Costa Rica Analysis
An initial analysis of Marine Conservation Agreement (MCA) options in Costa Rica was completed in 2005. Findings indicate that private ownership is allowed in submerged areas only when the title was grandfathered in by law. Leases are generally limited to sustainable economic activities. Conservation easements may be possible but to-date not been attempted.
Article 6 of the Costa Rican Constitution establishes that the government has special jurisdiction in the sea adjacent to its territory, with the purpose of protecting, preserving and exploiting all natural resources present in its water, seabed and subsurface areas. The first 200 meters of the beachfront area is known as the terrestrial marine zone (Zona Marítimo Terrestre) and is regulated under the Ley sobre la Zona Marítimo Terreste (LZMT).
The resources of the terrestrial marine zone are defined in the Article 39 of the Costa Rican Organic Environmental Law as marine and coastal resources. These resources include: waters of the sea, the littoral border, the bays, coastal lagoons, mangroves, coral reefs, sea grass meadows, estuaries, scenic beauty and any natural resource in waters of the territorial sea and the economic area.
According to Article 50 of the Organic Environmental Law, water (for all its uses) is public domain, meaning it cannot be appropriated. Additionally, Article 6 of Law No. 8436 develops the constitutional principle of exclusive domain and jurisdiction over marine resources in the territorial sea, the seabed and the neighboring areas.
New private acquisitions of publicly-owned marine areas are not allowed in Costa Rica. The 200-meter wide terrestrial marine zone is divided into a 50-meter strip closest to shore, where private ownership, concessions and development are not allowed, and the remaining 150 meters further inland. The only private ownership that exists in the 50-meter area was registered prior to the LZMT (1977) (Art. 6 LZMT). Acquisition of private property that was grandfathered prior to the establishment of the law appears possible.
Leases for sustainable uses of waters are allowed in Costa Rica.1 Municipalities generally have the authority over such concessions. Contracts are entered into between municipalities and the beneficiaries. Royalty payments are required. Article 1 of the Ley de Concesión y Operación de Marinas Turísticas (or Law No. 7744 of December 1997) creates a concession program for the purpose of building tourism piers on coastal areas that are permanently covered by the sea.2 Municipalities are given the authority over the concessions; however, the authority to enforce the law lies with the General Attorney (Procuraduría General de la República).
Leases are allowed in the 150-meter wide strip of marine terrestrial zone as long as legal prerequisites are met. This area includes mangroves, sea grasses and other coastal marshlands; however, it does not include the open sea. These special concessions (leases) of coastal areas are regulated in the Article 35 of the LZMT. Local municipalities and the Costa Rican Institute of Tourism are the responsible authorities.
A prerequisite for the concession is the existence of regulatory plan (Plan Regulador) for the coastal region before engaging in the leasing activities. The regulatory plan will contain the zoning requirements. If the plan for the zone has not been created, the petitioner has to submit a proposal for the implementation of a plan, before acquiring the concession. The proposal must contain detailed information about possible damage to the environment, proposed rights of way and other necessary infrastructure developments.
Conditions for concessions:
- At least fifty percent of the development capital must be Costa Rican (LZMT Art. 31).
- Foreign investors must have resided in Costa Rica for at least five years (LZMT Art. 47).
- No one can have more than one concession (LZMT Art. 57).
The basic obstacle with conservation easements in Costa Rica is that it requires land ownership by at least one party. New private acquisitions are not allowed in the marine terrestrial zone or the marine zone. While there is no experience in this matter, there is a limited number of private property titles that were registered prior to the LZMT (1977) where private ownership exists and consequently conservation easements would be possible. While no such conservation easements were discovered to be in existence, lawyers from CEDARENA (a local NGO) were consulted and they confirmed that in theory such easements are possible.3
1 Law No. 8436, Official Gazette 78 of April 25 2005, art 2 (Defining concession)
2 Official Gazette No. 26 of February 6 of 1998
3 Rolando Castor LL.M. from CEDARENA was consulted about the experience they have that in registering easements in the marine terrestrial zone and the possibility of registering one. To the first question he answered that they have not done it and to the second he pointed that it was possible to do it.