August 2004

Recent Developments Regarding the Protection of Flood-Prone Areas and the Conservation of Rivers, Creeks and Lakes in Puerto Rico

By: Michelle E. Renaud
mrenaud@tcmrslaw.com

Environmental & Natural Resources Law Practice Group
Toro, Colón, Mullet, Rivera & Sifre, P.S.C.

On January 4, 2003, the Legislature enacted Act No. 49, with the purpose of establishing a public policy for Puerto Rico with regards to flood prevention, the conservation of rivers and creeks and the dedication of tracts of land to public use. According to its Statement of Motives, the Enabling Act for the Department of Natural and Environmental Resources ("DNER")(Act No. 23 of June 20, 1972) was amended in order to transfer to the agency the responsibilities under the Flood Prevention Program created through Act No. 6 of February 29, 1968.

Accordingly, even though such program expressly provides for the cleaning of beaches, the legislative intention was to include the cleaning and conservation of rivers, and clarify that, pursuant to the Law of Waters of 1903, as amended in 1976, the creek beds ("los cauces de las quebradas") are of private domain. In this regard, through the enactment of Act No. 49, the Legislature decided to clarify the duties of DNER with respect to the conservation of water bodies in order to avoid frivolous claims against the State for alleged negligence for not cleaning creeks and rivers beds.

In addition, the Legislature recognized that it was necessary to make the public policy for flood prevention compatible with the Stone, Sand and Gravel Act (Act No. 195 of December 26, 1997), which regulates the extraction of materials from rivers. Finally, the Statement of Motives addressed that the costs for construction and maintenance of channeling works and the conservation of rivers in Puerto Rico are high and sometimes the costs are higher than the alternative of relocating the structures built in flood-prone areas.

Subsequently, on January 22, 2004, the Legislature enacted Act No. 55 (Senate Bill 2297) amending Articles 1, 2 and 3 of Act No. 49. Pursuant to Act No. 55's Statement of Motives, the purpose of the amendments are (1) to clarify the act's public policy with regards to those works that affect tracts of land bordering bodies of water, (2) to establish that the development of public flood control measures (which main objective is to rescue public or private property) shall not be promoted, and (3) to make its norms compatible with current rules and regulations in connection with construction activities conducted in flood-prone areas.

The following is a brief summary of the amendments:

Article 1: Control Activities in Public Areas. This article declares as public policy the conservation of rivers and creeks as ecosystems that provide multiple benefits. It provides DNER with the authority to conduct flood control and channeling activities in rivers when necessary in order to prevent or reduce flood risks in those areas with a prior flooding history (causing damage to life and property). DNER's flood control activities must serve a public interest and cost less than taking, relocating, or removing structures, construction works or filling in flood-prone areas. With regards to the cost, this article provides that DNER shall include in its analysis the direct, indirect and accumulative environmental impacts caused by the activities and the cost of mitigating such impacts. If the costs for the conservation, cleaning, channeling or any other work conducted for the prevention of flooding is more than what it would cost to take, relocate, or remove a structure built in such areas, DNER shall use public funds to take, relocate or remove the structures, except when such activities are contrary to what is provided in the Act for the Building Control in Flood-prone Areas Act (Act No. 3 of September 27, 1962). The relocation of families shall be done in coordination with the Housing Department, and in no event shall residential, commercial or industrial developments be allowed in such areas.

In addition, the article also define the terms "cleaning" and "conservation", and clarifies that such activities shall not alter the geometry or sectional area of a water body, or interfere with the natural course of its sediments. Finally, the article provides that DNER shall conduct cleaning and conservation activities in river beds when there is a situation affecting public interests, sensitive ecosystems, life and/or property, and it has been determined from an economic point of view that it is the most effective alternative. However, the article clearly provides that DNER shall not be responsible for the cleaning and conservation of private creeks and river beds, unless the work is conducted voluntarily in conjunction with a municipality and a private party pursuant to a special fund program provided by a municipal assembly or the Commonwealth's Legislature.

Article 2: Control Activities in Private Areas. This article provides that in any development project, construction or use permit, or any lot division taking place in land adjacent to a river, creek, lagoon, or any body of water or through which such body of water runs, a tract of land shall be dedicated to public use (i.e., easement), in the general interest for the conservation of the body of water, and be recorded in favor of DNER at the corresponding Registry of Property where the property is located. Such tract shall have a minimum width of five (5) meters to both sides of the natural bed ("cauce natural") of the river, stream or creek, or the bed ("lecho") of the lagoon or lake. When the body of water is a creek or stream, the tract shall be transfer ("cedida") to the Municipality with jurisdiction.

In shall be clear that in any of the above-mentioned cases, "acquired rights" shall not be affected in any way. Any flood control or river or creek channeling activities shall require an authorization from the corresponding agencies, including an endorsement from DNER. Finally, any activity affecting this sensitive tract of land, shall be duly authorized by DNER and shall be compatible with the purposes of such easement.

Article 3: Control Activities Without Authorization. This article provides that the Secretary of DNER shall remove any construction work or improvement conducted without authorization in a body of water. In such cases, it shall order the removal of filling and the restoration of the riverbed to its original condition, except when determined that such action is not the best alternative to remediate the situation in accordance with best engineering practices and the evaluation of possible environmental impact. In such case, the riverbed shall be restored to a condition in which the water can freely flow without obstruction, and the impact on the flora and fauna has been mitigated, among other things.

Finally, Article 3 also provides that the Secretary of DNER shall impose a penalty in the amount of $5,000 per each day that a removal or restoration order is not complied with, or the removal of any works or improvements has been conducted without authorization.

The recent approval of the above-mentioned public policy on the controversial topic of protection of flood prone areas and conservation of rivers, creeks and lakes is already creating confusion in the regulated community. The final language included in the Act contains grammatical errors. Also certain language concerning whether the constitution of an easement is in favor of the DNER or a municipality seems unclear. In addition, it seems that during the evaluation of the Senate Bill 2297 the legislative branch did not conduct a thorough investigation of existing statutory provisions already regulating these types of activities. Such omission may result in somewhat contradictory interpretations between the provisions of Act No. 49 (as amended) and certain provisions of the PR Civil Code on these types of easements.

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