Water Regulations
Introduction
The Water Code (CA) is a Chilean legal body "Code (law)") that since 1981 has normed and regulated access to the country's water resources, incorporating market criteria in the allocation procedures in accordance with Article 4 of the Dublin Declaration[1] and limits state intervention in matters that concern the actions of private parties.[2].
The code has been successful in encouraging investments in hydraulic works and optimizing water use, but new challenges have also emerged that led to its modification in 2005[2] and the last one in 2022.[3] In Latin America it has become a possible model to follow.[4].
History
Already in pre-Hispanic times, irrigation canals were used in agriculture. During the colony, the technique and also the legislation were developed according to criteria brought from Spain.[1].
The Chilean Civil Code, promulgated in 1856, provided a general legal framework for the activities of the nascent republic, although it did not treat waters in a special way.
The first Water Code was promulgated in 1951 and came into force in 1952. It was reformed with the Agrarian Reform Law of 1967, but was systematized in 1969 so it is known as the Water Code of 1969.[1].
A substantive change was Decree Law 2603 of 1979, which prepared the constitutional recognition of water rights that would come with the Political Constitution of the Republic of Chile of 1980 and later the Water Code of 1981, which still applies in 2023.
Definitions
The code determines that there are marine, terrestrial and rainwater, the latter are marine or terrestrial depending on the place where they fall. The CA only addresses terrestrial waters, classifying them into surface and groundwater.[1].
The Water Code (CA) declares that waters are "national assets for public use" that cannot be appropriated by individuals, but only the state can grant "water use rights" (DAA).[1] These rights are granted free of charge by the state:
In all cases, the DAA are then registered in the Water Registry of the real estate conservator "Conservator of real estate (Chile)"), like other properties.
In the case of groundwater, the CA provides for the delivery of an exploration permit which, if positive, leads to a DAA. Likewise, mining excavations obtain the right to use the water they find in their exploitations. For domestic use and drinking, the CA authorizes any person to dig wells and extract water on land owned by them.