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| Code of Waters (Chile) | |
|---|---|
| Name | Code of Waters (Chile) |
| Native name | Código de Aguas |
| Enacted | 1981 |
| Jurisdiction | Chile |
| Status | in force |
Code of Waters (Chile) is the principal statutory regime governing water rights, allocations, uses, and administration in Chile. Promulgated during the presidency of Augusto Pinochet and enacted by the National Congress of Chile, the law reconfigured property-like water rights and established institutional frameworks that continue to influence policy debates involving Ministry of Public Works (Chile), Superintendencia de Servicios Sanitarios, and regional authorities. The Code has shaped interactions among extractive industries such as Codelco, Anglo American plc, and Antofagasta PLC, environmental advocates including SERNAPESCA and CONAMA, and indigenous organizations like the Mapuche.
The legal lineage of the Code traces to earlier civil law traditions codified during the Republic of Chile (1818–), with antecedents in 19th-century water regulations and hydraulic works promoted by figures such as Benjamín Vicuña Mackenna and institutions like the Dirección General de Obras Hidráulicas. Major reform arrived under the dictatorship of Augusto Pinochet with Law Decree No. 3,630 of 1981, influenced by neoliberal advisers connected to World Bank, International Monetary Fund, and think tanks associated with Chicago Boys economists. Subsequent constitutional and legislative episodes—during the administrations of Patricio Aylwin, Ricardo Lagos, and Michelle Bachelet—generated modifications, judicial interpretations by the Supreme Court of Chile (Corte Suprema), and regulatory activity by the Dirección General de Aguas (DGA). High-profile disputes over water allocation occurred in regions like Aysén Region, Atacama Region, and Maule Region, involving stakeholders from Compañía Minera Doña Inés de Collahuasi to agricultural cooperatives and the National Forestry Corporation (CONAF).
The Code establishes water rights as separable, tradable assets registrable in the public Registro de Aguas administered by the Dirección General de Aguas (DGA), integrating provisions from the Civil Code of Chile and administrative law doctrines adjudicated by the Council of State (Chile). It delineates categories of waters—such as surface runoff, groundwater, and tidal waters—while setting conditions for usufruct, prior appropriation, and concession regimes that intersect with norms in the Código Civil de Chile and regulatory decrees from the Ministry of Public Works (Chile). Institutional architecture connects the DGA with the Comisión Nacional del Medio Ambiente (CONAMA)'s successor agencies, the Ministerio del Medio Ambiente (Chile), and sectoral regulators including Superintendencia de Servicios Sanitarios and Servicio Agrícola y Ganadero (SAG). Legal remedies, licensing procedures, and permit adjudications proceed through administrative litigation in courts like the Corte Suprema and Corte de Apelaciones, alongside arbitration mechanisms used by multinational firms.
Under the Code, private parties—including mining corporations such as Barrick Gold affiliates operating in El Salvador, Atacama—and agricultural entities such as viticulture estates in Colchagua Valley may obtain water rights for irrigation, domestic supply, industrial processing, and hydroelectric generation pursued by companies like Endesa (Chile) and Colbún S.A.. Rights are characterized by priority dates, volumetric allocations, and conditions for transfer invoked in transactions involving investors like Smithfield Foods-related agribusinesses or utility conglomerates such as Aguas Andinas. Indigenous use claims asserted by Mapuche communities and coastal fisherfolk represented by organizations such as Confederación Nacional de Pescadores Artesanales have contested allocations, invoking treaties and constitutional protections debated in forums including the Constitutional Tribunal of Chile.
Administration is centralized through the DGA under the Ministry of Public Works (Chile), which issues title registrations, adjudicates conflicts, and enforces permits; enforcement actions may involve the Policía de Investigaciones de Chile or administrative sanctions imposed by the Superintendencia de Medio Ambiente (SMA). Compliance monitoring employs hydrological measurement programs coordinated with the Comisión Nacional de Riego and technical institutions like the Universidad de Chile and Pontificia Universidad Católica de Chile’s water research centers. Disputes over contamination or illegal extractions are litigated before regional Cortes de Apelaciones and the Corte Suprema, while international investment disputes have been brought to tribunals invoking bilateral investment treaties with states such as Spain and United Kingdom.
Critics link the Code to environmental stressors including aquifer depletion in the Santiago Metropolitan Region, saline intrusion in Copiapó River basin, and altered flows affecting wetlands like Humedal El Yali. Social impacts include conflicts over access among smallholder farmers in Biobío Region, pastoralist communities in Los Lagos Region, and indigenous collective rights asserted by Mapuche and Aymara groups; these tensions have catalyzed mobilizations involving unions and civil society organizations like Observatorio del Agua. Environmental assessments overseen by the Servicio de Evaluación Ambiental for projects such as large-scale mining operations have spotlighted cumulative impact concerns and calls for integrated basin management aligned with international agreements like the Ramsar Convention.
Reform efforts span administrations and legislative proposals by parties such as Partido Socialista de Chile, Partido por la Democracia, and Renovación Nacional, debating measures ranging from constitutional recognition of water as a public good to statutory adjustments enhancing basins' environmental flows. Controversies include high-profile litigation by communities against multinational miners, policy disputes over water markets championed by neoliberal economists tied to the Chicago School, and parliamentary inquiries involving legislators like Guillermo Teillier and Felipe Harboe. Proposals to repeal or amend key provisions have been advanced in the Chamber of Deputies of Chile and Senate of Chile amid wider constitutional reform processes culminating in debates at the Constitutional Convention (Chile). International actors including World Bank and Inter-American Development Bank have funded studies evaluating alternatives such as public trusts, basin councils, and co-management schemes involving indigenous authorities.
Category:Law of Chile Category:Water law