Reforming Chile’s Water Code

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By Sara Larrain
Editors Note: The following is from Issue 12.
Chile is suffering degradation of fresh water sources, rivers, and underground aquifers, in addition to drought and desertification intensified by climate change. A significant part of these problems have been generated by bad public policy such as the Water Code, which dates back to 1981 and, without democratic checks, has prioritized the interests of the market over equitable access and protection of water sources.
The perpetuation of these predatory policies for more than 30 years has seriously affected human and animal communities and ecosystems in the north, central and southern parts of Chile, generating deep socio-environmental conflicts.
In 2012, due to a proposal put forward by citizens and members of parliament, Chile’s Congress began discussion of Water Code reforms, including protection of water sources, prioritizing access to potable water, and sanitation. They also included retroactive ecological flows for all rivers and repealing perpetual claims. They created water reserves for social environmental priorities, and instituted forfeiture of claims for those who hoard water for financial speculation. The new government supported this proposed reform in 2014, but in a new draft eliminated all the articles which, according to their analysis, might affect rights protected by the 1980 Constitution.
Despite the strong opposition of the mining, electric and agricultural business sectors, the congressmen were able to recover many of the reforms which had been originally proposed, and a reform bill was thusly approved in the Water Resources Commission in 2015 and in the Agriculture Commission in 2016, and it now awaits a vote in both chambers of the Chilean Congress.
Social and Environmental Progress
The reform under debate contains fundamental changes to the Water Code with regard to the role of the State and the social and environmental conditions to be managed. It reinforces the public nature of the water, declaring that “its use and control belong to all the inhabitants of the nation,” and therefore ends the authorization of water rights in perpetuity. The new claims will be temporary concessions, up to 30 years.
In the social realm, the reform recognizes the human right to water and sanitation, which should be “guaranteed by the State,” and established water use priority for human subsistence and environmental sustainability. The State can establish water reserves for that purpose.
Among its environmental advances, the reform recognizes the “ecosystem preservation role” that water plays, and protects wetlands from Arica to Coquimbo and wetlands in priority areas, as well as threatened or degraded ecosystems throughout the country. Its authority can also limit claims and extractions and declare prohibited areas to protect subterranean aquifers.
The Hydrological Resources Commission approved the requirement to maintain ecological flow in all rivers and estuaries in the country, but the Agriculture Commission, pressured by agroindustry, reduced the ecological flow requirements for older water claims, requiring them only in the case of major operations (hydroelectric and irrigation dams) and when changes in the water catchment points are solicited. They only succeeded in maintaining the ecological flow requirement for all water claims granted after 2000; therefore, the challenge for the next vote is to make the ecological flow requirement mandatory for all rivers.
There are other elements that are relevant to river protection. The State can establish flow reserves for ecosystem preservation, and private citizens can request claims for environmental or scenic preservation in situ, and thereby allow the water to remain in the river. This right to environmental conservation does not go away, nor is it encumbered with a non-use payment. Finally, there is a change that is important for protected areas and their rivers: the reform prohibits granting water claims in those areas. In the case of existing claims in protected areas, they can only be used for conservation. 
In short, the Water Code reform bill currently in the Congress is real progress. Although it doesn’t contain all the changes necessary, it is an important step in the right direction.
Sara Larrain is director of the environmental group Chile Sustentable.


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