Water Code of the Philippines

What law instituted the Water Code of the Philippines?

Presidential Decree No. 1067

Objectives:a. To established the basic principles and framework relating to the appropriation, control and conservation of water resources to achieve the optimum development and rational utilization of these resources;

b. To define the extent of the rights and obligations of water users and owners including the protection and regulation of such rights;

c. To adopt a basic law governing the ownership, appropriation, utilization, exploitation, development, conservation and protection of water resources and rights to land related thereto; and

d. To identify the administrative agencies which will enforce this Code.

What are the underlying principles of the Code?All waters belong to the StateAll waters that belong to the State can not be the subject to acquisitive prescription.The State may allow the use or development of waters by administrative concession,The utilization, exploitation, development, conservation and protection of water resources shall be subject to the control and regulation of the government trough the National Water Resources Council.Preference in the use and development of waters shall consider current usages and be responsive to the changing needs of the country.

What is the meaning of Appropriation of Water?It is the acquisition of rights over the use of waters or the taking or diverting of waters from a natural source in the manner and for any purpose allowed by law.

Water may be appropriated for the following purposes:Domestic for drinking, washing, bathing, cooking or other household needs, home gardens, and watering of lawns or domestic animals.Municipal for supplying the water requirements of the communityIrrigation for producing agricultural cropsPower generation for producing electrical or mechanical powerFisheries for the propagation and culture of fish as a commercial enterprise

f. Livestock raising for large herds or flocks of animals raised as a commercial enterpriseg. Industrial utilization of water in factories, industrial plants and mines, including the use of water as an ingredient of a finished productRecreational for swimming pools, bath houses, boating, water skiing, golf courses and other similar facilities in resorts and other places of recreation; andOther purposes

Water right is a privilege to appropriate and use water.As a rule, no person, including government instrumentalities or government owned or controlled corporations, shall appropriate water without a water right, which shall be evidenced by a document known as a water permit.

Exception from securing water permit:Appropriation of water by means of handcarried receptacles; andBathing or washing, watering or dipping of domestic or farm animals, and navigation of watercrafts or transportation of logs and other objects by flotation

Right of a water permittee to demand establishment of easement Article 25. A holder of a water permit may demand the establishment of easements necessary for the construction and maintenance of the works and facilities needed for the beneficial use of the waters to be appropriated subject to the requirements of just compensation and to the following conditions:a. That he is the owner, lessee, mortgage or one having real right over the landupon which he purposes to use water; andb. That the proposed easement is the most convenient and the least onerous to the servient estate.

Lower estates have the obligation to receive the water which naturally flow from the higher estates.

Article 50 of PD No. 1067 provides:Lower estates are obliged to receive the waters which naturally and without the intervention of man flow from the higher estate, as well as the stone or earth which they carry with them.The owner of the lower estate can not construct works which will impede this natural flow, unless he provides an alternative method of drainage; neither can the owner of the higher estate make works which will increase this natural flow.Case: Remman Enterprises v. Court of Appeals

Facts:The land of Lat - agricultural and planted mostly with fruit treesThe land of REMMAN - devoted to its piggery businessREMMANs land is higher in elevation compared to Lat.Lat complained that REMMANs waste disposal lagoon was already overflowing; the trees growing on the flooded portion started to wither and die. He filed a complaint for damages.REMMAN contended that heavy rains caused the overflooding and the law imposes a natural easement on the owner of the lower estate

Is REMMAN liable for damages?The court held that even assuming that the heavy rains constituted an act of God, by reason of REMMANs negligence, the fortuitous event became humanized, rendering it liable for the ensuing damages. It further ruled that REMMANs property was practically made a catch basin of polluted water and other noxious substances emptying from its piggery, and any damage occasioned thereby entitles the owner of the lower or servient estate to compensation.

Control of WatersProhibition against activities that obstruct the flow of water. DPWH may declare flood control areasRivers or lakes may be declared navigable. (Art.59 rivers, lakes and lagoons may, upon the recommendation of the Philippine Coast Guard, be declared navigable either in whole or in part.)River beds may not be cultivated (except prior permission from the Secretary, DPWH)Erection of levees (to protect property from flood; construction does not cause damage to anothers property)

Change of course of rivers (private owner may not compel the government to restore the river to its former bed) Reservoirs (whoever operates shall release water for minimum stream flow)Drilling for subterranean or ground water (No person shall drill a well without prior permission from the Council)Easement of aqueduct (Any person who may wish to use upon his own estate any water of which he can dispose shall have the right to make it flow through the intervening estate, with the obligation to indemnify their owners, as well as the owners of the lower estates upon which the waters may filter or descend.)

Conservation and protection of waters and watersheds and related land resourcesWatersheds may be declared a protected area

In Sta. Rosa Realty Development Corporation v. Court of Appeals, the court held that the disputed parcels of land in Sta. Rosa Realty form vital part of an area that need to be protected for watershed purposes. Clearing and tilling of the lands are totally inconsistent with sound watershed management.

A watershed reservation is not subject to occupancy or alienation.The case of Collado v. Court of Appeals reiterates the principle that a watershed reservation is not susceptible of occupancy, disposition, conveyance or alienation.

A timber license covering a watershed area may be withdrawn in the public interestIn the case of Tan v. Director of Forestry, the court declared that watersheds serve as a defense against soil erosion and guarantee the steady supply of water.

The National Water Resources CouncilNWRC was created by PD No. 424. As a regulatory and executor agency, it coordinates and integrates water resources development activities, and grants, determines and adjudicates water rights. It is also responsible for formulating framework plans for water supply, and promulgating rules and regulations for the exploitation and optimum utilization of water resources, including the imposition on water appropriators of such fees or charges as may be deemed necessary for water resources development.

Authority to enter upon private landsThe Council and other agencies authorized to enforce the Code are empowered to enter upon private lands, with previous notice to the owner, for the purpose of conducting surveys and hydrologic investigations, and to perform such other acts as are necessary in carrying out their functions including the power to exercise the right of eminent domain.

Jurisdiction of the Council over water disputesPertinent provisions of PD No. 1067 (Water Code) provide:Art. 88. The Council shall have original jurisdiction over all disputes relating to appropriation, utilization, exploitation, development, control, conservation and protection of waters within the meaning and context of the provision of this Code.The decision of the Council on water rights controversies shall be immediately executory and the enforcement thereof may be suspended only when a bond, in an amount fixed by the Council to answer for damages occasioned by the suspension or stay of execution, shall have been filed by the appealing party, unless the suspension is by virtue of an order of a competent court.

All disputes shall be decided within sixty (60) days after the parties submit the same for decision or resolution.The Council shall have the power to issue writs of execution and enforce its decision with the assistance of local or national police agencies.Art. 89 The decision of the Council on water rights controversies may be appealed to the Regional Trial Court of the province where the subject matter of the controversy is situated within fifteen (15) days from the date the party appealing receives a copy of the decision, on any of the following grounds: (1) grave abuse of discretion; (2) question of law; and (3) question of fact and law.

Regular courts have jurisdiction where the issue involves the enjoyment of an existing right to use waterWhere the case does not involve the settlement of a water rights disputes, but the enjoyment of a right to water use for which a permit was already granted, the regular court has jurisdiction over the dispute, not the National Water Resources Council.

Rule on exhaustion of administrative remediesThe issue in the case of Abe-Abe v. Manta is whether the CFI of Camaguin has jurisdiction to adjudicate a dispute over water rights for irrigation purposes even if the controversy had not yet been passed upon by the National Water Resources Council. The Court held that the petitioners immediate recourse is to ventilate their grievances first with the Council which is the administrative agency exclusively vested with original jurisdiction to settle water rights disputes under the Water Code, consistent with the rule on exhaustion of administrative remedies.

But in Metro Iloilo Water District v. CA, it was held that since the petitions focus on the violations incurred by private respondents by virtue of their alleged unauthorized extraction and withdrawal of ground water within petitioners service area vis--vis petitioners vested rights as a water district, it is at once obvious that the petitions raise a judicial question, hence, the rule on exhaustion of administrative remedies does not apply.

Appeals taken to the Court of AppealsSec. 9(1) of BP Blg. 129 granted the Court of Appeals original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus and quo warranto, and auxiliary writs or processes, whether or not in aid of its appellate jurisdiction.

PenaltiesArt. 90 and 91 of the Water Code enumerate the acts that may be penalized under the Code.

Water Districts

It was created by PD No. 198, otherwise known as the Provincial Water Utilities Act of 1973 as amended by PD No. 768 and PD No. 1479.

xxx.. water districts derive their legal existence and power from PD No. 198. Sec. 6 of the decree in fact provides that water district shall exercise the powers, rights and privileges given to private corporations under existing laws, in addition to the powers granted in, and subject to such restrictions imposed under this Act.

Functions:

To sell water to residents within their territory, under such schedules of rates and charges as may be determined by their boards.

They shall manage, administer, operate and maintain all watersheds within their territorial boundaries, safeguard and protect the use of the waters therein, supervise and control structures within their service areas, and prohibit any person from selling or otherwise disposing of water for public purposes within their service areas where district facilities are available to provide such service.

Dissolution of water districts

Sec. 45 of PD No. 198, as amended by PD No. 768, states:Sec. 45. Dissolution. A district may be dissolved by resolution of its board of directors filed in the manner of filing the resolution forming the district: Provided, however, That prior to the adoption of any such resolution: (1) another public entity has acquired the assets of the district and has assumed all obligations and liabilities attached thereto; (2) all bondholders and other creditors have been notified and they consent to said transfer and dissolution; and (3) the court has found that said transfer and dissolution are in the best interest of the public.

The Local Water Utilities Administration (LWUA)

Powers and functions:

Specific powers and duties:

(1) Prescribe minimum standards and regulations in order to assure acceptable standards of construction materials and supplies, maintenance, operation, personnel training, accounting and fiscal practices for local water utilities;(2) Furnish technical assistance and personnel training programs for local water utilities;(3) Monitor and evaluate local water standards; and(4) Effect systems integration, joint investment and operations, district annexation and de-annexation whenever economically warranted.

The LWUA has no adjudicatory functions

The LWUA has quasi-judicial power only as regards rates or charges fixed by water districts, which it may review to establish compliance with the provisions of PD No. 198, without prejudice to appeal being taken therefrom by a water concessionaire to the National Water Resources Council whose decision thereon shall be appealable to the Office of the President.

The SEC has no supervisory powers over water districts

It was held in the case of Marilao Water Consumers Association, Inc. v. Intermediate Appellate Court, that although water districts created by PD No. 198 are considered as quasi-public corporations and authorized to exercise the powers, rights and privileges given to private corporations under existing laws, they are entirely distinct from corporations organized under the Corporation Code, PD No. 902-A, as amended.

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