Water supply and building permits
By: Paul Collar
|Paul is a hydrogeologist and environmental engineer and the owner/operator of Osa Water Works. You may reach him at email@example.com|
The amount of water that falls as rain on Costa Rica each year is enough to provide an average of 60 liters of drinking water every day to every man, woman and child on the planet.
|Average Costa Rica Precipitation and Temperature||Costa Rica has enough rain water to supply the entire world population with 59.3 liters per day per capita.|
By any measure, water is arguably the Republic’s most prolific natural resource. The nation has for years had laws on its books that regulate water extraction and use but until a couple years ago, these laws were unevenly enforced, often even disregarded altogether. Due in part to water shortages in Guanacaste that arose from just such a lax approach to water management during rampant tourism development, the nation has taken steps to boost compliance and improve the management of its water resources.
Costa Rica’s approach to increased vigilance of its water resources is one that largely focuses on pre-project planning, not so much after the fact. So, if you have an off-grid home and captured a spring years ago and use it for your water supply, Big Brother is not coming after you to force you to get a concession. In practice you get grandfathered in—at least until further notice—allowed to use your water supply without interference even if you did not obtain an environmental permit to exploit it, even if you never obtained a water concession.
But for those starting new, it’s a different story, and the compliance hurdles occur mainly in two places, first in legal due diligence for properties being bought and sold, and critically, at the Municipal level with the issuance of building permits. In due diligence, the buyer’s attorney is tasked to point out any potential problems with a property under review. If there is no near municipal water supply and the property does not have a water concession, then this is made clear to the buyers so they are aware of the challenges they will face when they seek to build or develop. This brings us to the critical Municipal linchpin of the building permit.
|Municipality of Golfito Coat of Arms: Building permits are issued at the local level by the Municipality.||Colegio de Ingenieros y Arquitectos: Oversees engineering reviews of project design at the federal level.|
A key requirement for a home building permit, one that has always been on the books—but enforced irregularly—is that the property have an approved source of water, of which there are only three approved alternatives
- connection to an urban Acueductos y Alcantarillados network,
- connection to a rural community Asada network, and
- possession of a valid water extraction concession.
|Acueductos y Alcantarillados: Ministry of water supply and source of urban drinking water||Asada connection||Your approved water concession|
|Three options for water supply that are legally acceptable for building permit applications|
For off-grid and most remote properties, many of which have extensive surface and ground water resources, there is rarely a local Asada, far less an A y A network for a convenient service connection. And a water concession from a spring, stream, river, or well can take three years or more to obtain. Therefore, it could take several years after buying a property to even qualify to apply for a building permit. This potentially puts the brakes on many things vital to the excitable domestic economy, including foreign investment, construction, sales of building materials and downstream goods, and a laundry list of professional services. Rather than enforce the law as it is on the books given such draconian consequences, many municipalities allow a concession en trámite, i.e. in progress, to suffice to issue the building permit, at least for residential building. Condo law requires the concession to be in hand and valid. And commercial construction likewise is held to a tighter standard. For condo and commercial projects the water law enforcement linchpin occurs not so much at the Municipal level but during engineering review by the Colegio de Arquitectos e Ingenieros, a national level review required for all construction projects prior to Municipal review for the final building permits themselves.
At the residential scale, it is important to know how your Municipality enforces the law. Last year, for instance, the Osa Municipality in Cortés (which governs Drake, Rincón, Bahia Chal, Mogos, Santa Cecilia, Sierpe and coastal lands north to Dominical, began to enforce a concession-in-hand policy that left developers and investors unable to move forward in real time. The outcry led to a partial Municipal retreat, at least for those that shout loud enough. For those of us that fall within the Golfito Municipality’s jurisdiction, a softer and more permissive line has been historically taken. Still, if you can’t connect to an Asada (Sándalo, Cañaza, La Palma, Drake, San Juan de Dios, Palo Seco, Dos Brazos, Rancho Quemado, Matapalo, and Drake) or A y A directly (Puerto Jimenez only), and you plan to build, then you’d best lay plans for securing a water concession, not just to be in compliance with existing law and make sure you get your building permit, but also to exercise civic and environmental responsibility and to participate in good faith with national resource management protocol.
So, what’s involved?
First you have to have a source of water, and sorry, rain water does not count. Despite being the most environmentally sustainable residential water supply alternative in the region, rainfall capture is not yet recognized as a concessionable resource, and it is not on the approved list for building permits. Doesn’t mean you can’t include it in your home design; doesn’t mean it can’t be your primary water supply; just means that you have to have a second “official” water source to get your building permit.
So, you need a spring, a stream, a river, or a well.
Bored wells are another labyrinthine maze of permitting bureaucracy, my subject for next month’s edition of Sol de Osa. But for the time being, to drill a well requires a permit that takes at least six months and $1200 or so to secure, and another several months to 1) schedule and drill the well; 2) obtain the necessary drilling reports required to apply for a concession; and 3) apply for the environmental permit and water concession (which you cannot do until the well is drilled). So, even if a “concession in progress” is deemed sufficient for building permit requirements, it will still take nearly one year from starting off to reach that point with a bored well, so it’s best to get started sooner rather than later. More on wells next month.
However, for springs, streams, and rivers, it is possible to get moving right away and to have a “concession in progress” affidavit within 8-12 weeks of starting out. Here’s what it takes.
- Environmental Permit. A division of MINAET, the Secretaría Técnica Nacional Ambiental (SETENA) is the federal agency charged with the evaluation of environmental impact of planned development. All building permits and development plans must achieve a SETENA approval to proceed through the application process. It applies not just to water supply development but to all building, road construction, rural electrification, pretty much anything in which ground must be broken. There are three levels of SETENA review. The most costly and extensive, a full-blown environmental impact statement (EIS) is typically reserved for larger projects, condo development, hydroelectric, subdivisions, industrial and manufacturing, etc. For water supply, residential construction, and rural electrification, among others, the two remaining SETENA reviews are the D-1 and the D-2, depending on project scope. Practically speaking both the D-1 and the D-2 are applications to exclude the requirement of a full-blown (and costly) EIS.
- D-2. The less involved and less costly D-2 is for small projects. In terms of water supply, a D-2 is the appropriate environmental permit, for instance, for single-home applications. The cutoff is 0.05 liters per second (lps) withdrawal rate. That’s less than one gallon per minute but enough water with proper storage capacity to supply a household of 11 full time residents with 100 gallons per day of water, a standard per capita criterion for water supply development. Budget $1250 – $1800 for a water concession with a D-2 and expect SETENA approval within 2-3 months.
- D-1. The more extensive D-1 applies to all water extraction applications that exceed 0.05 lps extraction rate but still fall beneath industrial rates that trigger a full EIS. Budget $3000-$4000 and expect an approval within 2-3 months.
- Concession Application. Once the SETENA review is approved, an application for a water concession is made through MINAET’s Direction of Waters. Typically submissions to SETENA and Department of Waters are made in parallel, but the latter application is not processed until the SETENA approval is granted. This is where the long wait begins. The department does field inspections only during the dry season, so there is a long backlog of concessions in process. It can take 2-4 years for a final concession to be issued. However, most (not all: do your diligence up front) downstream permitting authorities will accept a concession in progress and issue a building permit on its basis. Cost? The concession costs are included in the D-1 and D-2 estimates given above.
So, you buy a lot in a subdivision that has a deep well with a valid concession. You’re good to go, right? Not so fast.
Turns out it’s illegal to sell water, provide water, give water, or authorize the use of water, to third parties. Only the government can do this. You CANNOT use someone else’s concession for your building permit, even with their blessing, even if it’s in your sales contract. This technicality, only recently enforced widely, is the bane of developers, with perhaps twenty lots on a beautiful mountain, nicely subdivided, great roads, and a great water supply that cannot be legally used by people that buy lots. There is a work around, though, two actually. Multiple concessions can be secured from the same water source. So, a deep well that is properly permitted with a pre-existing concession CAN be granted secondary concessions (D-2s typically) for those allowed by the owner to apply, up to the yield of the well. For a 1 lps well, for instance, up to twenty different D-2 concessions are eligible. Same thing goes for springs and streams. Alternately, a subdivision can form an Asada, though this is a process better suited to a Kafka novel than contemporary reality. What this means is that it is caveat emptor for those lots, and buyers must negotiate terms up front for water rights or find themselves high and dry when it comes time to build.
There is a sizeable loophole for those fortunate enough to have near-surface ground water resources. Hand-dug wells do not require permits and are exempt from most laws governing bored wells. So, if you plan to build on the Osa’s expansive alluvial plane, for instance, where water is often present within 25 feet or so of the surface, you can put in a hand dug well for usually less than $5000 and get moving on the SETENA permit and concession right away. Trouble is that upland sites, at least away from the floodplains of streams or rivers, rarely have ground water shallow enough year round to be exploited in this manner.
The Republic of Costa Rica has in the past made questionable bets in a sometimes lax approach to water management and has paid the price, not only in arid Guanacaste, but even in Metro San Jose, where water rationing is a yearly dry season reality for many southern suburbs and neighborhoods. The reactive increase in government oversight of existing water law should come as no surprise to anyone and is a rational policy response. While an inclination to recur to graft to get over permitting humps—like water supply for building permits—remains in some quarters, this is a bad idea on many levels. But even discarding moral and ethical boundaries, this can come up years later when the property goes up for sale and legal due diligence uncovers such short cuts and incurs costly calibrations at the eleventh hour to make things right.
The best thing to do is to be aware of the rules, how they are interpreted at the local and federal levels, and plan effectively in order to comply fully with them and do things right the first time.