Water use rights: the controversy that splashes in the Convention

The process of drafting the new Constitution is in one of the last stages before the plebiscite on September 4. This Thursday, June 2, the Plenary of the Constitutional Convention (CC) will vote on the first report of the Commission of Transitory Norms, made up of 56 articles that touch on various topics, among them, the constitutional statute of water.

Last Friday, the Temporary Standards Commission approved three articles referring to water: article 36, which establishes that “within six months, the President of the Republic must send a bill for the installation of the National Water Agency and the Basin Councils”; article 37, which has a direct impact on the rights to use water; and, finally, article 38, which states that “the General Water Directorate or the National Water Agency, as appropriate, gradually, progressively and with a sense of urgency, will carry out the process of redistributing the flows of the basins “. However, it should be noted that the deadline for entering transitional regulations before the Plenary Session of the Convention expires this Wednesday, June 1, at 09:30.

“What is generally proposed in the transitory water regulations is the creation of the necessary institutions, the National Water Agency (ANA) and the Basin Councils. Mandates are also established for the legislator and the Executive to create the laws It is also established that all exploitation rights will pass to use authorizations, giving a reasonable term to regularize the authorizations, and a water redistribution plan is established that must be implemented as a matter of urgency, prioritizing those basins with greater levels of water crisis”, commented the constituent and member of the Temporary Standards Commission, Vanessa Hoppe (MSC).

These regulations reinforce the principle that water is a natural common good that cannot be appropriated, where the State, through the creation of a National Water Agency, may grant authorizations for non-commercial use.

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The end of water use rights

These rules, however, are not exempt from criticism, more particularly article 37, which refers to the transition from water exploitation rights to use authorizations. From the National Association of Sanitary Services Companies (Andess AG) they warned that, if this article is approved, there would be a risk for the effects of guaranteeing the human consumption of drinking water.

“The impact is very clear: this norm establishes that water rights would be transformed into non-commercial use authorizations immediately, as soon as the Constitution comes into force. Being non-commercial, they are outside what individuals can dispose of among themselves, all the agreements currently in force between the water companies and the irrigators and other users,” warned Julio Reyes, the executive president of Andess.

“It seems to us that the Transitional Standards Commission has not adequately weighed the practical impacts that changing the water access regime overnight would have, especially on the normal development of the different activities that require water to be carried out,” Reyes added.

In the same sense, the professor of Water Law at San Sebastián University, Tatiana Celume, explained that, when passing from rights of use of water to authorizations of use, there is a change in the legal nature of the law, which would imply that it is foreign to a person’s heritage, so they would not be inheritable, nor could they be leased or assigned.

In other words, there would not be “a mechanism for the reassignment of rights. In this case it was the market. For example, if you have a sanitation company and summer arrives and it lacks water, then it leases rights or buys rights and satisfies consumption rights of the population, but in this case with the authorization it will not be able to do it, it will have to go to the State to request authorization of such and such flows, and that can be complex, slow and it may not meet the requirements of not only the sanitation companies: they endanger the human right to water (…), but other companies, such as mining companies, have it,” said the lawyer.

These arguments are not shared by the constituent Vanessa Hoppe, who affirmed that there is no impact on the drinking water supply due to the elimination of use rights.

“The human right to water is constitutionally established, and in the priority of uses, the use of water will always prevail for the exercise of this right and for the balance of ecosystems. Then, whatever the regime of authorizations of use, it will always prevail. human consumption. In fact, ending the use rights from a commercial perspective and moving to the perspective of use of public law, precisely improves the conditions for human use,” said the Convention.

In addition, the researcher from the Center for Climate and Resilience Science (CR)2 and the Center for Transdisciplinary Systemic Studies (NEST-r3), Marco Billi, explained that article 36 would effectively establish that water use rights automatically become in use authorizations, but does not agree with the Andess warning.

“Today the water companies per se they do not need the rights to be tradable so that they can exercise and, therefore, use the water; So, I don’t see this danger in the short term,” said Billi.

He also added that it can indeed “perhaps generate a certain legal uncertainty in the sense of what we do with these authorizations that are not specified, but I say it again: it seems to me that the reasonable thing, as the transitory norm says, is that in reality operating as if they were water rights but without being tradable There is another transitory norm that says that all laws that are issued prior to the Constitution and especially those that are related to any of the services and activities of the State or the provision of any fundamental good, they remain in force as they are until a new law is made that replaces it or the Court says that it is unconstitutional, therefore, the Water Code remains in force,” said the researcher.

The position of the Government

In mid-May, the Ministry General Secretariat of the Presidency (Segpres) delivered a document to the Constitutional Convention, where it made a series of recommendations on transitory regulations. Among the topics present was water management, where particular reference was made to the modifications to the water use rights regime.

The government document says that “multiple productive sectors currently depend on the rights to use water, as well as rural and private drinking water systems for their own consumption. Indeed, the Public Registry of Water Use Rights of the Public Water Cadastre (CPA), currently contains 140,846 records to which, at least, it would be necessary to add another 133,000 cases collected in a 2018 study and over 30,000 regularizations, that is that is, more than 300 thousand water use rights”.

They added that “it should be borne in mind that the lack of certainty as to whether the holders of exploitation rights will be able to continue using water could seriously affect the economy, since it could bring uncertainty to the productive sectors that depend on water, strongly impacting the employment, investment and tax collection. It would also affect those who use those rights for human consumption, especially in rural sectors.”

In this sense, the document pointed out that “although a new regime is required to change the paradigm of water ownership, this cannot be directly applied by the Constitution, since the new regime must regulate various technical and legal aspects for its proper functioning by means of a law, including the creation of the National Water Agency, in charge of granting authorizations. Therefore, before the enactment of the law that establishes the new water use authorization regime, it is convenient to maintain the validity of the current regulations to allow an orderly and gradual transition, without generating disruptions that could seriously affect the economy” .

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