DISCUSSION AND CONCLUSIONS

Celume et al close out the paper with an evaluation of  “… the extent to which CA22 (i.e., legal reform in 2022) responds to the longstanding critiques of the CA81 (i.e., the 1981 Water Code) by systematically comparing the provisions of the 2022 reform … with the main criticisms identified in the academic and policy literature (p. 404).”  The close also provides a “complementary subsection (which) examines (the 2022 legislation) … from the reform perspective… to clarify … relevance and implications for Chilean water governance (p. 404).”

What specific issues does the 2022 reform tackle that were absent or insufficiently regulated under the original CA81?

Celume et al point out that “The 2022 reform addresses most of the main governance gaps … related to subsistence uses, environmental protection, hoarding, and state authority …  human and subsistence uses … environmental and ecosystem functions… creates in situ or non-extractive rights, extends prohibitions in sensitive areas, and allows minimum ecological flows to be imposed on new and existing rights … hoarding and non-use by converting new rights from indefinite to temporary and by subjecting all … (water use rights) … to a use-it-or-lose-it rule with clear deadlines, escalating non-use tariffs, and forfeiture in cases of non-registration and persistent non-use, thereby discouraging speculative accumulation (pp. 404-405).”

            In DIT terms, if also gave more credibility and powers to the federal Other Forum, represented in the Directorate (DGA), which gained “… broader powers to redistribute, restrict, and suspend rights, to declare scarcity zones, to prioritize subsistence uses in reallocations, and to require sustainability-based reductions, partly correcting the previously limited state role and strengthening instruments for water security (p. 405).”  Yet, in DIT terms, said Other Forum is greatly limited in that “..water rights and spot markets continue to operate mainly without a robust regulatory and price-revealing framework, while institutional fragmentation, centralization, and information and registry deficits persist, so the allocation model, sectoral and territorial conflicts, and climate-related maladaptation are only partially addressed (p. 406).”

How does the new legal framework address these issues?

In DIT terms, the 2022 legislation brought that sacred domain represented in path 0M into view, to temper the exclusive focus of the 1981 Water Code on the profane domain of path 0G as in it “…signals a shift from a primarily neoliberal model toward a hybrid framework that combines property rights with stronger public interest regulation and stewardship … (p. 406).”  In DIT framing, it put attention to finding the better path 0Z, the path of joint economic&social efficiency, not just economic efficiency on path 0G.

What challenges persist for water governance and management?

Through the DIT lens, problems still remain in not paying enough attention to the Ostrom IAD principles for designing polycentric Other Forums at local, river basin, and national levels, as in “Centralization and institutional fragmentation persist, as coordination among the (Other Forums  now operating)  remains weak, and basin-level and participatory institutions are only incipient,

while ordinary courts remain the main arena for resolving sectoral and territorial disputes (p. 406).”  Such matters as over-allocation in certain regions, and not dealing with the reality of --- in DIT framing, based in thermodynamics, too much greenhouse gas emissions --- climate change.

CA22 from the reform perspective: core innovations and governance implications

In DIT terms, the 2022 legislation brought the shared with the other-interest into view, now acknowledging the need to address not only self-interest which was the exclusive focus of the 1981 Water Code.  The 2022 legislation, through the DIT lens, reframed the approach in Chile reflecting the need to focus on the joint self&other-interest, individual&common good, and, overall, the joint profane&sacred. As Celume et al say it:  “At its core, the reform redefines the guiding principles of the Code by reaffirming water as a national public good… (p. 406),” which in DIT terms is to point to the empathy-based shared with the other-interest, going every direction, to all Chileans,  in national terms.  What in effect is a new 2022 Water Code  as the 1981  Code modified by the 2022 legislation recognizes “… subsistence, ecosystem, and productive functions of water and gives precedence to human consumption, subsistence domestic uses, and sanitation in both the granting and the limitation of rights (p. 406).” In DIT terms, it recognizes the need to focus on finding a better path 0Z.

DIT would also point to the efficacy of moving toward water use rights as short term permits (as use in arguably more viable  Other Forums like the Florida Water Management Districts, where irrigation water use rights are assigned in 7-year permits, and public utility permits  are assigned for 30 years) rather than permanent ownership rights.  It is not clear in the Celume et al description as to how said ownership will be handled in the future as pertaining to the rights assigned during the military junta years, after the 1981 Water Code went into effect. 

It does appear the 2022 legislation points to new rights will apparently be assigned for only 30 years, with review at that time as to whether to continue said rights or not.  Celume et al do state that water ownership rights will now be more attenuated:  “The DGA (federal Other Forum) is …  authorized to reduce, suspend, or redistribute existing rights when their exercise threatens the sustainability of aquifers or surface sources, and to order temporary reductions and redistributions in situations of scarcity, applying the new hierarchy that prioritizes human consumption, subsistence domestic use, and sanitation. Minimum ecological flows may be imposed not only on new rights but also on existing rights in designated biodiversity protection areas, extending environmental constraints to the legacy stock of water rights (p. 406).” So, in DIT terms, the private property rights --- most of which apparently were assigned under the 1981 Water Code as indefinite, in effect permanent rights --- are now more attenuated.  Said change is a rather dramatic change from the notion of nonattenuated private property rights claimed to be essential in neoliberal, libertarian economics based Free Market Environmentalism. Unfortunately, said nonattenuated rights at best can achieve a kind of pseudo-efficiency on path 0G, so, some essential progress has been made in nudging the system toward attenuated rights essential to achieving a better path 0Z.  DIT clarifies it is about striking balance in private&public property, with attenuated private property rights an essential part of achieving said balance. 

As Celume et al sum it up, the modified 1981 Water Code puts in play “… a hybrid regime that maintains individual WR and market based reallocation but places them within a framework guided by public interest, human rights, ecosystem protection, and aquifer  sustainability in how rights are granted, shaped, renewed, and used. The Code shifts from indefinite, largely unconditional rights to time-limited, conditional concessions, backed by stronger state powers and specific tools for subsistence and conservation, while leaving many implementation and coordination details to future regulations and administrative practice (p. 407).”  The claim seems to imply that all the water use rights now owned, and any new rights issued in the future, will not only be attenuated in how the rights are used, but also will no longer be indefinite, permanent rights. And, overall, Chileans now clearly have more opportunity to pursue path 0Z outcomes.

Do these changes represent a fundamental transformation or an incremental modification of CA81 (i.e., the 1981 Water Code)?

Celume et al point out that “… key structural features of the (1981 Water Code)  model persist, including … (water right) … and spot markets that still operate largely without a robust regulatory and price-revealing framework, enduring institutional fragmentation and centralization, unresolved information and enforcement deficits, so that important governance problems and climate-related vulnerabilities are only partially addressed. Taken together, the reform goes well beyond a minor or technical adjustment and should be seen as a significant reconfiguration of Chile’s water governance toward a hybrid model that preserves the market-based architecture while introducing much stronger public interest regulation (p. 408).” Again, in DIT terms, at least some hope can now be accorded Chileans in moving the system toward path 0Z outcomes.

References

Anderson, Terry L and Leal, Donald R. Free Market Environmentalism for the Next Generation. New York: Palgrave Macmillan, 1991/2015.

Bauer, Carl J. Siren Song:  Chilean Water Law as a Model for International Reform. Washington, D.C.: Resources for the Future, 2004.

Celume, Taiana; Donoso, Guillermo; Fusterc, Rodrigo and Müllerd, Andrea. "Reform of the Chilean Water Code in 2022: Shift from a Neoliberal Model to a More Public Interest Model." Water Policy 28, 3 (2026): 393–412.