(.)
ch) To investigate, protect and promote the use of the country's water resources, both surface and groundwater.
(.)
4. Similarly, article 3 subsection h), grants competence to SENARA to monitor compliance with legal provisions in matters of its concern, and to make definitive and binding decisions in the matters referred to in said subsection, which establishes the following as a function of SENARA:
" h) To monitor compliance with legal provisions in matters of its concern. The decisions that the Service makes for this reason, concerning the drilling of wells and the exploitation, maintenance and protection of waters carried out by public institutions and private individuals, shall be definitive and mandatory. However, such decisions may be appealed within ten days on legal grounds before the Superior Contentious Administrative Tribunal. The Tribunal shall resolve within a period not exceeding ninety days. (The underlining is supplied) 5. That the Constitutional Chamber of the Supreme Court of Justice, in reiterated Votos, has pointed out the need for SENARA to adequately exercise the competencies that have been assigned to it by law of the Republic in this matter, under a responsible integration of the normative framework regulating water matters in our country, within a framework of progressive advancement and recognition proper to water resources in the field of human rights, in order to safeguard the fundamental rights of citizens such as the right to life, health, and a healthy and ecologically balanced environment. Such is the case of Voto number 2012-08892 at sixteen hours and three minutes of June twenty-seventh, two thousand twelve, in which the Constitutional Chamber stated:
"V. Regarding the National Service for Groundwater, Irrigation and Drainage. This Chamber, in ruling number 2004-01923 at 14:55 hours of February 25, 2004, and authored by Magistrate Jinesta Lobo, stated that the competencies of SENARA transcend matters concerning irrigation districts, and as such, these competencies have a national vocation derived from its very institutional background. It is evident that by express provision of the Law Creating SENARA, law number 6877, article 3 subsections ch and h), SENARA has the competence to protect the country's water resources, which is why its decisions regarding exploitation, maintenance and protection shall be definitive and mandatory. This normative provision must be interpreted and applied in accordance with the provisions of article twenty-one of the Law on the Use, Management and Conservation of Soils -from which it is defined that the Ministry of Agriculture and Livestock (or Department of Agriculture in the language used by the Water Law) maintains a secondary or residual competence in this matter-. Thus, the integration of the recently cited norms informs that for the use of public domain waters, every public entity -without distinction- has the obligation to obtain the corresponding permit from SENARA, to the point that the decisions SENARA makes in a substantiated manner regarding this matter shall be definitive and mandatory. This definition is far from being a rhetorical statement by the Chamber; on the contrary, it stems from the responsible integration of the broad normative framework that regulates the matter, which, as stated, requires progressive advancement and recognition proper to the field of human rights, since the right to water and the right to a healthy and ecologically balanced environment are fundamental human rights. The Chamber warns that this precision places SENARA in a particularly relevant position regarding the management of national water resources, which is important considering the eminently technical nature of this administrative body, a position that must be reinforced and exercised through the necessary and due inter-institutional coordination of the different entities involved -ICAA, SETENA, MAG, Municipalities, among others-." 6. That the Constitutional Chamber has stated the following regarding the application of the precautionary principle in environmental matters: "The right to a healthy and ecologically balanced environment grants special protection to biodiversity and groundwater, for which reason and in application of the precautionary principle in environmental matters, economic activities with environmental impact must be authorized when there is scientific certainty that said impact does not imply a risk or threat of permanent and irreversible damage to the environment. It is for this reason that the administration must always carry out the necessary environmental assessment by means of the instruments it deems necessary, an assessment that must be publicly shared with the affected population, so that after a rigorous and detailed analysis, the administration issues, in a substantiated manner, the corresponding environmental viability. The neglect and non-observance of these normatively and jurisprudentially defined aspects results in the violation of the referred right to a healthy environment, so the administrative actions thus ordered are equally violative of this fundamental right. (see, among others, rulings of this Chamber numbers 5893-95, 5445-99, 2003-6322, 2004-13414, 2004-01923, 2006-7994 and 2010-6922).
7. Likewise, the Constitutional Chamber has established the need and convenience of establishing and applying technical instruments such as hydrogeological cartography and maps, and aquifer protection matrices according to contamination vulnerability. In this regard, said Constitutional Court has indicated:
"In summary, the Chamber refers to the issuance of documents such as hydrogeological maps -in which the surface under which an aquifer sits is traced or demarcated- and land-use matrices according to the vulnerability of aquifer layers to contamination -which set a specific regime of land use (uso del suelo) or impact in relation to groundwater-, whose protection perimeters are mandatory and must be reflected in the regulatory plans on land use (uso de suelos) and land-use planning (by way of example, zoning or construction regulations) by municipal corporations or by the National Institute of Housing and Urbanism, given their residual competence in urban planning matters in the absence of local regulatory plans." (Constitutional Chamber. Voto No. 2012-08892 at sixteen hours and three minutes of June twenty-seventh, two thousand twelve.)
8. In relation to land-use matrices, according to aquifer protection vulnerability, the Constitutional Chamber in Voto number 2012-08892, also established as pertinent:
"THEREFORE: (..) the 'Matrix of land-use criteria according to aquifer contamination vulnerability for the protection of water resources in the canton of Poás' is mandatory in all cantons or zones where vulnerability maps approved or prepared by SENARA are available and, in any case, must serve as a technical guide and guidance for the development of policies on land use (uso del suelo), while such cantons or zones do not have their own matrix prepared by SENARA with the participation of the other institutions that prepared the matrix, and that guarantees the same or a higher level of protection of water resources. What is ordered in official letters numbers GE-557-09 of July 14, 2009, and GE-850-09 of September 21, 2009, is annulled in the sense that SENARA is obligated to monitor compliance with legal provisions in matters of its concern, therefore the issuance and dissemination of land-use criteria matrices according to aquifer contamination vulnerability containing concrete and binding protection measures is valid and necessary." 9. That according to Official Letter DIGH-324-16 dated November 2, 2016, submitted by the Water Research and Management Directorate, SENARA has since 2011 initiated a participatory process for the elaboration of a Generic Aquifer Protection Matrix. Said official letter describes the process carried out with the participation of national and international experts and officials from different institutions, who together with SENARA formed a technical commission to consider the various factors that would be contemplated in the Matrix.
10. SENARA, through Management official letter GG-OF-546-2013 of July 2, 2013, promoted consultation of the proposed Matrix to the institutions linked to the topic, for which several working sessions were held, with the participation of those indicated below:
- a)Urbanism: Working session held on August 1, 2013, with the participation of officials from SENARA, MIVAH, INVU, MEIC, Federation of Municipalities of Heredia and Municipality of San Pablo.
- b)Regulatory plans: Working session held on August 6, 2013, with the participation of officials from SENARA, INVU, ICT, SETENA, MEIC.
- c)Natural Resources: Working session held on August 8, 2013, with the participation of officials from SENARA, SINAC, Dirección de Aguas and AyA.
- d)Project impact: Working session held on August 13, 2013, with the participation of officials from SENARA, Ministry of Health, AyA and SETENA.
11. The consultation process allowed for an assessment of the fundamental themes of the proposal prepared during the first stage, and the observations and modifications that were raised during the consultation process, which were discussed and accepted, were included.
12. Once the assessment in the four working groups was concluded, it was submitted for the knowledge of SENARA's technical staff in the working session held on September 19, 2013, and was referred to SENARA Management through official letters DIGH-OF-364-2013 and DIGH-OF-474-13.
13. The General Management, in Board of Directors session number 655-14 of September 1, 2014, submits official letters DIGH-332-14 of August 25, 2014, and DJ-397-14 of August 28, 2014, related to the matrix that was prepared as a product of the participatory process.
14. The Board of Directors, through Agreement No. 4809 of September 16, 2014, ordered:
"AGREEMENT No. 4809: To request the Administration, prior to the public consultation of the Draft Aquifer Protection Matrix, to hold a working session with the participation of the main interested entities (INVU, AYA, MEIC, ICT, MAG, MINAE, MIVAH or others it deems appropriate), so that the project published for this purpose may consider the observations that are pertinent. For these purposes, the Administration is urged to send the call to said working session, attaching the latest version of the matrix that is in process of being prepared, so that said working session takes place within an estimated period of fifteen calendar days from the date of this session (September 16, 2014). FIRM AGREEMENT" 15. The General Management, through official letters GG-744-14 to GG-753-14 all dated September 27, 2014, convened the Forum Proposed Protection Matrix to analyze the proposed Aquifer Protection Matrix, a call received by MEIC, ICT, AyA, INVU, SINAC, SETENA, MIVAH, Ministry of Health, MINAE and MAG; an activity that took place on October 1, 2014.
16. After the cited forum, written observations on the Matrix were received from several institutions, among them: AyA, SETENA, MINAE, ICT, MIVAH, MEIC.
17. Once the different proposals from the institutions were technically analyzed, the Matrix was prepared, considering the contributions from several institutions that were technically pertinent.
18. The proposed Matrix incorporates necessary elements for the reasonable protection of water resources, both in quality and quantity. Furthermore, it allows the use of technological measures for such purposes.
19. That in order to promote the broadest participation in the process of preparing the matrix, the Board of Directors of SENARA, through Agreement No. 4882 taken in extraordinary session number 358-14 held on Monday, December 8, 2014, confirmed in ordinary session number 661-14 of December 15, 2014, ordered:
"AGREEMENT No. 4882: The proposed Generic Aquifer Protection Matrix presented by the Water Research and Management Directorate, through official letter DIGH-472-14, is acknowledged. In this regard, Management is authorized to proceed with its publication as a draft project, in the Official Gazette La Gaceta and in a national circulation Newspaper; so that any interested party may submit their observations within a period of one month from its publication in the Official Gazette La Gaceta. FIRM AGREEMENT" 20. To comply with the cited Board of Directors agreement, the Generic Aquifer Protection Matrix was published in Digital Supplement No. 10 of the Official Gazette La Gaceta No. 36 dated February 20, 2015, and in the national circulation newspaper La Nación on Monday, March 2, 2015.
21. As a product of the public consultation referred to in the previous point, a total of 31 documents with observations were received from Municipalities, NGOs, State Institutions and private sector organizations, among which are the following.
Ø Municipalities of: Poás, Escazú, Belén, Grecia, Barva, San Pablo de Heredia and Federation of Municipalities of Heredia.
Ø Public Institutions: MEIC, Ministry of Health, AyA, INVU, Minister of MINAE, Dirección de Aguas of MINAE and SETENA.
Ø Private Sector: Chamber of Construction, ADILA, ACENVI, UCCAEP, CODI, PROCECO, ASIDELCO, Chamber of Commerce, Chamber of Industries, AMCHAN and Chamber of Agriculture.
Ø Others: Colegio de Geólogos de Costa Rica, CONCEVERDE, YARCA Environmental Federation and Comité Patriótico San Rafael, and Geologist Allan Astorga.
22. Through official letter DIGH-279-15 of July 27, 2015, the Water Research and Management Directorate submits to Management the proposed Aquifer Protection Matrix.
23. The Board of Directors of SENARA, through agreement number 5090, extraordinary session No. 364-15 of September 7, 2015, the Board of Directors requested the realization of workshops to present the proposed matrix to the different sectors (urban development, condominium, tourism and commercial, agricultural and livestock, and industrial), for which three workshops were held on October 19, 2015, with the Urban Development sector, October 22, 2015, with the Industrial sector, and November 2, 2015, with the Agricultural and Livestock sector. In each workshop, the technical criteria of the proposal were explained, and participants were requested to submit their comments and observations in writing. In this way, comments and assessments were received from the Dirección de Aguas of MINAE, from AyA, the organizations CONCEVERDE and Federación Yarca, and the Chambers of Construction, Agriculture, Industries, among others, all observations and proposals were analyzed by SENARA technicians and those that were technically pertinent were incorporated.
24. Through official letter DIGH-324-16 dated November 2, 2016, the Water Research and Management Directorate of SENARA again submits for the knowledge and approval of this Board of Directors the "Generic Aquifer Protection Matrix" and the "Methodological Guide for the application of the Generic Aquifer Protection Matrix," which shall be mandatory in all cantons or zones where vulnerability maps approved or prepared by SENARA are available and, in any case, shall serve as a technical guide and guidance for the development of policies on land use (uso del suelo), while such cantons or zones do not have their own Matrix prepared by SENARA with the participation of the institutions with competencies in the matter and that guarantee the same or a higher level of protection of water resources, considering their social, economic and environmental characteristics.
25. The Costa Rican Chamber of Construction, Chamber of Commerce of Costa Rica and National Chamber of Agriculture and Agroindustry, in the month of January two thousand seventeen, submitted in writing their observations regarding the new proposed methodological guide for the application of the Generic Aquifer Protection Matrix.
26. By agreement number 5361, the General Management is instructed to carry out a technical analysis of the observations presented by the Costa Rican Chamber of Construction, Chamber of Commerce of Costa Rica and National Chamber of Agriculture and Agroindustry.
27. By official letter SENARA-DIGH-0005-17 of February 8, 2017, the analysis of the observations made to the matrix by the Chambers of Construction, Commerce, and Agriculture and Agroindustry is presented for the knowledge of the Board of Directors.
28. In order to analyze all observations that interested sectors have presented or may present, by order of the Board of Directors of SENARA, a new space for analysis was opened, through working sessions held with each of the sectors: a) Urban, Condominium, Tourism and Mass Commercial Sector; b) Industrial and Commercial Sector (toxic substances); c) Agricultural and Livestock Sector. For these purposes, several working sessions were held with the different sectors; the first being on March twenty-eighth, two thousand seventeen, and the last on June eighth, two thousand seventeen. In said working sessions, observations were presented verbally, without prejudice to each interested party having the opportunity to present their observations in writing.
29. Through official letters DM-238-2017 of March 15, 2017, and DA-0084-2017 of January 23, 2017, observations are presented by MINAE and Dirección de Aguas, respectively.
30. Subsequently, written observations were received from the following public institutions:
- a)SETENA (National Environmental Technical Secretariat), on March 29, 2017.
- b)RECOPE (Costa Rican Petroleum Refinery), on March 29, 2017 c) INVU (National Learning Institute), on March 3, 2017 d) AYA (Costa Rican Institute of Aqueducts and Sewers), on April 24, 2017 e) MIVAH (Ministry of Housing), on April 25, 2017 f) ICT (Costa Rican Institute of Tourism), on May 8, 2017 31. Once the consultation stage with the different institutions and sectors was finalized, SENARA professionals adapted the Matrix into three types of activity (agricultural and livestock, urban development, and industrial), in which the recommendations that were technically pertinent were included, and the Matrix was adjusted so that it is applied according to the risk criteria for groundwater resources based on their quality and quantity.
Based on the facts and law set forth, and with merit in the recommendation issued by the Director of the Water Research and Management Directorate, through official letter No. SENARA-DIGH-0099-2017, dated August 30, 2017, the "GENERIC AQUIFER PROTECTION MATRIX" is approved. The application of the matrix approved herein shall be governed by the following:
- a)Said Matrix shall be mandatory in all cantons or zones where vulnerability maps approved or prepared by SENARA are available.
- b)In the case of cantons or zones that lack vulnerability maps, the matrix must be applied in accordance with a specific hydrogeological study prepared by the interested party and reviewed by SENARA, given that every activity must guarantee its harmlessness, in protection of the value that the quality and quantity of water resources represent for society.
- c)The Matrix approved herein does not exclude the possibility that, with the use of appropriate technology or designs, the application of measures corresponding to the effective protection of aquifers may be permitted.
- d)The matrix approved herein must be applied in accordance with the Methodological Guide prepared by SENARA.
- e)Any canton or zone has the possibility of using this generic matrix as a basis and creating a specific matrix for that territory, prepared under the direction of SENARA with the participation of the institutions with competencies in the matter and that guarantee the same or a higher level of protection of water resources, considering their social, economic and environmental characteristics.
The Matrix approved herein is as follows:
The "METHODOLOGICAL GUIDE FOR THE APPLICATION OF THE GENERIC AQUIFER PROTECTION MATRIX" is attached to the file of this session and may be consulted on the website http://senara.go.cr/