Water Rights Course – First Half 2010 Summary

Posted on Oct 30, 2024 in Law & Jurisprudence

Water Right Course – First Half 2010 – UDP Law

First Class Summary

I. Water Rights

This section addresses water resources and regulates their use and exploitation. It encompasses aspects of both public (specifically, administrative) and private law. It distinguishes between two key areas: Allocation and Distribution.

II. Water Resources

The Chilean Civil Code (CC) and Water Code (CA) define water resources as national assets for public use. A specific class of water resources falls under the domain of water rights, including rainwater that reaches the ground.

III. Use and Utilization

Despite various methods, water usage is characterized by its exclusive nature: the timeshare.

IV. The Right to Water Use

A. Concept
  1. The timeshare is a real right concerning water, involving its use and enjoyment, subject to the requirements and regulations of the Water Code (Art. 6 CA).
  2. Throughout the various Water Codes (1951, 1967-69, 1981), the right of exploitation has consistently referred to the ability to extract a specific quantity of water exclusively from a natural source for discretionary use, often consumption. This power is granted by a higher authority based on public ownership of water resources.
B. Nature
  1. Vis-à-vis public law: It is an administrative real right stemming from a public entity’s grant, legally empowered to establish such rights for the public use of national waters. Note the trilogy: public domain/concession/administrative real right.
  2. Vis-à-vis civil law: It is an intangible thing (Art. 565 CC and Art. 576 CC), a real right (Art. 577 CC and Art. 6 CA), concerning the use and enjoyment of water. According to Art. 580 CC and Art. 6 CA, and Art. 4 CA, the right to use is generally considered movable property, except when intended for the use, cultivation, or benefit of a property, in which case it is considered real property.
  3. From a guarantees perspective: It is a full right with constitutional property rights protection. It is waivable.
  4. Vis-à-vis legal doctrine: It falls within the scope of assignment, an institution from which underlying or inspiring principles can be inferred.
C. Requirements
  1. Public domain over water resources.
  2. A concessionary act by the relevant state body (DGA), resulting in a title.
  3. The title resulting from the concession. While its form may vary, its existence is crucial, particularly when analyzing granted and recognized rights.
D. Underlying Principles of Assignment

(Some reflect general legal principles or water rights principles. Interactions may lead to conflicts resolved by the supremacy of certain principles over others.)

  1. Free acquisition
  2. Gratuity
  3. Priority
  4. Publicity
  5. Due process
  6. Availability
  7. Non-interference with third parties
  8. Basin unit
  9. Environmental protection
  10. Market as an efficient resource allocator
E. Essential Elements of the Right to Use
F. Content of the Right to Use
  1. Right to extract water (location, form, volume, and methods specified in the title).
  2. Exclusive extraction (location, form, volume, and methods specified in the title).
  3. Right to use extracted water (according to the general purpose in the title).
  4. Right to dispose of extracted water (for consumptive rights).
  5. Right to not extract or use water (for certain lower flow rate rights).
  6. Right to execute necessary works for water collection and conveyance.
  7. Right to impose necessary easements for collection, transmission, and works.
  8. Right to use national public property (banks, etc.) if needed, subject to relevant requirements (authorizations, permits, concessions, etc.).
  9. Right (and obligation) to belong to the relevant user organization.
G. Categories of Right of Use
  1. Conceptual:
    1. Right to use as such: Meets the essential elements and content mentioned above.
    2. Other so-called rights to use, solely by operation of law.
    3. Other powers not termed “right to use” but with exclusivity and exclusion aspects.
  2. Based on title:
    1. Granted
    2. Recognized
  3. Based on essential elements:
H. Acquisition of Right of Use

Originating Modes: Allocation

Derivative Modes: Tradition (reassignment), Inheritance

Prescription: Registered ownership. Possession only allows for adjustments.

By Operation of Law: Not the right to use itself.