Chile’s Water Code, issued in 1981, created a regulatory instrument that established entirely a neoliberal economic policy. These water regulations permitted perpetual, tradable water claims to be assigned via the market. This touched off a race that resulted in the assignment of the majority of rivers to whomever presented the corresponding requests, and the spoils were distributed without consideration for the environment, geopolitics, public health, or equity.

 

One of the principal goals of the new, 1990 democratic government that took over after the military dictatorship was to modernize the Water Code, about which there was ample agreement on its arbitrariness, flaws, and over-mercantilist point of view. Fifteen years later, some changes were finally adopted, among them the establishment of an ecological flow statute and national interest reserve flows, which cannot be applied in most cases because they don’t affect existing claims. Congress is currently discussing applying the ecological flow standard to existing claims, but not the reserve flows.

 

The legal statute established in 2005 for reserve flows states that in order to supply the population, or for exceptional circumstances of national interest, the president of Chile can reserve hydrological resources for environmental conservation and local development, in the case that resources exist that have not been previously assigned. Although this statute seems like a step forward, what happens if there are no unassigned hydrological resources?

                 

Furthermore, the authority can only respond reactively to create the reserve; that is to say, in response to water use claims, without any method to do so on its own initiative. In spite of this, it has been possible to create water reserves by denying claims requests in rivers categorized as special interests such as Cochamó and Petrohué, among others. However, for key rivers like Palena, Cisnes, and Bueno, even once they have been declared of interest, the interests of claim holders prevent the conservationist point of view from taking precedence.

 

The exceptional circumstances or national interest designation that the president can identify is not standardized, but instead can be adjusted based on opportunity, merit, or convenience. Therefore it has been applied to areas that are bases of economic activity, such as tourism, where the water resources are important for development or maintenance of tourism.

 

Over the past ten years, tourism has increasingly become a strategic development area. The identification of a variety of areas of touristic interest as protected wilderness areas has allowed them to be included in the few land planning instruments that Chile has available to them. In the south, including Patagonia, these tourist zones and territories present a direct relationship with the continent’s bodies of water, its rivers and lakes, to such a degree that there is a relationship between tourism development, environmental conservation, and the preservation of the rivers.

 

Tourist activities related to water can be grouped into those that involve direct contact with the water (kayaking, rafting, fishing, swimming, and others) and those that do not involve direct contact (hiking, photography, sightseeing, and camping, to name a few). As such, tourist activities related to water in low anthropogenic intervention areas require the preservation of the ecosystems that play a vital part in creating tourist demand in southern Chile. This is why a strategic vision of sustainable tourism must take into account the preservation of the surrounding bodies of water.

 

Numerous studies show the advantages of maintaining environmental flows in rivers. The government’s water agency has proposed that the flow in rivers of special interest, like tourist areas, be maintained unaltered 80 percent of the time. The state should be ready to accept greater social participation from various actors who are on the ground, alert to the social and environmental needs, where systems like GIRH (Intergrated Hydrological Resource Management), associated with the plans of the local government, coordinate new decision-making mechanisms related to conserving rivers and prioritizing productive activities with the lowest environmental impact. To complement this, legal tools will be needed to safeguard selected water systems over the long term.