Hogan Lovell OffshoreBook 2023 230809 OnlinePDF - Flipbook - Page 231
Offshore Wind Worldwide 2023
transport of passengers or cargo. Assuming
arguendo that these would be considered
a "ship" or a "vessel," under the Domestic
Shipping Act as amended by Republic Act
No. 11659, shipping is no longer considered
a "public utility" and, thus, the nationality
restriction relating to public utilities under
Section 11, Article XII of the Philippine Constitution37 no longer applies.
However, the offshore infrastructure may be
likened to those used in petroleum operations (e.g., a drilling rig) and may fall under
the MARINA Circular. Additionally, the same
offshore infrastructure may be considered
as having onboard machinery and equipment specifically designed for a special
purpose – i.e., energy generation – and may
be considered highly specialized ships requiring a permit from the MARINA. Obtaining
a permit from the MARINA is not subject to
any nationality restriction.
3.3 Use of Protected Areas
The National Integrated Protected Areas
System Act, as amended by the Expanded
National Integrated Protected Areas System
231
Act of 2018 (ENIPAS Act), establishes a comprehensive system of integrated protected
areas within the classification of National
Parks as provided in the Philippine Constitution. The protected areas are ecologically rich and unique areas and biologically
important public lands that are habitats of
rare and threatened species of plants and
animals, biogeographic zones, and related
ecosystems, whether terrestrial, wetland,
or marine. 38 These areas are managed to
enhance biological diversity and protected
against destructive human exploitation. 39
Special uses may be allowed in designated
portions of protected areas subject to the
payment of user fees, 40 except in strict protection zones and strict nature reserves. 41
Further, the activity shall not be detrimental
to ecosystem functions and biodiversity,
and cultural practices and traditions. 42
These special uses include large scale power
generation projects, as well as transmission
lines. 43 For this purpose, an RE developer
may enter into a Special Use Agreement in
Protected Areas with the DENR, relating to
the use and/or development of land, re-
37 It provides: No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the
Philippines or to corporations or associations organized under the laws of the Philippines, at least sixty per centum of whose capital is owned by such citizens; nor shall such franchise, certificate, or authorization be exclusive in character or for a longer period than fifty years. Neither shall any such franchise
or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so
requires. The State shall encourage equity participation in public utilities by the general public. The participation of foreign investors in the governing body
of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of such corporation or
association must be citizens of the Philippines.
38 ENIPAS Act, Section 2.
39 Id., Section 4 (bb).
40 ENIPAS Act IRR, Rule 4.1 (l). Under ENIPAS Act, Section 25, the corresponding user fee is equivalent to five percent (5%) of the zonal value of commercial land within the nearest barangay or municipality where the project is located multiplied by the area of development plus one percent (1%) value of
improvement as premium.
41 ENIPAS Act, Section 25. A strict nature reserve refers to an area possessing some outstanding ecosystem, features, and species of flora and fauna of
national scientific importance that should be maintained to protect and preserve nature in its undisturbed state and to preserve ecologically representative examples of the natural environment to ensure their availability for scientific study, environmental monitoring, education, and for the maintenance of
genetic resources in a dynamic and evolutionary state.
42 ENIPAS Act, Section 25.
43 ENIPAS Act IRR, Rule 4.1 (l).
