Water Law Could Change Regulations for Developers
At the moment, Nicaragua does not have a law that regulates the uses and restriction of water. The Environmental Law in some way regulates and establishes some restrictions as to the uses of water, and the Ministry of Environment (MARENA) is the authority that currently administrates and enforces this law.
The situation, however, is about to change as the National Assembly is discussing a bill that is meant to regulate in a more specific way, the uses, conditions, concessions and authorities in charge of protecting the hydrological resources of the country (see separate story).
The Water Law Bill, as drafted now, states as the primary objective “…to establish the legal and institutional framework for the administration, preservation, development, use, and sustainable consumption, in quantity and quality of all the hydrological resources of the country…”
The Water Law Bill declares water as a national patrimony and even declares the protection of some hydrological resources, such as Lake Nicaragua, an issue of national security.
This bill creates new institutions designed to manage, control and administer the national hydrological resources, institutions such as the Hydrological Resources Council, which should be the maximum authority on all water issues.
Another innovation found in the bill is the creation of the Public Registry of Water Rights, in which all the concessions, authorizations, licenses and permits granted for the use of water should be registered.
The Water Law Bill also declares that superficial or subterranean waters located in the continental platform of the country are property of the state.
This is where we find perhaps the most controversial article of this Water Law, namely Article 9, which establishes in its clause e) that the domain of the state over the water is extensive to the firm land up to 200 meters after the high tide line and 30 meters from the coasts of rivers and lakes.
This same article in clause c) and g) establishes that the domain of the state will include the island and river shores.
This article is the one that brings some concern, especially to those interested in investing in coastal properties.
However, properties that are already owned and registered before the Water Law takes effect will be grandfathered and should not be affected. In Nicaragua, laws cannot be applied retroactively – a principle established in the Constitution.
It is important to mention that this law project is being discussed among the lawmakers at the National Assembly and is still subject to modifications. The law will be fully applicable after all its articles are approved by the National Assembly and it has been authorized by the President and then published in La Gaceta, the official government newspaper.
Many efforts are being made at this moment by various sectors of the economy to clarify the bill and make clear that all privately owned property will not be affected if and when this bill becomes a law.
Amilcar Navarro is a lawyer with García & Bodán law firm in Managua.