exposición de motivos del proyecto de ley, el expediente legislativo y el expediente de esta acción de inconstitucionalidad no se logró vislumbrar el cumplimiento de este requisito de importancia capital, a saber, el de realizar un estudio que, de forma específica justifique la necesidad de atender dicha severa problemática, a través de la desafectación de un área especialmente protegida. La única referencia en la exposición de motivos es la siguiente:

“Así las cosas, la ubicación de la presa en el río Piedras obedece a una condición topográfica única que no permite ser trasladada a otro sitio; por tanto, esta ubicació n y diferencia de nivel entre la entrada del canal que lo abastece y la salida del canal que permitirá llevar el agua hasta el río Tempisque determinan el nivel má ximo de embalse y la capacidad de este para abastecer con 20 metros cú bicos por segundo al Paacume.

En algún momento se valoró la posibilidad de construir un dique para evitar la inundación de esta área de la Reserva Biológica Lomas Barbudal y un tú nel de más de 2 kilómetros para evacuar las aguas; sin embargo, resultó que el sitio del dique coincide con una falla geológica que haría imposible su construcción por el alto riesgo que genera a la obra”. (Lo destacado no es del original).

Estas valoraciones, si bien pueden ser valiosas para ilustrar la situación, no relevan, de forma alguna, que se haya cumplido con el necesario estudio que justifique de forma concreta la desafectación. Informes de SENARA y del Consejo Regional del Área de Conservación En el informe de las autoridades del SENARA rendido con posterioridad a la audiencia oral realizada en el trámite de esta acción de inconstitucionalidad se hizo referencia a un Estudio de Factibilidad del Proyecto de Abastecimiento de Agua para la Cuenca Media del Río Tempisque y Comunidades Costeras. Este estudio es de octubre de 2018, es decir, es paralelo a la fecha en que se aprobó la legislación de análisis, a saber, el 17 de octubre de 2018 . Por lo que no pudo ser valorado por el órgano parlamentario. Asimismo, tanto en la vista oral, como en el informe posterior, la Gerente General del SENARA hace referencia a que la zona tiene las condiciones ideales para realizar la obra y fundamenta sus afirmaciones en un estudio técnico realizado por el Instituto Costarricense de Electricidad (ICE) –atendiendo el contrato interadministrativo suscrito entre SENARA-ICE-MINAE 201600011 y sus adendas– según el cual, dadas las condiciones de topografía del área, la zona en cuestión tiene las condiciones ideales para la construcción de un embalse de gran capacidad (ver informe rendido ante la Sala en fecha 15 de junio de 2020). Sin embargo, queda claro que no existe un estudio específico que justifique la desafectación como tal. En el expediente legislativo constan manifestaciones del propio Consejo Regional del Área de Conservación Arenal Tempisque de julio de 2017 , en las que se concluye lo siguiente:

“Basados en el estudio antes mencionado (Consulta obligatoria a las comunidades locales, propuesta de compensación para la Reserva Biológica Lomas Barbudal) y los documentos hasta ahora aportados, esta instancia considera que aún no se ha demostrado que existan otras alternativas del proyecto PACUUME, sin que necesariamente se tenga que desafectar un área de la actual RBLB. Si efectivamente estas alternativas no son viables, será necesario valorar la tercera medida que es la compensación”. (Oficio SINAC-CORACAT-SE-041, visible a folios 126 y 1492 de la copia del expediente legislativo).

Adicionalmente, se hizo llegar al trámite legislativo, el oficio SINAC-CORACAT-049-2018 de 9 de setiembre de 2018, en el que el Secretario Ejecutivo del Consejo Regional del Área de Conservación Arenal Tempisque enfatiza lo siguiente:

“Con base en la Ley General de Administración Pública y la línea jurisprudencial de la Sala Constitucional, es necesario que existan los estudios técnicos ambientales, jurídicos y financieros suficientes que justifiquen la selección adecuada, tanto del área a desafectar, como de las áreas que servirían como compensación. Debe verificarse la existencia de estos estudios dentro del expediente de este proyecto de ley, ya que a la fecha este Consejo no cuenta con tal información”. (Folio 2641 de la copia del expediente legislativo. Lo destacado corresponde al oficio original).

De esas manifestaciones se desprende que para estas autoridades el estudio de compensación deberá ser posterior a los estudios técnicos que justifiquen la necesidad de desafectar las zonas en cuestión y cambiarles, radicalmente, su destino. Es decir, pasarían de ser un bosque tropical seco a convertirse –por la inundación– en un humedal, perdiendo así la riqueza originaria de la zona. Las propias autoridades del Área de Conservación enfatizan que la determinación inicial de desafectar no se encuentra debidamente motivada en un estudio que lo justifique de forma apropiada. En efecto, la propia autoridad rectora del área de conservación en cuestión expuso durante el trámite legislativo que “aún no se ha demostrado que existan otras alternativas del proyecto PACUUME, sin que necesariamente se tenga que desafectar un área de la actual RBLB” (folios 126 y 1494). Además, llamó la atención de los legisladores respecto de la necesidad de que existan los estudios técnicos ambientales, jurídicos y financieros suficientes que justifiquen “la selección adecuada (…) del área a desafectar ”. En un momento posterior, luego de la determinación técnica sobre la necesidad de desafectar un área silvestre protegida en concreto, se requieren los estudios de compensación, que son aquellos que procuran una especie de resarcimiento ambiental del área suprimida, con otra de igual tamaño y de similares características biológicas. Sobre el particular, los representantes de la OET manifestaron lo siguiente:

“La compensación ambiental ante un impacto ambiental es una medida última, que debe realizarse únicamente en caso de que no pueda evitarse dicho impacto o que este no pueda mitigarse adecuadamente. En consecuencia, cuando los impactos de un proyecto requieren compensación, se está ante una situación en la que es inevitable resarcir un potencial impacto. En esa circunstancia, la discusión no debe centrarse en si se puede o no compensar, sino en cómo lograrla de manera que haya ganancias ambientales”. (Lo resaltado no corresponde al original).

De lo anterior se podría concluir que incluso la propia OET reconoce que primero debe determinarse con certeza, sobre la base de estudios técnicos, que la desafectación es la última solución posible, y luego corresponde realizar el estudio de las medidas de compensación. El informe de la Procuraduría General de la República Resulta de gran relevancia para el caso concreto, transcribir en lo conducente algunos pasajes del informe rendido por la Procuraduría General de la República (PGR) en la acción de inconstitucionalidad. Respecto de la necesidad de realizar un estudio previo que justifique la desafectación de porciones de la RBLB, afirmó lo siguiente:

“Por otra parte, aunque se constate la suficiencia del estudio de la OET y de la propuesta final de compensación, debe advertirse que ese estudio técnico únicamente justificaría la validez de la compensación practicada, y, como tal, no es un estudio técnico que justifique directamente la decisión de desafectar una parte de la RBLB.

Atendiendo a la jurisprudencia constitucional sobre el tema, el estudio que exige el artículo 38 de la Ley Orgánica del Ambiente para justificar la reducción de un área silvestre protegida debería ser un estudio que determine la necesidad y conveniencia de adoptar ese tipo de medida.

En este caso, un estudio en ese sentido, sería aquel que fundamente técnicamente la necesidad de desafectar parte de la RBLB. Es decir, un estudio que determine que la única alternativa para desarrollar el proyecto PAACUME y el embalse Río Piedras, es desafectando parte de la Reserva Biológica.

Al respecto, el Consejo Regional del Área de Conservación Tempisque, al referirse al estudio de la OET, indicó que “esta instancia considera que aún no se ha demostrado que existan otras alternativas del proyecto PAACUME, sin que necesariamente se tenga que desafectarse un área de la actual RBLB. Si efectivamente estas alternativas no son viables, será necesario valorar la tercera medida que es la compensación.” (Oficio No. SINAC-CORACAT-SE-041 de 7 de julio de 2017, folios 1492-1497 del expediente legislativo). Y, ese mismo Consejo, después de aprobado el proyecto de ley en segundo debate, indicó que “es necesario que existan los estudios técnicos ambientales, jurídicos y financieros suficientes que justifiquen la selección adecuada tanto del área a desafectar, como de las áreas que servirían como compensación. Debe verificarse la existencia de estos estudios dentro del expediente de este proyecto de ley, ya que a la fecha este Consejo no cuenta con tal información.” (Oficio No. SINAC-CORACAT-049-2018 de 9 de setiembre de 2018, folios 2641-2644).

En el “Documento Perfil del Proyecto PAACUME” elaborado por el SENARA (Folios 505-621) se parte de que “una de las propiedades dentro del área del embalse pertenece a la Reserva Biológica Lomas Barbudal, con un área aproximada a las 112 ha.” Y se indica que el “área debe de ser compensada con un área aledaña de similares características ecológicas, para lo cual se requiere la elaboración de un estudio de línea base de biodiversidad que demuestre la equivalencia de las áreas de compensación” y se indica que dicho estudio fue elaborado por la OET. (ver folio 557). Algunos de los funcionarios que comparecieron a las sesiones de la Comisión Legislativa que tramitó el proyecto indicaron que técnicamente el proyecto PAACUME no podía desarrollarse sin desafectar e inundar parte de la RBLB, y en el documento denominado “Consulta Obligatoria a las Comunidades Locales. Propuesta de Compensación para la Reserva Biológica Lomas Barbudal” (Folios 622-726), ante una de las preguntas formuladas por uno de los participantes, se indicó que “si no se logran obtener las 113 hectáreas de la RBLB, el proyecto cambia totalmente, ya que sin estas 113 hectáreas de la RBLB las condiciones de la presa, la cantidad de agua a embalsar, el costo del proyecto y el diseño tendría que cambiar totalmente.” (Folio 661).

Entonces, con base en el criterio de las instituciones a las cuales se les dio audiencia sobre esta acción de inconstitucionalidad, debe valorarse si existe sustento técnico suficiente para justificar la necesidad de desafectar parte de la RBLB para ser utilizada en la ejecución del proyecto PAACUME .

Si no se constata ese fundamento, la Ley 9610 debe declararse inconstitucional por violación a los principios de irreductibilidad de las áreas silvestres protegidas, objetivación a la tutela ambiental y de no regresión .

En ese supuesto la norma podría resultar contraria a la Convención Ramsar, porque si bien es cierto, ésta no obliga a los Estados a comunicar de previo la decisión de modificar el área de los sitios de importancia internacional, su artículo 4° sujeta esa posibilidad a la existencia de un motivo de urgente necesidad nacional, el cual no estaría debidamente justificado en este caso particular”. (Lo destacado no es del original).

Se observa que la PGR fue enfática en señalar la necesidad de atender los alegatos de los accionantes respecto a este primer agravio, a saber, la obligatoriedad de valorar si se cuenta con un estudio técnico que justifique la desafectación de una particular área protegida como lo es RBLB.

Conclusiones sobre el particular Se constata que las autoridades proponentes del proyecto han aducido de forma insistente que la existencia del estudio de compensación justifica la necesidad de desafectar. Lo anterior refleja, al menos, una seria confusión entre la respectiva finalidad del estudio de desafectación de un área especialmente protegida que se ha integrado al PNE y la del estudio de compensación. Esa confusión –o intento de homologación de dos categorías de estudio que tienen diversa naturaleza– torna injustificada la decisión de desafectar. Por lo demás, cabe agregar que ambos estudios son distintos del estudio técnico que se requiere para la valoración de la infraestructura que se pretende desarrollar, esto es, un estudio de evaluación de impacto ambiental. Este, en los términos de la Ley Orgánica del Ambiente, es específico para las actividades humanas que alteren o destruyan elementos del ambiente o generen residuos peligrosos y es un requisito indispensable de previo al inicio de las actividades, obras o proyectos:

“Artículo 17 . Las actividades humanas que alteren o destruyan elementos del ambiente o generen residuos, materiales tóxicos o peligrosos, requerirán una evaluación de impacto ambiental por parte de la Secretaría Técnica Nacional Ambiental creada en esta ley. Su aprobación previa, de parte de este organismo, será requisito indispensable para iniciar las actividades, obras o proyectos. Las leyes y los reglamentos indicarán cuáles actividades, obras o proyectos requerirán la evaluación de impacto ambiental”.

Entonces, sobre la base del marco normativo y de la jurisprudencia se debe concluir que los estudios técnicos que justifiquen la desafectación y los posteriores estudios de compensación deben ser previos a la decisión legislativa, precisamente porque es exigido que esta se fundamente en aquellos. Por lo tanto, considero que lleva razón la PGR en el sentido de que la ley cuestionada es inconstitucional por carecer de un estudio que sustente técnicamente la necesidad de desafectar parte de la RBLB. Dicha omisión resulta lesiva de los principios precautorio, no regresión en material ambiental, irreductibilidad y objetivación de la tutela ambiental.

Sobre los estudios de compensación Procede ahora examinar los agravios, el marco normativo e informes sobre la obligación de realizar estudios de compensación.

• Los agravios planteados por los accionantes Los accionantes cuestionaron que se pretendió justificar la reducción del área de RBLB, mediante un estudio incompleto y sesgado realizado por la Organización de Estudios Tropicales (OET). Acusan que se pretende compensar el área desafectada que se intenta inundar con terrenos privados adyacentes a la reserva biológica, incorporando dos propiedades definidas por SENARA. Una sobre la cual no se hizo ningún estudio (propiedad perteneciente a la sociedad Hacienda Ciruelas SP S.A.) y otra sobre la cual se hizo un estudio muy superficial (propiedad perteneciente a la sociedad conocida como Brindis de Amor). Así, aducen que la ley n.°9610 violenta el artículo 50 de la Constitución Política, por cuanto, según su criterio, no incorpora un estudio serio, integral y objetivo sobre las consecuencias de la desafectación de 113 hectáreas de la RBLB y la sustitución o compensación con unas 500 hectáreas de propiedades privadas que se pretenden incorporar a la reserva biológica. Cuestionan, en este particular, la solidez del estudio realizado por la Organización de Estudios Tropicales (OET), mediante el cual se pretendió justificar la desafectación y compensación. Hacen referencia a otros estudios que ponen en entredicho la consistencia de ese estudio y concluyen que este es “insuficiente para definir el cambio de límites de Lomas de Barbudal, y no demuestra que este cambio será plenamente compensado por áreas adicionales en otros sectores de la Reserva. La finca ASETREK, estudiada con más detalle por los consultores, al final se reconoce como insuficiente para justificar el canje de tierra, y se acude precipitadamente a otras fincas cercanas para balancear la compensación”. Insisten que el estudio realizado por la OET no es completo, objetivo, científico ni técnico, ya que adolece de muchas omisiones y debilidades. Reiteran que tal estudio se centra prácticamente en una porción de una de las tres propiedades privadas con las que se pretenden compensar las 113 hectáreas desafectadas con la ley; pero omite incorporar estudios sobre las condiciones biológicas de las otras dos propiedades, por lo que no se puede determinar de manera científica que se trate de propiedades que efectivamente cuenten con características medioambientales que reemplacen las funciones ecosistémicas del área por desafectar.

La obligación internacional de realizar estudios de compensación Respecto de la necesidad de adoptar medidas de compensación, cuando se trata de desafectar áreas silvestres protegidas que sean humedales o estén integradas a estos existe una obligación internacional establecida en la Convención Ramsar, ley n.°7224 de 9 de abril de 1991, que dispone lo siguiente:

“Artículo 2.5. Las partes contratantes tendrán derecho a añadir a la "Lista" otras zonas húmedas situadas en su territorio, a ampliar las que ya están inscritas o, por motivos urgentes de interés nacional, a retirar de la "Lista" o a reducir los humedales ya inscritos e informarán de estas modificaciones, lo más rápidamente posible, a la organización o al gobierno responsable de las funciones de la Oficina permanente especificados en el artículo 8º”.

“Artículo 4. 1. Cada parte contratante fomentará la conservación de las zonas húmedas y de las aves acuáticas creando reservas naturales en los humedales, estén o no inscritos en la "Lista", y atenderá de manera adecuada su manejo y cuidado.

2. Cuando una parte contratante, por motivos urgentes de interés nacional, retire o reduzca una zona húmeda inscrita en la "Lista", deberá compensar, en la medida de lo posible, cualquier pérdida de recursos en los humedales y, en especial, deberá crear nuevas reservas naturales para las aves acuáticas y para la protección, en la misma región o en otro sitio, de una parte adecuada de su hábitat anterior. 3. Las partes contratantes fomentarán la investigación y el intercambio de datos y de publicaciones relativas a las zonas húmedas, a su flora y a su fauna”. (Lo resaltado no corresponde al original).

De estas normas se desprende la obligación del Estado de realizar una compensación que, en la medida de lo posible, remedie la pérdida de recursos en los humedales y crear nuevas reservas naturales para la protección en la misma región.

Informes de las autoridades que constan en el presente expediente 1- Informe de la Procuraduría General de la República. La PGR manifestó en su informe que en caso de determinarse que el estudio de la OET y la propuesta final de compensación de la RBLB son insuficientes técnicamente, la ley impugnada resultaría inconstitucional por violación a los principios de objetivación de la tutela ambiental, precautorio, preventivo y de irreductibilidad de las áreas silvestres protegidas. En efecto, no se estaría garantizando que la variación de los límites aprobada no afecta la integridad de la RBLB y no se estaría mitigando adecuadamente el impacto ambiental generado por la desafectación de una parte de dicha reserva biológica. También, ello resultaría contrario a la obligación que establece el artículo 3° de la Convención Ramsar de favorecer la conservación de las zonas húmedas inscritas en la lista de humedales de importancia internacional. Informe de la presidenta del Directorio de la Asamblea Legislativa La presidenta de la Asamblea Legislativa en su informe señala que en el expediente legislativo consta el estudio denominado “Establecimiento de línea Base de Biodiversidad para la Reserva Biológica Lomas de Barbudal (RBLB) y finca adyacente” realizado por la OET, en el que se efectuó un análisis comparativo entre la reserva y terrenos aledaños previamente seleccionados para conocer las condiciones de similitud y factibilidad de utilizarse como reemplazo ecológicamente equivalente. Explica que la OET realizó el estudio correspondiente basándose en los lineamientos establecidos por el SENARA y explicó que la OET pudo comprobar que el área de la RBLB que se pretendía desafectar estaba en mejores condiciones ecológicas que las áreas que se proponían para compensar, en una proporción de 3 a 1, o sea que, por cada hectárea que se desafectara se debería compensar 3. Asevera que, al revisar en detalle se determinó que uno de los objetos de creación de la RBLB, precisamente la conservación y protección del bosque ripario, no estaba representado dentro de la finca ASETREK, la cual era la propuesta para compensar las 113 hectáreas que se desafectarían. Justifica que fue por lo anterior que se dio la necesidad de buscar otros terrenos aledaños que tuvieran bosque ripario para compensar el faltante de ese ecosistema en la propuesta de compensación. Señala que debido a que lo que se requería era únicamente buscar el bosque ripario, los estudios en las fincas Brindis de Amor y Hacienda Ciruelas no profundizaron con el mismo detalle que los estudios de ASETREK ; sin embargo, dice que aun así la OET sí realizó un estudio de caracterización de la Finca Brindis de Amor, como complemento de compensación, el cual se encuentra visible en los folios del 209 al 215 del estudio. Informe del Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento Estas autoridades explicaron que el estudio fue realizado por la OET y prevé que la compensación del área, consista en que, por la desafectación de 113 hectáreas se incorporen 556 hectáreas. Arguye que la OET recomienda que se adquieran como mínimo 332 hectáreas de la finca ASETREK, sin embargo, para facilitar el manejo y el control de incendios se tomó la decisión de incorporar 444 hectáreas de ASETREK, por lo que se compensan todos los diferentes ecosistemas que se encuentran dentro de las 113 hectáreas de RBLB, a excepción del bosque ripario. En consecuencia, aclara que la incorporación de las fincas Brindis de Amor y Hacienda Ciruelas a la propuesta de compensación se realizó por recomendación del administrador de Lomas Barbudal, basándose en que cuentan con terrenos de bosque ripario en condiciones adecuadas de conservación, así como con las nacientes principales del río Cabuyo y quebrada Amores. Organización de Estudios Tropicales Por su importancia, se transcriben en lo conducente pasajes relevantes del informe realizado por la OET, que fue el insumo técnico de la compensación realizada en el caso concreto. Dicho informe indica en su resumen ejecutivo, lo siguiente:

“El sitio de afectación en Lomas de Barbudal posee tres tipos de ambientes, cada uno correspondiendo a una cobertura forestal distinta: bosque deciduo, bosque secundario y bosque maduro asociado a las quebradas en el sitio y por lo tanto, llamado aquí bosque ripario. El bosque deciduo representa el 70% de la cobertura forestal en ese sitio, y corresponde a un estadío de sucesión temprano caracterizado por ser abierto y estar constituido por especies pioneras y por presentar una baja densidad de árboles. El bosque secundario posee mayor estructura y corresponde a un estadio más avanzado donde persisten árboles dominantes. Finalmente, el bosque ripario, integrado principalmente por especies siempre verdes y con árboles dominantes, es uno de las asociaciones vegetales más amenazadas de la región. Cerca de 30 hectáreas existen en el sitio de afectación, lo que representa cerca del 11% de la cobertura de ese tipo de asociación de la Reserva Biológica. El sitio de compensación también es heterogéneo en cobertura forestal y cuenta con bosque deciduo, bosque secundario y zonas de pastizal y no forestales. Este sitio no dispone de bosque ripario.

Así, el sitio en la Reserva Biológica produjo estimados de riqueza de especies mayores que los estimados en el potencial sitio de compensación en ASETREK. Además, las especies encontradas en la Reserva Biológica no son las mismas que las encontradas en ASETREK: las mayores similitudes en composición se encontraron en la comunidad de anfibios, familias de artrópodos y aves, con 79%, 76% y 62% de especies compartidas, mientras que para plantas leñosas y mamíferos los sitios comparten tan solo el 55% y 50% de sus especies. Para reptiles, peces y plantas herbáceas los sitios en Lomas de Barbudal y ASETREK comparten 39%, 34% y 33% de las especies. Esas discrepancias hacen que la composición de especies en ASETREK represente cerca del 45 % de la cuantificada en la referencia. Nuestros análisis revelan que en general, el sitio potencial de inundación en Lomas de Barbudal posee mayor estructura, más árboles dominantes, biomasa y potencial para fijar carbono. El aporte del bosque ripario a estos indicadores es innegable, pero también se observaron diferencias entre las coberturas de bosque secundario de Lomas de Barbudal y la de ASETREK, este último mostrando los valores más bajos. Estas diferencias indican que el ambiente en el sitio de compensación en ASETREK ha sido más perturbado que el sitio en Lomas de Barbudal. En término de estructura y calidad del ambiente, el hábitat en ASETREK obtuvo un menor puntaje que la referencia, equivalente a un 51.2% de su calidad. La incertidumbre derivada de la heterogeneidad de los ambientes presentes reduce el estimado de puntuación de calidad del ambiente, por lo que el mínimo valor de calidad de ambiente posible estimada a partir de nuestros datos resulta en 34 pts. Al tratarse de un ambiente de menor calidad, se requeriría de unas 332 hectáreas de un hábitat como el observado en ASETREK para compensar la pérdida de las 113 hectáreas de la referencia. Por lo tanto, el sitio de potencial compensación en ASETREK es inferior en calidad de ambiente, composición y biodiversidad al sitio que sería impactado directamente por el Embalse Rio Piedras dentro de la Reserva Biológica Lomas de Barbudal. Siguiendo el procedimiento para la estimación del área necesaria para resarcir pérdidas derivadas del impacto, recomendamos anexar al menos 332 Ha del tipo de hábitat observado en el sitio potencial de compensación para resarcir las pérdidas que sufrirá la Reserva Biológica Lomas de Barbudal por el Embalse Piedras. Una propuesta es asignar la parte boscosa de ASETREK como área de compensación. Para ello se requiere segregar 444 Ha de dicha propiedad, con el fin de unir los fragmentos de bosque disponibles. Aún asi, ese terreno no incluye la cobertura de bosque ripario , por lo que se sugiere anexar adicionalmente a Bridis de Amor, una propiedad de 86 Ha adyacente al extremo norte de la Reserva Biológica y que posee casi 16 hectáreas de bosque ripario. La incorporación de ambas propiedades (ASETREK segregado y Brindis de Amor) suponen la anexión de 530 hectáreas en compensación por las 113 Ha que se perderían en la Reserva Lomas de Barbudal”.

Sobre el agravio planteado por los accionantes, en el sentido de que el estudio de OET fue realizado con ligereza y que, con posterioridad, añadieron unas fincas sin un estudio similar al que se realizó respecto de la finca ASETREK, afirmaron lo siguiente:

“En el noreste de la Reserva Biológica Lomas de Barbudal, existen propiedades privadas con fragmentos de bosques riparios y secundarios. De hecho, un examen rápido revela que en las cercanías de la Quebrada Amores existen condiciones boscosas que podrían ser de interés de protección. Una de ellas es Brindis de Amor, una propiedad de cerca de 86 Ha que limita con la Reserva Lomas de Barbudal y cuya cobertura boscosa ha sido protegida por su propietario Carlos Jiménez en los últimos veinte años (Figura 47). (…)

1. Los resultados de nuestro estudio, tanto en calidad de habitat como en composición de comunidades, revelan la necesidad de resarcir la pérdida en Lomas de Barbudal a partir de al menos 332 Ha de hábitat boscoso. Sin embargo, para lograr ese número de hectáreas en ASETREK, se requiere incluir parte del bosque deciduo en la ladera este de la propiedad, cuya calidad es inferior (por tener mayor pendiente) a la del lado oeste. Además no se cuenta con ningún fragmento de bosque ripario-maduro, lo que sin duda constituye un desacierto en la capacidad de compensación de la propiedad ASETREK evaluada en nuestro estudio. 2. La propiedad de Brindis de Amor posee 15.87 ha de bosque ripario-maduro. Aunque el análisis de la composición de este fragmento fue preliminar, nuestras observaciones de campo indican que está constituido por especies siempreverdes similares a las encontradas en la misma cobertura en RBLB y que es comparable en área basal (Figura 49) a la del fragmento encontrado en el sitio potencial de inundación en Lomas de Barbudal. Si bien es cierto que la extensión del bosque ripario en Brindis de Amor es menor a la que se perdería en Lomas de Barbudal, (…)

De hecho, el área de bosque ripario en Brindis de Amor representa un 7.4 % del área cubierta por ese tipo de bosque dentro la Reserva Biológica actualmente. 3. El área de bosque ripario en Brindis de Amor puede constituirse un área núcleo de especies para repoblar otros ambientes riparios en la propiedad. Aunque esta situación no es cronológicamente correspondiente a la pérdida en Lomas, si es una considerable ventaja por sobre la propiedad de ASETREK, que carece de dicho núcleo. Nuestras observaciones en el sitio muestran gran reclutamiento de especies arbóreas típicas de bosques riparios, como son el espavel Anacardium excelsum y el terciopelo Sloanea terniflora. 4. Tanto el bosque deciduo como el secundario han sido protegidos en Brindis de Amor por al menos veinte años. En contraste con ASETREK, la propiedad de Brindis de Amor tiene una pendiente leve y la cobertura boscosa en mejor condición de estructura y composición que los encontrados en la propiedad de ASETREK. A diferencia de ASETREK, no hay registros de talas ni fuegos recurrentes, aunque sí hay evidencia de fuego entrando a la propiedad por lado sur. 5. Aunque este estudio no incluyó un análisis de composición de especies en su bosque secundario o deciduo , la protección que se le ha dado a estas coberturas en Brindis de Amor podría significar que estas coberturas se encuentren en mejores condiciones que sus homónimas en ASETREK. (…)

Al sur de Brindis de Amor se localiza el Rancho Wilson, que posee un fragmento boscoso protegido y que podría ser de interés para protección al reducir la mencionada península (Figura 50). Sin embargo, argumentamos que precisamente debido a la protección que actualmente se le brinda a ese fragmento en Rancho Wilson, la anexión de Brindis de Amor podría ser una alternativa más adecuada para consolidar el bloque de bosque ripario en el norte de la Reserva. En nuestra visión, esta anexión permitiría negociar con Rancho Wilson la futura incorporación del fragmento de bosque remanente en dicha propiedad. Además, la protección de un segmento del río Cabuyo se conseguiría a partir de la protección del área actualmente oocupada por Brindis de Amor”. (En el informe rendido ante la Sala aclararon que donde se señala Rancho Wilson, se refiere, en realidad, a la Hacienda Ciruelas).

De manera que el propio estudio técnico pone en evidencia lo informado posteriormente en la acción de inconstitucionalidad, por el encargado de realizar el estudio de la línea base. En el informe rendido a la Sala se reconoció que la integración de estas dos fincas se hizo con el propósito de mejorar la propuesta de compensación original, pero “estas áreas no fueron analizadas con la profundidad que lo hicimos en ASETREK ”. En el informe rendido a esta Sala, en lo conducente, señala lo siguiente:

“El empleo de Brindis de Amor como sitio de forrajeo demuestra la importancia biológica de esta propiedad y lo acertado que sería protegerla. El anexar una fracción de la Hacienda Ciruelas obedece a evitar dejar una península en el contorno de la RBLB de anexarse Brindis de Amor, lo que contravendría las nociones básicas del diseño de reservas, que trata de minimizar el efecto de borde y su afectación a las especies que se desean proteger. Además, esa fracción contiene también un fragmento de cobertura riparia. En nuestro propio informe indicamos que, de tener que decantarse entre una de esas dos propiedades, se sugiere que se adquiera Brindis de Amor puesto que Ciruelas ya está manteniendo alguna protección en esa zona de su propiedad. Nuestros detractores indican que el estudio no evaluó esas propiedades. Eso no es del todo correcto, pues como se menciona anteriormente si hubo una evaluación de vegetación en la propiedad Brindis de Amor. La razón por la que no se evaluaron otros grupos taxonómicos (fauna) es que: (1) ya hay evidencia de la importancia de ese lugar para la fauna de la RBLB; (2) el incluir esta propiedad complementa la propiedad de ASETREK; (3) Brindis de Amor efectivamente fue identificada después de que se apostara por compensar con ASETREK. El fragmento en la Hacienda Ciruelas (llamado por error Rancho Wilson en nuestro informe) efectivamente no fue evaluado. Sin embargo, vuelvo a reiterar que asumir la protección tanto esta propiedad como Brindis de Amor vendría a dar un mejor servicio al ambiente que pretende conservar la RBLB”. (Informe rendido por Dr. Mahmood Sasa Marín en virtud de la audiencia conferida como prueba para mejor resolver).

Conclusiones sobre el particular A partir de las manifestaciones realizadas por las propias autoridades que constan en el expediente de la acción de inconstitucionalidad, es posible concluir que el estudio de compensación realizado para el caso concreto no fue ejecutado con idéntica rigurosidad en la incorporación de la finca ASETREK, respecto de la integración posterior de otras dos fincas llamadas Brindis de Amor y Hacienda Ciruelas. Como se señaló supra, la disconformidad de los accionantes es que el informe final “Establecimiento de la línea Base de Biodiversidad para la Reserva Biológica Lomas de Barbudal (RBLB) y finca adyacente” omite incorporar estudios sobre las condiciones bioló gicas de las otras dos propiedades, por lo que no se puede determinar de manera científ ica que se trate de propiedades que efectivamente cuenten con caracterí sticas medioambientales que reemplacen las funciones eco sistémicas del á rea por desafectar. La PGR insistió en la necesidad de la solidez de dicho estudio, pues de lo contrario, existe un peligro de que no se estaría mitigando adecuadamente el impacto ambiental generado por la desafectación de una parte de dicha reserva biológica. La Presidencia de la Asamblea Legislativa evidenció que efectivamente los estudios en las fincas Brindis de Amor y Hacienda Ciruelas no se ejecutaron con el mismo detalle y rigor respecto del estudio que se realizó a la finca ASETREK. El resto de autoridades coincidieron en que la evaluación integral de la referida finca dio como resultado la carencia en la compensación de bosque ripario, prioridad en la protección medio ambiental por ser casi única en el país. Esto motivó a que se adoptaran recomendaciones de las propias autoridades del Área de Conservación de integrar otras dos fincas. Sin embargo, respecto de estas dos fincas que se integraron a la compensación con posterioridad, no se realizó el estudio biológico y de equivalencia de biodiversidad con similares parámetros de exigencia y disciplina. Además, según las propias consideraciones de OET, que fue el ente encargado del estudio, el análisis respecto de la Finca Brindis de Amor fue meramente preliminar, no incluyó un análisis de composición de especies en su bosque secundario o deciduo y no se realizó ningún estudio de fauna. Asimismo, la decisión final de incluir la Hacienda Ciruelas, si bien denota un afán de asegurar una adecuada compensación, no se respaldó en ningún estudio científico que dé cuenta de la equivalencia y de la obligada compensación de recursos naturales. El responsable de estudio reconoció que “el fragmento en la Hacienda Ciruelas (llamado por error Rancho Wilson en nuestro informe) efectivamente no fue evaluado”. A lo anterior, conviene añadir que sobre la base de un estudio de diez meses en el que se valoró fauna, flora, estructura de hábitat, servicios ecosistémicos y atributos físicos, y que incluyeron muestreos tanto en época seca como en la temporada lluviosa se concluyó que la finca ASETREK no era suficiente para compensar las áreas de bosques desafectados en RBLB. Por eso, con mucha más razón, no se advierte cuál es la base para realizar unas inclusiones, en el último momento, que puedan realmente cumplir los requerimientos de compensación exigidos en cuanto a especies de fauna, bosques y fijación de carbono. Por lo tanto, estimo que las deficiencias detectadas en los estudios, las cuales fueron reconocidas por las autoridades que intervinieron en este proceso de constitucionalidad, son lesivas de los principios constitucionales ya señalados y que, en términos generales, obligan al Estado a adoptar decisiones relacionadas con la reducción de áreas silvestres protegidas sobre la base de un estudio técnico debidamente fundamentado.

Conclusiones

Las consideraciones realizadas permiten concluir que hay cuatro tipos de estudios en esta materia que no son homologables: 1) el estudio que justifique la desafectación de un área protegida, 2) el estudio de compensación de la desafectación de un área protegida, 3) el estudio de impacto ambiental de un proyecto de infraestructura. Aparte está el estudio de factibilidad de la realización de un proyecto de infraestructura. En el caso de la ley bajo examen, se omitió hacer el primero, se hizo deficientemente el segundo y el tercero está por hacer (según correspondería luego de tener los dos primeros, y de promulgarse la ley). El estudio de factibilidad del proyecto no sustituye en parte ni en su totalidad ninguno de los tres anteriores. Por tal motivo, estimo que llevan razón quienes señalan que la normativa cuestionada resulta inconstitucional por la infracción a los principios precautorio, no regresión en materia ambiental, irreductibilidad y objetivación de la tutela ambiental, que deben regir la toma de decisiones en esta materia. Anamari Garro Vargas Res. Nº 2020-0013836 NOTA DE LA MAGISTRADA GARRO VARGAS Sobre el cumplimiento de las obligaciones internacionales Los accionantes cuestionaron que, dado que la Reserva Biológica Lomas de Barbudal (LBLB) forma parte del humedal de Palo Verde, el Consejo Regional del Área de Conservación Arenal Tempisque advirtió, en su momento, a la Asamblea Legislativa que era necesario que se comunicara a la Convención Relativa a los Humedales de Importancia Internacional especialmente como Hábitat de Aves Acuáticas (Convención Ramsar) la intención de realizar este proyecto y activar cualquier otro procedimiento para cumplir con los compromisos del país. Acusan que, pese a lo anterior, el Estado no ha notificado a Ramsar sobre la desafectación del área de la RBLB, ni el cambio en los límites de esa reserva biológica, lo que supone una omisión que infringe los compromisos internacionales de nuestro país y, por ello, una violación al artículo 7 de la Constitución Política. Es preciso citar en esta nota, nuevamente, lo dispuesto en lo conducente por la Convención Ramsar, la cual señala en el artículo 2.5 lo siguiente:

“ Las partes contratantes tendrán derecho a añadir a la “Lista” otras zonas húmedas situadas en su territorio, a ampliar las que ya están inscritas o, por motivos urgentes de interés nacional, a retirar de la “Lista” o a reducir los humedales ya inscritos e informarán de estas modificaciones, lo más rápidamente posible, a la organización o al gobierno responsable de las funciones de la Oficina permanente especificados en el artículo 8º”. (Lo resaltado no corresponde al original).

Adicionalmente, el artículo 4 señala:

“1. Cada parte contratante fomentará la conservación de las zonas húmedas y de las aves acuáticas creando reservas naturales en los humedales, estén o no inscritos en la "Lista", y atenderá de manera adecuada su manejo y cuidado.

2. Cuando una parte contratante, por motivos urgentes de interés nacional, retire o reduzca una zona húmeda inscrita en la "Lista", deberá compensar, en la medida de lo posible, cualquier pérdida de recursos en los humedales y, en especial, deberá crear nuevas reservas naturales para las aves acuáticas y para la protección, en la misma región o en otro sitio, de una parte adecuada de su hábitat anterior. 3. Las partes contratantes fomentarán la investigación y el intercambio de datos y de publicaciones relativas a las zonas húmedas, a su flora y a su fauna”. (Lo resaltado no corresponde al original).

Es decir, esa norma reitera que cuando una parte, por motivos urgentes de interés nacional, retire o reduzca una zona húmeda inscrita en la “Lista”, deberá compensar en la medida de lo posible cualquier pérdida de recursos en los humedales y, en especial, deberá crear nuevas reservas naturales para las aves acuáticas y para la protección en la misma región o en otro sitio. Con fundamento en el propio texto normativo, es preciso concluir que el Estado costarricense no ha incurrido en una infracción a sus obligaciones internacionales, conforme a lo dispuesto en el artículo 7 de la Constitución Política. Lo anterior, por cuanto el propio instrumento internacional de análisis no señala en qué momento exacto se debe realizar la compensación y la respectiva comunicación a la Oficina Permanente creada por el artículo 8 del mismo instrumento. Por otra parte, es preciso señalar que, si bien se han detallado razones de interés público para la realización de un proyecto que procura solucionar a largo plazo el faltante de agua en la provincia de Guanacaste, no se ha constatado que, a la fecha, haya existido propiamente una declaratoria formal de los motivos urgentes de interés nacional para la desafectación cuestionada de RBLB como parte del Parque Nacional Palo Verde. Cabe recordar lo informado por la Procuraduría General de la República (PGR) en este particular, que apuntó en lo conducente lo siguiente:

“En ese supuesto la norma podría resultar contraria a la Convención Ramsar, porque si bien es cierto, ésta no obliga a los Estados a comunicar de previo la decisión de modificar el área de los sitios de importancia internacional, su artículo 4° sujeta esa posibilidad a la existencia de un motivo de urgente necesidad nacional, el cual no estaría debidamente justificado en este caso particular”. (Lo resaltado no corresponde al original).

De lo cual es preciso concluir que, si bien no existe un plazo para la notificación a la oficina competente Ramsar, sí existe la obligación del Estado costarricense de justificar la decisión en “un motivo de urgente necesidad nacional”; todo lo cual deberá ser calibrado por el Estado costarricense para no incurrir en responsabilidad internacional por el incumplimiento de las obligaciones soberanamente admitidas.

Sobre el dimensionamiento de los efectos de la legislación cuestionada En relación con los efectos de la legislación impugnada se hace necesario transcribir en lo conducente lo manifestado por PGR en el informe de esta acción de inconstitucionalidad:

“La Ley 9610 presenta ciertas particularidades con respecto a otras normas legales que pretenden disminuir la medida de áreas silvestre protegidas, pues, en este caso, la decisión de desafectar parte de la RBLB no está motivada en la pérdida de valor ambiental o de la necesidad de proteger la zona, sino, exclusivamente, en la necesidad de desarrollar una obra de infraestructura como parte de la ejecución del proyecto PAACUME. Es decir, la desafectación autorizada interesa únicamente para el desarrollo de dicho proyecto.

Con base en lo anterior, la Procuraduría estima que, aparte de las observaciones apuntadas en el segmento anterior, un defecto de la Ley que podría causar su inconstitucionalidad, es que no se contempló ninguna disposición que dimensionara los efectos de la desafectación efectuada hasta el momento en el que el proyecto se ejecute, pues, la decisión de desafectar tiene sentido y justificación únicamente si dicho proyecto se lleva a cabo. Si por alguna razón el proyecto no es desarrollado, la desafectación practicada no tendría ningún sentido, y, por tanto, ésta no tendría justificación alguna .

La justificación de la desafectación depende de la eventual ejecución del proyecto, que podría verse impedida por varias razones. Por ejemplo, porque –como argumentan los accionantes- no se otorgue la viabilidad ambiental al proyecto, porque no exista financiamiento necesario, porque se pierda interés en desarrollarlo o porque, por algún otro motivo sea imposible ejecutarlo.

Además, debe tenerse en cuenta que la garantía de la no afectación a la RBLB yace en la medida de compensación propuesta. Pero, lo cierto es que, con la ley impugnada se desafectó una parte de la Reserva y, pese a que se incluyó dentro de sus límites el área de compensación, esos terrenos son propiedades privadas que no han sido expropiadas. Con base en lo dispuesto en el artículo 37 de la Ley Orgánica del Ambiente, hasta que esas propiedades no sean expropiadas o compradas, no pueden pasar a formar parte del área silvestre protegida, y, por tanto, la compensación propuesta no se ha materializado. En otras palabras, con la emisión de la Ley 9610, el área de la RBLB se disminuyó y la afectación generada por esa disminución no ha sido compensada., en contravención con lo dispuesto por el principio precautorio y preventivo.

Si por alguna razón el proyecto no es desarrollado y tampoco se ejecutan las expropiaciones necesarias para efectuar la compensación propuesta, la Ley 9610 habría desafectado la RBLB en vano, sin existir una justificación válida y sin haber compensado y mitigado los efectos generados por esa disminución. Ello constituiría una violación al principio de irreductibilidad de las áreas silvestres protegidas, de no regresión, precautorio y preventivo, e, incluso, una violación a la Convención Ramsar al no existir un motivo de urgente necesidad para justificar la disminución del área de uno de los sitios de importancia internacional.

Por lo tanto, sin perjuicio de lo que se constate en cuanto a la suficiencia de los estudios y criterios técnicos antes señalados, la Procuraduría estima que, por lo recién indicado, la Ley 9610 podría resultar inconstitucional, a menos que se interprete que la desafectación que autoriza surtirá efectos hasta el momento en que el proyecto se ejecute y se expropien los terrenos necesarios para que opere la compensación propuesta”. (Lo resaltado no corresponde al original).

Dichas manifestaciones son sumamente relevantes y ponen en evidencia que el legislador competente no introdujo ningún dimensionamiento respecto de los efectos de la legislación examinada en esta acción de inconstitucionalidad. Asimismo, a la luz de las manifestaciones de la PGR, se hace preciso señalar que si bien se coincidió con el voto de mayoría en el sentido de que no había legitimación para conocer de una eventual infracción al derecho a la propiedad privada, consagrado en el artículo 45 de la Constitución Política, es lo cierto que se advierte que la eficacia de la compensación propuesta está supeditada a la expropiación de los terrenos que se contemplaron para esos efectos y la correspondiente indemnización hacia los accionantes. Es decir, la materialización de la compensación está condicionada a que, de manera efectiva, se expropien los terrenos objeto del estudio de compensación. En este momento, mientras no se haya perfeccionado la expropiación, los terrenos no están sometidos a un régimen de protección ambiental (una especie de medida cautelar) y tampoco se ha consolidado la compensación ofrecida como parámetro de legitimidad de la norma de desafectación. La falta de un dimensionamiento por parte del propio legislador hace descansar la legitimidad de esta compensación en una expropiación que no se ha concretado y que compromete la constitucionalidad de la normativa de análisis. Incluso, pone de manifiesto que ya se realizó el cambio de coordenadas desafectando RBLB, pero no se introdujo una condición resolutoria y unas previsiones sobre las consecuencias de que no se lleve a cabo el proyecto. Es decir, surge la interrogante sobre qué sucede con la desafectación de esta importante reserva biológica en el supuesto de que el proyecto de infraestructura no se logre ejecutar. Con todo respeto, considero que sobre el particular no es suficiente la solución ofrecida por la mayoría de esta Sala en el sentido de que se trata de una ley condicionada, pues lo cierto es que ya se realizó el cambio de coordenadas correspondiente, sin ofrecerse una claridad sobre los efectos de que no se ejecute el proyecto de infraestructura que se pretende llevar a cabo. Anamari Garro V.

Observaciones de SALA CONSTITUCIONAL votado con boleta Clasificación elaborada por SALA CONSTITUCIONALdel Poder Judicial. Prohibida su reproducción y/o distribución en forma onerosa.