Legal Aspects of the Conservation and Wise Use of Wetlands in Costa Rica

Legal Aspects of the Conservation and Wise Use of Wetlands in Costa Rica

Grethel Aguilar

Commission on Environmental Law,

IUCN - The World Conservation Union

Case Study

prepared for the

Technical Consultation on

Designing Methodologies to Review

Laws and Institutions Relevant to Wetlands

Gland, Switzerland

3-4 July 1998

1. Background

The Wetlands provide mankind with a broad spectrum of possibilities for its subsistence if they are adequately managed. However, experience has shown that we are wasting this precious natural resource as it slowly disappears.

The Wetlands in Costa Rica occupy 4% of the national territory, and it’s estimated that the total area of mangroves is 30,000 hectares, including 1,460 km of coastline. In the last few years, and especially since the ratification of the Ramsar Convention in 1991 in Costa Rica, attention has been called to the Wetlands and particularly a special type of wetland, the Mangroves. However, ever since the Political Constitution of 1948 and the Water Law of 1942 the problem of water and marine resources has been worked on by lawyers and applied to the Ministries and institutions of Public Administration.

The truth is that we find ourselves confronted with a such a broad spectrum of legislation that, while not always dealing directly with the subject of Wetlands, is intimately related to the same as for example, in the laws that deal with wildlife, forest resources, the maritime land zone, and the waters, fish, and environmental legislation in general. This quantity of legislation is dispersed among different legal documents which results in an unclear picture, which at times results in overlap of authority, legal loopholes and legal inconsistencies.

Within this panorama it should be noted that in Costa Rica the principal and most important legal instrument for the protection and wise use of the Wetlands is the Political Constitution of the Republic, which guards the fundamental rights of Costaricans including the right to a healthy and ecologically stable environment.

The text of article 50 of our Magna Carta establishes that “The State shall procure the well-being of all inhabitants of the country, organizing and stimulating production and the most adequate distribution of wealth. Every individual has the right to a healthy and ecologically stable environment. Therefore, (s)he has the legal right to denounce any acts which infringe upon that right and to claim reparation for damages.

The State shall guarantee, defend and preserve that right. The law shall determine the corresponding responsibilities and sanctions."

This Constitutional reform has been considered a huge advancement in Costarican Environmental Law since it considers, in the highest instrument in the hierarchy of laws, the right of every individual to a healthy environment and gives every individual the legal right to sue for damages.

Within this framework is presented a brief analysis of the most relevant aspects of the legal and institutional situation of the Wetlands in Costa Rica, its effects, difficulties of application and the current situation. We do not pretend, in this document, to relate all of the environmental regulations dealing with the Wetlands in their totality since they are numerous and varied and have been presented in the document “Manual de Legislación sobre Humedales para Costa Rica” (1998) (Manual of Wetland Legislation in Costa Rica) produced by the Ministerio de Ambiente y Energía (Ministry of Environment and Energy) with the technical assistance of the IUCN/ORMA through the Estrategía Nacional para Conservacíon de Humedales (National Wetlands Conservation Strategy).

2. General Considerations

The National Legislation has dealt with the subject of Wetlands since 1942 with the Water Law and, more specifically, in 1977 when the Law of the Maritime Land Zone made reference to the Mangroves as a Forest Reserve. However, it is with the Law for the Conservation of Wildlife (L.C.V.S.)[1] that the term “Wetlands” is used for the first time and they are listed as a legal asset protected by the Costarican legal system. In article 2 of this law wetland was defined, this article being a textual copy of the definition found in the Ramsar Convention[2].

However, said definition is very broad and difficult to apply to tropical systems. Therefore, during the process of elaboration of the National Wetland Conservation Strategy a definition adapted to the reality of the region was developed, and was incorporated in article 40 of the “Ley Orgánica del Ambiente” (L.O.A) (Organic Environmental Law) which indicates:

“The Wetlands are ecosystems with dependency on natural or artificial, permanent or temporary, lentic or lotic, fresh, brackish or saltwater aquatic regimes, including the marine extensions to the outside limits of phanerogamous marine regimes or coral reefs or, in their absence, to six meters of depth at low tide.”

This, without question, constitutes the first step in national legislation toward adapting an international legal instrument like the Ramsar Convention to the reality of the country. At the level of jurisprudence, the topic sparked discussions in relation to the legal possibility of broadening the contents of an international convention or broadening different definitions of the subscribed agreement. However, it was concluded that the new definition on a national level does no more that elucidate the concrete possibility of applying the Convention to a tropical system like Costa Rica and in no way does said definition contradict or minimize the definition included in Ramsar.

Another point that was discussed within the new definition adopted for the tropics was that according to this proposal we would have too many considered Wetlands. Therefore, it was proposed that within the Proyecto de Ley de Humedales (Wetlands Bill) that was being worked on, it should include that the artificial Wetlands that are not necessary for the support of productivity and biodiversity, in accordance with a series of technical criteria that should be defined in the law, would NOT be the object of regulation. As can be observed, what is being pursued is the precise legal determination of the asset to be protected, in this case, non-artificial Wetlands that are not necessary for productivity.

Institutional Administrative Authority

In 1995 by decree the Sistema Nacional de Areas de Conservación (SINAC) (the National System of Areas of Conservation) of the Ministerio del Ambiente y Energía (MINAE) (Ministry of the Environment and Energy) was created as an entity for institutional coordination, decentralized and informative, whose goal it is to dictate policies, and plan and execute processes to achieve sustainability in the management of natural resources. SINAC divides the country into 11 conservation areas.

This is added to the disposition contained in the Ley Orgánica del Ambiente (Organic Environmental Law) of October of 1995 that declared the Wetlands as a management category, under the administration of the Ministerio del Ambiente y Energía (Environment and Energy Ministry). Therefore, the Wetlands fall under the administration of (SINAC-MINAE).

Another administrative decision was made with Decree 22839-MIRENEM, of January 22, 1994, which established the creation of the Comisión Nacional de Humedales (National Wetland Commission). This is the auxiliary organ of MINAE that is to establish and recommend the management features and policies that permit the conservation of the country’s Wetlands. It is to also facilitate the coordination and technical cooperation of the different institutions that work in this field.

Although the Comisión Nacional de Humedales (National Wetland Commission) is an agency that was created by decree, it is currently not functioning. There is a work group that, on the insistence of UICN, meets once a month to analyze Wetland topics. However, it is an advisory group without the authority to make decisions.

The Instituto Costarricense de Pesca y Acuacultura (INCOPESCA) (National Institute of Fisheries) should also be pointed out as an important player within the Competencia Administrativa de los Humedales (Wetlands Authority). In conformity with the Law #7384 (Ley de Creación de INCOPESCA) (Law for Creation of INCOPESCA) it has within its power: to write, study, and apply legislation, to regulate and avoid the contamination of maritime resources and aquaculture as a result of fishing efforts, aquaculture and other activities that cause contamination.

There has been an ongoing discussion concerning whether it is INCOPESCA or SINAC/MINAE that has the authority to issue permits in Wetland zones since in some cases it seems that there exists an overlap of activities or little clarity in the letter of the law. In reference to this the Procuraduría General de la República (The General Attorney’s Office) issued proclamation C-215-95 in which it determined that for protected areas that require total protection of Natural Resources (Biological Reserves, National Parks, State Wildlife Refuges) because of the uniqueness of the material that is regulated the authority belongs to MINAE and for the rest of the management categories and the welfare of public and private domain INCOPESCA has authority.

Another important entity within the Competencia Administrativa de los Humedales (Wetlands Authority) is the Comisión Nacional para la Gestión de la Biodiversidad (National Commission for the Management of Biodiversity), created in the Ley de Biodiversidad (Biodiversity Law) as a decentralized organ of the Ministerio del Ambiente y Energía (Environmental and Energy Ministry). This Commission is comprised of the Ministers (or a representative) of the Ministries of Ambiente y Energía(Environment and Energy), of Agricultura y Salud (Agriculture and Health), by the Director of SINAC and a representative of the following institutions, INCOPESCA, Ministerio de Comercio Exterior (Ministry of International Commerce ), Mesa Nacional Campesina (National Peasant Forum), Mesa Nacional Indígena (National Indigenous Forum), Consejo Nacional de Rectores (National Counsel of University Presidents), Federación Costarricense para la Protección del Ambiente (Costa Rican Federation of Environmental Groups), Unión de Cámaras de Empresa Privada (Union of Chambers of Private Industry).

Within its scope it has the responsibility to formulate national policies in reference to access to biodiversity, associated knowledge, conservation, restoration and sustainable use applying the different international agreements, and to formulate a national strategy for biodiversity, and to coordinate and facilitate a process for publishing about conservation, sustainable use, and restoration of biodiversity policies.

This overview leaves us with a broad spectrum of institutions that regulate the conservation and wise use of the Wetlands, all of which have very specific purposes in the field and at first glance it would seem that there is no problem. However, the practical situation is that duplication of authority and function is rampant and it is unclear as to which agency is in charge of which activity. The legislation in this case has erred on the side of an excess of institutions and authorities to regulate the Wetlands causing confusion between users to the detriment of the resource.

Another factor that should be taken into consideration is the novelty of the legislation regulating the Wetland ecosystems, laws the majority of which date between 1995 and 1998, resulting in very little experience in most cases, as in the case of biodiversity associated with the Wetlands.

The idea of a Comisión Nacional de Humedales (National Wetland Commission) should be tried again with the participation of the different institutions related to the administration of the Wetlands with the goal of conservation and sustainable use.

Within the Proyecto de Ley de Humedales de Costa Rica (Wetlands Bill of Costa Rica) (in process) it is proposed that SINAC/MINAE be responsible for the administration and the conservation and wise use of the Wetlands within the continental-insular area and within the natural protected areas, which will solve the problem of authority. In addition to briefly enumerating its functions related to Wetlands, this project also indicates that SINAC/MINAE will be charged with the responsibility of coordinating the management and protection of the Wetlands with other institutions. This solution was determined after long negotiations between the interested parties arising from the need to have an institution that would be directly responsible for these ecosystems.

Categorization of Wetlands

The Ley Orgánica del Ambiente (L.O.A.) (Organic Environmental Law) establishes that the Wetlands are a Management Category in its own right. However it is unknown in reality the scope of this category.

With Ley de Biodiversidad (Biodiversity Law)(unpublished) the framework of the Wetlands is further complicated in article 58 where it indicates that “The natural protected areas are limited geographic zones constituted of Wetlands and portions of the ocean…”. Note that the Ley de Ambiente (Environment Law) had declared the Wetlands to be a Management Category which, as of this date, has an undefined scope.

If we use as a starting point that the Ley de Biodiversidad (Biodiversity Law) is in contraposition to L.O.A. in what Wetlands refers to and being that the Ley de Biodiversity (Biodiversity Law) is a more recent law, then the principle that the more recent law annuls the previous one in areas of contradiction should be applied. Therefore, the Wetlands are a Protected Natural Area. However the current situation lends itself to confusion and there exists no standard criteria for interpretation.

It would seem that if we were to use the option that the Wetlands are Protected Natural Areas, subject to declaration by the Executive Power and to studies to determine its management category as indicated by the Ley de Biodiversidad (Biodiversity Law), then some confusion that persists could be eliminated. However, on the other hand, we should remember that the rights of private property established in the Constitution should be respected. Therefore Wetlands on private property, that because of their importance need to be included in Protected Natural Areas of the States, would require the respective expropriation or sales agreement, donation or other. (In fact, the State does not have the economic resources for expropriations from individuals, an action that additionally has historically caused problems among communities.

For the moment the legal gap persists as to a determination of what the Wetlands are within environmental legislation. The only thing which is clear is that Wetlands do exist on private property and on State land and, therefore, the regulations should respect those rights.

Evaluation of Environmental Impact and the Wetlands

Specifically on the subject of Wetlands, the L.O.A. declares the Wetlands and their conservation to be of public interest, because they are multi-use, whether or not they are protected by the laws related to the subject. With this declaration of public interest, the State can impose limits to the use of the resources within the Wetlands in order to protect the collective interest.

The L.O.A. indicates as well that construction of infrastructure may not damage ecosystems, principally those related to hydric resources. Therefore, any activity that could affect the Wetlands will require a EIA.

One of the most important contributions of the L.O.A. is the legal support that is given to the evaluation of environmental impact. As a general principle, it establishes that “all human activities that alter or destroy elements of the environment or generate residual, toxic or dangerous materials, will require an evaluation of environmental impact”. In this manner, the EIA in an instrument that gives the Administration more information with which to make decisions that will prevent damage to the environment.

In spite of this important step, the use of the phrase “activity that can affect the environment” is very broad and leaves gaps as to which specific activities will need a EIA, a situation that lends itself to conflicts in interpretation.

Legal framework for the protection of mangroves

The mangroves dominate the coastal habitats of tropical and subtropical regions, and characterize the estuary ecosystems in these regions, constituting during thousands of years, an important economic resource used by the coastal populations of the tropics. Within the products which can be obtained from the mangroves we find forest products, natural wildlife, fish and forage resources, all of which are used by the coastal communities

In Costa Rica the mangroves were the first type of wetland to be specifically regulated by legislation for 55 years, which in part, reflects the great richness of these resources and the interest that they generate.

The Ley Forestal (Forestry Law) of 1996, prohibits by virtue of public interest, the cutting or use of mangroves that are property of the State. Only investigation, training and ecotourism will be permitted.

In September of 1997 the Comisión de Asuntos Agropecuarios de la Asamblea Legislativa (Agricultural Commission of the Legislative Assembly) made a motion to introduce a modification to the first article of the Ley Forestal (Forestry Law) so that in the future permits, concessions and contracts supported by the previous Ley Forestal (Forestry Law)shall remain in effect until they expire. The forest administration may grant extensions to the permits, as long as the interested parties have complied with the environmental requirements. The Forest Administration may not grant new permits, concessions or contracts.

This motion to modify Article Two was approved by consensus in the Comisión de Agropecuarios (Agricultural Commission), was presented in Plenary Session of the Legislative Assembly and is ready to be published in the official periodical, La Gaceta. However, for the moment the limiting situation of mangrove use subsists, and this proposal for reform would address the situation of companies or firms that already possess authorization to utilize the mangroves at the time the Ley Forestal (Forestry Law) was passed, without the possibility of new forms of utilization. Due to the important socio-economic role of the mangroves this situation should be addressed as soon as possible so that the mangroves are utilized in a sustainable manner, especially by the bordering communities.

Sanctions for Actions against the Wetlands

One of the principal characteristics of the Derecho Ambiental (Environmental Law) is that its principal objective is prevention rather than reparation. In environmental matters reparation or co-action is especially ineffective since it is employed a posteriori, when the act against the wetlands, in this case, has already taken place. Experience has shown that in most cases those who assault the Wetlands would prefer to pay a fine than to cease their illegal activity.

However, sanctions and prevention are not the solution to all problems. There exists a lack of interest on the part of the citizens, inspectors and institutions in reporting environmental crimes. This is due to the fact that the legal processes are too long and there are few important sanctions for ecological transgressions.