Journal of Hydrology 535 (2016) 36–45

Contents lists available at ScienceDirect

Journal of Hydrology
journal homepage: www.elsevier.com/locate/jhydrol

Legal disputes as a proxy for regional conflicts over water rights in Chile
Diego Rivera a,⇑, Alex Godoy-Faúndez b, Mario Lillo a, Amaya Alvez c, Verónica Delgado c,
Consuelo Gonzalo-Martín d, Ernestina Menasalvas d, Roberto Costumero d, Ángel García-Pedrero d
a
Department of Water Resources, Laboratory of Comparative Policy in Water Resources Management, CONICYT/FONDAP-15130015, University of Concepcion, Chillán, Chile
b
Facultad de Ingeniería, iSustainabilityLab, Universidad del Desarrollo, Santiago, Chile
c
School of Law, Department of Public Law and Department of Economic Law, University of Concepcion, Chile
d
Universidad Politécnica de Madrid, Centro de Tecnología Biomédica, Spain

a r t i c l e i n f o s u m m a r y

Article history: Water demand and climate variability increases competition and tension between water users –agricul-
Received 27 November 2015 tural, industrial, mining, hydropower– and local communities. Since 1981, the Water Code has regulated
Received in revised form 19 January 2016 water allocation through private individual property rights, fostering markets as the distribution mech-
Accepted 21 January 2016
anism among users. When legal conflicts occur between parties, it is the responsibility of the courts to
Available online 2 February 2016
This manuscript was handled by Geoff
settle the conflict. The aim of this research is twofold: first, to apply a geographical approach by mapping
Syme, Editor-in-Chief water conflicts using legal disputes reaching the higher courts as a proxy for conflict intensity and second,
to explain the diversity of water disputes and how they vary regionally. We built a representative data-
Keywords:
base with a sample of 1000 legal records corresponding to decisions issued by the Supreme Court and 17
Water conflicts courts of appeal throughout the country from 1981 to 2014. For geo-tagging, all records were trans-
Water rights formed to plain text and analyzed to find words matching the entries of a geographical thesaurus, allow-
Water markets ing records to be linked to geographical locations. The geo-tagging algorithm is capable of automatically
Water stakeholders populating a searchable database. Several maps were constructed using a color scale to visualize conflict
intensity. Legal disputes represent different types of conflicts among water users, such as competition
between agriculture and hydropower. Processed data allowed the identification of the regional variation
of conflicts. The spatial pattern for the intensity of conflicts related to specific sections of the Water Code
is explained in terms of the main geographical, climatic and productive characteristics of Chile. Geo-
tagging legal records shows a strong potential to understand and define regional variation of water con-
flicts. However, data availability would become a barrier if measures to improve data management were
not taken. Regarding the institutional framework, the same regulations for water management rules are
applied throughout the highly diverse ecosystems of the country, impeding the resolution of conflicts
that are strongly related to the local geographical context. This leads to a collision of interests and visions
around water resources of both a public and private, extractive and non-extractive uses, national, and
international nature of individuals, aboriginal communities, and corporations, especially mining
industries.
Ó 2016 Elsevier B.V. All rights reserved.

1. Introduction rights, water markets, and water management and applies to the
whole country the same unitarian legal system, regardless of the
Chile’s 1980 Constitution was drafted to give primacy to the local ecosystem and abundance of natural resources. Water rights
protection of economic rights, including ample protection for pri- are the cornerstone of water management as markets resolve allo-
vate property rights, to promote markets as allocation mecha- cation of resources by allowing water rights to be traded with little
nisms, to incorporate environmental externalities through state involvement (Hearne and Donoso, 2014). Nevertheless, there
pricing, and generally moving from the traditional concept of com- is a first instance where the state intervenes. Since 1981, the Chi-
mon pool resources (Bauer, 2004). Within this framework, the lean Water Authority (Dirección General de Aguas, hereafter DGA)
1981 Water Code establishes the basic characteristics of water has granted water rights for free to any petitioner, wherever appli-
cable from a legal standpoint and if there exists available surface
water or groundwater. There is no priority given to water use of
⇑ Corresponding author. particular industries and the water use does not need to be
E-mail address: dirivera@udec.cl (D. Rivera).

http://dx.doi.org/10.1016/j.jhydrol.2016.01.057
0022-1694/Ó 2016 Elsevier B.V. All rights reserved.
 D. Rivera et al. / Journal of Hydrology 535 (2016) 36–45 37

justified (Retamal et al., 2012; Hearne and Donoso, 2014). Despite environmental conflicts (INDH, 2013), and a compilation of case
water being a national resource for public use, water rights are studies on water and native communities (Yáñez and Molina,
tradable and their price fixed in a self-regulated water market 2011). However, several socio-environmental conflicts related to
(Melo and Retamal, 2012; Bauer, 2005; Tecklin et al., 2011). Thus, water scarcity are not under any formal procedure for resolution,
as noted by several authors, there is a de facto ownership over but they have media coverage and communication actions
water resources, with no attachment to land or use, which is a (INDH, 2013). Despite the discussions regarding environmental
common cause of conflicts (Bauer, 2009; Prieto and Bauer, 2012; justice, indigenous peoples and social politicization in Chile being
Budds, 2009). important topics to approach, they are beyond the scope of this
The rationale behind the nature of water rights in Chile is that paper.
optimal allocation is achieved through market transactions of The spatial distribution and intensity of water conflicts related
water rights among owners and new users, allowing reallocation to water rights remains unknown at the country level. Therefore,
of water to high-valued uses. Even though the framework for the the aim of this research is to answer the following question: Is
water market shows economic benefits regarding the allocation there a geospatial pattern for water rights-related conflicts reach-
process (Donoso, 2006), with the exception of few localized mar- ing courts of appeals and the Supreme Court? A spatial analysis
kets, trading has been traditionally limited in Chile (Hearne and of conflicts related to water rights conflicts reaching the courts
Donoso, 2014). would provide opportunities to tailor specific policies to the terri-
Water rights management at the watershed scale is managed by tory by revealing the main features of conflicts and local commu-
water users organizations (WOUs), which are legal entities incor- nities. On the other hand, judgments issued by courts are explicit
porated when two or more people have the right to use water from in terms of administrative units, but they do not provide accurate
the same channel, aquifer, or reservoir (Melo and Retamal, 2012). descriptions of locations. The first legal action usually takes place
All WOUs are decentralized, private organizations that are not in the administrative unit where the conflict is occurring, but as
under government administration. the dispute moves from ordinary to higher courts, the information
Under the Chilean legal framework, WOUs are responsible for passed from one court level to another is not consistent or com-
the settlement of disputes among their members regarding the plete. To overcome this issue, we developed and used an automatic
use of water rights (Melo and Retamal, 2012; Hearne and extraction of information and geo-tagging algorithm tool that does
Donoso, 2014). The main conflicts within WOUs are related to not make any prior assumption regarding the underlying patterns
internal issues involving water rights holders, whether or not they of water conflicts.
share the same water source (Hearne and Donoso, 2014; Vergara, The article is organized as follows. First, the methods section
2012; World Bank, 2013). In such circumstances water users can describes the legal records database, how the database was ana-
appeal to the ordinary courts or private arbitrators. In the case of lyzed and the sections of the Water Code linked to water rights
private arbitrators, the resolution of the conflict remains secretive conflicts. The results are presented in as a set of maps showing
if no further appeal occurs. In a survey of 75 WOUs in a Central Val- the spatial distribution of legal disputes linked to sections of the
ley basin with agricultural, hydropower and mining uses, the most Water Code showing the diversity of legal water disputes and
frequent and significant conflicts were related to water distribu- how legal disputes vary regionally. We then discuss political, geo-
tion (changes in diversions, water overuse in relation to water graphical, and institutional issues that explain the spatial distribu-
shares) and delays in payments for the maintenance of infrastruc- tion of legal disputes, as well as the barriers and possibilities for
ture. Thus, it is plausible to state that water conflicts are mainly a using legal disputes to understand the regional variation of water
matter of reallocation of water rights under increasing conditions conflicts.
of water scarcity for increasing demand. Regarding disputes and
conflicts related to the ownership of water rights, previous studies 2. Data and methods
have focused on quantifying the fraction of current water rights
fulfilling the requirements for an administrative procedure known 2.1. Dataset and their geographical context
as regularization (Section 2 Transitory of the Water Code) in order
to populate and update databases. Based on studies by the DGA, on Under the assumption of a homogeneous distribution of popu-
average, 15% of current water rights should be undergoing the DGA lation, natural resources and energy sources, it is plausible to
regularization process. Other types of conflicts arise when water expect that the geographical distribution of conflicts would also
right holders appeal an administrative decision –from DGA or be homogeneous. To test this assumption, we defined a set of
other government agencies– before a court of justice. search terms based on key sections of the Water Code, pointing
Any unsettled conflict could reach ordinary courts, courts of to specific issues already explored in several government studies
appeals and, if it proceeds, the Supreme Court. Additionally, writs (e.g. Donoso, 2006; World Bank, 2011).
of protection are first presented before courts of appeals to protect The set of court decisions is a sample from actual judgments
individual rights such as property rights. Considering the variety of reaching the courts of appeals and the Supreme Court, providing
causes and outcomes of water conflicts related to water rights, an objective proxy for conflicts. The data set contains legal disputes
legal disputes reaching courts appear to be an objective proxy for that were not settled in first instance by institutions such as WOUs,
conflicts and their plausible causes. It is expected that in regions the DGA, and ordinary courts. This method allows us to gauge
with strong competition for water resources among users, particu- intensity and link disputes with their geographical setting. This
larly between productive activities and society, are likely to expe- approach is similar to the one applied by Torre et al. (2014) to
rience more formal disputes. gauge conflict intensity using media information.
As conflicts are related to territory, institutions and people As a geographical and functional unit for analyzing legal dis-
(Stamm and Aliste, 2014), we include hydrological, geographical putes, we used provinces because (1) the official inventory of
and political analyses in order to explain what emerges from the basins is structured in terms of regions, but a high number of
generated maps (resembling critical analyses from legal geography sub-basin boundaries overlap one or two provinces, and (2) they
or political ecology; Delaney, 2015). Prior work on water and envi- are correlated to the jurisdiction of the courts of appeal (usually
ronmental conflicts have focused on smaller data sets following the a group of provinces or even a region). Thus, the number of legal
course of specific conflicts (http://www.derechoalagua.cl/mapa- disputes within each province corresponds to the aggregate value
de-conflictos/) (Larraín and Poo, 2010), a map of socio- for each sub-basin. Fig. 1 shows the administrative regions in Chile.
38 D. Rivera et al. / Journal of Hydrology 535 (2016) 36–45

2.2. Methodology strong bias in records linked to Santiago, where the Supreme Court
is located, as before the dispute reaches the Supreme Court, it is
To understand the geographical distribution of legal disputes processed by a court of appeals. Indeed, double-tagging allows us
among water users, 1000 public legal records were used to build to quantitatively explore this boundary condition.
a searchable database. All records are court sentences issued by To complement the spatial and temporal analyses, Gross
the Supreme Court –located in Santiago, the capital city– and sev- Domestic Product data was downloaded from the World Bank data
enteen courts of appeals. All judgments are publicly available at catalog and the sorting of contribution of productive sectors was
the judiciary system web site, but there is no automatic method downloaded from the Central Bank of Chile data time series. Cop-
available for filtering or retrieving them in a batch basis. Therefore, per mining, production, and price data was obtained from the
a information company provided us with processed records after National Copper Commission (Comisión Chilena del Cobre).
filtering out decisions from 1981 –the commencement of the Con- Using different search terms and filters –by field, location, year–
stitution– until 2013. The database is not exhaustive as it contains we performed a screening process. This approach diminishes bias
different types of disputes, but it is a representative selection of the as compared with manual database analysis by trained readers
corpus. All records were transformed to plain text to automatically that extract required information. However, although automatic
populate a database and facilitate its processing using a natural extraction and geo-tagging follows a set of fixed rules, it loses
language process. The records were analyzed to find words match- details and contextual information. Thus, the density –number of
ing the entries of a geographical thesaurus, allowing records to be legal disputes– within a given territorial unit is used to gauge
linked to geographical locations (geo-tagging) (Costumero et al., the conflicts that were not settled within WOUs or by the DGA.
2015; Torre et al., 2014). The database was manually examined As an analog, the number of divorces is a proxy for conflicts that
to check its representativeness. ended as legal disputes with a third party endorsing the resolution.
The geo-tagging algorithm (Costumero et al., 2015) is capable of The presence or absence of legal disputes related to specific sec-
populating different fields –complainant, defendant, location of the tions of the Water Code can be interpreted in different ways. A low
court, date of judgment, and the type of legal action– delivering a density of disputes could lead to the conclusion that the institu-
fully searchable database. We defined this set of information as the tional framework is effective or ineffective due to low access to
minimum set for analysis. Additionally, the database provides a or trust in dispute resolution mechanisms, so we added political
summary of the judgment (doctrina) and keywords (voces). and regulatory analysis to overcome disambiguation.
As noted earlier, disputes are first processed in the province in
which the dispute has occurred, but they could be linked to differ- 2.2.1. Structuring key sections of the 1981 Water Code
ent provinces (for example, two low-population provinces are part As most legal disputes are related to the use, trade, and granting
of the jurisdiction of a single court of appeals). Therefore, if words of water rights (Hearne and Donoso, 2014; Melo and Retamal,
matching the entries are associated with more than a single pro- 2012), we chose the name of specific sections of the Water Code
vince, we retained all appearing locations. For example, legal dis- to define search terms. Table 1 summarizes the key sections of
putes reaching the Supreme Court are ipso facto associated with the code that were used in this research, as they provide informa-
the Province of Santiago, plus the territorial unit in which the con- tion regarding different types of conflicts over water rights.
flict actually occurred or the legal dispute started. Due to the struc- An in-house web-platform automatically delivers occurrence
ture of Chilean judicial systems, double-tagging introduces a frequency tables for search terms. We drew all maps using

Fig. 1. Administrative organization of Chile and water availability, water demand, and GDP for each region. Source: Ministry of Environment and Valdés-Pineda et al., 2014.
Chile is divided into 15 regions. Each region is further divided into provinces, which are groups of counties (comunas) sharing territorial and productive features.
 D. Rivera et al. / Journal of Hydrology 535 (2016) 36–45 39

Table 1
Description of key sections of the Water Code.

Claim, procedure or definition Section

The Water Code applies only to inland waters (surface water and groundwater) 1
Definition of water rights: a real good and protected property right, granted for free and with no time limit, that entitles the 6, 20
ownership of the right to use water from inland waters. Water rights are tradable in the water market
Water rights are divided into consumptive and non-consumptive uses 12
Owners of consumptive water rights are entitled to totally consume the granted volume of water 13
Owners of non-consumptive water rights are entitled to use a given volume of water and are obligated to restore the same volume 14
to streams
Application for water rights 22 and 141
Regularization of granted water rights: provision of all mandatory information such as coordinates for diversions, volume of 1 and 2 Transitory
extraction, and changes in ownership
Restrictions to grant water rights: The DGA is entitled to limit, restrict or prohibit the granting of new water rights if a specific 62, 63, 64, 65, 314
aquifer or watershed has reached the limit of sustainable use. Under extreme scarcity conditions, the DGA is entitled to distribute
water, overriding the powers of WOUs
Provision of environmental flows as the minimum stream flow to maintain the ecological functioning of the streams, but not 129 bis 1
affecting current water rights
Taxation to unused water rights (consumptive and non-consumptive) 124 bis 4, 129 bis 5
Complaints regarding taxation of unused water rights. If the decision does not satisfy the water right owner, he or she has the right 129 bis 10
to file a claim in a court of appeals
All complaints regarding the decisions of the DGA must be filed in the corresponding court of appeals 137
Any conflicts among water users not included in the water code should be settled by ordinary courts 177
Private arbitrators may be hired to settle private conflicts. Parties can appeal the decisions 185, 245
Amparo de aguas is a legal action filed at ordinary courts when a water right owner claims that third parties are using or affecting his/ 181
her water rights

MATLAB’s Map Toolbox to visualize conflict intensity by a color 5. The 1981 Water Code regulates inland waters and divides water
bar. The list of search terms is as follows: rights into consumptive uses, where water rights holders are
allowed to consume all water, and non-consumptive uses,
1. Amparo de aguas (Water action of protection). Section 181 of the where holders are allowed to use water but not consume it.
Water Code allows complainants to present a writ of protection, Non-consumptive users are obligated to restore the water to
restricted to the holder of a water right, if there has been an streams while not affecting third parties in terms of quality
impediment to the full usufruct of the property over water and quantity. The division of water rights into consumptive
granted by an administrative authority or authorized by law. and non-consumptive uses is seen by several authors as an
It is worth noting that if the judge requires a visit to specific incentive for hydropower infrastructure (Tecklin et al., 2011).
locations, the cost must be provided by the complainant. This As the demand for energy has been increasing during the last
situation poses an entrance barrier to small farmers with insuf- decade, we searched for the terms hidrolectricidad (hydro-
ficient economic resources to use this legal instrument (Galaz, power) and no consuntivo (non-consumptive) as queries into
2004; Godoy-Faúndez et al., 2012). By mapping this term, we the database. Consumptive and non-consumptive uses are
assessed the intensity in using this legal mechanism. two distinct legal entities and there is no clear rule to settle
2. We searched for Artículo 2 transitorio (Section 2 transitory), as conflicts when, for instance, a holder of consumptive water
the last modification of the Water Code in 2005 allows a set rights affects third parties owning non-consumptive water
of administrative mechanisms to organize and modify existing rights.
water rights. To balance this instrument, section 132 allows 6. The Water Code gives the power to administrate water
third parties to oppose granting new rights. Changes in owner- resources to the DGA (Valdés-Pineda et al., 2014). Thus, we
ship must be recorded at the Real Estate Registry (Conservadores searched all conflicts where the DGA appeared as a party by
de Bienes Raíces) and the DGA under the jurisdiction of the Min- applying a filter. Disputes reaching higher courts are indicative
istry of Public Works. However, the process is slow, costly, and of the efficacy of administrative mechanisms to settle disputes.
inefficient for all users and there exists an asymmetry in access For temporal analysis, four periods were defined: the neoliberal
to information (Hearne and Donoso, 2014; Retamal et al., 2012). period under dictatorship (1980–1988), the neoliberal period
Only registered rights can be bought, sold, and mortgaged, and under democracy (1989–1996), the discussion period for the
thus, the fact that most rights remain unregistered impedes the proposed changes to the Water Code (1997–2004), and the cur-
transfer of water. rent period, starting with the commencement of the Water
3. The term Artículo 129 bis 1 (Section 129 bis 1) was used to gauge Code reform in 2005 (2005–2013). A strong bias is expected,
the intensity of conflicts regarding the stream flow require- as any complaint against the DGA’s central administration must
ments to support the ecological functioning of the streams (cau- be filed in Santiago due to an extremely centralized system.
dal mínimo ecológico). This restriction applies only to water right
applications after 2005, so the potential positive effect appears 3. Results: mapping water conflict intensity at the province
to be negligible. However, civil organizations have raised con- level
cerns regarding the need for conservation of riparian
ecosystems. Even though the Water Code allows us to present special legal
4. One of the most discussed changes introduced in 2005 was the actions to resolve conflicts (amparo y juicio de agua), Fig. 2 shows
fine for non-use of the water right (patente por no uso). This pol- that for a period of 34 years (1980–2014) only 24 disputes out of
icy was introduced to incentivize water rights holders to build 1000 reached higher courts, with a slight prevalence in Santiago,
infrastructure or sell water rights in the water market. Thus, Valparaiso, Petorca, and Elqui. A plausible explanation for the small
we searched for Artículo 129 bis 4 (Section 129 bis 4), which is number of actions is the slow processing within the lower courts
the corresponding section of the Water Code. and the high cost of litigating in Santiago – when a dispute reaches
40 D. Rivera et al. / Journal of Hydrology 535 (2016) 36–45

Fig. 2. Conflict intensity for, from left to right: hydropower, water writ of protection following Section 181 of the Water Code, and legal procedures following writs of
protection following Section 181 of the Water Code.

Fig. 3. Conflict intensity for terms, from left to right: section 2 transitory, section 129 bis 1, section 129 bis 4. Data from 2005 to 2014. In 2005 the transitory section was
appended to the Water Code.

the Supreme Court. Thus, this legal instrument for solving conflicts related to water rights used for agriculture that could be trans-
is rarely applied in practice, as the willingness to pursue the dis- ferred to mining operations through trade in the water rights mar-
putes would depend upon the economic power of the parties. ket. In the Central Valley, conflicts are related to the ownership of
Fig. 3 shows the spatial distribution of legal disputes related to water rights between agricultural users and the Water Authority –
water rights regularization based on Section 2 transitory that administrative complaints– and between irrigation use and drink-
reached courts of appeals and the Supreme Court. There is a spatial ing water supply. The latter is important since current regulations
pattern based on water uses. Conflicts in the northern regions are do not acknowledge drinking water as a priority use, so companies
 D. Rivera et al. / Journal of Hydrology 535 (2016) 36–45 41

must trade water rights if they are available on the market, which compared to the period after 2005. For comparison, Fig. 4 shows
is an incentive for speculation (Bauer, 2009; Budds, 2009). In the the occurrence of the term hidrolectricidad. However, this result
South, conflicts are between water rights for irrigation and hydro- is not indicative of the absence of conflicts. The first mechanism
power, which comprise a type of dispute between consumptive to challenge DGA’s decisions related to non-use tariff is the DGA
and non-consumptive uses. It is worth noting that from the IX to itself and public information shows that there is a large number
the XII region, there are no conflicts reaching high courts, as avail- of complaints under review (Hearne and Donoso, 2014).
ability exceeds water demand. In line with Hearne and Donoso The DGA has the power to solve administrative conflicts regard-
(2014), the regularization procedures have generated a significant ing water rights. We identified 207 conflicts where the DGA is one
proportion of the current water use conflicts that must be settled of the parties. However, one interesting finding is that the DGA was
by the DGA and courts. the plaintiff only twice. This fact could be explained by the fact that
As seen in Fig. 3, only few conflicts related to environmental administrative actions led by the DGA are reactive instead of
flow have reached high courts, showing the low impact of such proactive. Fig. 5 shows that during the period 1980–2004, the
sections of the Water Code on river conservation and creating no number of legal actions contained in the database reaching higher
spatial pattern. The concept of environmental flows has attracted courts is minimal and concentrated in the central region, this is in
attention from social organizations and communities, as a per- contrast to the period of 2005–2013 in the central and northern
ceived administrative tool to mitigate overuse of rivers during regions. A first glance suggests that the main driver for conflicts
dry seasons (Budds, 2012). The requirement for environmental is the commencement of the Water Code reform in 2004, as most
flow is not applicable to water rights granted before the year of the conflicts are related to third parties opposing new water
2005, unless changes on water intake’s location, so minor effects rights, the regularization of water rights, and appealing non-use
on the health of rivers are expected. Most disputes are related to tariff debts (Hearne and Donoso, 2014; Donoso, 2006; Retamal
administrative issues –third party complaints to preserve stream- et al., 2012). Results from Fig. 5 show the need to perform temporal
flow or complaints from applicants for new water rights– and are and spatial analyses, as disputes are strongly linked to political
solved by the DGA’s central administration in Santiago, making processes.
the difference between the actual location of the conflict and the Water conflict intensity varies regionally as there exists a strong
location where the legal dispute takes place more pronounced. relationship among intensity of conflicts, regional economic activ-
Legal disputes related to non-consumptive uses such as hydro- ities and relative abundance of water resources. As different sec-
power are concentrated in the southern regions as in these territo- tions of the Water Code are related to specific water rights
ries the hydropower potential of mountain rivers is high and conflicts, maps are a valuable tool to assess drivers and causes
surface water is more abundant. The explanation of the increase for conflicts. By aggregating maps for different sections of the
in disputes after 2005 is twofold. First, energy companies must Water Code, five regions are hotspots for water conflicts. In the
go to the courts when non-consumptive water rights are not being Northern region (18–33°S), Antofagasta province accounts for ca.
used and they must pay a non-use tariff. Second, current water 10% of total water rights conflicts. This province experiences arid
right holders are being challenged to release water rights or put and semiarid conditions, and even though both water demand
them onto the market. Hearne and Donoso (2014) point out that and water availability are low, demand surplus leads to scarcity
the non-use tax has actually operated as an incentive for the conditions of up to 40% deficit (Núñez et al., 2013). The main pro-
increased offering of water rights in the water market, even though ductive activities are mining operations that require large amounts
a large portion of disputes are related to the applicability of the tax. of water for their processes. Fresh water is sourced from surface
It is interesting to note that before 2005, conflict intensity is low water, groundwater and desalinated water. Even though mining

Fig. 4. Conflict intensity for terms, from left to right: hydropower, non-consumptive use for the period 1981–2004, non-consumptive use for the period 2005–2013.
42 D. Rivera et al. / Journal of Hydrology 535 (2016) 36–45

Fig. 5. Conflict intensity for considering the DGA as one of the parties and divided into four periods.

recycles close to 80% of water and uses ca. 7% of total available private individuals, and (2) conflicts between individuals and the
water, the expansion of mining operations requires new sources State. In the case on private parties, most of the conflicts are
(production is expected to increase from 3.7 million tons of Copper related to the use and trade of water rights, due to (not recorded)
to 6.8 million tons in 2021). This large capacity for ore processing is changes of ownership, use of water above the granted water rights
impacting the environment, examples include the release of large affecting downstream users, and conflicts between consumptive
solid waste deposits, sterile piles, and lixiviation piles, as well as and non-consumptive uses. For the second group, the State is rep-
large energy and water consumption (Oyarzún and Oyarzún, resented by the DGA. Main conflicts are related to appeals against
2011). Conflicts are mainly related to changes in the ownership DGA’s administrative decisions regarding the non-use tariff, oppo-
of water rights, i.e. transfers from agricultural uses to mining, as sitions to grant new water rights and potential downstream effects
well as administrative decisions from the DGA for banning new of hydropower operations. This results are consistent and give sup-
groundwater rights. The second hotspot is the cluster of provinces port to findings from Hearne and Donoso (2014) and Melo and
of Valparaiso-Petorca-Melipilla located in Central Chile. Even Retamal, 2012) who explored conflicts in WOUs using ad hoc sur-
though in this region available water exceeds demand on an veys. Thus, lower conflict intensity is not indicative of the absence
annual-basis, the availability/demand ratio changes throughout of water conflicts. Indeed, previous research shows the importance
the year. of WOUs as the first instance institution for conflict resolution (e.g.
During summer in the provinces of Valparaiso-Petorca- Hearne and Donoso, 2014; Melo and Retamal, 2012; Vergara,
Melipilla, rainfall is less than 10% of the annual mean and stream- 2012).
flow is provided by groundwater systems as baseflow. During the As the intensity of conflicts related to specific sections of the
last 10 years, the territory has experienced a strong expansion of Water Code matches the main geographical, climatic and produc-
high value crops such as avocados, but annual precipitation was tive characteristics of Chile, mapping legal disputes allows the
below mean values. A scenario where demand increases and sup- identification of different types of water conflicts.
ply is lowered by climate change and variability has led to conflicts
among water rights holders –small farmers and large agricultural 4. Discussion: political and geographical factors explaining legal
companies– for exercising their right to use water (Budds, 2012). disputes
The third –Concepción and Ñuble– and fourth –Valdivia– hotspots
are located in the central-south region (35–40°S). Conflicts are Water rights conflicts are related to multiple drivers and causes.
mainly related to hydropower projects and environmental flows, Therefore, to explain the spatial distribution of legal disputes it is
as the there exists a high density of natural streams. However, necessary to include the nature of Chile’s judiciary system, water
hydropower generation –a non-consumptive use– is under strong rights and regional variation of climate. In terms of the courts, all
competition for water from agriculture and forestry –consumptive complaints against the central administration of the DGA –located
use (Tecklin et al., 2011; Bauer, 2015). The fifth hotspot is the San- in Santiago– should be presented in Santiago, regardless of the
tiago province, but unlike other hotspots that are related to the location of water rights (Vergara, 2012). Thus, Vergara (2012)
actual location of the conflicts, Santiago is the administrative hot- points out that the court of appeal located in Santiago province,
spot. The 1980 Constitution established an institutional design happens to be the de facto single water court in Chile. This situation
with a hierarchical and centralized structure of the judiciary sys- generates strong bias regarding the litigating power of parties, but
tems. Indeed, Chile’s judiciary has been compared with military it also breaks down the conflicts into administrative and actual
organizations: an internal culture of discipline, fear of innovation, hotspots (cf. Larraín and Poo, 2010). The joint effect of climate
and a risk-averse attitude by the judges (Hilbink, 2007). Therefore, and hydrogeological setting strongly shapes the nature of conflicts.
the system itself poses a geographical bias to Santiago. Chile’s economic model considers water as a commodity and raw
Legal disputes can be classified depending on the nature of the material for productive uses by the energy sector, land use, agricul-
parties into two groups with similar weight: (1) conflicts among ture, and forestry activities. In the northern regions, the abundance
 D. Rivera et al. / Journal of Hydrology 535 (2016) 36–45 43

of minerals led to intensive mining operations under natural con- new empowerment opportunity for communities and water user
ditions of water scarcity. The central region, where climate is organizations, as it not only in some degree makes non-
benign for agriculture, has experienced a strong expansion on consumptive rights less secure, but also decreases power asymme-
water demand, while available water shows strong interannual tries. It is also worth noting that for the period 1981–1990, most
and decadal variability. The status quo regarding the granting pro- non-consumptive water rights were granted to the then state-
cess for new water rights as well as the nature of private property owned energy company that was later privatized. Thus, private
over water, impedes the applications of integrated water resources companies, in addition to infrastructure, also acquired the owner-
frameworks as the State is obligated to grant water rights where ship of water rights.
water is available (Hearne and Donoso, 2014). Thus, unless under Fig. 5 shows the need to add political and regulatory context to
extreme drought conditions (Núñez et al., 2013), the role of the give plausible explanations to the outbreak of disputes after 2005
State is reactive instead of preventing water conflicts. (Muñoz et al., 2012; Rehner et al., 2014). Agriculture and forestry
The current situation is prone to conflicts due to the interaction GDP has shown no trend over the last 35 years, contributing
and feedback of increasing water demand for agricultural, indus- between 5% and 10% to GDP. From 2005, the contribution of min-
trial, mining and hydropower activities, high climate variability ing to the GDP went from levels similar to those of agricultural
affecting water availability, disparate distribution of natural activities to an average of 17%. The trigger for this accelerated con-
resources along the country, and a legal framework that forces tribution to GDP was the rise in the international price of copper.
water users into a private water resource management system. However, under the neoliberal economic system that prevails in
Moreover, Chile is facing a process of politicization, where social Chile, the higher the price, the stronger the incentive to extract
movements are active in incorporating social issues into the polit- raw materials instead of manufacturing. This situation has led to
ical discussion under the assumption that politics and policy an intensive use and demand for water (e.g. in some cases, the
actions will solve scarcity and water supply. In this regard, social trading price for 1 L/s has reached 250,000 USD). Agriculture shows
movements protest and express their disagreements with how an increase in cropped area and water efficiency, as Chilean agri-
politicians approach their claims. However, this social process is culture entered the global market for fruits and fresh vegetables.
ongoing, and showing contradictions and heterogeneities (UNEP, However, the increase of agriculture’s contribution to the GDP is
2015). The main legal instruments for conflict resolution in the modest compared to that of mining, even though there is still room
Water Code –amparo de aguas or juicio de agua– are not being used for increasing water and irrigation efficiency. However, efficiency
due to high legal costs that are not affordable for small communi- in irrigation at the plot scale remains quite low (Bauer, 2012),
ties or even medium-sized companies. Thus, social movements and the basin-scale effect on changing cropping patterns remains
have considerable importance since they bring attention to latent unclear (Muñoz et al., 2013).
conflicts that have not yet been brought to the courts. The DGA, as the first mechanism for resolving disputes, has a
Thus, legal disputes reflect the hydrogeological and climate set- large role in water conflicts (Fig. 5), but in most cases the initial
ting of the country. In turn, the geographical setting defines the action was taken by individuals who are not in agreement with
productive activities. Differences in conflicts also arise as a result the administrative decisions of the DGA. An institutional authority
of the features of the relationship between companies and commu- such as the DGA could increase the efficiency of dispute resolution,
nities. In the north, large mining companies litigate against especially with greater definitions of such rights as non-
medium-sized and small farmers, while in the Central Valley con- consumptive rights and exactly what they entail. Improving the
flicts are related to large agricultural companies against, again, access and efficacy of conflict resolution at administrative level –
medium-sized and small farmers, but also among same sized com- DGA faculties– and at court level, would improve the water market
panies. Inequitable access to information and legal advising is seen and reduce power asymmetries. Thus, as noted by the World Bank
as a barrier to small farmers with insufficient economic resources (2013) and Bauer (2012, 2015), there is an urgent need to change
to solve conflicts (Galaz, 2004). the institutional landscape by improving coordination among
As the Water Code allows the hiring of private arbitrators, we institutions, increasing inspection by law enforcement and
hypothesize that an increasing number of conflicts are solved by improving the data system. Evidence suggests a low coordination
this means, as it provides faster responses and does not require among water-related institutions, leading to slow and bureaucratic
that any evidence or document –even the decision itself– be made processes to settle disputes among water users (World Bank, 2011;
public, unless one of the parties does not agree and decides to Hearne and Donoso, 2014; Retamal et al., 2012), with asymmetries
appeal before the corresponding court of appeals. in access to formal processes (Galaz, 2004).
During the period 1981–2004, energy companies applied indis- Since WOUs are de facto institutions for water management, it is
criminately for water rights as regulations gave them high legal necessary to strengthen local organizations (World Bank, 2011;
security (Prieto and Bauer, 2012; Bauer, 2009), and an increase in Hearne and Donoso, 2014), as a large percentage of WUAs have
water-related conflicts that have become closely linked to compet- not updated their capacity to meet new challenges and have not
ing water uses for energy (hydroelectricity) and the environment been effective in resolving inter-sectoral conflicts (Bauer, 2004).
(Bauer, 2015). One aspect for analysis in the conflicts between The power and ability to cope with conflicts within a WOU largely
hydropower and agriculture is the generation of energy by depends on the level of organization, such as budget, staff, and
hydropeaking. Even though the users must restore the water in members’ schooling (Valdés-Pineda et al., 2014; Jara et al., 2009).
the same quality and quantity, the regulation does not make expli- For instance, the presence of technical-professional staff directly
cit that the flow rate of intake should be the same as the flow rate affects the development and growth of WUAs (Jara et al., 2009),
at the discharge. Thus, energy companies store water upstream of supporting the need for training programs (Hearne and Donoso,
turbines for use during the night, when electricity demand and 2014).
price is higher, lowering streamflow. Farmers, however, tend to The Chilean state has recently been implementing new infor-
use water during the day. The Supreme Court in 2012 ruled that mation platforms for WOUs and water rights. However, there also
the hydropeaking operation violated the rights of downstream exists an urgent need to modify data management practices in the
users (Prieto and Bauer, 2012). Currently, the company is part of judicial system in order to account for private arbitration, and to
a River Board (Junta de Vigilancia del Río Tinguiririca), showing that include more accurate and reliable information related to the loca-
integration and cooperation is a feasible target for conflict resolu- tion of the conflicts. For example, in most cases, first instance rul-
tion. In this regard, the 2005 reform of the Water Code appears as a ings and writs of protection contain a complete description of the
44 D. Rivera et al. / Journal of Hydrology 535 (2016) 36–45

location of the conflicts, while upper courts refer to geographical extraction is close to recharge). Therefore, scarcity and competition
information in other judgments. for water is growing. In northern Chile, water demand from mining
Geo-tagging legal records shows a strong potential to under- operations is closely linked to higher copper prices. Demand from
stand and define regional variation of water conflicts. This agriculture is also growing as Chile is reaching competitive posi-
approach used legal disputes reaching higher courts; so expanding tions in global markets. Other players are hydropower companies,
the database to first-instance courts should improve the under- as more energy is needed to fuel industrial expansion, increasing
standing of the legal path followed by parties, as well as the pro- the pressure over water resources and natural ecosystems all over
portion of disputes that are settled at each level of the judiciary the country. Thus, there are territories were there exists scarcity of
system. However, from a technical point of view, it is necessary water despite low demand (II Region) or high availability (V
to develop and implement new techniques for data analysis before Region).
performing deeper analyses such as tracking specific water rights, Although Chile has a high diversity of ecosystems, the same reg-
courts or law firms. Data availability would become a barrier if ulations are applied to the whole country, leading to a failure to
measures to improve data management were not taken. According settle conflicts that are strongly linked to geographical context
to Boettiger (2012), Chile presents a lack of reliable information and variables such as resources, industry, and local communities.
regarding water stocks, water rights and current physical infras- In the north of Chile, small farmers and local communities litigate
tructure. Currently, the Catastro Público de Aguas –CPA– is the offi- against large mining companies while in the southern regions
cial database for registered water rights aimed at providing farmers litigate against hydropower companies. Both cases show
updated information to relevant stakeholders. The Water Code an unequal access to environmental justice (Larraín and Poo,
(section 122) establishes the obligation for government agencies, 2010).
real state registries and water rights holders to inform changes in Thus, current regulations are not only failing to resolve con-
ownership of water rights to the CPA. However, the legal obligation flicts, but are also failing to provide the best regulatory and policy
to inform has not been sufficient to foster the water market as the framework to operate water markets. Therefore, the conflicts are
CPA remains incomplete and out of date (Boettiger, 2012), suggest- related to the relationship between availability and demand,
ing a barrier to use legal disputes as information is out-of-date or instead of the absolute magnitude of water availability or runoff.
incomplete. Mapping key sections of the Water Code provides Communities and social movements are also key actors in increas-
valuable information regarding spatial patterns, but spatial analy- ing awareness of environmental justice. Exploring this issue was
ses should include information regarding the physical infrastruc- out of the scope of this study, but incorporating fields such as polit-
ture, the institutional landscape and updated information of ical ecology or legal geography need further research.
water rights (Budds, 2009, 2012). As the Chilean economy and the system of water allocation do
not provide conflict resolution mechanisms apart from court dis-
putes, Chile would benefit from increasing access to the legal sys-
5. Conclusions tem. The intensity of the conflicts is related to institutional drivers
inherited by the 1980 Constitution and economic drivers from a
We used legal disputes as a proxy for water-related conflicts neoliberal economic model based on natural resources as raw
and mapped the occurrence of specific types of disputes. The con- materials.
text of water conflicts is the diversity of the water market, water
rights, water users organizations, water users, regulation, and
Acknowledgments
regions. We focused on water rights because they are the corner-
stones of water allocation through water markets. Thus, hydrolog-
This research benefited from CONICYT/FONDAP-15130015.
ical conditions (available water), the concentration of resources
Thanks to Roto Quezada for his continuous support to our research.
and extractive activities (water demand), the institutional frame-
We are very grateful to the three anonymous reviewers and Editor
work, and communities (social dimension) shape water conflicts.
Geoff Syme who provided valuable comments to improve the
Most legal disputes are related to conflicts among water users
manuscript.
and their access to water rights due to the increasing competition
among productive activities. However, the current legal structure
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