Repub of he Pioines DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT DUG NAPOLCOM Carer EDSA cunar Guezon Avenue, Wes Trang, Quozon Cy tp ww i go BILG OPINION No. !Z 5. anl& MR. R. LEONE N. GEROCHI Sangguniang Panhungsod Member, City of Iloilo Room 607, 6" Floor, Iloilo City Hall 14 MAR 2018 Plaza Libertad, Hoilo City Dear Mr. Gerochi: ‘This has reference to your letter dated 8 December 2017 requesting for this Department's legal opinion on whether or not the City Government of Tloilo has the power to grant a water and sanitation franchise. At the outset, we opine on the negative. ‘The law which governs ownership, appropriation, utilization, exploitation, development, conservation and protection of water resources is P.D. 1076, otherwise known as the “Water Code of the Philippines". In its Implementing Rules and Regulations, it was clearly dictated that the administration and enforcement of the said law shall be vested upon the National Water Resources Board (the NWRB). As such, under Section 4 thereof, the application for water permit ‘shall be filed directly with the Board or its deputized agents designated by the Board in the province where the point of diversion or abstraction is situated in the case of appropriation of waters or where the project is located in all other cases.” Likewise, Section 14 thereof provides that “approved applications shall be issued water permits subject to such conditions as the Board may impose. Such permit must bear the seal of the Board and the signature of the Executive Director. Disapproved applications shall be returned to applicants through the office where the same was filed within fifteen (15) days of such disapproval stating the reasons therefor”. Clearly, granting of water permits is within the competence of the National Water Resources Board (NWRB), not in Local Government Units. In fact, the law mentioned the participation of local governments merely in the processing, posting and sending of notices of applications/petition. To wit, Section 9 thereof reads as follows’ “Section 9% Processing, Posting and Sending of Notices of Applications/Petitions-Upon receipt of an application or a petition, theBoard shall process the same to determine completeness of the requirements prescribed in Section 5 hereof’ Once completed, and upon payment of the filing fee, notices of the application/petition shall be posted in a conspicuous place in the office of the Board for a period of thirty (30) days, The Board shall also send notices to the following offices for posting in conspicuous places for the same period: 4) Barangay Chairman of the place where the point of diversion is located; 4) Gity or Municipal Secretary of the city or town where the point of diversion is located; ©) The Secretary of the Sangguniang Panlalawigan of the province where the point of diversion is located; d) Department of Public Works and Highways (DPWH) District Engineer or National Irrigation Administration (NIA) Provincial Irrigation Officer as the case may be. Copies of the notice of application shall, likewise, be furnished to concerned Regional Offices of the Department of Public Works and Highways, National Irrigation Administration, National Power Corporation, Department of Environment and Natural Resources, and Local Water District Office, if there is one and such other agencies as may be specified by the Board.” Now, to put the foregoing position on a solid ground, may we cite the recently decided case of City of Batangas vs. Philippine Shell Petroleum Corporation and Shell Philippines Exploration B.V.' where the court was called upon to determine whether the control and regulation of the use of water may be made subject of a city ordinance under the regime of the Water Code. In its ruling, the court sufficiently discussed the following “The Water Code governs the ownership, appropriation, utilization, exploitation, development, conservation and protection of water resources. Under Article 3 thereof, water resources are placed under the control and regulation of the government through the National Water Resources Council, now the NWRB. In turn, the privilege to appropriate and use water is one which is exclusively granted and regulated by the State through water permits issued by the NWRB. Once granted, these water permits continue to be valid save only for reasons spelled out under the Water Code itself, Conversely, the power to modify, suspend, cancel or revoke water permits already issued also rests with NWRB. On the other hand, the avowed purpose of the Assailed Ordinance, as stated in its whereas clauses, is the protection of local aquilers for the benetit of the * GR. No. 195003, 7 June 2017.inhabitants of Batangas City. Accordingly, the Assailed Ordinance mandates all heavy industries operating along Batangas Bay to use seawater in the operation of their respective facilities, and install desalination plants for this purpose. Failure to comply with this mandatory requirement would have the effect of precluding continuous operation, and exposing noncompliant parties to penal and administrative sanctions. There is no doubt, therefore, that the Assailed Ordinance effectively contravenes the provisions of the Water Code as it arrogates unto Batangas City the power to control and regulate the use of ground water which, by virtue of the provisions of the Water Code, pertains solely to the NWRB. By enacting the Assailed Ordinance, Batangas City acted in excess of the powers granted to it as an LGU, rendering the Assailed Ordinance ultra vzres (SIC).” (Emphasis Supplied) On the other hand, the law which governs water quality management is R.A. No. 9275, otherwise known as “Philippine Clean Water Act of 2004”. Under Section 5 thereof, it is the Department of Environment and Natural Resources (DENR), in coordination with NWRB, that “shall designate certain areas as water quality management areas using appropriate physiographic units such as watershed, river basins or water resources regions. Said management areas shall have similar hydrological, hydrogeological, meteorological or geographic conditions which affect the physicochemical, biological and bacteriological reactions and diffusions of pollutants in the water bodies, or otherwise share common imerest or face similar development programs, prospects or problems. Said management area shall be governed by a governing board composed of representatives of mayors and governors of member local government units (LGUs), and representatives of relevant national government agencies, duly registered non-governmental organization, water utility sector, and business sector. The Department representative shall chair the governing board. In the case of the LGUs with memberships on more than one (1) management board, the LGU shall designate only one (1) single representative for all the management areas wherein is a member.” Conformably, Section 20 of this law provides as follows: “SECTION 20. Role of Local Government Units, - Local government units shall share the responsibility in the management and improvement of water quality within their territorial jurisdictions. Each local government unit shall within six (6) months after the establishment of the water quality management area action plan prepare a compliance scheme in, accordance thereof, subject to review and approval of the governing board. Each local government unit shall, through its Environment and Natural Resources Office (ENRO) established in Republic Act No.7160, have the following powers and functions4) Monitoring of water quality; b) Emergency response; ©) Compliance with the framework of the Water Quality Management Action Plan; d) To take active participation in all efforts concerning water quality protection and rehabilitation; and ©) To coordinate with other government agencies and civil society and the concerned sectors in the implementation of measures to prevent and control water pollution: Provided, however, That in provinces/cities/municipalities where there are no environment and natural resources officers, the local executive concerned may, with the approval of the Secretary of the DENR designate any of his official and/or chief of office preferably the provincial, city or municipal agriculturist, or any of his employee: Provided, finally, That in case an employee is designated as such, he must have sufficient experience in environmental and natural resources management, conservation and utilization.” As to the argument that the City Government has the power to enact ordinances granting franchises anchored on Section 458(a)(3) R.A. No. 7160, otherwise known as the Local Government Code (LGC), which states that the Sanggunian Panlungsod has the power to “enact ordinances granting franchises and authorizing the issuance of permits or licenses, upon such conditions and for such purposes intended to promote the general welfare of the inhabitants”, it has to be clarified that said power to enact ordinances is in the nature of an exercise of police power. This was sufficiently discussed in the aforecited case of City of Batangas vs. Philippine Shell Petroleum Corporation and Shell Philippines Exploration B.V’saying: “Police power is the power to prescribe regulations to promote the health, morals, peace, education, good order, safety, and general welfare of the people. As an inherent attribute of sovereignty, police power primarily rests with the ‘State. In furtherance of the State's policy to foster genuine and meaningful local autonomy, the national legislature delegated the exercise of police power to local government units (LGUs) as agents of the State. Such delegation can be found in Section 16 of the LGC, which embodies the general welfare clause. Since LGUs exercise delegated police power as agents of the State, it is incumbent upon them to act in conformity to the will of their principal, the State." Thus, attention should be directed to the phrase “subject to existing laws” in Section 458(a\(5)(vii). To wit: “(vii) Subject to existing laws, establish and provide for the maintenance, repair and operation of an efficient waterworks system to supply water for the 2 id,inhabitants and to purify the source of the water supply; xex"(Emphasis Supplied) Verily, it behooves to the local governments and their legislative bodies to act in conformity with the will of the State that is dictated through the legislative enactment of the Water Code of the Philippines and the Philippine Clean Water Act On a final note, therefore, local governments are bereft of authority to grant water and sanitation franchise. We hope to have substantially addressed your concern. Thank you. Very truly yours, BY AUTHORITY-OF THE SECRETARY: { AUSTERE A. PANADERO Undersecretary 072 votes,