Improving surface and groundwater governance in Costa Rica requires urgent legal reform – By Gabriela Cuadrado-Quesada

Introduction

From an environmental point of view, Costa Rica is organized into 11 conservation areas, which are administered by the National System of Conservation Areas (SINAC),[1] which belongs to the Ministry of Environment and Energy (MINAE).[2] This Ministry is the lead public agency governing natural resources including surface and groundwater. From the time Costa Rica became independent from Spain in 1821 until the adoption of its Constitution in 1848, there was no legislation regarding surface and groundwater resources. Until legislation was put into place, the Roman legal tradition of recognizing surface and groundwater resources in a state of natural flow as a form of common property was followed. [3] The main problem with this approach was that a resource not subject to regulation/limits on its utilization could be exploited to the point of exhaustion.

Development of Surface and Groundwater Legal and Institutional Framework Costa Rica adopted its first Water Law on 26 May 1884.[4] This law introduced the concept of water as a public good, and its use was therefore subject to prior authorization from the state. However, this was contemplated only for surface water. [5] For groundwater, it was stipulated that the owner of the land where groundwater was found could use it unlimitedly, even when causing impacts to neighboring users. The only restriction was to leave 2 meters distance between wells in urban areas and 15 meters in rural areas.[6] In 1910, the Hydraulic Forces Act was adopted,[7] and its regulatory decree came to regulate water withdrawal concessions for hydropower generation.[8] This legal instrument removed the municipality’s authority to grant water concessions and transferred this power to the executive branch. In 1928, the National Electricity Service was established, which was basically the regulatory water use office.[9] In 1941, Law No. 258 led to the nationalisation of electricity and thus the foundation of the National Electricity Company, which replaced the previous National Electricity Service. It is interesting to note that, at the time, water resources were primarily regulated by electricity laws due to the importance of water for the generation of hydro-electricity. In addition, during 1941, the first Drinking Water Law was approved. [10] At the time, this law was very progressive, declaring any source of water (including groundwater) that was being used to supply drinking water to the population as public domain.[11] In 1942, a new Water Law was adopted, which included the aspects that were not then regulated by the existing legal framework.[12] This law was also progressive for its time, recognising, for example, the declaration of protection areas on private lands that were used as infiltration areas or springs of public water supplies.[13] It established for the first time the requirement of a concession to use groundwater.[14] This law has undergone several reforms and is still in force. In 1953 the General Drinking Water Law was adopted, replacing the first Drinking Law Water No. 16.[15] This law recognised the importance of water planning and the implementation of water projects; however, its focus was solely on drinking water. The General Drinking Water Law is also still in force. In 1961, Law No. 2726 created the Costa Rican Institute of Aqueducts and Sewage (AyA),[16] an institution responsible for overseeing all issues related to the institutional framework for the regulation of drinking water. The overarching aim of this law has been to set policies and promote the development of a supply of safe and sufficient drinking water as well as the collection and disposal of sewage. The AyA has also been involved in designing and implementing policies in order to manage, govern and protect surface and groundwater resources. Closely linked to the AyA are the communal water associations (ASADAs).[17] Currently, there are approximately 1500 ASADAs and rural water committees (CAARs)[18] that are responsible for supplying drinking water but also for governing surface and groundwater governance in their communities. These associations serve water to roughly 60 percent of rural residents, totalling nearly 30 percent of the country’s population, and represent an increase in national access to improved water sources of 28 percent from 1980 to 2012.[19] In 1973, attention focused on groundwater resources due to their increasing importance for agriculture and irrigation. Thus, Act No. 5438 established the National Groundwater Service to better regulate and control the increasing use of groundwater. This institution did not manage to improve regulation and control; therefore, it was reformed and in 1983 a new government institute, the National Service of Groundwater, Irrigation and Drainage  (SENARA),[20] was created by Law No. 6877. SENARA is an autonomous institution, subject politically to the guidelines of the Ministry of Agriculture and Livestock (MAG) (due to its initial focus on irrigation when first created). Currently, SENARA has a vital role in the development of hydrological studies on some of the main aquifers in Costa Rica, as well as in designing policies to protect groundwater resources such as the Water Matrix.[21] In fact, the Constitutional Tribunal has highlighted that its opinions and recommendations are fully binding for all government institutions.[22] However, this institution is not part of MINAE, which as explained before is the lead public agency governing water. In short, the legal and institutional framework needs an urgent review and reform. As stated by the Constitutional Tribunal, the legal and institutional framework for water resources is ‘lamentably lacking in clear, accurate and complete regulations, in particular for the protection of aquifers, recharge areas and catchment areas of groundwater resources’.[23] The Water Law, which as stated before is from 1942, deserves a special mention because even though it has undergone several reforms, is not sufficient to deal with the current surface and groundwater governance challenges in Costa Rica, and the law has thus been criticised by many as being obsolete. As Catarina de Albuquerque, the United Nations Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation, put it after her visit to Costa Rica in 2009, the Water Law ‘no longer corresponds to the social and economic situation of the country, and needs to be urgently revised and updated’.[24] C

Conclusion

It is evident that Costa Rica requires immediate action to reform and integrate its surface and groundwater legal and institutional framework in order to improve the governance of this vital resource. In the last decade, various sectors of Costa Rican society, such as academics, NGOs and scientists, have submitted several water law proposals to the Congress seeking to achieve this task. However, none of these proposals has been approved yet due to conflicting interests.

1 SINAC is its Spanish acronym.

2 MINAE is its Spanish acronym.

3 I Guzmán-Arias and J Calvo-Alvarado, ‘Planning and Development of Costa Rica Water Resources: Current Status and Perspectives’ (2013) 26 (4) Tecnología en Marcha 52–63.

4 Ley de Aguas [Water Law] Ley No. XI, 1884.

5 Ley de Aguas [Water Law] Ley No. XI, 1884, art 4.

6 Ley de Aguas [Water Law] Ley No. XI, 1884, art 14-15.

7 Ley de Fuerzas Hidraúlicas [Hydraulic Forces Act] Ley No. 14, 1910.

8 Decreto Ejecutivo [Executive Decree] No 2, 1911.

9 Servicio Nacional de Electricidad [National Service of Electricity] Ley No. 77, 1928.

10 Ley General de Agua Potable [General Drinking Water Law] Ley No. 16, 1941.

11 D D Alvarado-Rojas, Primeros 100 años del Marco Legal Costarricense sobre Recursos Hídricos 1884–1984 (Ministerio de Ambiente y Energía, Instituto Meteorológico Nacional, Departamento de Aguas (2003), 14.

12 Ley de Aguas [Water Law] Ley No 276, 1942.

13 Ley de Aguas [Water Law] Ley No 276, 1942, art 31.

14 Ley de Aguas [Water Law] Ley No 276, 1942, art 7.

15 Ley General de Agua Potable [General Drinking Water Law] Ley No. 1634, 1953.

16 AyA is its Spanish acronym.

17 ASADAs is its Spanish acronym.

18 These committees are the predecessor of the ASADAs. Before the Ordinance of the ASADAs, all these communal associations were committees. The ASADAs Ordinance forced all the committees to formally become ASADAs, although some committees still exist.

19 K B Dobbin and B Sarathy, ‘Solving Rural Water Exclusion: Challenges and Limits to Co-Management in Costa Rica’ (2015) 28 (4) Society & Natural Resources 388–404, 391.

20 SENARA is its Spanish acronym.

21 For more information about the Water Matrix see: M Arias, ‘Vulnerabilidad y Protección del Agua Subterráneas: Valor de la Matriz del Uso del Suelo de SENARA’ (2012) 228 Ambientico 9–13.

22 See for example Constitutional Resolution [Constitutional Resolution] No 2009-00262.

23 Sala Constitucional de la Corte Suprema de Justicia [Constitutional Tribunal], Resolución [Resolution] 01923-2004.

24 United Nations General Assembly, Human Rights Council, ‘Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, Report of Independent Expert on the Issue of Human Rights Obligations Related to Access to Safe Drinking Water and Sanitation on Her Mission to Costa Rica (19–27 March 2009) Catarina de Albuquerque’ A/HRC/12/24/Add.1 para 61.

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