Hogan Lovell OffshoreBook 2023 230809 OnlinePDF - Flipbook - Page 242
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Republic of the Philippines
the DENR to occupy, develop, utilize, and
manage the foreshore lands and "marshy lands or lands covered with water
bordering upon the shores or banks of
navigable lakes or rivers for commercial,
industrial or other productive purposes
other than agriculture."101 Easements
and rights-of-way needed for an OSW
plant and its grid connection are not
explicitly included as part of the FLA, but
the definition of an FLA (i.e., managing
of foreshore lands)102 is broad enough to
deem them as included.
There are three (3) main limitations
to the FLA grant. First, it may only be
applied for when the President, upon
recommendation of the Secretary of
Agriculture, declares the foreshore land
as unnecessary for public service and
open for disposition (i.e., lease).103 In
order words, the President declares the
foreshore land as "alienable and disposable." Thus, an OSW developer will need
to wait for such a declaration before it
can apply for the grant. Second, the FLA
grant is limited to Philippine nationals.104
And third, the FLA cannot be assigned,
encumbered, or sublet in favor of those
not authorized to lease foreshore lands
(e.g., foreign corporations),105 and without the prior consent of the Secretary
of the DENR.106
(b) Miscellaneous Lease Agreement
Lands covered by a Miscellaneous Lease
Agreement (MLA) are the foreshore
areas within a dry shore land and/or land
which is permanently underwater.107 The
MLA covers improvements, such as the
grid connection for OSW plants.
The same three (3) limitations in the FLA
grant are applicable to the MLA. It may
only be applied for when the President
has declared the foreshore areas involved as alienable and disposable,108 and
only by Philippine nationals.109 It also
cannot be assigned, encumbered, or
sublet to those not authorized to lease
the foreshore areas involved and without
the Secretary of the DENR’s consent.110
(c) Water Rights
Aside from the above agreements, the
installation of other infrastructure like
the grid connection on navigable or
floatable waterways (e.g., seawater)
101 Public Land Act, Section 61 in relation to Section 59 and 60; DENR FLA Rules, Section 2(c).
102 DENR FLA Rules, Section 2(c).
103 Public Land Act, Section 61 in relation to Section 59 and 60.
104 DENR FLA Rules, Section 4.
105 DENR FLA Rules, Section 15(2).
106 DENR FLA Rules, Section 15(1).
107 DENR Administrative Order No. 2021-16, Section 2.8; See Land Management Bureau, Department of Environment and Natural Resources, "Lease",
https://lmb.gov.ph/index.php/land-disposition/foreshore-and-reclaimed/lease. We have assumed here that the underwater land is within the Philippines’
territorial sea (i.e., 12 nautical miles from the baselines).
108 Public Land Act, Section 61 in relation to Sections 59 and 60.
109 Public Land Act, Section 4.
110 Public Land Act, Section 15(1) and (2).
