Is this really good news for owners of Artesian Wells? Read on!

Important news for Costa Rican property owners struggling to get water into their property. The Ministry of Environment and Energy (MINAE) has announced that Artesian Water Wells no longer require to go through the recording process before the National Registry of Water Concessions (in Spanish: “Registro Nacional de Concesiones de Agua”) of MINAE. The new rules were set forth via Decree N. 43712-MINAE published this past October 25th, 2022, on the Official Newspaper of Costa Rica “La Gaceta“.

The Decree, which entered into force from the moment of its publication on “La Gaceta“, states the repeal of Article 54 of Executive Decree N. 43053- MINAE of Abril 22, 2021 known as General Guidelines for the drilling of wells and use of Groundwater (in Spanish: “Reglamento para la perforación de pozos y aprovechamiento de aguas subterráneas”).

Under Article 54, for wells that were manually dug (artesian) and when the use of the well´s water was domestic according to the provisions of Article 37 of the Water Law, Law No. 276, the owner had to register the wells in the National Registry of Wells, filling out the respective forms, to be able to obtain the corresponding Water Concession (and legally use the well). It also stated that for uses other than domestic, the respective different concession had to be requested.

Here two important notions to better understand the application of the new regulation:

• What is an Artesian Well?

Artesian Wells are understood as wells made manually, for the extraction of underground water in a limited flow due to its shallow conditions and artisan elaboration.

• What does domestic use mean?

In accordance with the above-mentioned Article 37, the following uses are considered as “domestic”: a) the supply of water to meet inhabitants needs, b) the irrigation of crops on land that does not exceed half a hectare, c) the washing of sewers, and d) the supply of water to fill hydrants against fires.

Now, based on the repeal, artesian wells that are dug for domestic use no longer require to pass through the Recording Process, which seems to be great news considering how extensive and time consuming the Recording Process was. As a reminder, the first step to obtain the recording (in Spanish: “inscripción“) of an artesian well was to submit the application forms to the Department of Water of the MINAE. Next, the applicant had to submit any studies that were necessary to accompany the applications forms, such as saltwater Intrusion, interference of other water wells or other bodies of water and check the filtration or contamination. Finally, all aspects like property ownership and any issues with the property´s cadastral plan, had to be addressed, prior to the approval of the permit, and an inspection had to be performed by an engineer appointed by MINAE´s Water Division (in Spanish: “Dirección de Aguas”). The entire process could last between six (6) months and one (1) year, due mostly to the length of the inspection process.

Important clarification: In accordance with Article 2 of the new Decree N. 43712-MINAE, wells that were already recorded will remain recorded in the National Register of Wells, and wells that are in process to be recorded shall continue with the recording process until its completion. In other words, the repeal only applies to new artesian wells.

Now, what does all of the above really mean in the practice? If in the past property owners needed to record the Artesian well to be able to obtain the Water Concession as preliminary requirement for a Building Permit, does the new regulation mean that a person can simply dig an artesian well and show the corresponding documentation to be able to obtain a Building Permit? And if so, what type of documentation will need to be provided? How will the Government ensure compliance with the Regulations on Well´s digging and that the well is not dug within a protected area (for example, within a radius of 30 meters from a septic tank, which is forbidden by Article 8 of the Water Law)?

To answer to these and other questions that the new regulation generates, we reached out to Hydrogeologist Jorge Suárez, from GeoHydroGeo. Jorge Suárez explained to us that the new regulations came as a surprise to the Hydrogeologist and Scientific community:

“Even though the new regulations appear to be great news, we, as professionals in the field, are worried about the impact and consequences of the lack of recording of private wells, which represent the majority of Costa Rican wells. Our ancestors in San José, Guanacaste, and all Costa Rica dug a great number of artesian wells to get water on their properties, and thefact that the Government will no longer record these wells will leave a big hole in the State Database. It is based on that Database that hydrogeologic studies are performed and now, we will no longer have data to monitor the source and quality of water in the Country. Also, we are concerned on how building permits will now be granted for residential houses with artesian wells that in the past had to provide the Water Concession Letter to obtain the Building Permit. In locations where there is no aqueduct from the Municipality, the AYA [Editor´s note: AyA is the Costa Rican Institute of Aqueducts and Sewers, in Spanish “Instituto Costarricense de Acueductos y Alcantarillados“] or an ASADA [Editor´s note: ASADAs are legal entities constituted as an association that, by delegation of the Aya, administer, operate, maintain, and develop the aqueduct in those communities in which neither the AyA nor the respective municipality, provides drinking water], if a person could simply say “I have an artesian well on my property” without it being certified by a Government Agency or Professional in the field, this could open any possible scenario where there is no guarantee on how and if! the well was dug.”

In Jorge Suárez opinion, compared to the risks of having the artesian well not recorded, the process to record a well was not such a tragedy: It was free and the only people that were being really affected were the public officials at the National Registry of Water Concessions who had to revise all the applications submitted.

Speaking with Jorge Suárez made us reflect on how the new regulations may impact the Community. If at first we were thrilled thinking this would make the life of many property owners easier, we now realize that we were not considering the importance of the data collected through the private wells system nor the uncertainty regarding what requirements will now need to be provided for building permit purposes, whose granting may actually be delayed in absence of more clarity on this topic.

Pending more details on what documentation shall be provided, our recommendation for property owners and project developers is to support their building permit requests with a report issued by a professional such as Jorge Suárez confirming that the well was lawfully dug and meets the requirements of all applicable law. You can contact Jorge at suarezmatarrita@geohydrogeo.com.

At Blue Zone Legal, we will continue monitoring the development of the new regulatory framework and keep you posted on any advance. Feel free to reach out to us for a copy of the new regulations and any other query at info@bluezonelegal.com.

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