Amendments to Act No. 2152 (Re: System for Appropriation of Public Waters)

February 21, 1929

ACT NO. 3523

AN ACT TO AMEND ACT NUMBERED TWENTY-ONE HUNDRED AND FIFTY-TWO ENTITLED "AN ACT TO PROVIDE A SYSTEM FOR THE APPROPRIATION OF PUBLIC WATERS, AND FOR THE DETERMINING OF EXISTING RIGHTS THERETO; FOR THE PUBLIC REGISTRATION OF ALL WATER RIGHTS; FOR THE CREATION AND USE OF WATER POWER; FOR INVESTIGATION FOR AND THE CONSTRUCTION, MAINTENANCE, AND OPERATION OF IRRIGATION SYSTEMS BY THE GOVERNMENT OF THE PHILIPPINE ISLANDS; FOR THE REPAYMENT OF MONEY EXPENDED THEREFOR; FOR THE CONSTRUCTION, MAINTENANCE, AND OPERATION OF IRRIGATION SYSTEMS BY PRIVATE PERSONS; FOR THE INSPECTION AND REGULATION OF ALL WORKS PERTAINING TO THE USE OF WATER; AND PROVIDING PENALTIES FOR ITS VIOLATION, AND FOR OTHER PURPOSES," AS AMENDED BY ACTS NUMBERED TWENTY-SIX HUNDRED AND FIFTY-TWO AND THIRTY-TWO HUNDRED AND EIGHT, AND THIRTY-THREE HUNDRED AND ONE, AND FOR OTHER PURPOSES

SECTION 1. Section two of Act Numbered Twenty-one hundred and fifty-two as amended by section one of Act Numbered Thirty-two hundred and eight, is hereby further amended to read as follows:

"SEC. 2. The power to grant appropriations of public waters is hereby vested in the Secretary of Commerce and Communications, in accordance with the provisions of this law, upon the recommendation of the Irrigation Council herein created.

"There is hereby created an Irrigation Council which shall consist of five members who shall be appointed by the Governor-General with the advice and consent of the Senate and shall receive a per diem of fifteen pesos for each session of the council which they actually attend: Provided, however, That officers already receiving a salary or per diem from the Government shall serve without additional remuneration.

"The chief water rights inspector of the Bureau of Public Works shall be ex officio secretary of the Irrigation Council without additional compensation.

"The Director of Public Works shall have direction and supervision of the investigation for, and construction of, irrigation systems by the Government of the Philippine Islands and shall perform such duties as are prescribed herein.

"The chief irrigation engineer shall, in addition to the duties and responsibilities stated in his appointment, be charged with those of the superintendent of irrigation as provided in Act Numbered Eighteen hundred and fifty-four."

SECTION 2. Section five of Act Numbered Twenty-one hundred and fifty-two as amended by section one of Act Numbered Twenty-six hundred and fifty-two, is hereby further amended to read as follows:

"SEC. 5. The Director of Public Works shall as soon as practicable prepare for such streams in the Philippine Islands as may be designated by the Secretary of Commerce and Communications a list of the appropriations of water according to priority, and in order to make such list he shall cause a notice to all claimants of water rights to be published in English, and when he deems advisable, in Spanish and the local dialect, once a week for four consecutive weeks in the Official Gazette. Such notice shall also be posted in English, Spanish, and the local dialect, for the period of four weeks as provided above, at the usual place for posting public notices in the municipalities affected by the appropriation, and shall besides be published once a week for four consecutive weeks by means of bandillos or public criers. Such notice shall contain a statement of the information that is desired to obtain from the claimants, the conditions under which such claims must be presented, and any further facts that may be deemed necessary. The said Director of Public Works shall send to each person known to have a claim to the waters of such streams a blank form, on which said claimant shall set forth in writing all the particulars, showing the amounts and dates of appropriations to the use of water of said streams to which he lays claim, the said statement to include the following data, if possible:

"(a) The name and address of the claimant.

"(b) The nature of the use or title on which the claim for an appropriation is based.

"(c) The data of the commencement of such use.

"Also if used for irrigation, the following:

"(d) The date of beginning of survey.

"(e) The date of beginning of construction.

"( f) The date when completed.

"(g) The date of beginning and completion of enlargement.

"(h) The dimensions of the ditch as originally constructed and as enlarged.

"(i) The amount of land irrigated in the first year.

"( j) The amount in subsequent year, with the date of irrigation and the amount of land such ditch is capable of irrigating.

"(k) The character of the soil and the kind of crops cultivated.

"(l) Such other facts as will show compliance with the law in acquiring the appropriation, and the rank of the priority claimed.

"Each of said claimants shall be required to certify to his statements under oath, and any officer authorized to administer oath is hereby authorized to administer such oaths: Provided, however, That there shall be no charge for such oaths when administered by any officer of the insular, provincial, or municipal government authorized to administer oaths." prcd

SECTION 3. Section nine of Act Numbered Twenty-one hundred and fifty-two as amended by section four of Act Numbered Twenty-six hundred and fifty-two and section one of Act Numbered Thirty-three hundred and one is hereby further amended to read as follows:

"SEC. 9. Upon approval of the list of priorities the Secretary of Commerce and Communications shall publish the said approved list in the manner provided in section five of this Act. This notice shall show for each appropriation:

"(a) The name and post-office address of the appropriator.

"(b) The priority number of such appropriation.

"(c) The amount of prior appropriations.

"(d) The amount of water to which the appropriator is entitled.

"(e) And if such appropriations be for irrigation, a description of the legal subdivisions of the land into which said water is to be diverted.

"It shall thereupon be the duty of the Director of Public Works to issue to each appropriator represented in such list a certificate signed by the Secretary of Commerce and Communications, setting forth the information shown in items (a), (b), (c), (d), and (e) of this section relating to his appropriation.

"Such certificate shall be transmitted by the Director of Public Works, by registered mail, to the register of deeds of the province in which such appropriation shall have been made, and on the same date a notice of such transmittal shall be forwarded by the Director of Public Works to the appropriator and it shall be the duty of the register of deeds, after having received from the appropriator the sum of two pesos, as a fee, to record the same in a book specially prepared and kept for that purpose, and thereupon immediately transmit the same to the appropriator. If the water is to be wholly or partially used in another province than that in which the point of diversion is located, the Director of Public Works shall instruct the register of deeds of the latter to transmit in the same manner, after the proper procedure, the certified copy to the register of deeds of the province where the water is to be used and this officer shall be entitled to the fees and charged with the duties above mentioned: Provided, however, That if such entry shall not be made by the appropriator within two years after receipt of such notice from the Director of Public Works, the claimant shall lose all right to the priority of appropriation as established in this section and the certificate mentioned shall also ipso facto be cancelled."

SECTION 4. Section thirteen of Act Numbered Twenty-one hundred and fifty-two, as amended by section five of Act Numbered Twenty-six hundred and fifty-two and as amended by section three of Act Numbered Thirty-two hundred and eight, is hereby further amended to read as follows:

"SEC. 13. In the event of the appropriators not organizing in accordance with the provisions of the next preceding section, or during the time in which the rights of using the public waters which have been appropriated are being determined and adjudicated, the system shall be temporarily administered under this Act as follows:

"(a) By the municipal council, when the system affects one municipality alone.

"(b) By the provincial board, when it affects two or more municipalities of a province.

"(c) By the Director of Public Works, when it affects two or more provinces.

"The regulations issued for the administration, use, and distribution of waters shall be previously approved by the Irrigation Council, and in the preparation of those regulations all the persons interested shall be given a hearing.

"The cost of this service shall be a lien upon the crops, in the first place, and in the second place, upon the land of the water users and ditch owners, in accordance with the distribution thereof, as shown by the accounts of the municipal council, the provincial board, or the Director of Public Works, which distribution shall be based upon the irrigable area held by each appropriator or ditch owner, in proportion to the total area served by the system: Provided, however, That the funds necessary to defray the administration expenses prior to the expiration of each agricultural year (the period intervening between the beginning of the planting and the completion of the harvesting of the crops), in accordance with the appropriation, shall be advanced by the municipality or the province out of its funds, or by the Director of Public Works, out of any unappropriated funds in the Insular Treasury, and shall be reimbursed by the landowner or ditch owner at the end of each year with interest at the rate of four per centum: Provided, further, That the funds that may be advanced by the Director of Public Works shall not exceed five hundred thousand pesos in any one year: Provided, finally, That in the event of the municipalities or provincial boards being without funds to cover these expenses the administration of such system shall be given to the Director of Public Works for such time as the funds advanced to meet said expenses are paid from the Insular Treasury:

"The municipal and provincial treasurers shall, in the performance of their official duties, collect the charges for administration expenses for each year upon the completion of each harvest, acting in this respect as delegates of the Director of Public Works. Such lien shall have preference over all other liens except that for taxes on the land and any mortgage lien in favor of the Philippine Agricultural Bank, or its successor, and such preferred lien shall not be removed until all charges are paid or the property is sold for payment thereof. Within one year after default of payment on an installment payable on any parcel of land, the municipal president, the provincial governor, or the Director of Public Works shall file with the clerk of the Court of First Instance of the district in which the land is situated, a list of all lands upon which default has been made. The clerk of the court shall thereupon publish in the manner provided for the publication of the summons in a civil action, a list of the lands so filed by the Director of Public Works, accompanied by a notice requiring the owners to file an answer thereto within thirty days after the completion of the publication.

"Upon the filing of an answer by the person interested, the action in respect to such person shall proceed to judgment, as provided for other actions by the Code of Civil Procedure. Upon termination of such thirty days, judgment shall be entered against such persons as have not answered, and their lands, or the portion thereof, deemed necessary, shall be sold, after ten days' public notice, at public auction by the sheriff to satisfy such preferred lien.

"Any excess over the amount of said lien and the cost of such procedure shall be returned to the interested person who shall have one year thereafter to redeem his land by payment of the amount of judgment, and costs with interest at six per centum: Provided, however, That in the event of the cost of maintenance being so exceptionally high in any year that it exceeds fifty per centum of the net profits, such exceptional cost shall be distributed in an equitable manner, over two or more years, but not more than five: And provided, further, That in the case in which a crop is unharvested at the time of the execution of the lien the execution shall be levied first on said crops.

"In the preparation of the regulations mentioned in this and the next preceding section, the customs and usages of each locality shall be taken into consideration, and in these regulations one day of the year shall be fixed for a meeting of all the persons interested for the purpose of preparing an estimate of expenditures of the next succeeding year."

SECTION 5. Section sixteen of Act Numbered Twenty-one hundred and fifty-two is hereby amended to read as follows:

"SEC. 16. If there is no unappropriated water in the source of supply, the Secretary of Commerce and Communications, through the Director of Public Works, shall deny the application in writing, a record thereof being filed in his office, and shall return the application so denied to the applicant who shall not prosecute any work under his application. If the applicant shall perform any work under his application he shall be guilty of and punished for a misdemeanor.

"If the source of supply be a navigable stream, the application must be referred by the Director of Public Works to the Insular Collector of Customs, who shall return the application with his recommendation thereon.

"If there is unappropriated water in the source of supply named and the appropriation is not detrimental to the public, the Secretary of Commerce and Communications shall approve the application with such conditions as he may deem wise to impose to safeguard the public interest and indorse, through the Director of Public Works, such approval upon the application. In his indorsement he shall require that actual construction work must begin within one year from the date of such approval, and shall state the period of time within which the work shall be diligently prosecuted to completion and the water applied to beneficial use within the period of time fixed by the Secretary of Commerce and Communications which shall not exceed five years from the date of the approval of the application.

"A record of such approval and indorsement shall be filed in the office of the Director of Public Works, who shall return the application to the applicant, authorizing him to take such measures as may be necessary to perfect the appropriation: Provided, however, That in case there is an insufficient supply for the total amount of water applied for, the Secretary of Commerce and Communications may approve an application for a less amount of water."

SECTION 6. Section seventeen of Act Numbered Twenty-one hundred and fifty-two, as amended by section eight of Act Numbered Twenty-six hundred and fifty-two, is hereby further amended to read as follows:

"SEC. 17. After the approval of an application the applicant shall submit in duplicate to the Director of Public Works, for approval, the plans and specifications for the works necessary for the use of the water granted by the said approval. No work shall be begun until the plans for the same have been approved, and no work shall be done at any time except in accordance with the said plans. The Director of Public Works shall have authority to examine and inspect such works during construction and order any changes or alterations which he may consider necessary for the security of the works, or the safeguarding of life, property, or the public interest. No water shall be turned into such works until the approval of the same by the Director of Public Works has been secured. dctai

"Any failure to conform to the requirements laid down in this section shall be punishable as a misdemeanor under this Act: Provided, however, That applicants for small appropriations to irrigate land, not in excess of sixteen hectares, shall not be required to submit plans and specifications other than those required in the application, and the water may be turned into such works as soon as completed without reference to the Director of Public Works: And provided, further, That the plans for the construction or reconstruction of temporary earth, brush, or grass dams across the channel of a stream, shall not be submitted when less than three meters in height. If a dam across a channel of a stream is to be constructed of permanent materials, the plans shall be submitted to the Director of Public Works for approval. Plans of temporary dams constructed of temporary materials such as brush, grass, or of earth, greater than three meters in height, shall be submitted for approval.

"At least thirty days before the date set for the completion of the works to divert the water sought to be appropriated, the Director of Public Works shall notify the applicant by registered mail of the date when proof of completion of work shall be due. On or before the date set for completing the works to divert the water in accordance with the application therefor, the applicant shall make proof thereof, by filing with the office of the Director of Public Works a statement descriptive of the work done. Said statement shall be sworn to by the applicant.

"As soon as proof of completion of works has been accepted and approved, and upon it being shown to the satisfaction of the Director of Public Works that an appropriation has been perfected in accordance with the application therefor, and that the water has been put to beneficial use, it shall be the duty of the Director of Public Works to issue a certificate as provided in section eighteen hereof, as amended, to the party making same. Failure to make proof of beneficial use of the water on or before the date set therefor, shall cause the forfeiture of the water right grant."

SECTION 7. A new section is hereby inserted between sections twenty and twenty-one of Act Numbered Twenty-one hundred and fifty-two which shall be known as section twenty (A) and shall read as follows:

"SEC. 20 (A). In case of application for an appropriation for large development, the Secretary of Commerce and Communications, through the Director of Public Works, may require a statement of the following facts in addition to the information required by section twenty hereof:

"(a) In case of incorporated companies he may require the submission of the articles of incorporation, the names and places of residence of the directors and officers, and the amount of its authorized and of its paid-up capital.

"(b) In the cases of individuals or companies which are not incorporated, he may require a statement as to the name or names of the party or parties proposing to construct the work, and a showing of facts necessary to enable him to determine whether or not they have the financial ability to carry out the proposed work and whether or not the said application has been made in good faith."

SECTION 8. A new section is hereby inserted between sections twenty-one and twenty-two of Act Numbered Twenty-one hundred and fifty-two which shall be known as section twenty-one (A) and shall read as follows:

"SEC. 21 (A). If, in the judgment of the Secretary of Commerce and Communications, the holder of any unperfected grant to appropriate public waters for irrigation, domestic, mining, power, industrial, and other purposes is not proceeding in good faith and with reasonable diligence to perfect said appropriation, the Secretary of Commerce and Communications may require at any time the submission of the necessary data to show a compliance with the law, and the Secretary of Commerce and Communications may, with the approval of the Irrigation Council, cancel the said grant."

SECTION 9. Section twenty-five of Act Numbered Twenty-one hundred and fifty-two as amended by section seven of Act Numbered Thirty-two hundred and eight, is hereby further amended to read as follows:

"SEC. 25. Upon determination by the Secretary of Commerce and Communications that the Government construction of any irrigation project is advisable, he shall, in the manner prescribed in section fifteen hereof, give public notice of:

"(a) The land irrigable under such project.

"(b) The total annual charge per hectare which shall consist of the following items: First, a uniform annual charge to cover the cost of construction with interest, which shall be computed so that it will reimburse within a period not exceeding forty years the cost of construction with interest at the rate of four per centum per annum; second, the estimated cost of operation and maintenance; and third, the insurance charge provided for in section thirty-one hereof: Provided, however, That in the cases of systems wherein the total annual charge above provided exceeds twelve pesos per hectare, and the landowners affected do not express in writing their preference to reimburse the cost of construction within a period not exceeding forty years with interest at the rate of four per centum per annum, the total annual charge per hectare shall consist of the following items: first, the annual assessment, which shall be computed at the rate of four per centum of the cost of construction per hectare; second, the estimated cost of operation and maintenance; and third, the insurance charge provided for in section thirty-one hereof.

"(c) A statement that protest against the construction of the project may be filed with the Governor-General within ninety days after completion of publication.

"At the beginning of the publication of the notice a map shall be filed in the office of the municipal secretary of each municipality interested, showing the land to be affected by the irrigation project, which map shall be open to inspection by the public.

"The Secretary of Commerce and Communications shall publish or cause to be published in English, and, whenever he deems advisable in Spanish and in the local dialect, in the Official Gazette, the notice provided for in this section, which notice shall be published once a week for four consecutive weeks. Such notice in English, Spanish, and the local dialect shall also be posted at the usual places for posting public notices in each municipality and place affected by said project and shall also be published once a week for four consecutive weeks by bandillos or public criers."

SECTION 10. Section twenty-nine of Act Numbered Twenty-one hundred and fifty-two is hereby amended to read as follows:

"SEC. 29. Upon the completion of the construction of any project, or sufficient part thereof, by the Government, the Secretary of Commerce and Communications shall issue a second public notice, which shall be posted and published in the same manner as provided in section fifteen hereof.

"This notice shall announce:

"(a) The land irrigable under such project, or part thereof;

"(b) The total annual charge per hectare which shall consist of the following items: first, a uniform annual charge to cover the cost of construction with interest, which shall be computed so that it will reimburse within a period not exceeding forty years the cost of construction with interest at the rate of four per centum per annum; second, the estimated cost of operation and maintenance; and third, the insurance charge provided for in section thirty-one hereof: Provided, however, That in the cases of systems wherein the total annual charge, above provided, exceeds twelve pesos per hectare, and the land owners affected do not express in writing their preference to reimburse the cost of construction within a period not exceeding forty years with interest at the rate of four per centum per annum, the total annual charge per hectare shall consist of the following items: first, the annual assessment, which shall be computed at the rate of four per centum of the cost of construction per hectare; second, the estimated cost of operation and maintenance; and third, the insurance charge provided for in section thirty-one hereof.

"(c) The payment of the annual charge corresponding to any year shall be made not later than August thirty-first of the succeeding year: Provided, however, That no charge shall be collected from the landowners benefited during the first year of operation; that the cost of operation and maintenance alone shall be collected during the second year of operation; and that the collection of the total annual charge shall begin during the third year of operation.

"(d) The date on which the official test of the system is to be made in the presence of the persons interested for their satisfaction.

"(e) Failure to pay the annual charge within the period prescribed by item (c) shall subject the landowners to a penalty of ten per centum of the original charge due if paid not later than December thirty-first of every year, the penalty to be increased to twenty per centum thereafter.

"If the annual charge and penalties above provided shall remain unpaid on the dates specified in items (c) and (e), the same shall become a lien against the delinquent land and the crops raised thereon, which lien shall have preference and be collectible, as prescribed in section thirteen hereof."

SECTION 11. Section thirty of Act Numbered Twenty-one hundred and fifty-two is hereby amended to read as follows:

"SEC. 30. Whenever by reason of shortage of water or other fortuitous event, a failure or shortage of crops shall occur on lands included in any irrigation system of any portion of said system, and whenever any land included as irrigable is found to be not benefited by irrigation, the Secretary of Commerce and Communications may at his discretion extend the time for the payment of the installment for lands which reimburse the cost of construction with interest, or waive the assessment provided for in section twenty-nine hereof."

SECTION 12. Section thirty-one of Act Numbered Twenty-one hundred and fifty-two is hereby amended to read as follows:

"SEC. 31. If at any time any irrigation works or portion thereof constructed by the Insular Government under the provisions of this Act shall be damaged, or destroyed, or shall be in danger of destruction, or serious damages by earthquake, fire, lightning, flood, tornado, typhoon, hurricane, war, or by other fortuitous event or force majeure, the same shall be upon approval of the Governor-General, repaired, reconstructed, improved from the insurance fund hereafter provided for in this section, and the cost of such repair, reconstruction or improvement shall not be charged against the landowners benefited.

"There is hereby authorized and created an irrigation insurance fund which shall be established and maintained as follows: The Secretary of Commerce and Communications shall instruct the Director of Public Works to add to the amount collectible from each owner of land irrigated by any such irrigation system operated under the provisions of this Act an amount not exceeding fifty centavos per hectare, which shall be covered into the Insular Treasury and set aside as a special fund to be known as the 'Irrigation Insurance Fund,' which fund may be invested by authority of the Secretary of Commerce and Communications, first, in financial transactions with relation to irrigation proceedings, and second, in the same manner and under the same conditions as other trust funds handled by the Insular Government may be invested; and the said fund, together with the accumulated interest thereon, shall be expended for the purposes and in the manner provided in this section and for no other purpose: Provided, however, That whenever said irrigation insurance fund shall exceed three hundred thousand pesos, the Secretary of Commerce and Communications may, at his discretion, order that no further collection shall be made until said fund shall have been reduced by expenditure as provided herein to less than one hundred and fifty thousand pesos."

SECTION 13. The provisions of this Act shall be made applicable to the irrigation systems heretofore completed, to systems now under construction and to systems that may be constructed in the future under the provisions of Act Numbered Twenty-one hundred and fifty-two as amended, any act or provisions of law to the contrary notwithstanding: Provided, however, That the provisions of this Act shall not be applied to the Pilar Irrigation System in Bataan Province and the Talavera River Irrigation System in Nueva Ecija Province except upon the request of the landowners affected and with the approval of the Governor-General: Provided, further, That in the cases of systems heretofore approved for construction under the provisions of Act Numbered Twenty-one hundred and fifty-two, as amended, which have not been in operation for more than ten years, the annual assessment provided for in item (B), section twenty-nine thereof, shall be so computed that the total annual charge per hectare of land irrigated provided for in said section twenty-nine thereof shall in no case exceed twelve pesos per hectare.

SECTION 14. This Act shall take effect upon its approval.

Approved: February 21, 1929