(Approved January 1, 2003) AN ACT

Transcription

1 (H. B. 2685) (No. 16) (Approved January 1, 2003) AN ACT To Conservation, Development and Use of the Water Resources of Puerto Rico", by adding Section 19-A for the establishment of a amend Act No. 136 of June 3, 1976, as amended, known as the "Act for the procedure to adjudicate rights to water when such rights are claimed by multiple persons, including the Government of the United States of America. STATEMENT OF MOTIVES Water is a resource of vital importance for the life, health, and economic development of a people. Therefore, the State has a great interest in adequately conserving and managing the water resources in the country. This statement is more relevant in our case, since our situation as an island makes our natural resources much more limited. Act No. 136, supra, establishes that it is the public policy of the Commonwealth to maintain the degree of purity of the waters of Puerto Rico required for the welfare, safety, and development of the Island, to insure the water supply that may be needed by the present and future Puerto Rican generations by establishing water reservation areas and using the waters and bodies of water in accordance with the public interest, and with their best, most beneficial and most reasonable criteria of use. To this end and purpose, it is expressly declared, in order to protect our people from the adversities of the shortage, misuse, waste, and pollution of such an essential resource, as well as to attain that its utilization be compatible with the physical-natural realities surrounding it, and with the social and economic

2 needs of our Island, that the waters and bodies of water of Puerto Rico are the property and wealth of the People of Puerto Rico. The Commonwealth Government shall administer and protect this patrimony in the name and on behalf of the Puerto Rican people. Likewise, it is the public policy of the Commonwealth to achieve the most equitable and fairest distribution of its waters. To that effect, it is established that the water requirements inherent in domestic consumption and particularly human consumption, shall be satisfied with priority over any others, and that in the adjudication of the surplus available, the public interest shall prevail over any other interest or claim. Considering the distribution of water up to the year 1976, our laws for regulating water considered it of public domain or of private domain. The ownership of such water was then determined by certain precepts of the Civil Code and by the special law on water that we inherited from Spain. Already in the year of 1976, the Legislative Assembly of Puerto Rico approved Act No. 136, supra, for the purpose of adapting the distribution and management of water in Puerto Rico to the realities of modern society. See: II. José Ramón Vélez Torres, Civil Law Course Los Bienes, los Derechos Reales, Page 233, et seq. (3 rd Ed. 1997). Act No. 136, supra, had the immediate effect of converting the water of Puerto Rico into the property and wealth of the Puerto Rican people. Consequently, the water is subtracted from the private domain and is subjected to the broad field of Administrative Law regulations. See: II José Ramón Vélez Torres, supra, p As a consequence of the water of Puerto Rico becoming public property, the Secretary of Natural Resources received the power to grant permits and franchises for the use and enjoyment of the water.

3 Section 15 of Act No. 136, supra, established a priority procedure which states that Where several petitions are presented for the purpose of utilizing beneficially and reasonably a body of water and it lacks the sufficient volume to meet them all, or when there is sought the beneficial and reasonable utilization of a body of water that is incompatible with another foreseeable use also beneficial and reasonable, or when there is sought the utilization of a source for a purpose more beneficial and reasonable than any of the existing ones, the Secretary shall grant the petitions which represent the most beneficial and reasonable utilization and best satisfy the public interest and the purposes of this Act. On the other hand, Section 16 of Act No. 136, supra, recognized that Every beneficial and reasonable use and utilization of waters existing on the date this act takes effect, including those acquired under grants from the government of Spain, or which existed within the preceding year, or was to commence at the termination of works in progress on the effective date of this act shall be considered as a vested right under the previous legislation and shall be protected by this Act, taking into consideration the nature, the content and the scope of the right, as dictated by the rules of the previous legislation under which they were born. Further down it notes that this provision does not limit the powers which Sec. 1505e of this title grants to the Secretary, and in no way reduces his authority to establish the true existence of the rights claimed, or to require the inscription and registration thereof, (emphasis supplied) According to Vélez Torres, this rule was meant to protect the constitutional right of property of those previous owners. Act No. 136, supra, established in its Section 19 an administrative procedure to solve any claim over vested rights to establish priorities over a

4 body of water. However, the Circuit Court for the First Circuit determined that this adjudication procedure, due to its imminently administrative nature, does not comply with the requirements of the federal Law known as McCarran Amendment, 43 U.S.C. 666, through which the federal Government consented to be sued in state proceedings for water adjudication. As a result of this decision, the Government of Puerto Rico cannot include the federal Government in proceedings to adjudicate water rights. See: United States v. Puerto Rico, No , 2000 WL (1 st Circuit 2002). It is necessary that our system provide the tools enabling the Commonwealth of Puerto Rico to adjudicate the rights of all water rights claimants. This procedure must take place with the concurrence of all those people who allege having titles of vested rights over a body of water and those who oppose the same. Further, the procedure must determine in an incontrovertible way which are the rights that the parties hold over a specific body of water. This general adjudication procedure will enable the Secretary of Natural Resources to make the use priority distributions and the adjudications of vested rights taking into account rights existing before the year This type of procedure is similar to the one existing in several jurisdictions of the United States known as Comprehensive General Stream Adjudication. This concept was created with the purpose of adjudicating multiple claims over a body of water. This system has its origin in the 19 th century in the state of Oregon, where water rights were acquired by appropriation, contiguousness, or through a reservation of federal rights granted by the Government of the United States and the Indian tribes under federal law. That is to say, at that

5 time the person who had access to the water had a right of preference over any other person. With population growth, water claims became more numerous, which rendered the use of traditional civil proceedings impractical and inefficient and the intervention of administrative entities with specialized knowledge was required to obtain the adjudication of all the rights in a single proceeding. See United States v. Oregon, 44 F. 3d. 758 (9 th Cir. 1994). This system was adopted with multiple variations by states in the West such as California, Arizona, Nevada, Montana and Utah. A similar system was also adopted in Alaska. According to the decision of the Circuit Court, our laws presently lack a system for general adjudication allowing the Commonwealth to include agencies of the government of the United States to establish the vested rights of all citizens over a body of water. This system has the basic requirement of notifying all users of the body of water and it establishes a procedure to determine which vested rights are held and which are disputed. This measure is based on the models adopted by the states of Alaska (AS and AS ) and Arizona (AZ.ST ), and provides the mechanisms for the Commonwealth of Puerto Rico to attain the general adjudication of rights over bodies of water through a special procedure. Additionally, it allows our Government to include the government of the United States in the determinations of water rights under the requirements of the McCarran Amendment, 43 U.S.C This law represents an adequate mechanism to obtain the organized distribution of water rights in Puerto Rico according to the public policy established by Law No. 136, supra.

6 BE IT ENACTED BY THE LEGISLATURE OF PUERTO RICO: Section 1.- A new Section 19-A is hereby added to Act No. 136 of June 3, 1976, as amended, known as Act for the Conservation, Development and Use of the Water Resources of Puerto Rico, to read as follows: Section 19-A.- Procedure to determine priorities and vested rights, franchise applications and other procedures for a just distribution of water resources when there are rights claimed by the government of the United States of America - When an agency or an entity of the government of the United States of America appears as one of the claimants of preferential rights or vested rights over a body of water in Puerto Rico, the Secretary shall follow the following procedure: (1) The Secretary shall not begin the administrative procedure and shall request that the Secretary of Justice file a claim representing the Commonwealth of Puerto Rico and against the other claimants before the Superior Court of Puerto Rico requesting that the respective rights to water be adjudged. This shall be consistent with what is established in 43 U.S.C (2) The Secretary shall prepare a list of the known claimants including their residential address, telephone number, postal address and a summary of the right being claimed, which will be presented to the Court together with the claim. The Secretary shall publish a notice in a newspaper of general circulation once for two (2) consecutive weeks inviting all parties holding a claim over the body of water in controversy to have their names included in the list of claimants.

7 3) The Secretary of the Court shall issue personal summons addressed to all known claimants. Summons shall be issued by publication to all unknown claimants according to what is established in the Puerto Rico Rules of Civil Procedure. (4) Once summoned, each claimant shall have twenty (20) days since being personally summoned and thirty (30) days if summoned by publication to file a pleading with his allegations, documentary evidence, relief requested and any other additional information to help the Court in determining the rights to the water. (5) The Court may use its discretion to appoint a special master according to Rule 41 of the Rules of Civil Procedure of Puerto Rico. (6) The Court, if it deems it necessary, or upon a party s petition, may schedule an evidentiary hearing for the purpose of receiving proof and to hear the parties involved. (7) Once it has made a determination of rights, the Court shall issue a judgment specifying the rights held by each claimant. In the judgment the Court can make a determination as to the nature, scope, preference and conditions of the rights of water use. (8) Once the judgment becomes final and binding, the Secretary shall issue the corresponding certificates of preference, franchises, or any other document proving the rights set forth in the judgment. Section 2. - Necessary Parties The Commonwealth of Puerto Rico shall always be a necessary party to the lawsuit. Section 3. - Severability Clause If any part, paragraph or section of this Act were declared invalid or null by a Court with jurisdiction, the judgment issued for such purpose only

8 affects that part, paragraph or section whose invalidity or nullity has been declared. Section 4. - Effectiveness This Act shall take effect immediately after its approval.

9 CERTIFICATION I hereby certify to the Secretary of State that the following Act No. 16 (H.B. 2685) of the 4 th Session of the 14 th Legislature of Puerto Rico: AN ACT to Conservation, Development and Use of the Water Resources of Puerto Rico", by adding Section 19-A for the establishment of a amend Act No. 136 of June 3, 1976, as amended, known as the "Act for the procedure to adjudicate rights to water when such rights are claimed by multiple persons, including the Government of the United States of America, has been translated from Spanish to English and that the English version is correct. In San Juan, Puerto Rico, today 3 rd of February of Elba Rosa Rodríguez-Fuentes Director