Towards a Holistic Environmental Flow Regime in Chile: Providing for Ecosystem Health and Indigenous Rights

Elizabeth J Macpherson,Pia Weber Salazar

doi:10.1017/s2047102520000254

Abstract

AbstractA widespread response to the pressures placed on the ecological condition of rivers is the design and implementation of environmental flow regimes in domestic regulatory frameworks for water. Environmental interests in water are not confined to hydrological functioning but include relationships between water resources and human cultural and economic livelihoods, including those of Indigenous communities. Since the mid-1980s there has been some provision for environmental flows in Chilean law. However, the legal and policy requirements are limited in scope and have been poorly implemented by regulatory institutions. In this article we critically examine the treatment of environmental flows in Chilean legal and policy frameworks. We argue that there is an urgent need for a comprehensive minimum flow regime in Chile to protect the environmental qualities of rivers, which must also reflect and provide for Indigenous water rights and interests. The developing constitutional crisis in Chile, the most significant political crisis since the end of the Pinochet dictatorship (1973–90), highlights the need to revisit the sensitive and unresolved issues of water governance and equity.

Highlights

Indigenous peoples holding traditional connections and rights to land and water resources throughout the country,[9] regardless of whether or how these interests are recognized by governments
We argue that there is an urgent need for a comprehensive minimum flow regime in Chile to protect the environmental qualities of rivers, which must reflect and provide for Indigenous water rights and interests
In this article we examine the limited provision and implementation of environmental flows in Chilean law and policy, and consider the treatment of Indigenous water rights and interests in their planning

Summary

Minimum Flows under the Water Code and Environmental Law

The 1981 Water Code did not contemplate the environmental implications of the management of water and the protection of freshwater ecosystems. Dirección General de Aguas, agreed with the approach taken by the DGA in setting minimum ecological flows in relation to a request for a change of capture point, and emphasized the important role the DGA should play in protecting freshwater resources: This is a restriction that, is the obligation of the authority, in order to give effect to article 41 of the Environmental Law, which provides that the use and enjoyment of renewable natural resources must be carried out in a way that ensures their capacity for regeneration and the biological diversity associated with them This is important in the case of species that are at risk of extinction, vulnerable, rare or insufficiently. The legal limits on flows established do not appear to be based on any defensible methodology,[177] and more water, above the 40% average annual flow rate, may be necessary or desirable to restore and ensure a healthy river ecosystem and uses of the water flowing through it

Indigenous Water Rights and Implications for Environmental Flows

Findings

Water Reform and the Constitutional Crisis