On April 6, 2022, Law No. 21.435, which reforms the Water Code (CoA”), was published in the Official Gazette, so its provisions, already reported here, enter into force.

It is important to bear in mind the following transitory provisions, in relation to water use rights and their implementation:

1. The holders of water use rights recognized, constituted or regularized prior to the reform and who have not built the necessary works to capture them will be subject to the extinction of their water use right in that part not effectively used (non-consumptive rights 10 years and consumptive rights 5 years from their inclusion in the list published the year following the entry into force of the reform).

2. The uses that require to be regularized by means of transitory articles 2 and 5 may only do so within 5 years from the publication. After that, they will not be admitted, except for those applications from indigenous people and indigenous communities (Law No. 19,253). Those who have filed their regularization applications prior to the reform, may apply to the new procedures established for such purpose.

3. The holders of water use rights constituted by act of authority, who have not registered their rights in the Water Property Registry of the corresponding Real Estate Registry within 18 months after its publication, will be subject to the expiration of their rights. For small agricultural producers (Law 18.910), the aforementioned term will be 5 years. The above, among other exceptions to the application of forfeiture.

4. The holders of water use rights constituted by act of authority, who, having their rights registered, have not incorporated them to the Public Water Cadastre (article 122 of the CoA), must accredit within 18 months their incorporation to the cadastre to the DGA, under penalty of a second degree fine (51 to 100 UTM). Self-reporting is allowed, with a 50% reduction of the fine.

5. The holders of water use rights constituted prior to the publication of the reform, and who wish to use them for the development of non-extractive projects and with ecological functions within protected areas, may be exempted from the payment of the non-use patent. To do so, they must comply with the requirements of the regulations issued for this purpose, as well as with the provisions of Article 129 bis 1A of the CoA.

Likewise, the exemptions from payment for non-use of water, conditioned to an amount of extraction volume (former number 4 of article 129 bis 4, the final paragraph of article 129 bis 5 and the second and third paragraphs of article 129 bis 6 of the CoA) revoked by the reform, will continue to be in force until the second year of entry into force and in cases of volumes of less than 10 liters per second, until the fifth year.

6. The General Water Directorate may suspend the exercise of permanent and continuous consumptive water use rights granted after the declaration of an exhausted basin, by prior resolution.

7. The factor of the equation to determine the amount of the payment of patents for non-use is increased by 4, from the eleventh and fifteenth year inclusive, from the date on which the water use right is constituted, recognized or authorized. Likewise, in the following five-year periods, the amount shall be calculated by doubling the previous factor, and so on.

8. The holders of mining concessions for exploitation and exploration who use water found by virtue of their mining work shall, within 15 months of the publication of the reform, inform the General Water Directorate of the volumes extracted, with the form and volumes extracted, in the manner and with the requirements prescribed in article 56 bis.

9. The provision that only third parties holding water use rights constituted and registered in the Water Property Registry of the corresponding Water Conservatory may oppose administrative proceedings in which they feel their rights are affected, shall enter into force within 2 years following the publication of the reform.

10. In all restriction areas or prohibition zones declared prior to the reform, the procedures to form Groundwater Communities must be initiated within 1 year. Once the term has expired, the DGA will not be able to authorize changes in the capture point in such zone, with respect to those persons who have not taken part in the process of conformation of such communities.

11. With respect to the registrations made in the Water Property Registry of the corresponding Water Registrar based on former N° 1, 2, 3 and 8 of article 114, they shall continue to be in force, but a fifth degree fine (1,001 to 2,000 UTM) and the offense provided in article 460 bis of the Penal Code (both related to the fact of taking advantage of a double registration) shall be applicable to them. Notwithstanding the foregoing, any holder of rights who has been recognized within the constituent titles of a users’ organization must have a title individually registered in his name.

12. For the transfer of water use rights, the holders must, within 5 years of the publication of the reform, note in the margin of their registrations the proof of their registration in the Public Water Cadastre. Failure to do so and after the term has elapsed, the Registrar shall not register the respective transfers.

Should you require additional information on this matter, please contact: Javier Naranjo jnaranjo@jdf.cl; Martín Esser, messer@jdf.cl