Likewise, it is recommended that the Environmental Management Directorate, in coordination with SENARA, keep the study, the location of the vulnerability zones, and the hydrogeological map of the Central Valley of Costa Rica updated.
With respect to the recommendations for land use, population density, and the size of projects to be developed, it indicates that they exceed the competences of AyA, the same being located in the sphere of competences of INVU, and Municipal Governments.
Considering (Considerando):
I.That the Constitutional Chamber (Sala Constitucional) in resolution No. 2004-01923, with respect to the Instituto Costarricense de Acueductos y Alcantarillados, defines the following competences:
1- In the case of protection perimeters for aquifers, in order to conserve the resource and its surroundings, it recognizes authority in AyA and MINAE, in their declarations, which must be complied with by local governments (Municipalities) and INVU, so that said declarations are incorporated into the respective master plans (planes reguladores).
2- On the basis of article 31 and article 32 of the Water Law 246, it clarifies that AyA has the power, when there is a danger of contamination in surface waters, in an area larger than the perimeter protection of the wells or catchment areas of 200 meters ("...and, of course, of the recharge areas of the aquifers -zone where "the infiltration of drinking water occurs"- that have or should have a forest cover (capa forestal) for their protection, which are so sensitive for their conservation and protection"...), to order the measures it deems appropriate to avoid the danger of contamination. The Chamber indicates that the Executive Branch must collaborate and cooperate with AyA so that it can adopt all appropriate and convenient administrative acts and measures to "avert the danger of contamination in an area larger than the protection perimeters of the recharge areas of the aquifers and catchment zones," empowering it to take any appropriate measure to avoid irreversible damages and harm.
II.In the Construction Law No. 833 of November 4, 1949, and its amendments, the municipalities are the direct overseers of the works executed in their jurisdiction, as well as the use to which they are being put. Their inspectors have the mission of ensuring observance of what the law indicates, also ensuring that the populations meet the necessary conditions of safety, health, and beauty. The non-compliance with these provisions carries serious legal consequences. The adequate construction of septic tanks, as well as their maintenance, is of vital importance for the protection of the environment and the health of people, and with this, the prosperity and economic development of the country. The previous indications are made on the basis of the cited Construction Law and the Constitutive Law of the Instituto Costarricense de Acueductos y Alcantarillados No. 2726 and its amendments, articles 1 and 2, where the responsibility of the Institution to direct and oversee everything concerning the drinking water service, collection and evacuation of sewage, aqueduct and sewer works, ecological protection, as well as the control of water contamination, is pointed out.
III.The spirit contained in numeral 16 of the General Law of Public Administration, the same that is extracted from the Minutes of the Special Drafting Commission for the Draft Administrative Code No. 94 held on March 12, 1970, article number 16 of the General Law of Public Administration being read by the President of said Commission and before the question "What are 'univocal legal rules of science or technique'?", Mr. Eduardo Ortiz Ortiz, attorney, stated ...in cases where there is a technical or scientific rule...there is no possibility whatsoever of having freedom of judgment...Therefore, by univocal technical or scientific rules, reference is made to those rules that, in the circumstance of the administrative case being decided or on which it is being resolved, have a clear, unequivocal, and precise meaning, one can even eliminate the word "univocal" and substitute it with "exact rules of science or technique." So we are establishing that in cases where the Administration acts in technical matters that have a clear and precise meaning in the case, the technical rules are going to be, in that case, like laws, the violation of the technical aspects of an administrative act of a public service is naturally going to be an illegality exactly as if a legal precept were being violated.
Such has been the scope of the doctrine cited, that the Constitutional Chamber of the Supreme Court of Justice (Sala Constitucional de la Corte Suprema de Justicia) in vote (voto) No. 1380-92 of three o'clock and five minutes in the afternoon of May twenty-seventh, nineteen ninety-two, has adopted said principle, ruling that... In accordance with article 16.1 of the General Law of Public Administration. "In no case may acts contrary to univocal rules of science or technique be dictated...". In other words, in the face of technique, there is no discretion. Therefore (Por tanto):
In accordance with the stipulations in articles 6, 11, 18, 21, 33, 45, 50, 69, 89, 128, 188 of the Political Constitution; 1, 2, 8, 264 to 278, 285 to 321 of the General Health Law No. 5395 of October 30, 1973; articles 17, 31, 32, 33 and concordant of the Water Law (Ley de Aguas) No. 276 of August 27, 1942; General Drinking Water Law No. 1634 of September 18, 1953, article 4 of the Forestry Law (Ley Forestal); article 132 of the Wildlife Law; articles 4 and 5 of Law No. 6622 of August 27, 1981; articles 1, 2, 3, 4, 5, 11, 21, 22, 23, and 26 of the Constitutive Law of the Instituto Costarricense de Acueductos y Alcantarillados, and article 4 of Regulation No. 30413-MP-MINAE-S-MEIC (Sectoral Regulation for the Regulation of Aqueduct and Sanitary Sewer Services).