CHAPTER 16 WATER UNDER CHILEAN LAW (ENGLISH VERSION)
| Jurisdiction | United States |
(Nov 1997)
WATER UNDER CHILEAN LAW (ENGLISH VERSION)
Bustamante, Granier, Guzmán, Marín & Troncoso
Santiago, Chile
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Water is used in modern society for several purposes. This means that every country has to regulate its use to preserve a resource that, though renewable, is becoming scarce.
The aim of this work is to give a general view of the legal regulations to which water has been submitted in Chile, excluding all those regulations, related to environmental matters.
I
WATER AND WATER-USE RIGHT 1
(Derecho de Aprovechamiento)
The Water Code (Código de Aguas) regulates the water that according to its Articles 1 and 2, are considered territorial, that is, those that exist from the
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territory that starts in the snow in the mountains until the rivers that run to the sea.2
The territorial waters (aguas terrestres) can be superficial (those that can be naturally seen by man) or underground (hidden in the cavity of the earth and not been lighted).
The question that arises immediately is: are those waters as such susceptible of being possessed by private people?
Article 52 of the Water Code states in this respect, that waters are national goods for public use and what natural people receive is the right to use them in a certain way.
The fact that waters be national property for public use (and, therefore, domain of the State), does not exclude the fact that here may be a right to exploit them.
The Chilean Legislation recognized the existence of the so called Water-Use Right, which is defined as a real property right.3
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It is a real property right in "alien thing", since the use and enjoyment of waters is given, neglecting water provision power (facultad de disposición de las aguas) that belong to the State.4
The above leads us to stand out that there are two rights that coexist with respect to water: the domain of the resource which belongs to the State, and the Water-Use Right that allows his owner to use and enjoy it.
All the existing Water-Use Rights have been originated by an authority act that has recognized or constituted them formally. Governors, Town Halls, the President or the General Water Authority (Dirección General de Aguas) have had the authority to constitute rights according to time and circumstances.5
The Water-Use Right involves a great amount of patrimonial aspects that might be difficult to explain in a work like this. Nevertheless, it is important to mention that this right is divisible, mortgageable and usable as grant guarantee (garantía crediticia), its use and practice is neither mandatory nor pledged to a certain objective in its use nor in the amount of water used from the whole.
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Like any other proprietary equity (derecho patrimonial), it is subject to protection system or guarantees established by the Chilean Legal System (ordenamiento jurídico chileno), as we will see later on.
Besides, the law provides the owner of the Water-Use Right with the concession of the territories of public domain, necessary to make it effective and with the authority to impose the necessary servitude for its practice, no matter the corresponding compensations.6
This is an important aspect to mention, since the national legislation privileges the practice of the Water-Use Rights, providing the owner of the right with the authority to impose liens (servitude) on the property of third parties.7
The Water Code authorizes Water-Use Rights of different kinds, which determine then the extension and characteristics they possess.
There are consuming (derecho consuntivo) and non consuming rights (derecho no consuntivo). The former allow wholly consume the waters in any activity (example: Agriculture). The latter allow to use the water without consuming it and compel to restore it in the way determined by the acquisition act (acto de
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adquisición) or the constitution of the right (constitución del derecho). (Example: the use in electric power plants).
There are rights of permanent (derechos de ejercicio permanente) and eventual practice (derechos de ejercicio eventual). Rights of permanent practice are those given as such in non drained supplying sources. The rights of eventual practice allow its use only at times when the main trench has some surplus, after having supplied the rights of the permanent practice.
There are also rights of continuos (derecho de ejercicio continuo), non continuos (derecho de ejercicio discontinuo) and alternate practice (derecho de ejercicio alternado). The first are those that allow to use the water uninterruptedly for twenty four hours a day. The second allow to use the water during certain periods. (Example: 12 hours a day, 6 months a year, etc.) And the third correspond to those in which the use of the water is distributed in two or more persons that take turns successively.
The Water Code also gives a special treatment to the practice of the Water-Use Rights of curative and mining curative waters, stating in its Article 29 that the Water-Use Right will be acquired according to the provisions of said Code,
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but the practice of the Water-Use Right will be subject to the laws that rule this matter.8
II
CONSTITUTION AND COVEYANCE REGULATION OF THE WATER-USE RIGHT
(Regimen de Constitución y Transferencia del Derecho de Aprovechamiento)
In water rights, it is said about the ways to obtain domain of the Water-Use Rights, with respect to those material facts to which the law gives the power to create or transfer the domain of a Water-Use Right.
Through the ways to obtain the domain, a person can incorporate the Water-Use Right of a trench to his patrimony, being this natural or artificial, or over their overflow, or eventually over the underground water lighted in a field.
The Water Code contains only some regulations for the ways to obtain the domain of a Water-Use Right. The Chilean Civil Code is the one that regulates all aspects that are not covered by this legal body.9
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The ways to obtain the Water-Use Right can be originating (the right derives from its owner. Example: the right given by the administrative authority to the petitioner of an available Water-Use Right) or derivative (the right does not derive immediately from the owner, but there is a domain coveyance, creating a direct cause-and-effect relation between the predecessor and the successor of the right. Example: the Water-Use Right as a result of a buying-and-selling contract).
Tradition and hereditary succession are ways to obtain derivative rights (that is, the acquisition of a right as a consequence from the owner's death).
Some authors consider that another way to obtain the domain is by the State's expropriation of the Water-Use Right. Article 27 of the Water Code refers expressly to condemnation in case of the necessity to satisfy domestic needs of a group of people because there is no other way to obtain water; in that case, the condemnee must receive the necessary one for the same purposes.10 and11
Due to the lack of space, we will refer in this work only to the acquisition of Water-Use Rights by Authority Act (Acto de Autoridad) or Tradition (Derecho por Tradición).
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a) Acquisition of a right by tradition: Tradition is a way to obtain the domain of a derivative Water-Use Right. This way of obtaining the domain is very important in the field of water transactions, since it is the main way to transfer the Water-Use Rights from one person to another. It is one of the main tools for the application of market laws related to waters.
In Chile, the contracts (Example: a buying and selling contract) establish rights and obligations among the executing parties, but they do not have the power to transfer the domain. That is obtained by the tradition of the respective right.
In simple words, the tradition is a group of acts devoted to transfer the domain.12
Generally, the way of making the tradition of Water-Use Rights is by a registration in the Register of Water Property (Registro de Propiedad de Aguas) run by the corresponding territorial Real Estate Registry (Conservador de Raices). Such registration transfers the domain of the Water-Use Right.
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It is because of this that it is of great importance that, when acquiring a Water-Use Right from a third party, the due diligence be made (analysis of the Water-Use Right's title deeds). The aim of this is to ensure the existence of such right, of its judicial nature and the certainty that the person who is transferring it is the actual owner.
b) Acquisition of a right by Authority Act: Article 20 of the Water Code establishes that the possession of so set rights is acquired by the competent registration.
This acquisition method operates through an administrative act, by means of a resolution issued by the General Water Authority (represented by the Director General), after the petitioner's request).
There is an exceptional case, in which the entity that originally sets the Water-Use Right is not the General Water Authority, but directly the President of Chile.13
The general rule is that the setting-up of new Water-Use Rights be made on the petitioners' request, being these private people or companies belonging to the State. This has been regarded as begged setting-up system of the Water-Use Right.
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However, the law considers the possibility that, existing available Water-Use Rights, the General Water Authority offers them in public sale.14
The person interested in obtaining a certain Water-Use Right will have to abide by the procedure stated in the Water Code.15 In general terms, we can say that the regulations established by the law in order to obtain new Water-Use Rights is clear and based on the principle that if the petitioner fulfills the requirements established by law in the request and its procedure, and if there is available...
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