ADDRESSING THE CRITIQUES: WATER CODE REFORM 2022

Celume et al point to how the 2022 legislation “… enhances public interest by expanding the authority (of an Other Forum) …  to regulate the exercise of water with the “…

transitions from being indefinite to temporary, specifically concerning the newly assigned water rights … (and the Other Forum given more) authority to restrict the exercise of the water rights (including being) terminated due to nonuse or may expire if not registered (p. 402).”  The Other Forum here is the DGA, a Directorate in the form of a federal government agency. It seems river basin level Other Forums will also be needed.

Additionally, the 2022 legislation dealt with “(i) prioritizing water use for human consumption and sanitation; (ii) protecting the ecosystemic uses of water; and (iii) ensuring the sustainability of water management… (with the)… water rights and water spot markets … to function as reallocation mechanisms, subject to restrictions that ensure adherence to these principles (p. 402).” Through the DIT lens, an Other Forum is being introduced to give context to the self-interest driven trades in water rights and water spot markets operating in the Market Forum, such as to ensure the shared other-interest items listed in i-iii with value O are also affecting the price P in said markets.

Prioritization of water use for human consumption and sanitation

Celume et al point out the 2022 legislation “… recognizes access to drinking water and sanitation as an essential and inalienable human right that the State must guarantee (rather than) … leaving allocation to be determined by market transactions …  making the protection of fundamental human needs a guiding principle (p. 402).” In DIT terms, such uses are sacred, and must be integrated with the profane on some path 0Z

Relying only on path 0G to provide for fundamental human (and ecological) uses is simply giving too much influence and control to the Water Forum. It reflects a “shift from a neoclassical, market-centered model toward a rights-based and function-oriented approach in which the subsistence function of water takes precedence over economic uses, redefining the role of the state in allocation and management and bringing Chilean water policy closer to international human rights standards (p. 402).” The sacred matters not only in Chile, but for all Travelers on the entire Spaceship Earth.

Protection of aquatic ecosystems

Celume et al point to how the 2022 legislation works to use the Other Forum “… to maintain harmony and balance between ecosystem preservation and productive uses, so the reform does not discard the productive function of water but instead seeks to correct a governance gap rooted in weak administrative and regulatory capacity (p. 402).” Using Figure 1 to represent isoquants in production, path 0M representing ecological system sustainability must temper the production of economic product on path 0G. DIT points to the best path 0Z. The law provides for owners of water use rights for productive purpose  now being able to have said rights converted to nonuse rights for ecological purpose without having to make that transition in the Market Forum.

Restrictions on the exercise of water rights

Celume et al point to how the 2022 legislation declares that “newly granted water rights become temporary, limited to terms of up to 30 years and automatically renewable unless the DGA demonstrates non-use or risks to resource sustainability, while previously granted rights remain of indefinite duration … also broadens prohibitions on new rights to cover glaciers, biodiversity protection zones, wetlands, high Andean meadows, and peatlands in northern Chile, signaling tighter protection of sensitive areas (p. 403).”  Said change for the new rights differs from the perpetual and permanent nature of the rights allocated earlier, under the 1981 Water Code. Water allocated as new rights must be put to use in 5 years for consumptive and 10 years for nonconsumptive use.  Also, non use fees will apply, with fees now doubling “…every 5 years without limit, although rural drinking water systems, agricultural and indigenous communities, and non-extractive uses are exempt (p. 403).” 

Also, the 2022 legislation “… strengthens the DGA’s role in scarcity management by allowing it to declare scarcity zones, suspend WUA distribution rules indefinitely during extreme droughts to protect subsistence uses, and curb groundwater depletion through mandatory Groundwater Communities in Prohibition or Restriction Zones, with non-participants barred from changing intake points. Aquifer degradation affecting sustainability is recognized as a ground for temporary reductions in the exercise of WR. The DGA may now impose minimum ecological flows on both new and existing rights in biodiversity protection zones, and new rules simplify regularizationm but restrict it to a five year window, after which unregularized rights are extinguished, collectively granting the administration powers not only to impose temporary limitations (p. 403).”

            Overall, through the DIT lens, the 2022 legislation is bringing the sacred back into view. It was set aside in the 1981 Water Code. As Celume et al. frame it, the 2022 legislation reflects “the emergence of a hybrid governance system in which markets continue to operate but within a stronger framework of public interest constraints that anchor WR in their public purpose and recalibrating the balance between private autonomy and administrative authority in response to scarcity, social demands, and environmental limits (p. 404). Through the DIT lens, the 2022 legislation holds hope that path 0Z outcomes will now be possible in Chile.