11.-That the Regulation to the Forestry Law, Executive Decree No. 25721-MINAE establishes in its Article 3 that "The Ministry of Environment and Energy shall be the governing body of the Forestry Sector and shall carry out its functions through the National System of Conservation Areas (SINAC).", according to the amendment made to said article through Executive Decree No. 42344-MINAE, of June 10, 2020.
12.-That the National Environmental Technical Secretariat (SETENA) in its resolution No. 1462-2018-SETENA of July 17, 2018, establishes the non-mandatory nature of requesting the Environmental Viability (License) in cases of works covered by a National Emergency Decree, that are implemented by the CNE using resources from the National Emergency Fund and by Executing Units that need to execute with their own resources, works reported in the General Emergency Plan; likewise, they must comply with the technical, legal, and formal requirements established in the National Law on Emergencies.
13.-On private lands covered with forest, the AFE is empowered to grant permits to "Prevent forest fires, natural disasters, or other analogous causes or their consequences.", according to subsection d) of Article 19 of the Forestry Law No. 7575 and its amendments. It also indicates that "On lands covered with forest, it shall not be permitted to change land use (cambio del uso del suelo), nor to establish forest plantations.".
14.-According to the Forestry Law No. 7575, in its Article 34, the cutting or removal of trees in the protection areas established in Article 33 of the same Law is prohibited, except for projects declared of national convenience.
15.-In Article 1 of the same Forestry Law, it indicates: "By virtue of the public interest and except as stipulated in Article 18 of this law, the cutting or use of forests in national parks, biological reserves, mangroves, protected zones, wildlife refuges, and State-owned forest reserves is prohibited.".
16.-That Article 18 of the Forestry Law No. 7575 establishes that "On the natural heritage (patrimonio natural), the State may carry out or authorize research, training, and ecotourism activities, once approved by the Minister of Environment and Energy, who shall define, when applicable, the performance of environmental impact assessments (evaluaciones del impacto ambiental), according to what is established in the regulation of this law.". On duly registered private lands, use permits will be required on lands for agricultural use and without forest and on those covered with forest, according to what is established by Articles 20 and 27 of the Forestry Law No. 7575. According to Executive Decree No. 25700-MINAE, published in La Gaceta No. 11 of January 16, 1997, declaring a total ban on endangered trees, the timber use of the trees included in said list is prohibited. Additionally, for the almendro amarillo, ruling of the Constitutional Chamber No. 2008013426 at nine hours and thirty-three minutes on September 2, two thousand eight, establishes among other things that, "prohibits (.) initiating or continuing any procedure aimed at the use, exploitation, or extraction of the almendro amarillo (dipteryx panamensis) while this tree and the great green macaw (ara ambigua) are on the list of threatened or endangered species".
17.-That in accordance with Article 40 of the Organic Law of the Environment No. 7554, in relation to Article 1 of the Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar Convention), wetlands are ecosystems with dependence on aquatic regimes, natural or artificial, permanent or temporary, lentic or lotic, fresh, brackish, or saline, including marine extensions up to the posterior limit of marine phanerogams or coral reefs or, in their absence, up to six meters in depth at low tide.
18.-That following the spirit of Article 41 of the Organic Law of the Environment No. 7554, wetlands and their conservation are of public interest, as they are of multiple use, whether or not they are protected by the laws governing this matter. Article 45 of the same legal body prohibits any activity that affects the normal flow of water, and according to what is established in Article 98 of the Wildlife Conservation Law No. 7317 and its amendments, the draining, drying, filling, or elimination of lakes, non-artificial lagoons, and other wetlands, declared or not as such, constitutes a criminal offense.
19.-That ruling of the Constitutional Chamber of the Supreme Court of Justice No. 14288-09 declared unconstitutional and annulled the words "creation and" from the final paragraph of Article 7 of the Wildlife Conservation Law, Law No. 7317. In this sense, the Chamber reaffirmed the duty of MINAE to protect and conserve wetland ecosystems even when they have not been created by decree.
20.-That the Organic Law of the Environment No. 7554 indicates in its Article 45 that: "Activities aimed at interrupting the natural cycles of wetland ecosystems are prohibited, such as the construction of dikes that prevent the flow of marine or continental waters, drainage, drying, filling, or any other alteration that causes the deterioration and elimination of such ecosystems.".
21.-That the State has the function of exercising a special legal guardianship for protection over wetlands, by virtue of their condition as assets of public interest and in relation to both the environmental dimension of the social function of property and the right of people to a healthy and ecologically balanced environment, according to Article 2 of Executive Decree No. 42760-MINAE of March 7, 2022.
22.-According to the objective of the National Law on Emergencies and Risk Prevention No. 8488 in its Article 1, it indicates: "This Law shall regulate the ordinary actions, established in its Article 14, which the Costa Rican State must develop to reduce the causes of loss of life and the social, economic, and environmental consequences, induced by risk factors of natural and anthropic origin; as well as the extraordinary activity that the State must carry out in case of a state of emergency, for which a regime of exception (régimen de excepción) shall be applied.".
23.-Article 30 of Law No. 8488 establishes the phases for emergency response, where the response phase is "immediate operational phase upon the occurrence of the event," the rehabilitation and reconstruction phases are developed for post- immediate attention in the General Emergency Plan; and regarding the regime of exception, it indicates that: "In order for the Commission to use the regime of exception established in this Law under the emergency declaration, there must be a causal link between the event producing the emergency and the works, the goods, and services intended to be contracted, so that the ordinary prevention activities and the administrative activities of the Commission and the other State institutions cannot be carried out under this regime of exception.".
24.-From the same National Law on Emergencies and Risk Prevention, Article 32 sets out the scope of application of the regime of exception, indicating: "The regime of exception must be understood as encompassing the administrative activity and disposition of public funds and assets, provided they are strictly necessary to resolve the imperative needs of the people and protect the goods and services when, unequivocally, the required causal link exists between the event causing the state of emergency and the damages actually caused.".
25.-That according to the Office of the Attorney General of the Republic, it is established through opinions C-45-2021 and C-162-2021 that for emergency response, there is the possibility that the Administration may be exempted, exceptionally and temporarily, from its obligation to comply with certain procedures or processes designed to protect the right to a healthy and ecologically balanced environment, when this is strictly necessary to address said emergency expeditiously. It is especially established in C-45-2021 that: ". the extraordinary measures that the State can adopt during an emergency must have three essential characteristics: they must be strictly necessary for the emergency situation, furthermore, their content must be proportional, and they must have a rigorous temporary nature.". And from opinion C-162-2021, it is highlighted that ". said exceptional and extraordinary possibility is reserved for the States of Emergency declared by the Executive Branch according to its legal and constitutional powers.". Therefore, THE EXECUTIVE SECRETARY OF THE NATIONAL COUNCIL OF CONSERVATION AREAS, RESOLVES: