Decree 137-1927 Law on the Use of National Waters (repealed by Decree 181-2009)

The State shall hold full, inalienable and imprescriptible dominion over: I.- The waters of the territorial seas that bathe its coasts and islands, within the width determined by International Law, with its beaches and its coves, bays, roadsteads, ports and other shelters usable for fishing and navigation. II.- The waters of lakes, lagoons, marshes, rivers and constant-flowing streams, with the exception of Art. 30.

The State shall also hold dominion over rainwater that runs off national lands, and over groundwater found within them.

The following shall be private property: I.- The dominion over water from springs that originate and terminate within the same property. II.- That of rainwater while it runs through private property; III.- That of groundwater extracted in a property by the owner thereof. CHAPTER II ACCESSIONS

Lands that are joined to the maritime terrestrial zone by accessions and silting caused by the sea shall be the property of the State. When as a consequence of these accessions and as a result of the sea's retreat, the interior line that limits the said maritime-terrestrial zone advances toward it, the surplus lands of what was formerly the ancient maritime-terrestrial zone shall become property of the State. In the case that the sale of said land is agreed upon, the owners of adjoining properties shall have the right of first refusal.

Islands and cays already formed and those that form in the maritime zone, in the maritime-terrestrial zone and in rivers and river mouths shall be property of the State. However, if these islands or cays resulted from a river having cut through land of private ownership, they shall continue to belong to the owners of the separated properties or property. Lands that are accidentally inundated by the waters of lakes or by streams, rivers and other currents shall continue to be the property of their respective owners.

That which the sea casts ashore and has no known owner shall belong to the State.

The beds of State dominion that are left dry as a consequence of works authorized by special concession shall belong to the concessionaires, unless otherwise established in the conditions under which the concession was granted.

The free use of the coastal sea, navigable rivers, lakes, lagoons, coves, roadsteads, bays and harbors shall be understood for purposes of navigation, fishing, embarking, disembarking, anchoring and similar acts in accordance with legal prescriptions regulating it. In the same case is the use of beaches, which authorizes all persons, with equal restrictions, to traverse them, bathe, spread and dry clothes and nets, beach, careen and construct vessels, water cattle and gather shells, plants and shellfish.

While waters run through their natural and public beds, all may use them for drinking, washing clothes, dishes and any other objects, bathing and watering or bathing cattle, subject to Police Regulations.

In waters that, artificially diverted from their natural beds, flow through open channels, irrigation ditches or aqueducts, even though they belong to private concessionaires, all may extract and convey in vessels the water they need for domestic and industrial uses and for watering isolated plants; provided that the extraction shall be done precisely by hand, without any kind of machine or apparatus, and without stopping the flow of water or damaging the margins of the channel or ditch. The authority shall still be able to limit the use of this right when it causes injury to the water concessionaire. It is understood that on private property no one may enter to seek or use water without the owner's permission.

In the same manner, in open channels, irrigation ditches or aqueducts of State water, even though of temporary use by concessionaires, all may wash clothes, dishes and other objects, provided that the margins are not thereby damaged nor the use to which the waters are to be devoted requires that these be kept in a state of purity. However, cattle may not be bathed or watered except precisely at sites designated for that purpose.

Every landowner may freely open ordinary wells to draw water within their properties. However, a distance of two meters between wells must be observed within populated areas, and fifteen meters in rural areas, between the new excavation and the wells, cisterns, fountains and permanent irrigation ditches of neighbors. It is understood that ordinary wells are those opened exclusively for domestic use or ordinary life necessities.

The owner of any land may extract and fully appropriate, by means of artificial or artesian wells and by underground tunnels or galleries, the waters that exist beneath the surface of their property, provided that they do not divert or remove public or private waters from their natural flow. When there is a threat of danger that as a consequence of the works of an artesian well, tunnel or gallery public or private waters designated for public service or for a preexisting private use with legitimately acquired rights may be diverted, the authority, at the request of the interested parties, may order suspension of the work. CHAPTER IV USE OF STATE WATERS FOR FISHING AND NAVIGATION

All may fish in national watercourses, in compliance with the laws and Police Regulations that may be specially enacted regarding fishing, provided that navigation and flotation are not hindered.

In channels, irrigation ditches or aqueducts for the conveyance of national waters, even though constructed by the concessionaires thereof, in the absence of their having been reserved the right to fish by the conditions of the contract, all may fish with hook, nets or traps, in compliance with special fishing regulations, provided that the flow of water is not hindered nor the channel or its margins damaged.

In waters of private domain and in those granted for the establishment of fish hatcheries or breeding grounds, only the owners or contractors or those who obtain permission from them may fish, without other prescriptions than those relating to public health. CHAPTER V OF THE WATER USE CONTRACT

A contract with the Government is necessary for the use of national waters dedicated to enterprises of public and private interest.

Whoever, for thirty years counted up to the date of this law, has enjoyed the use of national waters without opposition from the authority or from third parties, shall have the right to continue enjoying it in accordance with Article 39, even if he cannot prove that he obtained the corresponding authorization.

Every contract for the use of national waters shall be understood to be made without prejudice to third parties and saving particular rights. The duration of these contracts shall be determined in each case according to the circumstances.

In contracts for the use of national waters, the use of lands of national domain necessary for the works of the dam and of the canals and irrigation ditches shall be understood to be included.

In every contract for the use of national waters, the nature of such use shall be fixed, and if it is for irrigation, the extent of the land to be irrigated. In uses prior to the present law, only the quantity of water necessary for the purpose of those uses shall be understood to be granted.

National waters granted for one use may not be applied to another different use except by means of a new contract.

The Government shall not be responsible for the lack or diminution that may result in the flow rate expressed in the contract, whether it proceeds from error or from any other cause.

Whenever in the contracts and in the enjoyment of determined quantities of water for a fixed period of time, nothing else is expressed, continuous use extends throughout all instants; if by days, the natural day shall be understood as twenty-four hours from midnight; if during day or night, it shall be understood between sunrise and sunset; and if by weeks, they shall be counted from twelve midnight on Sunday.

In the contract for the use of national waters, the following order of preference shall be observed: I.- Water supply to municipalities II.- Water supply to railroads III.- Irrigation IV.- Navigation canals V.- Coffee beneficiation, mills and other factories, hydraulic power, ferries and floating bridges. Within each class, enterprises of greater importance and utility shall be preferred; and in equal circumstances, those that had previously requested the use. With regard to the use of water for agricultural purposes, riparian lands shall be preferred in proportion to the quantity of cultivated or cultivable land. In all cases, common uses for domestic, agricultural and industrial service shall be respected preferentially.

Every use of national waters is subject to forced expropriation for reasons of public utility, prior to the corresponding indemnification, in favor of another use that applies according to the order of the previous article; but not in favor of those that follow it, unless by virtue of a special law.

In urgent cases of fire and other public calamity, the authority may instantly dispose, without formality or prior indemnification, but in accordance with ordinances and regulations, of the waters necessary to contain or prevent damage. If the waters are national, there shall be no place for indemnification; but there shall be if they have industrial or agricultural application or are of private domain and their diversion has caused appreciable damage. CHAPTER VI THE USE OF NATIONAL WATERS FOR THE WATER SUPPLY OF MUNICIPALITIES

Only when the normal flow of water enjoyed by a municipality does not reach one hundred liters per day per inhabitant, of which twenty are potable, may it be granted from that designated for other uses, and prior to the corresponding indemnification, the quantity that is lacking to complete that allocation.

If the municipality in need of potable waters already enjoys a flow of non-potable waters, but applicable to other public and domestic uses, it may be completed, prior to indemnification when applicable, with twenty liters daily of the former per inhabitant, even though this quantity, added to the non-potable, exceeds the one hundred liters fixed in the previous Article.

The forced alienation of waters of private property shall not be decreed for the water supply of a municipality, except when it has been legally declared, in view of the studies conducted for that purpose, that there are no national waters that can be rationally applied to the same purpose. CHAPTER VII OF THE USE OF NATIONAL WATERS FOR THE WATER SUPPLY OF RAILROADS

Railroad companies may utilize, by contract, the national waters that are necessary for their service. If the waters were previously destined for other uses, expropriation must proceed in accordance with the law.

For the same purpose and with the same formalities, railroad companies may open ordinary wells, water wheels or galleries, as well as drill artesian wells on lands of national domain.

When railroads cross irrigated lands in which the water use is inherent to the land's ownership, the companies shall have the right to take, at the most convenient points for the railroad service, the quantity of water corresponding to the land they have occupied and paid for, being obligated to bear in the same proportion the ordinary and extraordinary expenses of the irrigation canal.

In the absence or insufficiency of the means authorized in the preceding articles, railroad companies shall have the right, for the exclusive service thereof, to the necessary water that, being of private ownership is not destined for domestic uses and in such cases the law of forced expropriation shall apply.

The owners of properties adjacent to public roads may collect the rainwater that flows through them and utilize it for the irrigation of their properties, subject to the laws and regulations for the conservation and police of such roads.

The owners of properties bordering national non-continuous waterways, such as ravines, gullies or similar watercourses of state domain, may utilize for their irrigation the rainwater that flows through them, and construct for this purpose, without need of authorization, earth and loose stone embankments or mobile or mechanical devices.

The provisions of the preceding articles with respect to rainwater are applicable to the water from discontinuous springs that only flow during periods of abundant rainfall.

Permission from the Political Governor shall be necessary to construct permanent dams made of masonry, in order to utilize rainwater or discontinuous springs that flow through national waterways for irrigation purposes. The Governor shall grant it with knowledge of the watercourse and without prejudice to third parties.

Riparian owners may, with prior authorization, establish on the banks of rivers and streams of constant flow, and in lakes and lagoons, pumps or any other device designed to extract water for irrigation of their adjoining properties, without any charge, provided that the quantity does not exceed fifty liters per second, during three daily hours and that no damage is caused to navigation or flotation.

Whoever intends to enter into a contract for the purpose of obtaining the use of waters for irrigation in a quantity exceeding fifty liters per second during three daily hours shall present their petition to the Ministry of Agriculture, indicating the source and place from which the water will be extracted, the quantity needed per second, the extension of the lands proposed for irrigation, the titles proving ownership of such lands, the approximate volume of the waters of the river or watercourse during the dry season, the means by which the water will be taken, the number of irrigation canals and their dimensions, and other details of importance. The petition shall be published in the official newspaper and in the private newspapers of the respective departments, three times, at ten-day intervals.

After at least twenty days have elapsed since the last publication, the Ministry of Agriculture, adding to the proceedings, where applicable, any oppositions that may have been presented, shall forward them to the Technical Office of Engineering so that it may issue an opinion, after inspection and measurement by one or more irrigation engineers.

Upon return of the proceedings, if the opinion is favorable to the petitioner, the Ministry shall forward the file to the General Fiscal of the Treasury for six days; and after completing this step, the contract shall be executed, in which the rights and obligations of the parties shall be set forth with the greatest clarity and precision, the duration of the contract, which in no case shall exceed twenty-five years, and the special grounds for termination.

In every contract entered into for the use of waters, the respective Ministry shall set a reasonable time for the interested party to present the plans, designs, topographic data and other reports deemed indispensable. The plans shall be approved, modified or disapproved by the Ministry, after consultation with the Technical Office of Engineering.

No contract of this kind shall be transferred without the prior consent of the Government.

If modification of the lease contract is requested, the petition shall be subject to the procedures established in this chapter for the original petition.

For the equitable use of national waters, in quantities exceeding the limit set forth in Article 39, the Executive may issue general regional ordinances or special ordinances for each lake, lagoon, river or stream.

Once the contract is approved by the National Congress, in cases of No. 20, Article 92 of the Political Constitution, the Ministry shall remit a copy of the same to the Concessions Reviewer and to the Tax Administrator of the respective department.

The fee for the use of waters shall be paid in the following proportion. From one to twenty hectares irrigated in the year, free. From twenty-one hectares of land onwards, irrigated in the year, one dollar per hectare. CHAPTER IX ON THE USE OF NATIONAL WATERS FOR NAVIGATION CHANNELS

In contracts with a society or private enterprise to canalize a river for the purpose of making it navigable, or to construct a navigation channel, it shall be determined whether the work is to be assisted with State funds, and the remaining conditions thereof shall be established in detail.

The duration of these contracts shall not exceed, in any case, ninety years.

Upon expiration of the contract term, the works and material in operation shall become the property of the State, without any compensation whatsoever.

After the first ten years of a canal being in operation, and thereafter every five years, a revision of the tariffs shall be conducted.

The enterprises may at any time reduce the tariff prices by giving notice to the Executive. In this case, as well as in those of the previous article, the alterations made shall be announced to the public, with at least three months' advance notice.

It shall be the obligation of the contractors to maintain the works in good condition as well as the operating service if it is in their charge. For such purposes, the Executive shall exercise due supervision. When failure to comply with this duty makes navigation impossible, the Government shall set a deadline for the repair of the works and replacement of materials, and if such deadline passes without the objective being achieved, the contract shall be declared void. CHAPTER X ON THE USE OF NATIONAL WATERS FOR FERRIES, BRIDGES AND INDUSTRIAL ESTABLISHMENTS

In non-navigable and non-floatable rivers, private parties may establish ferries or wooden bridges intended for public service. For this, prior permission from the Municipal Mayor is required, if both banks are in the same municipal jurisdiction; from the Political Governor, if the banks are in different municipalities of the same department; and from the Ministry of Agriculture, if the banks are in more than one department. The authority granting the permission shall establish the location where the ferry is to operate or the location of bridge placement; the tariffs and other conditions necessary so that its construction and service offer due safety to travelers.

Whoever wishes to establish in merely floatable rivers ferries or bridges to connect rural roads or ferries on neighborhood roads that lack bridges shall request authorization from the Ministry of Agriculture, stating the point where they intend to place them, their dimensions and system, and submitting the passage and service tariffs. The Government shall grant the authorization in the terms of the previous article, ensuring furthermore that it does not obstruct the floatation service.

Only the Ministry of Agriculture may enter into contracts to establish ferries or floating bridges for public use in navigable rivers. Upon entering into the contract, passage tariffs and other conditions required for navigation and floatation service shall be set, as well as for the safety of travelers.

The contracts referred to in the previous Article only grant the right to compensation for the work when the Government needs to use them for the benefit of the general interest.

No contract or concession shall prevent the Ministry of Agriculture from ordering the establishment of ferries and bridges, whenever it deems it convenient for public service.

It is also within the competence of the Ministry of Agriculture to grant authorization for the establishment of mills and other industrial devices located near the banks of navigable and floatable rivers, when the necessary water is conducted by pipeline and later reincorporated into the stream. In no case shall a contract be entered into for such purpose, causing harm to the navigation or floatation of the rivers or to existing industrial establishments. To obtain the contract referred to in this article, it is an indispensable requirement for whoever requests it to be the owner of the land on which they intend to construct the benefit for the device, or to be authorized to do so by the owner thereof.

When an industrial establishment introduces substances or properties harmful to public health or vegetation into the waters, the Executive shall order a technical inspection to be conducted; and if the damage is confirmed, the Executive shall order the suspension of industrial activity until its owners adopt the appropriate remedies. The costs and expenses of the inspection shall be paid by the person who filed the complaint if the claim proves to be unfounded, and in any other case, by the owner of the establishment. When the owner or owners have not adopted the appropriate remedy within a period of six months, it shall be understood that they have renounced the continuation of the operation of their industry.

The contract for the development and exploitation of hydraulic forces may only be entered into under specific conditions and for a limited period of time.

The power to enter into contracts for hydraulic forces belongs to the Government, and the Executive Power reserves the right of supervision over the utilization of such forces.

The contract shall be entered into with the Ministry of Agriculture, and the application must be accompanied by plans and descriptions that justify the intention to execute a construction based on serious studies and susceptible to national exploitation.

The contract shall not be approved if the proposed installations or projects are contrary to the general interest, if their execution causes harm to the public or damages the interests of third parties in a manner disproportionate to the advantages derived from the work.

Every contract that is entered into shall contain: I.- The name of the legal representative if it is a partnership, corporation, or establishment. II.- The purpose, capacity, and power of exploitation. III.- The quantity of water and height of the fall. IV.- The duration of the contract. V.- The obligations of the contractor. VI.- The causes that produce the extinction of the right. VII.- The period to commence work, which may never exceed two years. VIII.- The period within which the plant must begin to operate. IX.- The fee that the State shall receive.

The contractors shall be responsible for all damage or harm that their work causes to the public or to the properties of third parties.

Everyone who obtains a concession to utilize the waters within the domain of the State through hydraulic installations must pay the State an annual tax of not less than two pesos per horsepower.

The number of horsepower shall be calculated for the purposes of payment of the fee in accordance with the quantity of water and the fall, from the point where it is captured.

The owners of properties adjoining public watercourses have the freedom to construct defenses against the waters on their respective margins by means of plantations, stakes, or revetments, whenever they deem it convenient. The owners of lagoons or marshy or waterlogged lands who wish to drain or reclaim them may extract from public lands the earth and stone necessary for the embankment and other works.

It is the responsibility of the Executive to police and administer the maritime zone, the maritime-terrestrial zone, and national waters.

In everything not provided for in the present law regarding the utilization of national waters, the provisions of the current Civil Code shall apply.

Every contract relating to the utilization of national waters and for the various purposes determined in the present law shall be presented to the Ministry of Development, Agriculture, and Labor, which shall process and resolve it in accordance with the regulation or regulations that the Executive shall issue and that may be necessary for the application thereof.

This law shall take effect on the first of August next.

To reform Articles 40 and 48 of the Law on Utilization of National Waters, which shall read as follows:

Whoever seeks to enter into a contract for the purpose of obtaining the use of water for irrigation, in a quantity exceeding fifty liters per second, for three daily hours, shall present his application to the Ministry of Agriculture, indicating the source and location from which the water is extracted, the quantity needed per second, the extension of the land he proposes to irrigate, the titles proving ownership of said land, duly legalized in favor of the applicant, the approximate volume of water from the river or watercourse during the dry season, the means by which he will use to take the water, the course of irrigation channels and their dimensions, and other details of importance. The application shall be published in the official newspaper and in the private newspapers of the respective departments, three times at ten-day intervals.

The irrigation of one to twenty hectares shall be free; for a property of twenty-one hectares and beyond, the fee shall be paid according to the crop to which the land is dedicated in the following proportion: For banana cultivation, three dollars annually per hectare. For tobacco cultivation, one dollar annually per hectare. For unspecified cultivation, ten cents in gold annually per hectare. The fee shall be paid in annual installments paid in advance in the month of January of each year, for all the land included in the contract whether the contracted water was used or not used.

This Decree shall go into effect on the day following its enactment. Given in Tegucigalpa, D.C., in the Chamber of Sessions, on the second day of the month of March of nineteen hundred thirty-two. ANTONIO MORAN President JESUS M. RODRIGUEZ R. CORNELIO MEJIA Secretary Secretary TO THE EXECUTIVE POWER THEREFORE LET IT BE EXECUTED. DECREE No.68 THE NATIONAL CONGRESS DECREES:

For the free irrigation of properties of one to twenty hectares of land, the procedure established in Article 40 reformed of the Law on the Use of National Waters is not necessary. However, the interested party shall declare, in writing, before the President or District Chief, or Municipal Mayor, as the case may be, his name, status and nationality, name, extension and boundaries of the property he proposes to irrigate; class of crop, whether the land is ejidal or national property; whether he has it under lease or owns it outright, and the name of the source from which he will take the water. The President or District Chief, or Municipal Mayor, shall maintain a registration book in which he shall inscribe the data contained in said declaration; and in the month of January of each year shall send to the Ministry of Development, Agriculture and Labor, a detailed report of the registrations, for statistical purposes, the first two reports directly, and the Municipal Mayor through the respective Political Governor.

This Decree shall enter into force from the date of its promulgation. Given in Tegucigalpa, D.C., in the Chamber of Sessions, on the first day of March of nineteen hundred forty-five. PLUTARCO MUÑOS P. President RODOLFO Z. VELASQUEZ MARCO A. RAUDALES Secretary Secretary TO THE EXECUTIVE POWER THEREFORE LET IT BE EXECUTED: Tegucigalpa, D.C., March 2, 1945. TIBURCIO CARIAS A. The Secretary of State in the Ministry of Development, Agriculture and Labor, by Law. MEDARDO ZUNIGA V.