The following is a brief description concerning the main reforms proposed by the Water Code Amendment draft bill.
Water rights are essentially temporary
The substitute observations presented by the Executive Branch to the bill which reforms the Water Code, stipulates a change of conception regarding the current system.
Nowadays, water rights are considered to be a property right; with a perpetual character, over the waters and consist in its use and enjoyment.
The Government’s proposal, on the contrary, pretends that the granting of new water rights, shall have a temporary extension limited to a 30-year maximum, extendable, unless the General Water Bureau certifies the non-effective use of the resource, in which case the rights extinction grounds will operate, contemplated in this very instrument.
Redefinition of water rights concept
According to the substitute observations presented by the Executive Branch, the water rights concept is redrafted, transforming it into an administrative concession over the waters which will allow its temporary use and enjoyment, in accordance with the rules, requirements and limitations prescribed by the proposal of the new Water Code.
Water rights expiration
The existing water rights that are not registered at the Water Property Registry of the of Real Estate Registar will expire if they are not registered within 18 months from the publication of the law, with certain exceptions.
Changes in the usage of water rights
The possibility to change the usage of a water right remains (except for exceptional cases), and it is subject of reporting obligations.
However, the change in the usage can lead to the General Water Bereau attributions of redistribution or temporarily reduction of the water rights.
Fee for non-use of water rights
The Water Code Reform considers a rise in the charging of a fee for non-use of water rights for non-consumptive and consumptive water rights. It considers a rise from 2 to 4 of the factor in the eleventh and fifteenth years and the previous factor will be doubled for the following five-year periods.
The Water Code Reform establishes that non-consumptive end consumptive water rights shall be extinguished if the suitable works that allow the extraction of the resource and its restitution in the water source have not been constructed within 10 and 5 years. However, the deadlines Will be suspended for the duration of the processing of the necessary permits for the construction of work granted by the DGA or the Directorate of Hydraulic Works, as the case may be. In case of the water rights granted before the publication of the reform, this deadline will be counted from the date of the inclusion on the list of water rights subject to pay of non-use fee in the year following of the entry in force of the reform.
In addition, with the amendment every water right is subject to extinction due to non-effective use of the unused water flow, in 5 (consumptive water rights) or 10 years (non-consumptive water rights) from their inclusion in the DGA list of water rights subject to payment of non-use taxes.
The indications consider the exemption of the payment of the fee for non-use only regarding rural associations of drinking water, rural water utility companies, some agricultural communities, indigenous people or indigenous communities and non-extractive water rights.
Finally, a modification to the auction procedure of water rights is proposed, for cases of non-payment of the fee for non-use.
Effect on former water rights
The water rights granted before the entry into force of the Executive Branch’s proposal will remain current, but subject to the limitations and restrictions used in favor of public interest. Moreover, this water right may expire or be extinguished if they are not used.
Effect on non- regularized water rights
The project establishes a five years term, counted from the date the modification entered into force, for the presentation of applications of regularization of water rights that can be regularized. This includes registered water rights that are under use by different people other than the rights owners, or those that are not registered and comply, in both cases, with the requirements of having been used uninterruptedly, free from violence and clandestine use and without recognizing foreign domain since, at least, October 29th, 1976.
Water rights owners that have not presented the respective applications within the pointed term will lose the power to do so, leaving the status of these in doubt once it has passed.
Limitation to water rights exercise
The Executive Branch’s indications proposed water rights limitation, according to public interest, for which it is intended to entitle the Administration, the following abilities:
- Temporary reduction of water rights.
- Water redistribution.
Likewise, the granting of water rights in glaciers is expressly forbidden.
The Reform expressly considers the prohibition of granting water rights in protected areas that have been declared National Park; Reserves in a Virgin Region; National Reserves; Nature Sanctuaries; Natural Monuments; International Care Wetlands; vegas, bofedales and pajonales located in Arica y Parinacota, Tarapacá, Antofagasta, Atacama and Coquimbo regions;and in prohibition zones, unless, water rights remain consistent with the aim of the protected area category, which shall be determined prior the report of the Ministry of the Environment.
Priority water usage
The Reform establishes priority water usages, that shall prevail both in the granting and in the limitation of water rights exercise. Such priority uses are:
- Subsistence or water usage destined to human consumption; or
- Water sanitation.
Likewise, it is established that the General Water Bureau must subject itself to this priority rules by providing the temporary exercise reduction of the water rights or water redistribution, abilities that shall only be used in favor of public interest.
On the other hand, in order to ensure such usage, it is proposed to allow the State the constitution of surface and underground water reserves, over which it may grant concessions in order to satisfy the subsistence needs. These concessions will be ruled by special rules that will ensure the usage for which they were granted.
Finally, the General Water Bureau with the aim of ensuring water access for human consumption, shall temporarily allow water extractions for Rural Committees of Potable Water during the processing of the water right application.