During the first five years of the publication of this regulation and in accordance with the investment purposes set forth in Article 9, investment priority shall be given to the generation of technical and scientific information that allows for knowing the state of the quality of the country's water bodies, in order to have information that allows for decision-making on the investment of the funds in the future in areas where it is defined that water bodies are being affected by contamination. In these years, a 15% of the resources shall be invested in the monitoring of water bodies and of emitting sources, including the identification of effluent-generating sources, the taking of samples of the discharges (vertidos), laboratory analysis, technical studies on the quality of the water in water bodies, and other aspects related to the measurement, estimation, and control of discharges. For this purpose and during this cited term, only 5% shall be invested in financing the administrative expenses of the levy.
That regarding Article 33, it is important to clarify that the investment to which it refers is regarding the percentage established in subsection c) of Article 9 of the cited Decree. Furthermore, for the established five-year term, 5% of the amount established in subsection d) shall be used to meet the objective of knowing the state of the quality of the country's water bodies.
FIFTH: That the National Public Investment System (SNIP) comprises a set of rules, principles, methods, instruments, and procedures whose objective is the organization of the process of planning, budgeting, execution, and monitoring of public investment, with the purpose that public resources be used in a rational and efficient manner, these actions being concretized in quality projects that are the most cost-effective for the fulfillment of state objectives.
SIXTH: That public entities require fostering and promoting an institutional culture in public investments that leads to having the best projects that respond to the needs and priorities of the Costa Rican population.
That the state has the Preinvestment Fund (Fondo de Preinversión), as a financial instrument attached to the Ministry of National Planning and Economic Policy, with the purpose of facilitating resources to institutions of the public and private sectors for the elaboration of project studies called preinvestment studies.
SEVENTH: That as established in the National Policy for Wastewater Sanitation 2016-2045, the low coverage of sanitary sewer and systems for wastewater treatment is due to low investment in wastewater sanitation infrastructure, this problem being the cause of contamination of water sources, loss of national productivity and competitiveness, and low international environmental ratings.
EIGHTH: That one of the objectives of the National Policy for Wastewater Sanitation 2016-2045 is to improve coverage in sewers and treatment of wastewater through the planning, prioritization, and execution of safe physical infrastructure with universal design.
THE MINISTER OF ENVIRONMENT AND ENERGY
FIRST: Purpose of the resolution. This resolution shall be applicable for the investment of the funds originating from the Environmental Discharge Levy in accordance with the provisions of Article 9 of Executive Decree No. 42128-MINAE-S Regulation of the Environmental Discharge Levy.
SECOND: REGARDING INVESTMENT OF THE FUNDS FROM THE ENVIRONMENTAL DISCHARGE LEVY According to the percentages established in Articles 9 and 33 of the Executive Decree No. 42128-MINAE-S, the funds from the Environmental Discharge Levy shall be invested annually during the first 5 years of the execution of this regulation, in the following manner:
I.The 60% according to subsection a) of Executive Decree-42128-MINAE-S, to support the financing of investments in sanitary sewer and domestic wastewater treatment projects, shall be transferred by MINAE to the entities providing the public water supply and sanitation service, public or private, authorized by Law or by Delegation Agreement, for the execution of the selected projects according to the public call for proposals (concurso público) procedure indicated in the following articles. The Water Directorate must budget the funds and execute the transfer as appropriate.
II.The 15%, indicated in subsection b) of Article 9 of DE-42128-MINAE-S, to finance projects for cleaner production that allow for more efficient use of water and the reduction of polluting discharge, shall be invested by the Environmental Quality Management Directorate (DIGECA) of the Ministry of Environment and Energy (MINAE), in voluntary agreements for cleaner production, technical assistance, the development of manuals for CP (P+L) and research, to reduce the contaminant loads discharged, in coordination with the Water Directorate. For this purpose, the funds shall be budgeted by the Water Directorate.
III.According to the provisions of subsection d) of Article 9 and in compliance with Article 33, during the first 5 years of the decree's validity, only the 5% indicated to finance the administrative expenses of the levy shall be invested, a percentage that shall be invested by the Water Directorate of MINAE in the tasks inherent to its management.
IV.According to the provisions of subsection c) of Article 9 and in compliance with Article 33 of Executive Decree-42128-MINAE-S, during the first 5 years of the decree's validity, 15% of the collected funds shall be invested by the Water Directorate in the financing of the monitoring of water bodies and of emitting sources (fuentes emisoras), including the identification of effluent-generating sources, the taking of samples of the discharges (vertidos), laboratory analysis, technical studies on the quality of water in water bodies, and other aspects related to the measurement, estimation, and control of discharges, all of this, through the competent entities of MINAE and the Ministry of Health, in a coordinated manner and in the execution of the National Plan for Monitoring the Quality of Surface Water Bodies.
V.The 5% indicated in subsection d) of Executive Decree-42128-MINAE-S, for environmental education activities, focused on water savings and prevention of its contamination; good practices for water use and management that generate an improvement in its quality; appropriate ways for its treatment and disposal of treated wastewater, prevention of the contamination of water bodies and the water resource in general, directed at the population and other water users, shall be executed by the Water Directorate in association with organizations dedicated to this type of activity, upon the prior signing of a cooperation agreement.
THIRD: PROCEDURE FOR THE INVESTMENT OF 60% OF THE FUNDS ALLOCATED TO SUPPORT THE FINANCING OF INVESTMENTS IN SANITARY SEWER AND DOMESTIC WASTEWATER TREATMENT PROJECTS PUBLIC CALL TO SUBMIT SANITARY SEWER AND DOMESTIC WASTEWATER TREATMENT PROJECTS.
The Water Directorate of MINAE shall issue a public call (convocatoria pública) so that interested parties may submit proposals for sanitary sewer and domestic wastewater treatment projects, to apply for non-reimbursable funds originating from the Environmental Discharge Levy.
The publication of the call shall be made in the first week of the month of July of each year, on the website of the Water Directorate (www.da.go.cr) and in a newspaper of national circulation.
The period for receiving project proposals shall close on the last business day of the month of August.
In the web publication, the Methodological Guide for the Submission of Projects and the Project Evaluation and Qualification Tool shall be included, which will be published on the electronic portal of the Water Directorate along with the call.
FOURTH: PRIOR CONDITIONS THAT SANITARY SEWER AND DOMESTIC WASTEWATER TREATMENT PROJECTS MUST MEET.
The investment of 60% of the funds from the environmental discharge levy dedicated to sanitary sewer and domestic wastewater treatment projects must be aligned with the Public Investments Subsystem, with the purpose of achieving optimal use of the state resources destined for public investment for the fulfillment of national objectives, in accordance with criteria of economy, effectiveness, gradualism, and quality of the investment projects, as well as with the National Policy for Wastewater Sanitation, which points out the opportunities for improvement that the country has in matters of sanitation infrastructure and complement the environmental priorities defined by the Directive Council (Consejo Directivo) formed within the framework of Executive Decree 42128-MINAE-S Regulation of the Environmental Discharge Levy.
Due to this, the financing of the execution phase of the projects shall be supported with these funds, where the final designs can be included, considering that the positive impact on the improvement of the quality of the water bodies will be reflected in the short and medium term.
Conditions for the Submission of Projects:
- a)Be a wastewater sanitation infrastructure project, considering:
. Public conveyance of wastewater to a treatment plant.
. Construction of wastewater treatment plants.
. Improvements to the infrastructure of existing conveyance and treatment systems and their operating processes.
- b)Be executed by an entity providing the public water supply and sanitation service, public or private, authorized by Law or by Delegation Agreement.
- c)Have passed the Preinvestment (Preinversión) Phase. It must have the studies required for the type of project, as established by Annex I: Classification of projects according to the type variable, of the Technical Standards, Guidelines and Procedures for Public Investment issued by the Ministry of National Planning and Economic Policy (MIDEPLAN).
- d)Have a complementary source of financing.
FIFTH: DOCUMENTS TO BE SUBMITTED.
The following original documents, duly signed by the head of the entity responsible for the project, must be submitted to the central offices of the Water Directorate:
- a)Official letter of submission of the project signed by the legal representative: In this letter, the project must be officially submitted to participate in the competition, in addition to indicating the contact details of the Project Director and indicating an email address for notifications.
- b)Project document: printed and digital, containing the Preinvestment studies and evaluations of the project, according to the Methodological Guide for Identification, Formulation, and Evaluation of Aqueduct and Sanitary Sewer Projects, issued by the Ministry of National Planning and Economic Policy (MIDEPLAN), in force. The project document must have the studies required for the type of project, as established by Annex I: Classification of projects according to the type variable, of the Technical Standards, Guidelines and Procedures for Public Investment issued by the Ministry of National Planning and Economic Policy (MIDEPLAN).
- c)Certification of Legal Status (Personería Jurídica) of the entity responsible for the project, issued less than 1 month ago.
- d)Financing Document: A document signed by the legal representative must be submitted specifying the breakdown of funds for the project (total cost, CAV funds, and counterpart funds), and must also include proof of the content of the complementary financing source (counterpart).
- e)In the case of a private entity, the qualification of suitability (idoneidad) must be requested in compliance with Decree 37485-H, so in addition to the above, the submission of the following documentation is required:
1. Application for qualification of suitability (idoneidad): Letter addressed to the granting administration of the resources, signed by the legal representative of the private entity, in which the initiation of the qualification process for suitability is requested, where the following must be indicated:
. Domicile of the private entity.
. Telephone number, place for hearing notifications preferably an email address.
. A list detailing the documents attached to the suitability application.
2. Legal capacity:
. Certification that the private entity is active, regularly carrying out projects and activities conducive to the purpose for which it was created. In the case of ASADAS, the certification must be issued by the Sub-Management of Community Aqueducts of AyA, and with a validity of no more than three months.
. Certified copy of the Delegation Agreement by AyA in case of being an ASADA.
3. Administrative capacity:
. Administrative structure of the private entity, for which they shall provide a certified copy of the administrative organizational chart.
. Regulations, manuals, or guidelines for the administration and management of resources destined for the development of programs, projects, and execution of works, for which they shall provide a certified copy of the mentioned documents.
. Updated accounting and minute books of the main bodies (Assembly and Board of Directors), duly legalized when applicable, for which they shall provide a certified copy of the mentioned documents.
. Special study performed by an Authorized Public Accountant on the internal accounting, financial, and administrative control of the respective private entity, in the event that the private entity had income of public origin in the previous calendar year.
. Specific bank account where the resources will be deposited, which must be in a State Bank (banking certification).
4. Financial capacity:
. Financial statements of the last accounting period (Balance Sheet, Income Statement), signed by the accountant who prepared them and by the legal representative of the entity.
. Original of the Audit Opinion on the Financial Statements and of the audited financial statements (Balance Sheet, Income Statement, Statement of Changes in Equity, and Statement of Cash Flows, and notes to the financial statements), corresponding to the last annual accounting period.
. Original or copy certified by a notary public of the Management Letter issued by the Authorized Public Accountant who performed the audit referred to in the previous point, accompanied by a note signed by the legal representative of the private entity indicating the actions taken by the administration to correct the internal control weaknesses that were identified.
. Approval of the budget, in the case of a private entity that requires it from the Comptroller General of the Republic (Contraloría General de la República).
5. Technical aptitude to administer and execute the resources:
. Detailed description, made by the private entity, of the programs, projects, or works that are intended to be financed totally or partially with the funds originating from the granting entity, the estimated amount of each one, and its source of financing, with express indication of the impact.
. That the proposed project or program does not have the objective of directly benefiting private interests, for which the applicant must provide an affidavit (declaración jurada) from the legal representative of the requesting entity.
. That the proposed project or program contains clear and precise objectives, goals, and indicators that allow for evaluating the execution of the resources and the fulfillment of the public purposes pursued with the investment.
. The experience that the private entity possesses in the development of projects of a similar nature to the one proposed, for which it must provide an affidavit (declaración jurada) from the legal representative of the applicant indicating such. In the case of ASADAS, this must be issued by the Sub-Management of Community Aqueducts.
SIXTH: PROCESS OF EVALUATION AND QUALIFICATION OF THE PROJECTS.
- a)Preliminary Review Once the deadline for receiving project proposals indicated in Article 3 of this resolution has concluded, the project documents received on time shall be reviewed by the Water Directorate, in order to verify that all the requested requirements have been submitted.
In the event that incomplete projects have been submitted, any requirement is missing, or they are not submitted according to the indicated format, the project's executing entity shall be granted, on a single occasion, a period to rectify (subsanación) the defects indicated within a maximum period of 10 days counted from the next business day after notification. The proposals that remain incomplete after this process shall be automatically excluded from the competition. Such situation must be duly communicated.
After the review process, the project proposals that met the requested requirements shall be referred by the Water Directorate for Project Evaluation to the Evaluation Committee (Comité Evaluador) and for the Suitability Evaluation (Evaluación de Idoneidad) in the event that the participant is a private entity, applying in those cases what is indicated by the Ministry of Finance.
- b)Project Evaluation To perform the evaluation of the project, an Evaluation Committee (Comité Evaluador) shall be appointed.
The Evaluation Committee shall be composed of 3 officials distributed in the following manner, appointed by their respective Head:
- An official from the Water Directorate.
- An official from the Ministry of Health.
- An official from MIDEPLAN.
The functions of the Evaluation Committee shall be the following:
- Analyze and qualify, within a maximum period of one month, counted from the day following the referral of the preliminary analysis, the submitted projects, using the Project Evaluation and Qualification Tool.
- Refer the results of the evaluation to the Water Director, by means of an official letter duly signed by all members.
- c)Suitability Evaluation.
In the event that the approved project is developed by a private entity; as provided by the Ministry of Finance, the Suitability Evaluation (Evaluación de Idoneidad) must be carried out by the Water Directorate, for which it shall designate an official from Legal Advisory and an official from the Financial Administrative Department, who shall be responsible for carrying out the analysis and recommendation of the application for qualification of suitability (idoneidad), according to the provisions of Executive Decree No. 37485-H "Regulation for Transfers from the Central Administration to Beneficiary Entities." They must refer to the Water Director a report on the assessment performed and the result of the qualification of suitability, duly signed, within a maximum period of 1 month from the receipt of the information. Subsequently, the Director of the Water Directorate shall refer this assessment to the Minister for the purpose of issuing the declaration of suitability (declaratoria de idoneidad), whose validity shall be three years.
SEVENTH: PROJECT SELECTION PROCESS.
- a)Once the result of the evaluation and qualification of the projects carried out by the Evaluation Committee and the qualification of suitability where appropriate have been received, the Water Director shall have a period of 10 business days to review these results, and to convene the Directive Council (Consejo Directivo) so that the evaluated projects are made known, as well as the details of the investment of the percentages indicated in subsections b, c, d, and e of Article 9 of Executive Decree DE-42128-MINAE-S.
- b)The Directive Council shall meet within a maximum period of 10 days from the call made by the Water Director, and at this meeting shall issue an agreement on the recommendations that are appropriate.
- c)Once the previous stage is concluded, the Water Directorate shall refer the proposal of projects to be financed, for approval by the Minister of Environment and Energy.
- d)The resolution of approval by the Minister of Environment and Energy shall be referred to the Water Directorate to notify the interested parties.
EIGHTH: AGREEMENT FOR THE ALLOCATION OF FUNDS.
After the projects have been selected, the Water Directorate shall proceed to prepare the corresponding agreement with the entity or entities responsible for the selected projects.
The signing of the agreement shall be carried out between the senior hierarchical superior of the entity responsible for the project and the Minister of MINAE.
Once the Agreement is signed, the entity responsible for the project must register it in the Public Investment Project Bank (Banco de Proyectos de Inversión Pública, BPIP) at MIDEPLAN.
With the agreement and the registration of the project in the BPIP, the Water Directorate shall include the funds in the following year's budget to transfer to the project's executing entity.
NINTH: TRANSFER OF FUNDS.
The amount that the Water Directorate must transfer to the project's executing entity shall be done in accordance with the approved project, and shall be conditioned upon:
. Availability of funds from the discharge levy.
. The approval of the National Budget by the Legislative Assembly.
. The co-financing provided by the project's executing entity.
. Current qualification of suitability (idoneidad), according to Executive Decree No. 37485-H.
TENTH: OVERSIGHT AND MONITORING OF THE EXECUTION OF THE PROJECT AND THE FUNDS.
To carry out the oversight and monitoring of the transferred funds, the Water Directorate provides that, during the term of the contract, the entity responsible for the project must comply by providing:
- a)Reports on the execution of environmental discharge canon funds assigned to the project:
. The first report must be sent to the Water Directorate (Dirección de Agua) on January 31 of the year following the year in which the transfer was made.
. The second report must be submitted at project close-out.
These reports must contain:
i. Physical progress in project execution (compliance with the project execution schedule). In the case of ASADAS, this must come with the approval (visto bueno) of AyA. ii. Budget execution of CAV funds.
iii. Expenditure Flow (Flujo de Gastos).
iv. Financial Statements (Balances Financieros).
v. Certification that the transferred resources were used exclusively for the intended purposes.
- b)The entity responsible for the project must carry out semi-annual updates on project progress in the computer system of the Public Investment Projects (Proyectos de Inversión Pública) Bank (BPIP) of MIDEPLAN.
If deemed necessary, the Water Directorate may conduct inspections at project sites to verify their progress and request any other information associated with the execution of the funds.
ELEVENTH: OBLIGATION TO REPORT MODIFICATIONS TO APPROVED PROJECTS.
- a)Information update: the organization that owns the project must inform the Water Directorate of any change in the project’s contact information.
- b)Any modification to the scope, budget execution, or compliance with the project schedule must be reported to the Water Directorate via official communication (oficio) issued by the hierarchical superior of the entity responsible for the project, with the appropriate justification, guaranteeing that the final objective of the project will be achieved and that the transferred CAV funds will be correctly executed.
TWELFTH: NON-COMPLIANCE AND PENALTIES.
In the event of any non-compliance with the conditions established in the Agreement, due process will be initiated based on article 308 and subsequent and concordant articles of the General Public Administration Law (Ley General de la Administración Pública) in order to verify the material truth of the facts, and may even result in the obligation to return the transferred funds.
THIRTEENTH: EXCEPTION CONDITIONS.
. In the event that the budget line item (partida presupuestaria) to execute these funds is not approved by the Legislative Assembly, the selected projects will be entered into a database to be placed on a waiting list for the purpose of including them in the following year’s budget, after consultation with the interested party.
. For the public competition (concurso público) process of the year 2020, due to the COVID 19 pandemic situation, and in accordance with the Third Resolution (Por Tanto Tercero) of this resolution, the publication of the call for proposals will be made in the first week of September of this year, on the website of the Water Directorate (www.da.go.cr) and in a nationally circulated newspaper. The project proposal submission period will close on the last business day of October.
FOURTEENTH: Publish in the Official Gazette (Diario Oficial La Gaceta).