B.08. Attachment 1 - Admin Order No 2004-04 W912EP22R0024.pdf

WORKING TRANSLATION

CESAJ-PD-EP

(Original Spanish Version is attach)

Commonwealth of Puerto Rico

Department of Natural and Environmental Resources

ADMINISTRATIVE ORDER NO. 2004-04

TO CLARIFY THAT IT IS NOT APPLICABLE TO ACTIVITIES OF

CONSTRUCTION, OPERATION AND MAINTENANCE OF DEPARTMENT OF

NATURAL AND ENVIRONMENTAL RESOURCES (DNER) PROJECTS,

HAVING THE PERMITS OR FRANCHISES OF THE SYSTEMS THIS AGENCY

ADMINSTERS IN RELATION TO WATERS, TREES AND EARTH CRUST.

INASMUCH: The DNER has the faculties to develop, construct, operate and maintain any projects deemed necessary and convenient for the achievement of its objectives, pursuant to Law No. 23 dated June 20, 1972, as amended, and the Reorganization Plan No. 1 dated December 9, 1993.

INASMUCH: The DNER is the administrator of the waters pursuant to the Law for the Conservation, Development and Use of the Aquatic Resources of Puerto Rico, Law No. 136 form June 3, 1976, as amended; of the earth crust materials, pursuant to Law of Sand, Gravel and Stone, Law No. 132 form June 25, 1972, as amended, and of the arboreal vegetation, pursuant to Law of Puerto Rican Forests, Law No. 133 form July 1, 1975, as amended.

INASMUCH: These cited laws grant the DNER ample powers for the administration and management of the waters, earth crust and trees and for the regulation of the advantages and actions related to these natural resources.

INASMUCH: Among the powers delegated to the DNER is the establishment of permit systems and franchises for the administration of these resources.

INASMUCH: Pursuant to these cited laws, permits and franchise systems were established through the following regulations: Regulation for the Advantageous Use, Conservation and Administration of the Waters of Puerto Rico; Regulation to Rule the Extraction of Materials from the Earth’s Crust; and Regulation for the Planting, Cutting and Forestation of Puerto Rico.

INASMUCH: Standing norms establish that no person could build, institute or operate a system of extraction, nor use or take advantage the waters without a permit or franchise issued by the Secretary; excavate, extract, remove or dredge components of the earth’s crust without a permit issued by the Secretary; cut, de-bark, kill, destroy, uproot, ruin or in any way damage or deteriorate any tree without a permit issued by the Secretary.

INASMUCH: The permits and franchises system is the mechanism through which the DNER, as administrator of the natural resources, imposes persons under its jurisdiction the compliance of public policy as set forth in the laws and necessary and convenient conditions for the sound use and management of the these resources.

INASMUCH: The permits and franchises systems were designed for the applicants or petitioners and users of the resource that are under DNER jurisdiction.

INASMUCH: By virtue of the standing norms the applicant or petitioner is that person that applies from the DNER a permit or franchise, reason for which the DNER is not applicant or petitioner to the effect of these permits and franchise systems.

INASMUCH: By virtue of the standing norms, the definitions of permit and franchise refer to written authorizations granted by the Secretary to persons that apply before the DNER for them.

INASMUCH: Although the definitions of person contained in the standing regulations include the agencies of the Commonwealth of Puerto Rico, it must be interpreted that the DNER is excluded from this definition by association with the definitions of applicant, petitioner and permit, from which SURGE that the DNER is not applicant, but the entity to apply before. Therefore, the permit and franchise requirements administered by the Secretary, imposed to persons through the standing regulations do not apply to the DNER.

INASMUCH: The requests for information and norms defined in the cited regulations for applicants of permits and franchises are inapplicable to the DNER because for their nature and content.

INASMUCH: Applying to the DNER the requirement for having permits and franchises as stated in the regulations, for the construction, operation and maintenance of its projects because of literal interpretation of the law would be conducive to an absurd result consisting of the agency applying to itself for permits and franchises through systems that were designed for persons under the agency’s jurisdiction. Case law has established that literal interpretations conducive to absurd results must be avoided. (See Atiles, Admor v. Comisión Industrial, 77 D.P.R. 16, 20 (1954) and PARDAVCO, Inc. v. Srio de Hacienda, 104 D.P.R. 65, 71 (1975).

INASMUCH: DNER’s actions related to their projects are preceded by an evaluation process that includes the analysis on trees, water use and work on the earth’s crust, implying that the evaluation process includes and analogous analysis to that one developed for cases of application for permits or franchises.

Because of this, in the Secretary’s approval of every DNER project the authorization for actions related to waters, trees and earth’s crust is implicitly included. Furthermore, it is important to clarify that these actions are covered by the presumption of correction and legality because these are actions taken by the administrator of the natural resources in the exercise of his faculties.

INASMUCH: The DNER’s programmatic areas have among their duties the responsibility to oversee that their projects are undertaken in conformity with the conditions established in their approval and applicable norms. Furthermore, they have the responsibility to take the necessary measures when non-compliance with the applicable norms and imposed conditions occur.

THEREFORE: It is hereby clarified that the requirement of having permits and franchises for the systems administered by the DNER related to waters, trees and earth’s crust for activities of construction, operations and maintenance of projects developed by the agency for the achievement of its objectives, is inapplicable. The inapplicability of the requirement of having permits and franchises is extended to other agencies and private companies to which the DNER have tasked with the construction, operation or maintenance of its projects, when actions related to waters, earth’s crust and trees are related exclusively to these projects.

This Administrative Order will be valid immediately.

In witness thereof, I sign this order and stamp on it the seal of the Department of Natural and Environmental Resources, in San Juan, Puerto Rico, today March 9, 2004.

/signed/ Luis E. Rodriguez Rivera Secretary

/DNER SEAL/

*** This is an unofficial working translation of the original Administrative Order written in Spanish. It has not been reviewed by the DNER or the US Army Corps of Engineers, Jacksonville District Office of Counsel. Translated by Nelson R. Colón, Biologist, Planning Division, Environmental Branch.***

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