Pontificia Universidad Católica de Chile: University Magazine: The institutional labyrinth of water

Multiple diagnoses and proposals have been made on the regulation, management and administration of water in our country. In some cases, this prolific activity has been reflected in regulatory or public policy projects, but we have not been successful in generating consensus and in the implementation of effective measures to help us get out of the drought, not just physical, but also institutional and governance, in which we have been immersed for so many years.

This text reviews one of the various challenges we have in water matters: the institutional framework that, paradoxically, moves between omnipresence, dispersion and absence.

If we take as a precedent the coding process in the legal model promoted since the first Water Code, which came into force in 1951, there is a combination of public and private functions in the institutional framework of water.

On the one hand, and given the nature of a national asset for the public use of water, its administration is handed over by law to a State administration body: the General Water Directorate (DGA) , which depends on the Ministry of Public Works .

Within its powers and attributions are the following: to establish or originally assign the rights to use water; exercise the police and surveillance of the waters in natural channels of public use and aquifers.

At the same time, it is in charge of granting authorizations related to the exercise of exploitation rights; oversee situations that could constitute infractions to the Water Code and apply the respective sanctions, among others.

Although the DGA is the administrative authority with the most preponderant technical powers in this area, there are other bodies that have functions on water in Chile

It must also keep the Public Water Registry (CPA) updated, which is the administrative registry in which all the information on the national territory should be located (not only on the rights of use). On the other hand, the most characteristic material act of the exercise of a right of use is preceded by a distribution of volumes carried out by the organizations of water users.

These are collective entities, of a private nature, and made up only by those who are holders of rights of use in a given place.There are different types: vigilance boards, made up of the holders of surface and groundwater rights from the same natural source (a river, an aquifer, for example); the water communities and the canalista associations, made up of those owners who exercise their rights through a common artificial work (for example, a canal).

It should be noted that, although the DGA is the administrative authority with the most preponderant technical powers in this area, there are other bodies that have functions over water in Chile.

A World Bank study found the intervention of 43 bodies with attributions over water (public, private –water user organizations– and autonomous), and 102 functions distributed among them, with a marked dispersion and lack of coordination .

Despite requiring an update of this reality, this map of actors clearly reveals the dissemination and little unity of action that we have in water management.

Need for change
The aforementioned World Bank report was emphatic in pointing out the main deficiencies of the Chilean water institutions : lack of consolidation and integration of the information generated by the entities associated with water management; inappropriate delimitation and organization of the powers of these entities; absence of a higher political authority that unifies and orders the actions of the agencies that exercise functions in relation to water and lack of coordination of the actors in charge of the territorial management of the same.

In other words, there is an institutionality overcrowded with organs, but which, paradoxically, a product of all the bureaucracy, dispersion and lack of articulation, unification and sufficient resources, appears as absent and distant in the resolution of the great problems and challenges that this theme presents, especially, at the local level .

These ideas have been repeated, almost like dogma, in several subsequent studies. Thus, for example, the first report of the National Water Board, convened by the President of the Republic in October 2019, states: “(…) weaknesses are identified in the management of water resources at the country level due to lack of adequate coordination between multiple State institutions linked to the issue, so it is advisable to review the public institutions around water (…).

It is also necessary to improve the institutional framework at the basin level for water and sanitation management, promoting the participation of local communities, strengthening water user organizations (OUA) –especially in groundwater– and drinking water systems. rural in the technical, administrative, community and legal fields, in order to facilitate a harmonious relationship between the different users ”.

Despite the broad agreement, little progress has been made in introducing the changes that are required. Only recently, during the month of March 2021, the President of the Republic signed a bill that creates a new institutional framework for the sector, which, as of the date of preparation of this article, has not yet entered the National Congress. .

There is an institutionality overcrowded with organs, but which, paradoxically, a product of all the bureaucracy, dispersion and lack of articulation, unification and sufficient resources, appears as absent and distant in the resolution of the great problems and challenges that this issue presents, especially , locally

An independent administrative agency as a water authority
According to the available information, the aforementioned bill includes, as a cornerstone, the incorporation of a Subsecretariat for Water Resources in the Ministry of Public Works, which would be renamed the Ministry of Public Works and Water Resources.

This undersecretary is conceived as the body that will lead and coordinate the national governance of water, and a series of currently existing entities will depend on it: the General Directorate of Water, the General Directorate of Hydraulic Works, the National Hydraulic Institute and the Superintendency of Sanitary Services.

Also included, reporting to the same undersecretary, is the Water Information Unit.

In addition, other new entities are contemplated: a National Water Resources Council, as an advisor to the President of the Republic, whose purpose is to propose the National Water Resources Policy; a Commission of Ministers of Water Resources, as coordinating body of the Ministries related to water, and that should provide guidelines and recommendations to implement the National Policy of Water Resources; a Technical Committee on Water Resources, which would have a coordinating role in the execution of the decisions of the Commission of Ministers of Water Resources; and a Panel of Experts on Water Resources, to formulate technical recommendations prior to the adoption of certain determinations of the DGA.

Consequently, what this initiative does is enhance the role of the Ministry of Public Works in water matters, creating not only a new Undersecretariat of Water Resources at its helm, but also other bodies related to various functions.

In this new institutional scheme, the number of competent entities over the resource is increased, although, at least in theory, some instances are established for coordination that is so scarce in this field.

The recommendations that show the need for an institutional change in water come from several years ago but, until now, nothing concrete had been carried out along these lines. Therefore, with this initiative, at least, we are getting out of the inertia and inaction in which we have been all this time.

What this initiative does is to enhance the role of the Ministry of Public Works in water matters, creating not only a new Sub-secretariat of Water Resources under its wing, but also other bodies related to various functions.

It is a first step in what should be a process of gradual improvement. However, the intervention that is required has to be more profound and ambitious. With the model proposed in the aforementioned project, water will continue to be linked to a ministry, a centralized body and with a clear hierarchical dependence on the President of the Republic .

By the way, the undersecretary gives more institutional presence to the issue compared to what we have today, with the possibility of obtaining greater resources for the fulfillment of its purposes. But their technical, budgetary and political autonomy continues to be very limited and strongly marked by the cycles of each government, which makes it difficult to implement longer-term plans and strategies.

Among the options contemplated in the 2013 World Bank report, and which would have also been considered in the framework of the preparation of the aforementioned bill, was that of an independent administrative agency, such as the water authority.

Notwithstanding the fact that a proposal of this nature requires an important analysis, everything seems to indicate that an institution of this type, with technical, budgetary and political autonomy, is what the current and future challenges of water need (demand and demand). It should be noted that collective water management also requires review and adjustments, which has been neglected for many years.

The introduction of another bill on organizations of water users has been announced, which would imply the elaboration of their own norm for these entities, outside of the Water Code. The final text is not yet known, but the important thing is to emphasize that no institutional reform or improvement process will be complete if it does not incorporate user organizations.

It should be noted that collective water management also requires review and adjustments, which has been neglected for many years.


The need for a roadmap
Planning is an essential tool for the regulation and management of the waters of each country. It is materialized in an instrument that is usually called “national hydrological plan” (case of Spain), “master plan” (Israel), “national water resources plan” (Peru) or “national water plan” (Argentina), among others. related expressions.

It is the roadmap that defines the objectives, priorities and strategic axes of water management and governance for a given period, providing formulas for their implementation, compliance and verification. It is one of the backbones of any water regime, so this plan is a mandatory standard in most of the legal systems in force worldwide. In Chile there is no specific and systemic arrangement for this figure.

Furthermore, the Water Code does not contain a special title, not even a specific provision on the matter; There are only a few isolated rules that, in some way, are related to the contents and purposes of a planning process.

The powers of the DGA include that of “planning the development of the resource in natural sources, in order to formulate recommendations for its use and arbitrate the necessary measures to prevent and avoid the depletion of aquifers” (Article 299 A of the Water Code). Thus, the main provision that refers to planning in our environment establishes it as a “recommendation”.

The World Bank has argued that, despite the fact that the DGA has the generic authority for hydrological planning, this has been reduced to defining the availability of water to grant new use rights and establish limitations on the exploitation of the resource.

Therefore, the hydrological planning tool, with the entity and scope with which it is conceived in other regimes, does not exist among us. This relevant issue cannot be absent in a reform of the water institutions.

Any attempt at institutional improvement will be truncated if it is not adequately linked to hydrological planning, for which there are various models (there is not one universally accepted or applicable).

Chile needs to move urgently along this line, regulating and implementing not only the planning instrument itself, but also the procedure for its preparation, review and update. In this process, the particularities of each river basin must be properly considered.

And a national articulation and direction must also be included, since hydrological planning requires a country vision and strategy. If we become truly aware of the role and significance of water, we will quickly realize that we cannot continue to be inactive on these issues. Water resources and their diverse values ​​are a priority and as such they cannot wait any longer.

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