Republic of the Philippines

Fourth Judicial Region

REGIONAL TRIAL COURT
Branch 54
Lucena City

CONCHITA F. CALZADO, in his capacity as a tribe leader of the

dumagat-remontados, an indiginoues people residing within the
vicinity area.
Plaintiff,

-versus- CIVIL CASE No. 19-1726

REYNALDO V. VELASCO, in his capacity as the administrator of

Metropolitan Manila Waterworks System.
Respondent.
x--------------------------------------------------x

MEMORANDUM

PLAINTIFF, by counsel, unto this Honorable Court most

respectfully states:

FACTUAL BACKGROUND

The China-funded Kaliwa Dam project, which will be constructed along Rizal
and Quezon provinces is viewed to increase the water furnish from Angat Dam.
The Kaliwa Dam, which has a peak of 60 meters, is anticipated to put an end to
water shortages in Metro Manila considering it will supply extra 600 million liters
of raw water per day. The Department of Environment and Natural Resources
(DENR) already issued the Kaliwa Dam project with an Environmental Compliance
Certificate (ECC).

The ECC is one of the requirements for the Metropolitan Waterworks and
Sewerage System (MWSS) and China Energy Engineering Corp. to proceed with the
12.2 billion peso project, along with a free prior and informed consent from the
indigenous people. According to the DENR, the ECC was once issued by way of the
Environmental Management Bureau to the project after
it satisfied the requirements of the Environmental Impact Statement System.

1
 However, the Commission on Human Rights allegedly said that there would
possibly have been a fake consultation and approval from the affected indigenous
communities.

At stake, the project would submerge parts of General Nakar and Infanta in
Quezon Province. It would also have an effect on the Sierra Madre in Tanay, Rizal,
some organizations claim. According to Haribon Foundation , the town of Infanta
which is a delta or a landform created by deposition of sediment, would possibly be
erased from the map if this project pushes through. But the MWSS said they
will provide housing and other resources for the indigenous people who will be
affected.

Environmental groups also said the flooding caused by the project will
displace and kill species that live in the area. But President Rodrigo Duterte said he
is ready to use expropriation or the police power of the state to put an end to water
shortages, even if the environment is at risk.

In 2014, the Kaliwa Dam project was initially rolled out as a PPP project, with
two qualifying bidders — SMC-K Water Consortium (San Miguel Holdings Corp.
and Korea Water Resources Corp.); and the Abeima-Datem Consortium (Albeinsa
Infraestructura Medio Ambiento S.A and Datem Inc.) The project involved the
development of a new water source to meet the increasing water demands by
constructing a redundant dam for Metro Manila's domestic water supply. The
government, however, under the administration of Duterte, in March 2017 chose to
instead push through with the project under an ODA scheme.

Integrated Public-Private Partnership (PPP) means the construction then

operation and maintenance (O&M) phases will be done by a single entity while
Hybrid PPP means the construction is done by one entity, the O&M to be done by
another entity. Funding of the former therefore will be fully shouldered by that
entity while in Hybrid PPP, construction cost to be funded via ODA/foreign loan or
Philippine government budget appropriation, O&M by a local private firm. So if one
will build a dam near Metro Manila, a Hybrid PPP route means taxpayers from
Northern and Southern Luzon, Visayas and Mindanao will contribute to pay for that
loan. In an integrated PPP, only the users and consumers of the water from that
dam will pay, the users-pay principle works.

2
 The Metropolitan Manila Waterworks System (MWSS) is pushing an
important project, the proposed New Centennial Water Source Project (NCWSP). It
will involve the construction of a dam at the Kaliwa River (Laiban Dam), and a smaller
dam (Kaliwa Dam) downstream to maximize the water supply, give additional 600
million liters per day (MLD) to augment the 4,000 MLD from Angat Dam in Bulacan
which provides potable drinking water. This is important not only because of rising
water demand but also for backup, in case the old Angat Dam will be damaged by
a strong earthquake.

A Japanese firm, Global Utility Development Corp. (GUDC), signed an MOU

with MWSS in 2008 for an Unsolicited Proposal on Kaliwa Intake Dam Project, BOT
scheme. The proposal was completed in November 2009. Somehow plans have
changed, MWSS has amended bid contracts, the integrated PPP later became
hybrid PPP. The old Business World reports on the subject, found these four stories.

1. San Miguel mulls legal steps as Kaliwa dam project to be funded by China ODA
(Oct. 3, 2017).

2. MWSS expects three Chinese firms to buy Kaliwa dam project bid documents
(Feb. 16, 2018).

3. China-funded Kaliwa dam, LGU surveillance projects seen making progress (July
19, 2018).

4. Manila Water flags risk of water shortage between 2021 and 2023 (Aug. 30, 2018).

So the original proponent GUDC, then San Miguel, Datem, other bidders
were somehow lost in the process when the Duterte administration came. Then
GUDC was given consideration because its proposal is about 30% cheaper than the
China-funded one.

In 2017, Finance Secretary Carlos Dominguez III signed a financing

agreement for the project in which China would provide soft loans estimated at
$234.92 million covering Phase 1-Kaliwa Dam, and Phase 2-Laiban Dam. The final
loan agreement was scheduled to be signed by government officials of both the
Philippines and China in November 2018. The project, however, has been met
with opposition as community groups said over 14,000 households of mainly
indigenous peoples would be displaced.

3
 In support of the above stated facts the Plaintiff presented the gathered
information and summarized them in the exhibit to wit:

Exhibit “A”

It shows that not only that the cost is higher under China contractors
because of its oversized design and other factors, the rest of Philippine taxpayers
will be involved in paying this higher cost. This is anomalous because the users-pay
principle under integrated PPP works just fine.

The MWSS website said that “Project Cost P18.7 Billion, to be funded from
ODA from China. Loan Signing scheduled on the state visit of China President Xi
Jinping on Nov. 19-21, 2018.” Wow, formalizing the anomaly.

Incidentally, public vs. private funding of infrastructure and other social

services will be among the topics that will be covered by the various panels in the
Philippine Economic Society (PES) annual conference today, Nov. 8, then the
Federation of ASEAN Economic Associations (FAEA) conference, Nov. 9-10, 2018.
Both to be held at Novotel Hotel, Cubao, Quezon City.

Economists have elaborate explanations on the beauty of users-pay

principle, far superior than all taxpayers-pay policy under the Hybrid PPP scheme.
This administration is compromising current and future taxpayers with this
suspicious scheme, Kaliwa dam and other projects.

ISSUE OF THE CASE:

4
 A. WHETHER OR NOT KALIWA DAM IS IN CONSONANCE WITH THE
PROVISIONS ON WATER CODE OF THE PHILIPPINES.

ARGUMENT:

A. The construction of Kaliwa Dam features a holding capacity of 57 MCM

and has an inundated area of 113 hectares.
B. Greenhouse gases trap heat and make the planet warmer. Construction
of Kaliwa Dam will contribute to the climate crisis.
C. The construction of Kaliwa Dam will come at an enormous social cost.
D. The construction of Kaliwa Dam puts people’s lives at risk, it’s location is
within the two active tectonic plates.

DISCUSSION:

A. The dam will be constructed within a forest reserve declared under

Proclamation No. 573 on June 22, 1968. Under Presidential Proclamation No. 1636
issued on April 18, 1977, a portion of the watershed was also declared a national
park and wildlife sanctuary.

The forests and coastline of PP 1636 are a key habitat to 15 species of

amphibians, 334 bird species, 1,476 fish species, 963 invertebrate species, 81
mammal species, 50 plant species and 60 reptile species. Building a megadam in
the area will cause irreparable damage to the surrounding ecosystem and
devastate animal and plant life.
Article 67 of PD 1067 (water code of the Philippines) provides and mandates that:
Any watershed or any area of land adjacent to any surface water or overlying any
ground water may be declared by the Department of Natural Resources as
protected area. Rules and regulations may be promulgated by such Department
to prohibit or control such activities by the owners or occupants thereof within the
protected area which may damage or cause the deterioration of the surface water
or ground water or interfere with the investigation, use, control, protection,
management or administration of such waters.

5
B. Dam reservoirs are a significant source of greenhouse gas emissions, most
notably methane, which is up to 30 times more potent than carbon dioxide in
trapping heat in the atmosphere and causing global warming. Large dams emit
enormous amounts of greenhouse gases during construction.

Under Article 76 of PD 1067 (water code of the Philippines) thereof

provides that:. The establishment of cemeteries and waste disposal areas that may
affect the source of a water supply or a reservoir for domestic or municipal use
shall be subject to the rules and regulations promulgated by the Department of
Health.

C. The ancestral domains of the Dumagat/Remontado include areas within the

Kaliwa River Basin where the dam will be constructed. Sacred sites as well as burial
grounds will be submerged by its reservoir.
Apart from the IP sites, an estimated 424 households will be affected based on a
feasibility study. The dam will impact the areas further downstream, most notably
the municipality of Infanta, which will lose the benefit of sediment-carrying river
flows.

D. Kaliwa Dam will be constructed within the zone of two active tectonic
plates represented by the Philippine Fault Zone and the Valley Fault System.

Many large-scale earthquakes were recorded in the past in this area, and
the relative movement of 6 centimeters was observed in 1991-1993 along the
Philippine fault line.

The Philippine fault zone has a potential to cause very high seismic
activity, as what was recorded in the earthquake of July 18, 1880, when the old
churches of Infanta, Mauban (both in Quezon province) and Manila Cathedral
were devastated.

PRAYER:

6
 WHEREFORE, these aforementioned reasons are more than enough to call
into serious question the wisdom of pushing through with the construction of Kaliwa
Dam. To ensure water security in Metro Manila, a dam cannot deliver this
alone. There is need to explore all viable solutions that will create the
least adverse impact to the environment and our pe ople.Premises
Considered and in the Interest of justice it is most respectfully prayed that the
Petition be GRANTED.

Lucena City, November 6, 2019.

Respectfully submitted,

Atty. JOSE PAOLO F. PASTRANA

Counsel for the petitioner
Unit 2, 17nd Floor, Henerosa Bldg. Barcelona cor. Osmena St.,
Lucena City 4301
PTR No. 1017269 1-06-19 / Lucena City
IBP No. 488102 1-06-19/ Lucena City
Attorney’s Roll No. 101726
MCLE Compliance No. V-001794
Issued on August 28, 2018

The Clerk of Court

RTC Brach 54
Lucena City

Greetings:

Kindly submit the foregoing motion to the Honorable Court immediately upon
receipt hereof for its kind consideration and resolution.

Atty. JOSE PAOLO F. PASTRANA

EXPLANATION

7
Copies of the foregoing Memorandum was served to the Office of Solicitor General
indicated below via registered mail (with return card), due to lack of messengerial
personnel to effect personal service.

Atty. JOSE PAOLO F. PASTRANA

Copy furnished:

Office of the Asst. Provincial Prosecutor

RTC Bldg., Lucena City
By personal Service

OFFICE OF THE SOLICITOR GENERAL

Amorsolo Village, Legaspi Village,
Makati City
Reg. Receipt No. _00183924_
Dated August 10, 2018