Sobre los alcances del análisis que realiza esta Sala.- Aunque el\\r\\nrecurso de amparo no es la vía procesal idónea para examinar si un proyecto\\r\\ndesarrollador de vivienda ha cumplido con todos los requisitos legales\\r\\nexigidos, ni para determinar cuáles requisitos dependen de otros, así como\\r\\ntampoco para resolver disputas de orden técnico-científico suscitadas con\\r\\nocasión de la solicitud de exoneración de construcción de alcantarillado, lo\\r\\nque esta Sala sí está llamada a determinar es si los permisos otorgados por las\\r\\nautoridades recurridas, para la puesta en operación del Proyecto Urbanizador\\r\\nSan Martín II en Siquirres\\r\\nde Limón, han puesto en riesgo los acuíferos de la zona y con ello si se ha\\r\\nproducido un quebranto a los derechos a la vida, a la salud y un ambiente sano\\r\\ny ecológicamente equilibrado. Concretamente se analizará si en el ejercicio de\\r\\nsus competencias, los recurridos han actuado en respeto de estos derechos\\r\\nfundamentales, tanto las actuaciones de los desarrolladores del Proyecto como\\r\\nlas autoridades públicas, a efectos de verificar si antes de otorgarse los\\r\\npermisos respectivos (visado del INVU a los planos\\r\\nurbanísticos, visado sanitario del Ministerio de Salud de los planos, permiso\\r\\nde construcción de
Sobre cómo las actuaciones de los recurridos quebrantan los derechos a la\\r\\nvida, a la salud y a un ambiente sano y ecológicamente equilibrado.- Esta\\r\\nSala observa en los informes rendidos una serie de contradicciones que han hecho\\r\\ncomplejo el análisis de este expediente. Básicamente todos los recurridos se\\r\\nexcusan de sus actuaciones achacándole la responsabilidad a las demás\\r\\ninstituciones. El INVU dice que otorgó el visado de\\r\\nplanos el 28 de febrero del 2003 con fundamento en la aprobación que diera el
En este asunto esta Sala denota una serie de irregularidades y\\r\\ncontradicciones que finalmente ocasionan una vulneración a los derechos\\r\\nfundamentales de los amparados. Se logra comprobar que los recurrentes llevan\\r\\nrazón y el INVU procedió a otorgar permisos y visado\\r\\nde planos el 28 de febrero del
En mérito de las anteriores consideraciones, y aplicando el principio\\r\\nprecautorio ambiental, se impone declarar con lugar el recurso de amparo\\r\\ninterpuesto con las consecuencias de ley, y a) ANULAR todos los permisos\\r\\notorgados al desarrollador del Proyecto San Martín II\\r\\nparticularmente el otorgado por el INVU el 28 de\\r\\nfebrero del 2003, el otorgado por el Ministerio de Salud el 24 de febrero del\\r\\n2003 y todos los otorgados por
*040108200007CO*
Exp: 04-010820-0007-CO
Res. Nº 2006-002973
SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA. San José, a las quince horas y treinta y seis minutos del siete de marzo del dos mil seis.
Recurso de amparo interpuesto por Nombre01, Nombre02., cédula CED01, Nombre03, cédula CED02, Nombre04, cédula CED03, ilegible, cédula CED04, Nombre05, cédula CED05, T. JIMENEZ J. ENRIQUE, cédula CED06, TORRES C. BLANCA, cédula CED07, Nombre06, cédula CED08, Nombre07, cédula CED09, Nombre08, cédula CED10 y Nombre09, cédula CED11, contra el INSTITUTO NACIONAL DE VIVIENDA Y URBANISMO (INVU).
Resultando:
1.- Por escrito recibido en la Secretaría de la Sala a las 10 horas 37 minutos del 26 de octubre del 2004, los recurrentes interponen recurso de amparo contra el INSTITUTO NACIONAL DE VIVIENDA Y URBANISMO (INVU) y manifiestan que: a) Debe anularse el permiso otorgado por el Instituto Nacional de Vivienda y Urbanismo, a la empresa Nombre10 S.A., para la construcción de la urbanización San Martín de Siquirres, pues ese permiso se otorgó, sin tomar en cuenta la resolución de la Junta Directiva de Acueductos y Alcantarillados; b) En el artículo 6, inciso c) del acuerdo 2003-044, consta que según estudios del Instituto Costarricense de Acueductos y Alcantarillados, la utilización de tanques sépticos en dicha urbanización, constituye un peligro inminente de contaminación de los acuíferos de la zona. Por ello, dicho instituto exigió que se construyera una red recolectora de aguas servidas y que estas fueran debidamente tratadas en el ámbito primario y secundario, a fin de acondicionarlas y que después puedan ser vertidas, sin
riesgo de contaminación; c) A pesar de lo anterior, el INVU otorgó el permiso referido, permitiendo que se utilizara en la Urbanización San Martín, tanques sépticos y drenajes individuales, que es precisamente lo que la resolución de Acueductos y Alcantarillados prohibió. Ya se han construido diecisiete casas con tanque séptico en la urbanización mencionada. Solicitan que se declare con lugar el recurso, por violación a su derecho a un ambiente sano y ecológicamente equilibrado.
d) That on October 7, 2002, through official communication OP-AS-02-174, the ICAA's Department of Subterranean Waters recommended denying the request, given that a septic tank system with leachate drainage represents a high risk of contamination to the aquifers of the area (report at folio 145, folios 152-157).
d) That through recommendation nº2002-0002 at 09:00 hours on November 26, 2002, the ICAA's Sanitary Sewerage Exoneration Commission recommended to the General Management that the exoneration from sanitary sewerage networks be denied to the San Martín residential development project because this represents a high risk of contamination to the aquifers of the area (folio 08, report at folio 145).
e) That the ICAA's Legal Directorate recommends denying the request filed by the applicant, by virtue of the technical study rendered by the Department of Subterranean Waters (report at folio 146).
f) That almost TEN MONTHS after the request was filed, on February 3, 2003, the ICAA's Board of Directors adopts agreement 2003-044 DENYING the request for exoneration from the construction of sanitary sewerage networks, notified on February 24, 2003, to the interested party and notified MORE THAN A YEAR AND A HALF after being adopted, on August 18, 2004, to the Municipality of Siquirres and on September 2, 2004, to INVU (report at folio 147, folio 206-208).
h) That on February 21, 2003, through official communication PU-C-AT-865-2002, the Ministry of Health granted sanitary approval (visado sanitario) to the plans, for which the developer provided a percolation study and a hydrogeological study, the latter concluding that “the use of septic tanks and drainage for the treatment of domestic wastewater in the San Martín II Residential Development Project is viable, since the risk of contaminating the groundwater is practically nil” (report at folio 108, folio 021, 112, and 137).
i) That on February 28, 2003, the Department of Urbanism of INVU approves the project, endorsing the urban development plans (planos urbanísticos) of the San Martín II project (folio 013, 021, and 075), arguing that the ICAA had approved the sewerage exoneration on January 16, 2003 (folio 019).
i) That on March 3, 2003, the Municipality of Siquirres grants a construction permit for the San Martín II Residential Development (folio 021).
j) That MORE THAN A YEAR after being notified, on August 19, 2004, Messrs. Jorge Víquez Mora and Ana Lucía Astorga Castillo, legal representatives of the companies called Construcciones Astorga s.a. and Proquifa s.a., developer and owner of the San Martín II residential development project in Siquirres de Limón, filed a motion for reconsideration (recurso de reconsideración) against the previous agreement 2003-044, which is rejected as untimely (folios 010-011).
k) That on September 17, 2004, through official communication PU-C-D-1231-2004, the Deputy Director of Urbanism of INVU, Aura Yee Orozco, informs the Municipal Mayor of the Municipality of Siquirres that the San Martín II project is approved by the ICAA on January 16, 2003, that INVU approves it on February 19, 2003, that the Ministry of Health approves it on February 24, 2003, and that it was subsequently endorsed by the Endorsement and Cadastre Unit (Unidad de Visado y Catastro) of INVU (folio 14, 060, and 143).
l) That on September 2, 2004, through official communication nºDE-139-04, the Mayor of the Municipality of Siquirres informs the Executive President of INVU of the indefinite suspension of the construction permits for the San Martín II Residential Development project by virtue of a memorandum from the ICAA informing of the denial of the request for exoneration from the construction of sewerage networks (folio 197).
III.- Facts not proven. The following facts of relevance to this resolution are not deemed demonstrated:
a) That there is absolute scientific and technical certainty that the operation of the San Martín II Development Project in Siquirres de Limón with a septic tank system with leachate drainage, without the construction of the sanitary sewerage network, does not contaminate, degrade, or affect the aquifer (manto acuífero) of the area.
b) That the ICAA approved the San Martín II Development Project on January 16, 2003, as appears on folio 213.
c) That INVU approved the San Martín II Development Project as of November 27, 2002, as stated by the representatives of the companies Construcciones Astorga s.a. and Nombre10 s.a. in their response at folio 230.
d) That the San Martín II Development Project had Environmental Viability (Viabilidad Ambiental) on January 6, 2003, as stated in the response at folio 230, and that SENARA and Nombre11 had provided due follow-up to the San Martín II Development Project in Siquirres de Limón regarding the protection of the area's aquifers.
e) That INVU, the Ministry of Health, and the Municipality of Siquirres proceeded to verify, before granting the respective endorsements and permits, that the San Martín II Development Project in Siquirres de Limón had the ICAA's approval for exoneration from the construction of the sanitary sewerage network.
f) That the representatives of the companies Construcciones Astorga s.a. and Nombre10 complied with what was established by the AyA Board of Directors through agreement 2003-044, where the project developer was instructed to implement a sanitary sewerage system to collect domestic wastewater and transport it to a system with primary and secondary treatment units for the purpose of conditioning it to be discharged at a quality that falls below the permissible limits established in the Reglamento de Reuso y Vertidos de las Aguas Residuales.
IV.- On the State's duty to protect the environment.- The right to a healthy and balanced environment obliges the State to ensure adequate environmental protection; consequently, to take the necessary measures to prevent alterations produced by human activity from constituting harm to the environment. Thus, in the event that there is a risk of serious or irreversible damage—or doubt regarding such—the guiding principles of Environmental Law require that precautionary measures deemed appropriate be adopted so that such impact does not occur, and even allow for the postponement of the activity in question, since once the harmful biological and social consequences have already occurred, subsequent coercion proves ineffective and would have nothing more than moral significance, as it would hardly compensate for the damage caused to the environment. In this line of thought, the precautionary principle (principio precautorio) obliges the Environmental Administration to carefully weigh whether human activity compromises the environment and to not grant authorization if the evaluations demonstrate that the activity may produce harmful or irreparable consequences for the environment. Therefore, the Costa Rican State is obliged to ensure and adopt measures that guarantee the defense and effective preservation of the environment. Constitutional Law requires the use of all available means—whether legal or factual—to preserve the environment. In environmental matters, all public officials and all individuals have the obligation to ensure its protection, such that an official cannot simply limit themselves to declaring a lack of jurisdiction. Article 50 of the Constitution obliges the State and other public institutions—including Municipalities—to actively intervene in protecting the environment. Ordinary law is responsible for developing the constitutional precept and for fostering, within its content, economic and social development in full compatibility with a healthy and ecologically balanced environment. The country currently has abundant developmental legislation, among which we can cite, inter alia: Ley Orgánica del Ambiente, Ley Forestal, Ley de la Flora, Fauna y Vida Silvestre, Ley de Uso de Manejo y Conservación de Suelos, Ley de Biodiversidad, Ley de Aguas, and Ley de Planificación Urbana. These regulations, and similar others that may be added, materialize the State's obligation to protect the environment as a fundamental right.
V.- On the protection of aquifers (mantos acuíferos).- This Chamber has already had the opportunity to analyze the constitutional protection of groundwater and aquifers. In this regard, resolution number 04-001923, of 14 hours 55 minutes on February 25, 2004, states:
“V.- SUBTERRANEAN WATERS. In contrast to so-called surface waters, which flow across the earth's crust and can be subject to common or special uses, there are subterranean waters. Subterranean waters are those found beneath the earth's surface, occupying the empty spaces in the soil or rocks; their most important source is rainwater infiltration into the soil. The soil, for its part, is composed of two levels, which are as follows: a) Upper level or zone of aeration, in which the empty spaces are occupied by air and the infiltrated water descending by gravity; and b) another level beneath this called the zone of saturation, in which the empty spaces are filled with water that moves slowly and whose upper level is called the water table, hydrostatic level, or phreatic level. The waters contained within the porous spaces of the saturation zone, in geological formations, are called aquifers or subterranean water bodies. The hydraulic gradient is the difference in altitude between two points on the same water table—phreatic level—in relation to their horizontal distance; the velocity of subterranean water movement depends, essentially, on the hydraulic gradient. Subterranean waters are an essential part of the hydrological cycle; thus, of the total water in the hydrosphere, 2.4% is fresh water, of this 78.1% is frozen, 21.5% corresponds to subterranean waters, and 0.4% is surface water found in rivers and lakes. In the Central American region, the main source of public supply is subterranean water, as opposed to surface water, which is notably exposed to contamination and degradation due to harmful land-use practices and uncontrolled urban expansion. In the particular case of our country, it has been estimated that the potential annual recharge (recarga) of subterranean water is approximately 47,000 million cubic meters per year, representing 20% of precipitation; likewise, it has been calculated that of the 750,000 cubic meters of water used daily for human consumption, 70% (500,000 cubic meters per day) comes from subterranean water intakes. The consumption and use of subterranean water, compared to surface water, presents evident and clear qualitative and quantitative advantages, such as the following: a) The investment for the extraction and exploitation of potable subterranean water is made gradually, depending on the increase in demand for the service, and the catchment areas can be located near the place where the demand occurs, all of which reduces conduction, treatment, and storage costs; b) the natural physical-chemical quality of subterranean water is more constant than surface water and is potable with little or no treatment; c) since soil or rock exists above subterranean waters, they are more protected from contamination of natural or human origin; d) variations in quantity and availability during dry or rainy seasons are minimal compared to those of surface waters; e) they constitute a strategic reserve to face emergency situations due to public calamity, internal disturbance (e.g., earthquakes, hurricanes, volcanic eruptions, etc.), or war.
VI.- SUBTERRANEAN WATERS AND FUNDAMENTAL RIGHTS. The subject of subterranean waters is intimately linked to several fundamental rights enshrined in the constitutional text and international human rights instruments. Our Political Constitution, in its Article 50, enunciates the right to a healthy and ecologically balanced environment, which is achieved, among other factors, through the protection and conservation of the quality and quantity of water for human consumption and use and to maintain the ecological balance in the habitats of flora and fauna (e.g., wetlands) and, in general, of the biosphere as the common heritage of humanity. Likewise, access to potable water ensures the rights to life—\"without water, life is not possible,\" affirms the Water Charter approved by the Council of Europe in Strasbourg on May 6, 1968—to people's health—indispensable for their food, drink, and hygiene—(Article 21 of the Political Constitution) and, of course, is associated with the socio-economic development and growth of peoples to ensure each individual a dignified well-being and quality of life (Article 33 of the Political Constitution and Article 11 of the Additional Protocol to the American Convention on Human Rights). The scarcity, lack of access or availability, and contamination of this precious liquid causes the impoverishment of peoples and limits social development on a large scale. Consequently, the protection and exploitation of subterranean water reservoirs is a strategic obligation to preserve the life and health of human beings and, of course, for the proper development of any people. In 1995, it was estimated that 1 billion inhabitants lacked access to potable water, and it is calculated that by the year 2025, approximately 5.5 billion people will experience water scarcity, with between 5 and 10 million people dying annually due to the use of untreated water. Furthermore, the duty to preserve, for future generations, conditions of existence at least equal to those inherited has now been recognized (sustainable development), so that the needs of the present must be met without compromising the ability of future generations to meet their own needs (Principle 2 of the Declaration of the United Nations Conference on the Human Environment, Stockholm, 1972). In essence, water, from an economic and ecological perspective, is a precious good, since it is indispensable for any human activity (industrial, agricultural, domestic, commercial, services, etc.), as a source of energy, raw material, transportation route, support for recreational activities, and constitutive element for the maintenance of natural ecosystems—non-contaminating or environmentally compatible water use.
VII.- LEGAL NATURE AND REGIME OF SUBTERRANEAN WATERS, AQUIFERS, AND RECHARGE AREAS: PUBLIC DOMAIN ASSETS. In our legal system, there is no single, systematic, and coherent regulatory body that comprehensively governs the protection, extraction, use, management, and efficient administration of water resources. Additionally, the scarce existing legislation focuses predominantly on surface waters, overlooking subterranean waters. As is characteristic and inherent to Administrative Law, a normative dispersion and a fragmented, chaotic, and ambiguous set of sectoral regulations governing specific aspects can be observed in this matter, leaving serious gaps and antinomies, all of which also seriously hinders environmental management by the public entities responsible for the matter. Obviously, the scarce regulation of subterranean waters is no exception to the aforementioned rule. In Water Law, various theses have been maintained regarding its legal nature—the variation of which depends on historical evolution. Thus, subterranean waters have been considered (a) private assets, such that they are a res nullius appropriable by the person who discovers them (alumbrador), that is, by the owner of the land where they arise, following the Roman Law maxim according to which property extends from the sky to the inferno. Nineteenth-century regulations on water resources (e.g., the Spanish Ley de Aguas of 1879, which inspired many Latin American legislations, including our Ley de Aguas of 1942) would give subterranean waters the character of (b) mixed assets, so that those discovered by the owner of a private piece of land will be private, and those arising on public domain land, or the former after their owner has used them, will be public. Finally, beginning in the 20th century, many legislations begin to classify all subterranean waters as (c) public domain assets, based on the undoubted unity of the hydrological cycle, thereby becoming part of what has been called the \"hydraulic public domain\" (dominio público hidráulico) as part of the natural and not artificial domain; this position conceives water as a unitary resource subordinated to the general interest, such that no distinction should be made between surface and subterranean waters, since they are intimately linked to maintain their quality and quantity. According to this last thesis, subterranean waters are not appropriable by any private individual, and their classification as public domain assets constitutes sufficient title to subject them to a very strong and intense administrative intervention regime to guarantee their integrity and quality and to separate them from the modes of acquisition and enjoyment typical of Private Law. In our legal system, based on a series of dispersed norms, the legal nature of subterranean waters can be determined, with evident variations according to the historical-legislative evolution. The Ley de Aguas No. 276 of August 27, 1942, and its reforms, in its Article 1, subsections IV, VIII, and IX, classifies, respectively, as public domain waters: \"Those from (...) springs (manantiales) (...)\", \"Those from springs that flow on beaches, maritime zones, channels, basins, or banks of national property and, in general, all those that arise on public domain lands,\" and \"Subterranean waters whose discovery (alumbramiento) is not made by means of wells,\" since Section 4, Subsection III, of that legal text deems private domain—and, therefore, belonging to the owner of the property—\"Subterranean waters that the owner obtains from his own land by means of wells,\" with the surplus—from wells concessioned to obtain water for non-domestic purposes and ordinary needs—that leaves the land becoming public domain waters. Evidently, the Ley de Aguas of 1942 follows a mixed thesis regarding the legal nature of subterranean waters, since it combines the res nullius and, consequently, appropriable character of these if discovered on private lands, with the public domain character if they arise on land owned by a public entity. It would be two subsequent laws, enacted during the last quarter of the past century, that tacitly reformed or modified what was established in Articles 1, subsections IV, VIII, and IX, and Article 4, Subsection III, of the Ley de Aguas. In reality, these two new regulatory instruments fall within the contemporary trend of conceiving subterranean waters as public domain assets by virtue of the unity of the hydrological cycle, and therefore serve as sufficient enabling title to admit a strong administrative intervention regime to conserve the quantity and quality and ensure the rational and sustained exploitation of water resources. Thus, the Código de Minería, Law No. 6797 of October 4, 1982, and its reforms, in its Section 4, provided the following: \"(...) mineral springs and waters, and subterranean and surface waters, are reserved for the State and may only be exploited by the State, by private parties in accordance with the law, or through a special concession granted for a limited time and subject to the conditions and stipulations established by the Legislative Assembly (...)\", thereby effecting a publicization and nationalization of all subterranean waters in the country, including those discovered by means of a well located on private property for domestic use or ordinary needs. Subsequently, the Ley Orgánica del Ambiente, No. 7554 of October 13, 1995, and its reforms, in Section 50—whose heading is \"Public domain of water\"—reinforced this declaration of public domain status and stipulated that \"Water is of public domain; its conservation and sustainable use are of social interest.\" This legislative instrument entails an express designation of continental waters (surface and subterranean waters—by not distinguishing between them) to the public domain of the State and classifies their protection, preservation, or conservation and sustained or rational use as of social interest, thereby paving the way for eventual expropriations or limitations for reasons of social interest (Article 45 of the Political Constitution).
VIII.- AQUIFERS, RECHARGE AND DISCHARGE AREAS. An aquifer (acuífero) is a stratum or geological formation (unconsolidated deposits of loose materials such as sands, gravels, mixtures of both, sedimentary rocks such as limestone, volcanic rocks, etc.) that allows the circulation of water through its pores or fissures, such that humans can utilize it in economically appreciable quantities to meet their needs. In a very broad sense, aquifers are geological formations that contain water, have contained it, and through which water flows or circulates. Two of the hydrogeological parameters for defining the functioning of an aquifer—relationship between recharge (recarga) and water extraction or discharge (descarga)—are porosity or permeability—hydraulic conductivity—and the storage coefficient. There are a series of geological formations that should not be confused with aquifers; thus, (a) aquicludes (acuícludos) are geological formations that contain water in their interior but do not transmit it, impeding its exploitation. Regarding the non-renewable, fossil, dead, stagnant, or non-flowing subterranean water contained in these, there is no doubt whatsoever that they are also of public domain, given that Articles 4 of the Código de Minería and 50 of the Ley Orgánica del Ambiente do not distinguish between subterranean and surface waters, much less between renewable and non-renewable subterranean waters, such that they cannot be conceived as a res nullis susceptible to appropriation by the private discoverer. (b) An aquitard (acuitardo), for its part, comprises a set of geological formations that contain appreciable quantities of water but transmit it very slowly. Finally, (c) an aquifuge (acuifugo) is that geological formation that neither contains water nor can transmit it. Regarding the typology of aquifers, hydrogeology classifies them, according to the hydrostatic pressure of the water enclosed within them, as follows: a) free, unconfined, or phreatic aquifers (acuíferos libres) in which there is a free surface of the water enclosed within them in direct contact with the air; their water table is at atmospheric pressure and is not bounded by an impermeable layer; and b) captive, confined, or pressure aquifers (acuíferos cautivos) in which the water is subjected to a pressure higher than atmospheric pressure. There is also the subcategory of perched aquifers (acuíferos colgados), which are free aquifers with limited spatial distribution and temporary existence. The natural recharge (recarga natural) of aquifers is produced by the volume of water that penetrates them over a period of time due to the infiltration of rainfall or a watercourse (e.g., influent rivers). Recharge areas (áreas de recarga), consequently, are all the zones of the land surface where rainfall infiltrates the soil until reaching the saturation zone, incorporating into the aquifer. The Ley Forestal No. 7575 of February 13, 1996, in its Article 3, subsection l), defines aquifer recharge areas as \"The surfaces on which infiltration occurs that feeds the aquifers and river channels (...).\" Natural discharge (descarga natural) is the volume of water that, over a period of time, naturally leaves the aquifer through surface, subfluvial, or submarine springs, by evapotranspiration, or by vertical percolation to lower aquifers. Artificial discharge (descarga artificial) is produced through the extraction of water by means of wells, trenches, ditches, or tunnels. Groundwater discharge areas (áreas de descarga) comprise all those points where the water table or phreatic level intersects the land surface—springs, sources (nacientes), seepage—the course of a river, or marine or lacustrine beds.
IX.- TYPOLOGY OF AQUIFERS IN COSTA RICA. In our country, two types of aquifer families are recognized: a) Volcanic or fissured, formed in igneous rocks (volcanic and intrusive), representing the largest and best quality ones; and b) Sedimentary or granular, in surface formations. Regarding the first type, it should be noted that igneous rocks naturally have no permeability; they possess a secondary porosity originating from the presence of fractures or fissures caused by cooling or tectonic events (areas linked to geological faults), through which they acquire hydrogeological suitability. This type of aquifer arises in high-altitude areas where precipitation is high and volcanic rocks particularly exist; well-known and studied examples include the aquifers of the Central Valley (e.g., Upper and Lower Colima and Barva). From a hydrogeological perspective, our country presents ideal and exceptional conditions for the rational and measured exploitation of subterranean waters, since the Central Volcanic Cordillera is constituted of volcanic soils with a high natural infiltration capacity, provided they have not been compacted or eroded by human activities, whereby they fulfill an essential function in regulating surface water runoff and aquifer recharge (recarga). The high permeability of the fractured and brecciated lava layers and the high rainfall conditions favor the formation of high-potential aquifers. The existing tuffs, in turn, behave as rocks of low permeability that allow the constitution of aquitards, which form the base of the aquifers and permit the vertical transfer of water between them.
\n\nThe location and geomorphology of the Cordillera Volcánica Central, with all its aquifers, is a primary source of water to meet the needs of at least half of the country's population, including the Gran Área Metropolitana and neighboring populations. The use of groundwater in this area is carried out through wells or the capture of springs (manantiales) for domestic, industrial, and agricultural uses. In the Cordillera Volcánica Central, by 1996, SENARA had registered 3,460 wells for various uses and 353 springs for public supply used by the ICAA, municipal corporations, rural aqueduct management associations, and other entities. This type of aquifer has also been located in the Liberia and Bagaces formations (Provincia de Guanacaste). It is fully established that this type of aquifer, due to its petrophysical characteristics, is more vulnerable to contamination in its recharge areas when they are not in protected or reserved zones and are exposed to anthropic activities such as deforestation, uncontrolled urbanization, and intensive and extensive agricultural activities involving the use of pesticides and agrochemicals, thereby being exposed to a dangerous and slow degradation of their environmental quality. Surface aquifers are composed of layers of unconsolidated rocks of recent and diverse origin; they are alluvial fills of some valleys that can reach thicknesses from a few meters to one hundred meters, are separated from the surface by a thin and permeable soil layer, and are therefore highly vulnerable to contamination, especially when located beneath areas of anthropic occupation (urban, industrial development, or agricultural crops). This type of aquifer is exploited in the Central Pacific region, such as the alluvial fill of the Valle del Río Barranca, which contains two coastal aquifers: Barranca and El Roble.\n\n**X.- CONTAMINATION OF GROUNDWATER.** Unlike the contamination of surface water, which is usually obvious and visible, allowing for environmental actions aimed at mitigating or eradicating it, the contamination of groundwater, by its very nature, often goes unnoticed and becomes evident when it has reached large proportions. Due to the slow circulation of water, the absorption capacity of the terrain, and other factors, aquifers can take a long time to show contamination. Additionally, the large volume of water contained means that extensive contamination takes a prolonged period to manifest itself, or localized contamination is detected when it flows at some exploitation site. Certainly, this type of water has a resistance to contamination; however, when this occurs, its regeneration can be extraordinarily slow and is sometimes irreversible due to the high cost of the means to do so. It has been demonstrated that attempts to repair the damage caused by contamination to an aquifer to achieve potable water levels again have not been successful; cleaning technologies have contributed little to reducing the damage, and the methods are economically very expensive. To the above must be added the lack of organizational infrastructure, material, financial, and human resources—in this last case, duly trained to evaluate, measure, and, in general, monitor the quality of this water and the exact extent of its contamination. The degradation and contamination of aquifers impose on the legislator and public administrations the urgent and non-deferrable task of protecting them. Groundwater contamination can be direct or indirect; it is of the first type when contaminating substances are introduced directly into the aquifer, as in the case of cesspools (pozos negros) or injection wells (pozos de inyección); it is of the second type when dilution occurs through contamination of the natural recharge. Contaminating agents can be of very diverse kinds, that is, mineral, degradable organic (excreta and purines), slightly or non-degradable organic (pesticides, detergents, hydrocarbons), biological (bacteria, viruses, algae), radioactive, and gaseous. The contamination of aquifers depends on the geological, hydraulic, and chemical conditions of each place or site, so it is a function of local factors, which is why knowledge of each zone and the study of similar cases is required. The origins of aquifer contamination can be of very diverse kinds, such as the following: a) contamination from domestic activity, which is organic and biological and arises from septic tanks (tanques sépticos), leaks from the sewer system, discharge of blackwater, to which must be added the increase in chemical products for domestic use such as detergents; b) contamination from agricultural activities, here we have the use of artificial fertilizers based on nitrates, phosphates, and potash or natural fertilizers—based on manure—, irrigation with residual water and high salinity, and the use of pesticides (insecticides, herbicides, and pesticides); c) contamination from livestock farming, essentially organic and biological, similar to domestic contamination but more intense in the case of intensive farms; d) contamination from surface water, when it recharges and is, in turn, contaminated; e) contamination from saline intrusion, occurring when marine and saline waters are introduced in coastal regions due to overexploitation of coastal aquifers through wells; f) contamination from mining activities—mineral—, related to evacuations of mine water and mineral washing facilities; g) contamination from industrial activities, this type is as varied as the type of industry that causes it, being especially harmful those caused by heavy metals from the metallurgical industry, as well as from the chemical, petrochemical, food (organic substances), and beverage (detergents) industries; h) contamination from nuclear activities, although exceptional in our environment, can come from plants treating irradiated fuels and radioactive minerals, and from medical activity; i) contamination through poorly constructed wells, wells can interconnect several aquifers and, when they have broken or corroded casings at levels of poor-quality water or that allow the entry of surface water, can cause it; j) contamination through the discharge of wastewater via cesspools, septic tanks, leaks from the sewer network, or indiscriminate discharge into the hydrographic basins (cuencas hidrográficas); k) contamination from solid waste discharge, occurring when a sanitary landfill (relleno sanitario) is built on permeable or non-waterproofed land through leachates (lixiviados); l) contamination from poorly planned, constructed, or used injection wells—a form of utilizing the subsoil as a waste repository.\n\n**XI.- GROUNDWATER CONTAMINATION IN THE VALLE CENTRAL OF COSTA RICA.** The main threats of aquifer contamination in Costa Rica, and consequently of groundwater, are constituted by two factors: a) population growth and uncontrolled urban expansion over recharge areas, phenomena that generate leachates from solid and liquid waste of domestic and industrial origin, the inability of soils to infiltrate, the waterproofing (impermeabilización) of recharge zones, and the overexploitation of aquifers; b) the use of agrochemicals in intensive agriculture of coffee, bananas, cotton, ornamental plants; and c) waterproofing of recharge areas due to land-use changes (cambios en el uso del suelo), deforestation, and extensive livestock farming. In the case of the aquifers that supply the Gran Área Metropolitana (Colima Superior e Inferior, La Libertad, and Barva), evidence of some bacteriological and industrial contamination impact, and an increase in nitrates, has been observed due to urban expansion and intensive agriculture in the recharge areas. Regarding nitrates, despite the good physico-chemical and bacteriological quality of the water, a tendency towards an increase in nitrate concentrations has been detected, down the hydraulic gradient, indicating that the groundwater is being affected, directly or indirectly, by the discharge from septic tanks and the use of nitrogenous fertilizers used in vegetable crops and coffee plantations. Similarly, an overexploitation of groundwater due to concentrated extraction has been detected, which has caused a decline in water levels and in the flow of springs (manantiales), and an eventual waterproofing of the recharge areas, since the aquifers are located in the areas of greatest urban growth with accelerated housing development through subdivisions (urbanizaciones), the effects of which, it is estimated, would be significant if an area greater than 20% of the recharge area is waterproofed.\n\n**XII.- PROTECTION OF GROUNDWATER.** Given the characteristics of contamination in aquifers intended for public supply and their difficult regeneration, measures to prevent contamination must be preventive and protective, through the prohibition of certain human activities in specific zones or by ordering safety measures on certain potentially contaminating activities. Our legal-administrative framework (legislation, regulations, and decrees) unfortunately lacks precise, clear, and complete regulation for the protection of aquifers, recharge zones, and groundwater catchment areas. In foreign legislation (e.g., Spanish Water Law 29/1985 of August 2), some extraordinary powers of administrative intervention in the water economy are foreseen that directly concern the protection of aquifers, in pursuit of achieving sustained use of water resources, that is, to guarantee water availability in sufficient quantity and required quality to meet present and future human and ecological needs. These extraordinary administrative powers, which must be admitted in our legal system—despite their lack of regulation—as implicit in the express and general competence for the protection and conservation of groundwater attributed to the State and the decentralized entities of the water sector, are based on the need to achieve rational and balanced water use. The scarcity and degradation of the natural conditions of the water resource impose the administrative possibility of adopting such measures to avoid its depletion or irreversible deterioration and to temporarily overcome the harmful effects that a water crisis (crisis hídrica) may generate. This type of administrative measures implies various restrictions and drastic controls on the multiple uses or exploitations of water—especially general or special private uses—and on pre-existing activities that may affect the resource, as they are justified by a public interest, and therefore do not affect the right to property or the integrity of the patrimony. In essence, such measures must be considered limitations of social interest that do not empty the content of the right to property or expand public domain over groundwater without prior compensation, but rather mold its essential content, and therefore must be borne, as a sacrifice or a general burden, by all users, who are, ultimately, the beneficiaries of these measures, as they are aimed at correcting a conjunctural situation of scarcity or imminent contamination that affects the economy of the water resource in a specific area. Such administrative intervention measures, virtually contained in articles 32 of the Ley de Aguas of 1942 and 10° of the Reglamento de Perforación y Explotación de Aguas Subterráneas (Decreto Ejecutivo No. 30387 of April 29, 2002), may be the following:\n\na) **Protection perimeters for aquifers:** One of the most innovative instruments in the protection of water resources is the definition of protection perimeters (perímetros de protección) for the conservation of the resource and its surroundings. This administrative intervention measure seeks to preserve the quality and quantity of the contained water, but also of its container, that is, the geological formation called the aquifer. This activity consists of projecting and tracing on the surface a demarcation under which an aquifer or part of it lies, in which a specific regime for the use of the hydraulic domain is established—ordering and restriction of pre-existing water concessions, impediment to granting new ones—and for controlling activities and installations that may affect it—through authorizations— (e.g., mines, quarries; urban activities including septic tanks, cemeteries, sanitary landfills—storage, transport, and treatment of solid and liquid waste—; agricultural and livestock activities with the deposit and distribution of fertilizers and pesticides, irrigation with residual water, and farms; industrial activities with storage, transport, and treatment of liquid or gaseous hydrocarbons, chemical, pharmaceutical, and radioactive products, food industries and slaughterhouses, etc.). Evidently, the definition of perimeters by national authorities—MINAE and ICAA—must be respected by local governments (Municipalidades) and INVU (given its residual competence in urban planning matters in the absence of local regulatory plans) to compatibilize, develop, and effectively reflect the conditions established in the definition of protection perimeters in the regulations contained in the respective Regulatory Plans (Planes Reguladores) on land use or territorial planning (e.g., zoning regulations, construction regulations, etc.). Obviously, to the above must be added protection around catchment areas (wells—PPP: wellhead protection perimeters—, springs, springs (nacientes), etc.), through the definition of a surrounding zone in which certain human activities are prohibited or limited, regulating or controlling land use. The determination of the perimeter depends on the well's capture zone or capture zone (ZOC) and its extension depends on the characteristics and properties of the catchment area and the recharge terrain, since the rules cannot be the same for permeable or fractured terrains as for those with impermeable formations. The definition of perimeters must be combined with vulnerability or natural susceptibility mapping of supply aquifers to anthropic contamination loads, based on their hydrogeological and geochemical characteristics, in the face of anthropogenic contamination problems, which is achieved through mapmaking. Both measures, protection perimeters and vulnerability mapping, are suitable for being able to relocate in time a specific type of activity, the supply source, or, ultimately, introduce technical methods and instruments for the treatment and disposal of contaminating agents. The measures to be taken based on the perimeters and vulnerability mapping vary depending on whether it is (a) an area without territorial occupation, being useful for defining which activities may or may not be installed in the future; (b) areas already occupied, in which case a mapping of natural vulnerability and areas with greater susceptibility to contamination is carried out, being possible, in the face of the threat of a high contamination index, to relocate activities, supply sources, and introduce technology for the treatment and disposal of contaminants; (c) areas already contaminated, for which alternative sources can be sought, the spread of contamination plumes (plumas de contaminación) can be avoided, and, if possible, due to its high cost, the aquifer waters can be treated after extraction; (d) areas for new catchments, in which case the potentially contaminating activities and the impact area of each of these must be inventoried.\n\n**b) Declaration of an overexploited aquifer:** The overexploitation of an aquifer occurs when extraction or exploitation is so intensive—discharge—and strong that it exceeds the volumes of the recharge, causing the water reserves of the aquifer to progressively diminish and degrade. Overexploitation causes disastrous economic and natural effects; among the first, users may experience increased extraction costs—more energy to make the same amounts of water flow or expenses to re-deepen a well to reach the water level—, depletion of wells located in the peripheral areas of the aquifer and in the areas of greatest concentration of drillings; among the effects of a natural character are the reduction in water flows in springs (manantiales), rivers, streams, creeks, lagoons, lakes, and wetlands, endangering their existence, and the affectation of the capacity of geological formations—aquifers—to store water by decreasing the interstitial space in the rocks due to the lack of internal pressure provided by the water, land subsidence by compaction, with alteration of the aquifer, the appearance of cracks, and slope sliding. In the hypothesis of aquifer overexploitation, the competent administrative authority can declare this state to reverse the state of affairs through an ordering, restriction, and distribution of pre-existing extraction or exploitation to achieve rational exploitation and the immediate suspension of new requests or modifications of concessions pending at that time. Of course, saving and good-use measures for resources can also be implemented, such as the treatment and purification of residual water to be reused in the irrigation of certain crops, drip or night irrigation systems to mitigate the effects of evapotranspiration, artificial recharge, etc.\n\n**c) Declaration of an aquifer in a process of saltwater intrusion:** An aquifer is estimated to be in a process of salinization when, as a direct consequence of extraction, generalized and progressive increases in the saline concentration of the captured water are recorded, posing the danger of it becoming unusable. Salinization implies a reduction in the thickness of the freshwater layer under which marine water ascends, so that the water from wells ceases to be potable and even becomes useless for domestic or irrigation uses, with the recovery of the aquifer being very difficult or almost impossible. This problem, which could occur in our country, especially in overexploited coastal aquifers—intrusion of maritime origin—gradually or generally, although continental origin intrusion cannot be ruled out in other spots. The cause of saltwater intrusion lies in irrational exploitation or overexploitation, so measures similar to those provided for when that problem occurs must be implemented, such as the ordering, restriction, and distribution of pre-existing exploitation or uses and suspension of new requests or modifications of concessions.\n\n**d) States of necessity and water crisis:** In anomalous, exceptional, and conjunctural circumstances that cause a public calamity or internal commotion (e.g., extraordinary droughts, serious overexploitation of aquifers, or generalized saltwater intrusion thereof), the State—through the Poder Ejecutivo—and, based on the principle of necessity, can adopt the necessary and suitable measures regarding the utilization of the public hydraulic domain to overcome this state of affairs or prevent it from worsening. When the state of necessity ceases and normality is restored, other types of measures can be adopted, such as those previously set forth (protection perimeters, declaration of overexploited aquifers or aquifers in a salinization process).\n\n**XIII.- LEGAL PROTECTION OF GROUNDWATER IN COSTA RICA.** Article 31 of the Ley de Aguas No. 246 of August 27, 1942, declares as \"reserva de dominio a favor de la Nación\" the following: \"a) The lands that surround the catchment sites or potable water supply intakes, within a perimeter of no less than two hundred meters in radius; b) The forest zone that protects or must protect the set of lands where the infiltration of potable waters occurs (...)\". This declaration is of utmost importance, since from it arises the obligation of the State, through its competent bodies, to fix and determine the perimeter protection areas of the wells or catchment areas—of 200 meters—and, of course, of the recharge areas of the aquifers—the zone where \"the infiltration of potable waters occurs\"—that have or must have a forest layer for their protection, which are so sensitive for their conservation and protection. Likewise, based on such an express affectation, the State can exercise replevin and possessory actions to guarantee the indemnity of these zones and remove them from all types of contamination, subjecting them to a strong regime of land use control, an attribution that, very probably, it has omitted to exercise in a timely and exact manner. Numeral 32 of the Ley de Aguas of 1942 establishes that \"When in an area larger than the previously indicated there exists a danger of contamination in surface or groundwater, the Poder Ejecutivo, through the Sección de Aguas Potables—currently ICAA— (...) shall prescribe in said area the measures it deems opportune to avoid the danger of contamination\"; this norm imposes an unavoidable duty of collaboration and cooperation on the Poder Ejecutivo with the ICAA to adopt all opportune and convenient administrative acts and measures to avert the danger of contamination in an area larger than the protection perimeters of the aquifer recharge areas and catchment zones. The content of the norm is highly significant and rich, since it empowers the State to adopt any opportune measure to avoid the irreversible damages and losses that a state of emergency due to a water crisis (crisis hídrica) could cause. Evidently, this is also a competence that has not been exercised responsibly or has been underutilized. The Ley General de Agua Potable, No. 1634 of September 18, 1953, in its Article 2°, establishes that \"All those lands that both the Ministerio de Obras Públicas and the Ministerio de Salubridad Pública—organs of the Poder Ejecutivo that were substituted by the Instituto Costarricense de Acueductos y Alcantarillados by virtue of its Ley de Creación No. 2726 of April 14, 1961, and its reforms, and, more specifically, Article 2°, subsection h), which entrusted it with enforcing the Ley General de Agua Potable—consider indispensable to build or to situate any part or parts of the potable water supply systems, as well as to ensure the sanitary and physical protection, and necessary flow of the same (...)\", evidently, this norm has enormous transcendence, since the catchment areas that may include the springs or springs (nacientes)—a form of natural discharge of groundwater—are declared public domain, and, what is more important, it grants the condition of demanial property (bien demanial) to all those lands necessary to ensure sanitary and physical protection and their flow, which necessarily includes the recharge areas of the aquifers clearly delimited through the perimeter-setting activity already indicated, since the lack of protection of these zones necessarily impacts the quality—by contamination—and flow—by waterproofing or overexploitation—of the waters for human consumption and use that flow from a spring. The Ley Forestal No. 7575 of February 13, 1996, in its Article 33, subsections a) and d), respectively, provides that areas of protection are \" (...) those bordering permanent springs, defined within a radius of one hundred meters measured horizontally\" and \"The recharge areas and aquifers of the springs, whose limits shall be determined by the competent bodies established in the Regulation of this law\", evidently these norms give support to the administrative activity or intervention to define the protection perimeters of the aquifers and catchment zones. The Ley Orgánica del Ambiente No. 7554 of October 13, 1995, in its Article 51, indicates that for the conservation and sustainable use of water, the following criteria, among others, must be applied: \"a) Protect, conserve, and, to the extent possible, recover aquatic ecosystems and the elements that intervene in the hydrological cycle\", \"b) Protect the ecosystems that allow the regulation of the hydrological regime\", and \"c) Maintain the equilibrium of the water system, protecting each of the components of the hydrographic basins\". Thus, the need to protect and conserve the integrity and unity of the hydrological cycle is established without making distinctions, which especially includes groundwater. Finally, Articles 5°, subsection e), final paragraph of the Ley de Creación del ICAA (No. 2726 of April 14, 1961, and its reforms) and 15 of the Ley de Creación del SENARA (No. 6877 of July 18, 1983, and its reforms) crown the regulatory framework for the institutional protection of groundwater by stating, respectively, \"The lands necessary for the conservation and protection of water resources, as well as for the constructions made necessary in the catchment, are declared of public utility and social interest, and may be expropriated (...)\" \"The actions promoted by the State are declared of public interest, with the object of ensuring the protection and rational use of waters (...)\". In the legal-administrative water framework, we will also find a series of obligations and burdens imposed on private parties and public law subjects—public entities and bodies—for an adequate protection of the underground and surface public hydraulic domain. Thus, the Ley de Aguas of 1942 and other legislative bodies establish a series of prohibitions and obligations for the owners and users of springs—which are a component of an aquifer's discharge area—, such as the following: a) users or concessionaires must conform to police and health regulations regarding surplus waters that are returned to a spring to avoid contamination or stench—failure to do so may result in the loss of the special exploitation and a fine—(Articles 57 and 166, subsection III, ibidem), in a concordant manner, the Ley de Conservación de la Vida Silvestre No. 7317 of October 21, 1992, in its Article 132, paragraph 1°, prohibits \"(...) throwing wastewater, blackwater, waste, or any contaminating substance into springs, rivers, creeks, permanent or non-permanent streams (...) lakes (...)\" and imposes a fine of 50,000 to 100,000 colones, convertible into a prison sentence of one to two years, on those who fail to comply with the norm. b) The construction of ponds for fish farms in springs intended for the supply of populations is prohibited (Article 63 ibidem). c) Owners of lands where there are springs on whose contours the forests that provided them shelter have been destroyed are obliged to plant trees on the banks at a distance of no more than 5 meters (Article 148 ibidem). d) Destroying, both in national and private forests, the trees located less than 60 meters from springs that originate in the hills or less than 50 meters from those that emerge on flat terrain is prohibited (Article 149 ibidem); the Ley Forestal, No. 7575 of February 13, 1996, provides, in its Article 34, in a coincident manner, that \"The cutting or elimination of trees in the protection areas bordering permanent springs and recharge areas and the aquifers of the springs is prohibited\". e) Every request for the exploitation of live water, currents, and springs must be addressed to the Ministerio de Ambiente y Energía with the presentation of a series of requirements (Article 178 ibidem).\n\nRegarding the public entities and bodies that have competence and responsibilities in matters of protection of underground waters, a series of obligations and prohibitions are established such as the following: a) Municipalities are prohibited from alienating, mortgaging or otherwise encumbering, leasing, giving in usufruct (esquilmo), lending or exploiting on their own account —especially if it involves deforestation— the lands they own or acquire on the banks of rivers, streams or springs (manantiales) or in hydrographic basins or watersheds where springs (manantiales) emerge or where they have their origins (articles 154 and 155 ibidem). b) Municipalities are obliged to reforest such lands (article 156 ibidem). c) Every Municipality, Board of Education, Board of Social Protection and, in general, every “public body”, is obliged to consult the Ministry of Agriculture to obtain the respective permit to alienate, mortgage, lease, grant in usufruct (esquilmo) or exploit on their own account lands they own or acquire in which there exist usable public-domain waters (article 157 ibidem). The General Health Law, No. 5395 of October 30, 1973 and its amendments, for its part, contains specific norms for the effective protection and conservation of underground waters; thus article 275 stipulates that “Any natural or legal person is prohibited from contaminating surface, underground (...) waters directly or indirectly, through drainage or the voluntary or negligent discharge or storage of liquid, solid or gaseous waste or residues, radioactive or non-radioactive, black water or substances of any nature, which, altering the physical, chemical and biological characteristics of the water, make it dangerous to the health of people, terrestrial and aquatic fauna or unusable for domestic, agricultural, industrial or recreational uses.”; for its part, numeral 276 establishes that only with a permit from the Ministry may drainage be carried out or the discharge of solid or liquid waste or residues or others that could contaminate surface, underground, or maritime water be proceeded with, “(...) conforming to the regulatory safety norms and conditions and the special procedures that the Ministry imposes in the particular case to render them innocuous”. Articles 285 and 291 of that regulatory body, respectively, oblige every person to eliminate excreta and black water in an adequate and sanitary manner to avoid “contamination of the soil and of natural water sources for human use and consumption” and prohibit the discharge of industrial waste or waste from health establishments into the sewer system to “avoid contamination of water sources or courses”. Finally, article 309 of that law establishes that the Ministry of Health will approve the project for developers, among other things, if it “(...) has adequate sanitary systems (...) for the disposal of excreta, black water and grey water (aguas servidas)”.\n\n**XIV.- ADMINISTRATIVE ENTITIES AND BODIES RESPONSIBLE FOR THE PROTECTION OF UNDERGROUND WATERS AND, IN PARTICULAR, OF AQUIFERS (MANTOS ACUÍFEROS). DELIMITATION OF COMPETENCES.** The management of underground water resources comprises various aspects such as the investigation of their potential, identification, categorization, planning of their uses, protection, rational exploitation, prevention and sanction of ecological damage or contamination, control and environmental monitoring of their use, etc. Consequently, the ideal would be for a single regulatory and governing administrative entity to exist in the matter; however, the competences for the integrated management of underground water resources are dispersed and fragmented, so that, occasionally, they are exclusive or excluding of a single entity and, most of the time, concurrent, shared or parallel, which requires a particular administrative coordination effort to ensure their sustainable utilization. In the heterogeneous and dispersed set of administrative entities and bodies that make up the Costa Rican public administration, a sector thereof can be identified that have assigned, by law or regulation, a series of inalienable, non-transferable and imprescriptible competences in the matter of conservation and protection of underground waters that they cannot decline and must exercise effectively for the sake of a right to a healthy and ecologically balanced environment for all the inhabitants of the country. In that sector of the public apparatus or of service organizations for the satisfaction of the needs of the entire community, a group can be identified that belongs to the central administration or larger public entity —State— which are, predominantly, some Ministries or bodies thereof— and another comprised of functionally decentralized entities or by services —of a technical nature— and territorially —Municipalities—.\n\n1.- Central Administration.\n\na) Ministry of Environment and Energy and its bodies the Department of Water and the Water Advisory Body.\n\nArticle 3, subsection l), of the Forest Law (Ley Forestal), No. 7575 of February 13, 1996, imposes on the Ministry of Environment and Energy the unavoidable competence to delimit aquifer recharge (recarga acuífera) areas —on its own initiative or that of interested organizations, and after prior consultation with ICAA, SENARA or any other technically competent entity in water matters.\n\nArticle 17, paragraph 1, of the Wildlife Conservation Law empowers and enables the Ministry of Environment and Energy to “(...) coordinate actions with centralized (sic.) or decentralized entities that execute agricultural and forestry soil, water and forest conservation programs, in order to achieve the “sustainable” use of wildlife”.\n\nThis Ministry plays a fundamentally important role in one of the aspects of water resource administration, which is the control or oversight of the exploitation and use of underground waters to ensure their rational exploitation. The Regulation for Drilling and Exploitation of Underground Waters (Reglamento de Perforación y Explotación de Aguas Subterráneas) (Executive Decree No. 30387 of April 29, 2002), provides in its article 1 that “Every drilling company must register (...) with the Department of Water, so that the license allowing it to exercise underground water drilling and exploration activities may be issued.” These functions are shared with SENARA and ICAA, since the Department of Water of MINAE must refer the matter to them so that, respectively, they issue a technical opinion, assign the well number, register it in the National Well Registry —SENARA— and rule on whether or not there is harm to the water supply sources destined for human consumption —ICAA— (article 7). This regulation establishes that a drilling permit will be denied in zones that do not permit rational exploitation of the water resource, such as those declared by the State or another competent institution as an area of protection and water reserve, those suffering from overexploitation, under conditions of vulnerability of the maximum exploitation capacity of the aquifer (acuífero), those susceptible to saline intrusion, contamination and other reasons that in the judgment of MINAE and SENARA affect the aquifer (acuífero) and impede its exploitation, and those involving interference with other wells or springs (nacientes) of water (article 10).\n\nSpecial mention deserves the Department of Water, assigned to the National Meteorological Institute —a body of MINAE—, whose functions of interest, among others, according to article 3 of Executive Decree No. 26635-MINAE of December 18, 1997, are the following:\n\n“ a) Define national policies regarding the water resource.\n\nb) Exercise dominion, surveillance, control and administration of national waters.\n\nc) Process applications for concession for the development of hydraulic forces for electricity generation.\n\nd) Process and authorize permits for the drilling of wells for water extraction. (...)\n\nJ) Register well drilling companies and user associations, as well as the changes made to their bylaws and representatives (...)\n\nn) Apply the sanctions established in the Water Law (Ley de Aguas), after due process is observed (...)”\n\nThe Chief of this Department has, in turn, important competences in the matter (article 4), such as the following: a) issue recommendation reports on concessions, transfers, increases in flow rate, expansion of use or any other procedure related to the exploitation of the water resource; b) approve well drilling permits, etc. In article 5 of the aforementioned decree, the “Water Advisory Body” is created, comprised of representatives of various entities involved in the water sector (ICAA, SENARA, ICE, Public Universities, UNGL, etc.), among whose functions are the following (article 7 ibidem): a) Advise and recommend policy guidelines on water resources, considering national and sectoral development plans, water availability and existing legal regulations); b) Review and pronounce on the Water Balance proposed by the Department of Water and its administration for each region of the country and c) Advise the Department of Water in the setting, by the latter, of allocations for water use according to the productive activity and the region in which it is developed.\n\nb) Ministry of Health.\n\nThe competences of this ministry are circumscribed to enforcing the prohibitions established in articles 275, 276, 285 and 291 of the General Health Law — direct and indirect contamination of surface and underground waters and discharge of industrial or health waste into the sewer system— and sanctioning their transgression. Likewise, it is responsible for approving urban development projects when they have adequate sanitary systems for the disposal of excreta, black water and grey water (article 309 ibidem).\n\nc) Ministry of Agriculture and Livestock.\n\nThe MAG has, in reality, a secondary or residual competence in the matter, since the Law on the Use, Management and Conservation of Soils No. 7779 of April 30, 1998, in its article 21, imposes on it the duty in water matters to coordinate with SENARA and any other competent institution “(...) the promotion of hydrological, hydrogeological and agrological research in the hydrographic basins of the country, as well as in the practices of improvement, conservation and protection of soils in the hydrographic basins (...).”\n\n2.- Decentralized administration.\n\na) ICAA (Costa Rican Institute of Aqueducts and Sewers)\n\nThe Constitutive Law of ICAA (No. 2726 of April 14, 1961 and its amendments) attributes to it, in what is of interest, the following competences (article 2): a) Direct and supervise everything concerning providing the inhabitants of the republic with a service of drinking water, collection and evacuation of black water and liquid industrial waste and rainwater in urban areas (...) c) Promote the conservation of hydrographic basins and ecological protection, as well as the control of water contamination (...) d) Advise other State bodies and coordinate public and private activities in all matters relating to the (...) control of the contamination of water resources (...) its consultation being, in any case, mandatory, and compliance with its recommendations inexcusable (...) f) Exploit, utilize, govern or supervise, as the case may be, all public-domain waters indispensable for the due fulfillment of the provisions of this law, in exercise of the rights that the State has over them, in accordance with law number 276 of August 27, 1942, for which purpose the Institute will be considered the substituting body of the powers attributed in that law to the State, ministries and municipalities”. For its part, article 5 of that law enables ICAA to “c) Acquire movable and immovable property” and “e) Process the expropriations necessary for the fulfillment of its purposes, given that this same subsection in its paragraph 2 declares of public utility and social interest, and subject to expropriation, “(...) the lands necessary for the conservation and protection of water resources, as well as for the constructions that become necessary for capture (...).” Article 21 of the Creation Law confers on ICAA the power to approve or reject any project for the construction, expansion or modification of grey water (aguas servidas) and rainwater disposal systems, public or private, the same being mandatory, under penalty of nullity, in the case of the construction of subdivisions (fraccionamientos), urbanizations or lot developments. Finally, article 22 of its creation law establishes that “It is the obligation of the Costa Rican Institute of Aqueducts and Sewers to defray the expenses demanded by the conservation, expansion and security of the forests that serve to maintain water sources, on the properties of those Municipalities where it assumes the water and sewer services”.\n\nIn accordance with article 2, subsection h), of the Creation Law of this decentralized entity (No. 2726 of April 14, 1961 and its amendments), part of its competences is to enforce the Drinking Water Law, No. 1634 of September 18, 1953, given that article 16 of this latter regulatory body prohibits installations, constructions or works located in “zones close to supply sources (...) that in any way harm (...) the physical, chemical or bacteriological conditions of the water; these zones shall be established by the Ministry of Public Works and Public Health” —bodies that, as already indicated, were substituted, for all legal effects, by ICAA—. Consequently, ICAA is also responsible for defining the protection areas for supply sources such as springs (manantiales) or emerging springs (nacientes), which are a natural form of underground water discharge. Article 34, final paragraph, of the Forest Law (Ley Forestal) assigns the completion of the alignments of protection areas to INVU. This is, in reality, a competence that is not exclusive or excluding of ICAA or INVU, but rather concurrent or shared, so both public entities have the duty to exercise it.\n\nArticle 3 of the General Law of Drinking Water, No. 1634 of September 18, 1953, imposes the obligation on ICAA to “(...) select and locate the waters destined for piped service (...), whereby it is the responsibility of this entity to carry out a detailed inventory of the springs (nacientes) that can be used to provide water for human consumption to the populations, the foregoing, regardless of whether the supply and distribution is in the hands of a Municipality in a particular canton.\n\nb) SENARA (National System of Underground Waters, Irrigation and Drainage).\n\nDespite having its competence apparently limited to irrigation, drainage and flood control districts —physical technical-administrative units of an agricultural and livestock nature for the achievement of their socioeconomic development defined by Executive Decree at the request of this entity (articles 17 and 18 of its Creation Law No. 6877 of July 18, 1983 and its amendments)—, the truth is that its constitutive law assigns it important competences in the matter of underground waters, which evidently have a national vocation and, consequently, are not circumscribed to mere irrigation districts. The foregoing is corroborated by the antecedents of this public entity, since Law No. 5438 of December 17, 1973 —which ratified and substituted Executive Decree No. 1878-P of July 22, 1972—, currently repealed, created the National Service of Underground Waters (SENAS) with a clearly national vocation for the planning, investigation and advisory on everything related to the matter. Thus, among other objectives, SENARA has that of seeking the optimum and fair use of (...) water resources —both surface and underground— in agricultural and livestock activities (...) in the irrigation districts” (article 2). Among its functions is that of “Investigating, protecting and promoting the use of the country's water resources, both surface and underground” and “Carrying out, coordinating, promoting and keeping updated hydrological, hydrogeological investigations (...)” (article 3, subsections d and e). In article 4, it is established that SENARA is responsible for promoting and directing coordination and collaboration with other institutions and entities competent in matters such as “Prevention, correction and elimination of all types of water contamination in the irrigation districts”, “Elaboration and updating of an inventory of national waters, as well as the evaluation of their potential use for exploitation purposes in the irrigation districts” and “Construction and maintenance of the works necessary for the conservation and renewal of the aquifers (mantos acuíferos) exploitable for agricultural and livestock activities in the irrigation districts” (subsections c, ch and f). Among the attributions of the Board of Directors is that of issuing agreements for the request of recovery, expropriation or purchase of “(...) lands on which water resources sit or underlie (...)” (articles 6 and 7).\n\nc) INVU (National Institute of Housing and Urbanism).\n\nArticle 34, paragraph 2, of the Forest Law (Ley Forestal) provides that the alignments of the protection areas contemplated in its article 33, including those bordering permanent springs (nacientes), recharge (recarga) areas and the aquifers (acuíferos) of the springs (manantiales), shall be carried out by INVU. Additionally, Executive Decree No. 25902-MIVAH-MP-MINAE of February 12, 1997, imposes on that entity the oversight of the “Urban Control Area” that includes some of the districts of the Provinces of San José, Alajuela, Heredia and Cartago, provided that the Municipal Government has not enacted a Zoning Regulation, given that in the “special protection zone” all construction must be built under strict control, requiring the approval of an Environmental Impact Assessment (Estudio de Impacto Ambiental) by MINAE and the construction of a wastewater treatment plant authorized by ICAA and the Ministry of Health to avoid “(...) the contamination of the aquifers (mantos acuíferos) and the river channels into which they (sic.) flow”.\n\nd) MUNICIPALITIES.\n\nMunicipal corporations have a leading role in the protection and conservation of underground waters through a series of indirect instruments. Thus, the Urban Planning Law (No. 4240 of November 15, 1968), more than 35 years ago, based on article 169 of the Political Constitution —insofar as they are responsible for “The administration of local interests and services in each Canton”— imposed on them the duty to enact a regulatory plan to plan and control urban development and the related urban development regulations (article 15 et seq.). Within that regulatory plan and the zoning regulation, Municipalities must identify, in order to regulate, control and restrict human activities (industrial, urban development, agricultural and livestock, etc.), the areas or zones reserved because an aquifer (manto acuífero) or its recharge (recarga) or discharge area is located therein. By application of the fundamental rights to a healthy and ecologically balanced environment (article 50 of the Political Constitution), to life and human health (article 21 ibidem) and for the sake of sustainable development, the cantons that, due to their geomorphological characteristics, have lands within their circumscription that harbor aquifers (mantos acuíferos), their recharge (recarga) and discharge areas, springs (manantiales) and emerging springs (nacientes) are especially called upon and obliged to regulate and norm, responsibly, efficiently and effectively, such extremes, since, on occasion, underground waters not only supply the consumption and use of the populations of the canton but also of various cantons, which demonstrates a clear supra-local or national interest. The inhabitants of those localities, for their part, must bear the general burden or the limitations and restrictions on the use and exploitation of the land and waters derived from the determination and establishment of such protected areas, since it is for the benefit of them, of the inhabitants of the other cantons that are supplied with the waters that flow through the aquifer (manto acuífero) and that surface or discharge in other cantons and, of course, of future generations.\n\n**XV.- PRECAUTIONARY PRINCIPLE OF ENVIRONMENTAL LAW AND PROTECTION OF UNDERGROUND WATERS.** One of the guiding principles of Environmental Law is the precautionary principle or principle of prudent avoidance. This principle is enshrined in the United Nations Conference on Environment and Development or Rio Declaration, which literally states “Principle 15.- In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”. In the domestic legal system, the Biodiversity Law (No. 7788 of April 30, 1998), in its article 11, enshrines as hermeneutic parameters the following principles: “1.- Preventive criterion: It is recognized that it is of vital importance to anticipate, prevent and attack the causes of biodiversity loss or its threats. 2.- Precautionary criterion or in dubio pro natura: Where there is danger or threat of serious or imminent damage to the elements of biodiversity and the knowledge associated with them, the absence of scientific certainty shall not be used as a reason to postpone the adoption of effective protection measures”. In Ruling (Voto) of this Chamber No. 1250-99 of 11:24 a.m. on February 19, 1999 (reiterated in Rulings (Votos) Nos. 9773-00 of 9:44 a.m. on November 3, 2000, 1711-01 of 4:32 p.m. on February 27, 2001 and 6322-03 of 2:14 p.m. on July 3, 2003) this Court considered the following: “(...) Prevention aims to anticipate negative effects, and ensure the protection, conservation and adequate management of resources. Consequently, the guiding principle of prevention is based on the need to take and assume all precautionary measures to avoid containing the possible affectation of the environment or the health of people. Thus, in the event that there is a risk of serious or irreversible damage —or a doubt regarding it—, a precautionary measure must be adopted and even the activity in question postponed. This is because in environmental matters, a posteriori coercion is ineffective, since if the socially harmful biological consequences have already occurred, repression may have moral significance, but will hardly compensate for the damages caused to the environment”. Subsequently, in Ruling (Voto) No. 3480-03 of 2:02 p.m. on May 2, 2003, this Tribunal indicated that “Well understood, the precautionary principle refers to the adoption of measures not in the face of ignorance of facts generating risk, but in the face of a lack of certainty that such facts will effectively produce harmful effects on the environment”. In the case of underground waters contained in aquifers (mantos acuíferos) and recharge (carga) and discharge areas, the precautionary principle or in dubio pro natura, assumes that when no studies or reports exist, carried out according to the unequivocal and exactly applicable rules of science and technique, that allow reaching a state of absolute certainty about the innocuousness of the activity intended to be developed on the environment, or these are contradictory among themselves, the entities and bodies of the central and decentralized administration must abstain from authorizing, approving or permitting any new or modification application, suspend those that are in progress until the doubtful state is resolved and, in parallel, adopt all measures tending to their protection and preservation with the object of guaranteeing the right to a healthy and ecologically balanced environment. In essence, safe environmental management of underground waters involves protecting the resource before its contamination or degradation.\n\n**VI.- On the scope of the analysis carried out by this Chamber.-** Although the amparo remedy is not the ideal procedural route to examine whether a housing development project has complied with all the legal requirements demanded, nor to determine which requirements depend on others, nor to resolve technical-scientific disputes arising on the occasion of the request for exemption from sewer construction, what this Chamber is indeed called upon to determine is whether the permits granted by the respondent authorities, for the commissioning of the San Martín II Housing Development Project in Siquirres de Limón, have put the aquifers (acuíferos) of the zone at risk and thereby whether a violation of the rights to life, health and a healthy and ecologically balanced environment has occurred. Specifically, it will be analyzed whether, in the exercise of their competences, the respondents have acted in respect for these fundamental rights, both the actions of the Project developers and the public authorities, in order to verify whether, before the respective permits were granted (approval (visado) by INVU of the urban development plans, sanitary approval (visado sanitario) by the Ministry of Health of the plans, construction permit from the Municipality, environmental viability from SETENA), the agreement of the Board of Directors of ICAA of February 3, 2003, was taken into account, where the request for exemption from the construction of sanitary sewer networks for the housing development project in question was denied due to the possible risk of contamination to the aquifers (acuíferos) that such exemption would entail.\n\n**VII.- On how the actions of the respondents violate the rights to life, health and a healthy and ecologically balanced environment.-** This Chamber observes in the reports rendered a series of contradictions that have complicated the analysis of this file. Basically all the respondents excuse their actions by shifting the responsibility to the other institutions. INVU says it granted the plan approval (visado) on February 28, 2003, based on the approval given by ICAA on January 16, 2003 (folio 211), but said approval was never provided; all refer to it, including the Municipal Mayor (report at folio 175), but none provides a suitable document; the only thing presented is a computer sheet (folio 195) where an approval of the San Martín Housing Development Project is apparently inferred without stating what is being approved.\n\nsheet not even mentioned in the report rendered by the representative of the ICAA, who for his part alleges that the responsibility lies with the INVU for having proceeded “to grant the respective approval based on a technical memorandum that is not a Board of Directors Agreement” (report at folio 147) and with the Municipality of Siquirres, which is “responsible for verifying that the technical construction guidelines are respected in accordance with the communication made via Agreement 2003-044” (report at folio 147). For its part, the Ministry of Health states that it granted the plan approval on February 21, 2003, based on a hydrogeological study presented by the project developer, which determined that the risk of contaminating groundwater was null (report at folio 108), without verifying what the ICAA or other competent institutions, such as the SENARA of the MINAE, had resolved on the matter. The same can be said of the representatives of the project development companies, Construcciones Astorga s.a. and Nombre10 s.a., who were notified on February 24, 2003, of that denial by the ICAA and nonetheless continued with the project, placing the responsibility on the project’s construction company, alleging that the defects in the constructed houses are due to the construction plans of each property, as well as to the poor construction of the blackwater (aguas negras) systems, and stating that this has no relationship whatsoever with the construction or non-construction of a sewer system; they likewise conclude by stating that the actions of the ICAA regarding its internal processing, as well as those of the natural and legal persons responsible for the execution of the construction of the affected parties' houses, must be reviewed. Returning to the actions of the ICAA, despite the fact that the Board of Directors denied, on February 3, 2003, the request for an exemption from the construction of sanitary sewer networks (redes de alcantarillado sanitario) presented by the project developer since June 2002, this information was only communicated to the Municipal Mayor until August 18, 2004, MORE THAN ONE YEAR LATER, without notifying the INVU, which was the entity responsible for approving this subdivision project. Finally, regarding the Ministry of Environment and Energy, it is confirmed that even though the National Groundwater, Irrigation, and Drainage Service (Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento, SENARA) recommended on July 31, 2002, to carry out a risk assessment for aquifer contamination, neither they nor the Environmental Technical Secretariat (Secretaría Técnica Ambiental, SETENA) gave any follow-up to the case (presumably, as no report was rendered), despite having among their functions the prevention of all types of water contamination. Such have been the observed inconsistencies that lead this Chamber to presume a case that merits an investigation by the Public Prosecutor's Office, which is why, in addition to granting the appeal, it is ordered that certified copies of the case records be sent to the Public Prosecutor's Office so that it may determine whether we are facing criminal liability for all those involved.VIII.- In this matter, this Chamber notes a series of irregularities and contradictions that ultimately caused a violation of the fundamental rights of the petitioners. It is confirmed that the appellants are correct, and the INVU proceeded to grant permits and plan approval on February 28, 2003, despite the existence of ICAA Agreement number 2003-044 of February 3, 2003, which denied the request for an exemption from the construction of sanitary sewer networks because a septic tank system with leachate drainage represents a high risk of contamination to the aquifers of the zone. From what has been analyzed by this Chamber, the responsibility is shared, resting primarily with the INVU, which affirmed and communicated the project’s approval by the ICAA on January 16, 2003, this being an event that appears to be false, and furthermore leading the Municipal Mayor into error, who also did not verify for himself that this was true and did not require the project developer to present the proper document accrediting such approval by the ICAA. Likewise, responsibility also rests with the ICAA, which communicated said agreement to the Mayor more than A YEAR AND A HALF LATER and omitted communicating it to the INVU. Finally, the Municipal Mayor is again involved for granting permits without verifying the Environmental Viability (Viabilidad Ambiental); as are the representatives of the project development companies, Construcciones Astorga s.a. and Nombre10 s.a., which, despite being aware that they did not have the ICAA requirement, continued the project.
IX.- In conclusion.- Pursuant to the foregoing considerations, and applying the precautionary environmental principle, it is necessary to grant the amparo appeal filed, with the consequences provided by law, and a) ANNUL all permits granted to the developer of the San Martín II Project, particularly the one granted by the INVU on February 28, 2003, the one granted by the Ministry of Health on February 24, 2003, and all those granted by the Municipality of Siquirres; b) ORDER all respondents to take the necessary measures to protect the aquifer of the zone from the blackwater produced by the houses that are already built in the subdivision project; c) ORDER Construcciones Astorga s.a. and Nombre10 s.a. to build the sewer system recommended by the ICAA, or to relocate the people who inhabit said houses; and d) ORDER that certified copies of the case records be sent so that the Public Prosecutor's Office may investigate the actions of both the public authorities and officials and the private subjects.
Therefore:
The appeal is GRANTED, and consequently it is: a) ANNULING all permits granted to the developer of the San Martín II Project, particularly the approval of urban plans (visado de planos urbanísticos) given by the INVU on February 28, 2003, the sanitary approval of plans (visado sanitario de planos) by the Ministry of Health on February 21, 2003, and the construction permits granted by the Municipality of Siquirres on March 3, 2003; b) ORDERING all respondents to take the necessary and sufficient measures to protect the aquifer of the zone from the blackwater produced by the houses that are already built in the subdivision project; c) ORDERING Construcciones Astorga s.a. and Nombre10 s.a. to build the sewer system recommended by the ICAA, and ordering Olman Chacón Garita, in his capacity as Deputy Manager with powers as General Power of Attorney without limit of amount of the Costa Rican Institute of Aqueducts and Sewers (Instituto Costarricense de Acueductos y Alcantarillados), and Arturo Castillo Valverde, in his capacity as Acting Municipal Mayor (Alcalde Municipal a.i.) of the Municipality of Siquirres, to proceed to supervise said construction and provide the collaboration that corresponds according to their competencies; and d) ORDERING that certified copies of the case records be sent so that the Public Prosecutor's Office may investigate the actions of both the public authorities and officials and the private subjects. The heads of the condemned bodies and entities, or whoever holds their position, namely, in order, Carlos Manuel Rodríguez Echandi in his capacity as Minister of Environment and Energy, María del Rocío Saenz Madrigal in her capacity as Minister of Health, Angelo Altamira Carriero in his capacity as Executive President of the INVU, Olman Chacón Garita in his capacity as Deputy Manager with powers as General Power of Attorney without limit of amount of the Costa Rican Institute of Aqueducts and Sewers, Arturo Castillo Valverde in his capacity as Acting Municipal Mayor of the Municipality of Siquirres, Jorge Víquez Mora, legal representative of Construcciones Astorga s.a., and Ana Lucía Astorga Castillo, legal representative of Nombre10 s.a., are warned that should they fail to comply with the orders issued in this judgment, they would incur the crime of disobedience, which, in accordance with Article 71 of the Law of Constitutional Jurisdiction, is punishable by imprisonment from three months to two years or a fine of twenty to sixty days for anyone who receives an order that they must comply with or enforce, issued in an amparo appeal, and does not comply with it or enforce it, provided the crime is not more severely punished. The State, the National Institute of Housing and Urbanism (Instituto Nacional de Vivienda y Urbanismo), the Costa Rican Institute of Aqueducts and Sewers, the Municipality of Siquirres, and the companies Construcciones Astorga s.a. and Nombre10 s.a. are ordered to pay the costs, damages, and losses caused by the acts that serve as the basis for this declaration, which shall be liquidated in the execution of the judgment in the contentious-administrative proceeding.-
Luis Fernando Solano C.
President
Adrián Vargas B. Ernesto Jinesta L.
Fernando Cruz C. Teresita Rodríguez A.
Jorge Araya G. Federico Sosto L.