Category: Costa Rica

On Friday, September 10, the new Regulation for the drilling of wells and use of groundwater was published , which is already in force. Below, we share the most important aspects of the regulation.

Regulation for the authorization of a well

1. The WATER DIRECTORATE assumes the role of single window for drilling procedures and will give a hearing to SENARA and the AYA. This means that it will no longer be necessary to go to SENARA for the registration of wells, but rather that everything will be done under the procedure instructed by the WATER DIRECTORATE.
2. The regulation defines the powers of each of the institutions involved:

• The AYA is only responsible for ruling on the impact of an eventual drilling towards the water sources operated by the AYA or the ASADAS under its control.
• The WATER DIRECTORATE is responsible for resolving the drilling permit for exploratory purposes. In addition, it is responsible for analyzing and defining the interference between wells and bodies of water and issuing a recommendation to MINAE on the granting of the concession.
• SENARA, once the well has been drilled, is responsible for deciding on its final conditions (depth, diameter, casing, sanitary seals) in relation to the characterization of the aquifer.

3. It is established that, for wells in the condominium self-supply modality, drilling must be carried out within the condominium and in a common area.
4. The drilling procedure will be carried out in conjunction with the concession request, so from that moment on, the amount of water to be requested and its uses must be clear.
5. The drilling request can only be made by the owner or possessor of the land.
6. The term for granting the drilling permit is 7 business days.
7. The drilling site may be located within a maximum margin of +20 meters from the authorized point.
8. The drilling must be carried out within a month after the permit is granted, the extension of this period must be requested 10 days in advance.
9. Both the drilling report and the pumping test must be submitted within 10 days of drilling:

• If the concession is for population use or condominium self-supply, the pumping test must last 72 hours.
• For any other use, the test will be up to 24 hours. The wording implies that the period may be shorter. 

10. It is established that the protection radius of 40 meters of the wells must not go beyond the boundaries of the property. Therefore, no well may be drilled within 40 meters of the property limits.
11. Saline Intrusion: The WATER DIRECTORATE will no longer request saline intrusion studies for any well that is less than 1 km from the sea. But if, based on various technical criteria, it concludes that there is a risk of saline intrusion, it will request the concessionaire to submit quarterly water quality reports. Said duty would be notified in the resolution granting the concession.
12. After all the studies are presented and the edicts are published, the WATER DIRECTORATE has one month to resolve the authorization of the well.

Regulation for the Underground Water Concession.

1. The concession process for the use of water will begin only when the WATER DIRECTORATE considers the well enabled.
2. A concession request for a property other than the one where the drilling is located is allowed: in the event that the property where the drilling is located does not correspond to that of the exploitation, authorization from the owner of the land where the water will be collected must be provided. . This does not apply when the request is for the supply of water for human consumption by the population.
3. It is established that the Water Directorate must issue the project granting the concession for the signature of MINAE, within a period of one month after the technical recommendation is issued. However, no deadline is set for the issuance of this technical recommendation.
4. MINAE has a legal term to approve the concession of one month after receiving the draft resolution from the WATER DIRECTORATE.

Recently, Law 10031 entered into force, which modified the General Law for Comprehensive Waste Management (LGIR), expanding the recycling duties of the population in general and of companies that produce goods whose recycling is determined as a priority.

Let us remember that according to the LGIR, the application of the 3 R scheme (Reduce, Reuse and Recycle) is mandatory for the entire population, since article 43 of the Law establishes that it is the duty of every person or company:

• Reduce waste generation whenever possible.
• Separate waste from its source, classify it and deliver it to an authorized manager. In the case of domestic waste, it must be delivered to the Municipality, also separately for recovery.

Under the new reform, these duties are reinforced through the new article 24, which establishes that all potentially recoverable waste must be used for that purpose. In particular, the new text of the Law creates the classification of “priority products” and establishes that the producers of these must guarantee the collection of the waste generated from them, free of charge and without the collection depending on the purchase of another product.

According to the Law, the priority products are:

• a) Lubricating oils.
• b) Electrical and electronic devices.
• c) Batteries.
• d) Tires.
• e) batteries.

For their part, consumers of this type of product have the duty to separate priority waste from all other waste and deliver it to the places designated by the municipalities or their producers.

The practical application of this type of duties entails various challenges, but for this the Law provides for the possibility of adopting economic mechanisms such as deposit and reimbursement systems or collection schemes for waste collection services based on the generation of each person, which they can serve as economic incentives for recycling.

Finally, it should be noted that the correct management of waste is of vital importance for the conservation of ecosystems, the fight against climate change and even the implementation of a circular economy where the production costs of goods and services are reduced by use waste as raw material.

Recently, the bill for the ” addition of a paragraph to article 50 of the Political Constitution to recognize and guarantee the human right of access to water ” was presented to the Legislative Assembly, which has the signature of all the deputies and seeks to be reaffirmed. , but this time in the constitutional text, that access to water is a fundamental right and that human life depends on it.

According to the proposal of the bill, the text to be added to the Political Constitution would be:

• Second paragraph of article 50:

“ Every person has the human, basic and inalienable right of access to drinking water, as an essential good for life. Water is a good of the Nation, essential to protect such a human right. Its use, conservation and exploitation will be governed by what is established by the law that will be created for these purposes, and the supply of drinking water for consumption by people and populations will have priority .”

• New transitory provision:

“ The current laws, concessions and permits for use, granted in accordance with the law, as well as the rights derived from them, remain in force until a new law that regulates the use, exploitation and conservation of water enters into force .”

The following can be deduced from the quoted text:

1. The human right of access to water is expressly recognized and it is clarified that it is a good on which life depends.
2. Constitutional recognition is given to the public domain of water, whose purpose is the protection of the right to life.
3. When exploiting the water resource, priority will be given to domestic/population use.
4. Until new regulations are issued, the current laws, regulations, concessions and other permits remain in force.

These aspects that are intended to be added to the Constitution are already part of the current legal system and from a practical point of view they would not change the current regulation, as we explain below:

Regarding the first point, the constitutional recognition of the human right to water and sanitation; In the explanatory memorandum of the project itself, the Resolution of the United Nations General Assembly number A-64-L.63-Rev is indicated, which had the favorable vote of Costa Rica, where it is recognized that “…the right to drinking water and sanitation as a human right essential for the full enjoyment of life and all human rights ”.

As we can see, there is already a global consensus on its character as a human right, which must also be considered included in our constitution in accordance with the jurisprudence of the Constitutional Chamber:

“ The Chamber recognizes, as part of the Law of the Constitution, a fundamental right to drinking water, derived from the fundamental rights to health, life, a healthy environment, food and decent housing, among others, such as international instruments on human rights applicable in Costa Rica have also been recognized ” [1]

Regarding the second point, tending to the recognition of water as an asset of the Nation, article 50 of the Organic Law of the Environment establishes that water is in the public domain and that its conservation and sustainable use are of social interest.

Regarding the priority use of water for consumption by people and populations, said scheme of preferential use of water has existed in the country since 1942, since the Water Law establishes in its article 27 the following:

“Article 27.- In the concession of special uses of public waters, the following order of preference will be observed :

I.- Pipes for populations whose control is in charge of the Secretary of Public Health;

II.- Supply of populations, domestic services, drinking troughs, dairies and bathrooms ;

III.- Supply of railways and means of transport;

IV.- Development of hydraulic or hydroelectric forces for public services;

V.- Coffee mills, sugar mills, mills and other factories;

VI.- Irrigation;

VII.- Development of hydraulic or hydroelectric forces for private services;

VIII.- Navigation channels; Y

IX.- Ponds for nurseries.

Within each class, the most important and useful companies will be preferred; and in equal circumstances, those who previously had requested the use, without responsibility of any kind in charge of the Ministry of Environment and Energy.”

Therefore, the proposed Reform would give constitutional status to such order of priority in the use of water, which would prevent a reform of the Water Law from modifying it, but would not change the current regulatory framework.

The fourth and last aspect refers to the transitory provision that clarifies that until there is a legal reform, the regulations, permits and concessions in force remain the same. Additionally, in the statement of reasons, the proposing deputies explain:

“ Additionally, it is proposed to introduce a new Transitory article in order to clarify that the approval of this reform does not repeal the current laws on water concessions, nor the concessions or use permits duly granted according to law. 

Said concessions and permits will remain valid as long as they have been legally granted and their holders comply with the requirements and obligations established in national legislation. The current rules that regulate water permits and concessions will remain in force until the Legislative Assembly enacts a law that regulates the use, exploitation and conservation of water .”

Thus, it is clear that the present reform tries rather to reaffirm the importance of water resources and to ratify the commitment that the entire country must have in caring for water.

Despite the foregoing, establishing in the constitutional text schemes of preference in the use of water, although this is not new, may give rise to a greater number of conflicts related to the allocation of water concessions, going to be presented before the Constitutional Room. In our opinion, this is not a positive scenario, since the Constitutional Chamber is a centralized entity, located in San José and with a limited number of officials, mostly lawyers, but even so, it would be called upon to hear conflicts from very diverse locations in the country, with the aggravating circumstance that their sentences would contain binding criteria for the other public institutions.

Water resource management is obviously a very technical matter. Additionally, from an integrated management perspective, the best way to regulate the management of water resources is at the basin level, that is, decisions are made with reference to the basin in particular.

This does not mean that the Chamber is going to be directly involved in the granting of concessions. Being an issue developed by infra-constitutional norms, the Constitutional Chamber should avoid hearing controversies of this nature, based on the fact that it is a conflict of legality; however, as a scheme of priority uses of water is recognized at the constitutional level, we find it very likely that the Chamber will be increasingly inclined to hear this type of controversy. This situation, which we reiterate, would not be ideal, as it is such a centralized and non-technical entity, whose criteria are mandatory for all other State officials.

[1] Constitutional Chamber. Vote No. 200412263, of October 29, 2004.

Law number 9786 to Combat Plastic Pollution and Protect the Environment was recently published in the newspaper La Gaceta, which will come into force 6 months after its publication and whose regulations seek a drastic reduction in the consumption of single-use plastic items in the country and its subsequent recycling, in accordance with the principles of a circular economy.

A circular economy is one where the waste from our consumer products is used as inputs for the production of other goods and services. To achieve this goal, it is necessary to follow the 3R Scheme : 1) Reduce the amount of waste that is produced, 2) Reuse all the materials that we can and 3) Recycle that waste whose generation was unavoidable

For this reason, the new Law, which is a necessary tool to deal with the prolonged pollution generated by plastic, contains provisions for the reduction, reuse and recycling of plastic-based products:

Reduction of plastic waste generation :

• Prohibition of Plastic Straws : 12 months after the regulation of this law has been issued, the sale or free delivery of single-use plastic straws throughout the national territory will be prohibited. However, the straws that are included in the product packaging may continue to be marketed for the next 3 years.

Additionally, it is recognized that the Ministry of Health may establish exceptions under technical criteria.

• Prohibition of Plastic Bags : the sale or free delivery of plastic bags in commercial premises is prohibited. This ban will come into effect 12 months after the issuance of the regulation.

Plastic bags made to be reused and have a low environmental impact certification issued by the Costa Rican Accreditation Entity are exempt from this prohibition, provided they meet the following characteristics:

Size	environmental characteristics
Small : 45 cm. wide x 60 cm long and a minimum thickness of 0.75 thousandths of an inch.	Made with at least 50% reprocessed material.
Medium : 52 cm. wide x 68 cm long and a minimum thickness of 0.88 thousandths of an inch.	Made with at least 50% reprocessed material.
Biodegradable bags of any size.

• Ecological purchases by the State : from now on it is prohibited for public institutions and companies, including municipalities, to purchase single-use plastic items, including plates, glasses, forks, knives, spoons , disposable straws and stirrers and others used mainly for food consumption.

Said institutions will be able to acquire reusable, recyclable products or with some additive that reduces the consumption of materials of fossil origin. Likewise, there is the possibility that future exceptions may be declared when so defined by the Ministry of Health based on technical criteria or when a state of emergency is declared.

• Duty to encourage reuse: Establishes the duty of commercial establishments to encourage their customers to transport the items purchased in their own packaging, cloth bags, boxes and other reusable containers.

 

Reuse of waste :

The prohibitions on the sale or free delivery of plastic products only apply to single-use plastic products, while companies are urged to carry out recovery and reuse programs for the plastic products they sell.

Recycling:

Public institutions and companies are authorized to purchase single-use plastic products, provided that they are recyclable or have been previously recycled.

The obligation is imposed on everyone who sells plastic bottles or products contained in them, that after 12 months after the publication of the regulations of this law, they comply with at least one of the following measures that are detailed below:

• That the commercialized plastic bottle is produced with recycled resin at a percentage that must be defined by regulation.
• Establish a program for the recovery, reuse, recycling, energy use or other means of recovery of the waste derived from the products they market. The implementation parameters of these programs will be defined in future regulations.
• Participate in a program for comprehensive waste management that may be organized by sector or by the waste generated.
• In the case of producers, make products or use containers or packaging that, due to their design, manufacturing or use characteristics, minimize the generation of waste and facilitate its recovery, or allow its disposal in the least harmful way for health and the environment. environment.
• Establish strategic alliances with at least one municipality to improve comprehensive waste collection and management systems.

Plastic bottles that contain inputs necessary for agricultural production are exempt from these obligations.

• All businesses that sell single-use plastic products must have separate containers or receivers to deposit reusable and non-reusable plastic waste, in order to later treat them correctly.

Undoubtedly, the new Law to Combat Plastic Pollution and Protect the Environment, proposes adjustments in the behavior of all the country’s inhabitants, both consumers and commercial establishments. Which is a reminder that this century promises changes in the way we have been living, and although some of these modifications may be expensive, they are necessary to maintain life as we know it on our planet.