On January 12, 2022, and after 11 years of processing, the Senate approved the report of the Joint Commission, as did the Chamber of Deputies on January 11, 2022. With this, the bill reforming the Water Code is on the verge of becoming a law, with only the promulgation by the President of the Republic and its subsequent publication in the Official Gazette remaining.
Substantial changes to the current regime include the following:
1. Term of exploitation rights: 30 years, unless the authority, by means of a well-founded resolution, determines a shorter term. The term for which a right of use is granted shall be extended by the sole authority of the law and successively, unless the Directorate General of Water accredits its non-use or it affects the sub-surface or surface source.
2. Extinction of exploitation rights for non-use: 5 years for consumptive rights and 10 years for non-consumptive rights. The term will run from the publication of the resolution that includes them for the first time in the list of exploitation rights subject to the payment of patent for non-use. This will apply, as well as all other provisions on exercise, enjoyment and charges of the new Water Code, to exploitation rights constituted prior to the reform.
3. Expiration of unregistered exploitation rights: 18 months to register rights granted prior to the reform, recognized, or exploitation rights granted after the reform in the Water Registry of the corresponding Conservator. This period shall run as from the publication of the Law.
4. Express recognition of the Human Right to water and sanitation: therefore, the use rights will be constituted based on the public interest, and the State must consider (i) the safeguard of human consumption and sanitation, (ii) the preservation of the ecosystem, (iii) the availability of water, (iv) aquifer sustainability, and (v) promote a balance between efficiency and safety among the different productive uses of water.
5. Modification to the Miner’s Waters: the waters found by the mining concessionaires (exploration and exploitation) may be used (i) to the extent that they are necessary for the exploitation operations and (ii) they are reported for registration, within 90 calendar days from their discovery, to the General Water Directorate, indicating their location and volume per unit of time and the activities that justify such need. Upon such request, the General Water Directorate may limit such use if (i) there is a serious affectation of the aquifers or (ii) third party rights.
6. Modifications to the regime of patents for non-use: increase of the factors for the determination of the amount of the patents; changes in the exemptions to the payment thereof; surcharges for late payment; as well as some modifications to the auction procedure.
7. General Water Directorate: it is mandated to prepare Strategic Water Management Plans; it is granted greater sanctioning powers; it is given tools to have and demand more information; and among others, greater powers to limit use rights.
8. Regularization of use rights: they may only be initiated within 5 years after the publication of the reform. Also, a new procedure is established, without a judicial phase (those who filed their request before the entry into force of the reform may submit to this procedure). Among other changes.
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