Reforming Water Governance in Chile: A Hydrosocial Relations Perspective
on september 4, 2022, 62 percent of Chileans voted against a progressive proposal to reform the 1980 Constitution written under the military dictatorship (see Piscopo & Siavelis, 2023). The proposal would have overturned one of the most emblematic neoliberal policies of General Augusto Pinochet's regime, the 1981 Código de Aguas (Water Code), by removing the constitutional protection for private property rights that underpins it.
Chile's Water Code instituted a model of water management that is unique internationally because of the extent to which it entrenches private property, markets, and self-regulation. Delegating control over almost all sources of freshwater1 to the owners of private water rights has fostered the accumulation of water among major economic sectors, the over-exploitation of water sources, and the exclusion of wider stakeholders from decisions about water. The referendum on this constitutional reform took place a decade into a so-called "mega-drought" that has [End Page 151] affected most of Chile, and has been exacerbated by the Water Code (Budds, 2020). Given that the neoliberal policies that the constitutional reform sought to overhaul have come at such a cost for water, it is all the more surprising that the proposed reform failed.2
In this essay, we reflect upon the possibilities for reforming water governance at this juncture in Chile. We use a framework of hydrosocial relations (Linton & Budds, 2014) to contemplate how enclosure and commodification have shaped water-society relationships, and to consider political transformations to foster more inclusive arrangements. We suggest that water sharing and cooperative decision-making offer pathways for citizens to articulate alternative hydrosocial relations.
water governance in chile
The 1981 Water Code is based on three key principles: privatization, marketization, and self-regulation. The first, privatization, involved transforming existing water rights from state concessions into private property protected by the state. Private property was envisaged to guarantee secure access to water, which would, in turn, incentivize investment in water infrastructure by industries and water users (e.g. hydroelectric dams, irrigation systems), thereby alleviating the state of this financial responsibility. The second, marketization, used the market to manage allocation, so that water rights owners could lease or sell water they did not need in return for money.3 This was intended to facilitate transfers between users and sectors to encourage the allocation of water to the most economically productive uses. The third, self-regulation, transferred regulation from the state Dirección General de Aguas (National Water Directorate, or DGA) to water user organizations, such as irrigation committees and river basin organizations. Self-regulation was intended to avoid potentially politicized government decision-making, such as preferential treatment of certain sectors. The neoliberal framework was thus designed to simultaneously increase the role of the private sector and reduce the role of the state in water management.
Ownership of water rights was individual, by a person, or a company, and initially precluded collective tenure—although that was later reinstated for groups identifying as Indigenous under the 1993 Indigenous Law.
While the public discourse was centred on fostering efficiency in water use, the underlying motive was to cede permanent and untaxed water resources to Chile's export-oriented industries, which were the engine of economic growth under the dictatorship. This entailed transferring decision-making almost exclusively to water rights owners. Constituting water rights as private property gave owners the freedom to decide whether and how to use them, without any obligation to put water to a predetermined use, or to use it at all.4 That the state no longer controls its water has important implications, including that it had to buy water from water rights owners during droughts for emergency drinking water supply (Budds, 2020).
Water governance refers to the structures, processes, and practices of decision-making for human use and stewardship of water [End Page 152] resources. Relatively little has been written on water governance per se under the Water Code. Several sources conflate governance with privatization and marketization, as if these principles were universal (e.g. Valdés-Pineda et al., 2014). Other authors take an institutional perspective, focusing on issues such as scaling and coordination (e.g. Bitran et al., 2014; World Bank, 2011). A few authors have analysed the implications of almost all decisions about local and regional water use being made by water rights owners without external (state or independent) oversight (Bauer, 2015; Budds, 2009, 2020; Reyes et al., 2009). These authors identify three principal implications, as follows.
First, water allocation and use are determined by water rights owners, with no input from the state or civil society. The DGA has a merely administrative function; it is obliged to allocate new water rights if they are available, and has only a limited role in determining that availability. Until the minor modification to the Water Code in 2005, assessing the capacity of water bodies5 (to potentially grant new rights) fell outside the DGA's remit, as did monitoring and sanctioning illegal extraction, except in cases where water rights owners complained of infringements (Budds, 2009). Water use is thus determined by private demand rather than public priorities (especially ecological integrity and basic human needs), with the only real articulation of the public interest being occasionally upheld by the courts as part of water rights disputes (Bauer, 2015) or articulated by civil society (Budds, 2020).
Second, there is no space for stakeholder participation in water issues beyond elected representatives (Reyes et al., 2009). The Water Code makes no provision for formal interactions between the state, water rights owners, and civil society. A short-lived exception was a series of government-organized regional roundtables (2014–2016) to document local experiences of the Water Code throughout Chile (Budds, 2020). This void in public participation has been filled by increasingly active civil society organizations contesting the accumulation of water rights and its impacts, and demanding the inclusion of wider stakeholders in water issues (Bauer, 2015; Budds, 2020).6
Third, there is no state provision for water conflict resolution. Because water rights are private property, and private property is regulated by private law rather than civil law, disputes are handled by the courts rather than the state. This means disputes are addressed by users themselves, water user organizations, or by the courts, if at all (Rivera et al., 2016). However, the cost of court action is prohibitive to many stakeholders (Budds, 2004), and judges have generally poor knowledge of the Water Code (Bauer, 2015).
proposals for reform
Proposals to reform the Water Code started in 1992, and minor modifications were made in 2005 and 2022.7 Key problems initially included hoarding and non-use of water rights for speculation, and later extended to illegal extraction associated with weak self-regulation. Ongoing proposals to address these problems can be divided into two groups. The first sees these problems as unintended consequences of the Water [End Page 153] Code, which can be addressed by refining the legislation. For example, the World Bank (2011) sets out a lengthy wish list of aspects to "improve" and institutions to "strengthen" within the existing framework. The second regards these problems as structural outcomes of its market-oriented principles, which would require substantial reform. For instance, Bauer (2015) proposes more considered changes to the law and to the wider legal context, while acknowledging the contested nature of the Water Code and the limited political prospects for reform that existed until 2019. Bauer (2015) proposes: (1) redefined obligations and restrictions on private water rights to incorporate the notion of social interest (addressed to some extent in 2022); (2) greater state regulation; (3) better training of lawyers and judges; and (4) wider stakeholder participation.
In parallel, some NGOs have articulated their own proposals. Some take a more radical position by advocating the abolition of the Water Code in order to annul private water rights and renationalize water resources.8 Prior to 2019, this position had been hopelessly idealistic, given the longstanding difficulty of securing even minor modifications to the Water Code (hence Bauer's  more pragmatic stance). However, in principle, the constitutional reform process of 2021 rendered it conceivable, even if qualms over the progressive nature of the proposal contributed to its failure.
Other NGOs have adopted a more moderate position, calling for safeguarding of the public interest, including by redefining water from a so-called economic good (bien económico) to a common pool resource (bien común).9 This position has several limitations. First, the Water Code defines water as a "national good for public use" (bien nacional de uso público), which is not only largely meaningless, but is also commonly conflated with the concept of a common pool resource. Second, juxtaposing common pool resource against economic (or private) good maintains the misplaced correlation between a public good justifying public management and a private good requiring private management. This wrongly suggests that the limitations of the Water Code lie mainly in the nature of its institutions rather than its underlying principles. Third, simply redefining water as a common pool resource gives little indication of what would change in practice, even if some of the social movements advocating for this call for "community" management of water (see Torres-Salinas & Alvez Marin, 2023). The focus here lies on redefining the status of water, rather than the nature of water-society relations. What is clear, however, is that water in Chile is managed as a private good, and that the provisions of the Water Code preclude it being managed as a common pool resource—that is, shared.
a hydrosocial relations perspective
Hydrosocial relations shift the emphasis from material water (H2O) to the nature of the relationship between water and society. Thinking in terms of hydrosocial relations means the nature of the connection is no longer conceived of as a relationship between people and water, understood as [End Page 154] distinct entities that interact with each other, but rather considers the ways in which water has been shaped by social processes and how the material and symbolic nature of water has shaped social relations, including modes of governance and cultural identities (Linton & Budds, 2014). Hydrosocial relations therefore embody a non-utilitarian perspective towards water, by recognizing multiple identities of water and citizen engagements vis-à-vis water.
Using the lens of hydrosocial relations to analyse governance implies moving beyond decision-making processes per se, and understanding governance as a means of social organization through the regulation of water (Bridge & Perreault, 2006). This entails scrutinizing both the power relations that have shaped governance frameworks, as well as the political possibilities that they enable or constrain, and understanding water and social identities as produced by these processes. It is thus a way of politicizing water governance, whereby water (H2O) is no longer the end, but rather the means, of governance—that is, the scope to envisage (different) relationships with (different) waters in specific contexts, and to engage in decision-making processes to actively forge these relationships (Jepson et al., 2019).
The fact that the Water Code applies to (almost) all water sources, water uses and users, and regions of Chile is problematic from the perspective of hydrosocial relations because it homogenizes water flows and social interactions. While it is almost impossible to envisage any reworking of water-society relations in Chile while the Water Code remains largely unchanged, mobilizing the framework of hydrosocial relations can transcend existing proposals in some important ways. These entail: (1) understanding the nature of water-society relations (i.e. different meanings of water and cultural identities) and their implications; (2) understanding how water-society relations have evolved as they have; and (3) reworking them to envisage and promote alternative relations, which may be multiple and diverse.
Bauer (2015) does consider the political nature of the Water Code and its implementation, but stops short of recognizing the wider and deeper changes to water governance that are leveraged through the framework, which are harder to address through legal reforms. This overlooks how the Water Code's principles and provisions reconfigure water-society relations and to what effect. It is reform of these processes, rather than solution-oriented policy norms, that is the focus of a hydrosocial relations approach.
Examining hydrosocial relations elucidates the power relations that underpinned the design of the Water Code, as well as those that are mobilized through its operation (and defence of it). It directs us to a different starting point to contemplate reform: rather than define problems as direct and practical outcomes of the Water Code, it prompts us to think about how the framework produces water as a commodity, privileges dominant economic and political actors, and enables the over-exploitation of water. This not only excludes a broader range of public interests, including those of non-commercial water uses (e.g., rural drinking water) and non-consumptive water engagements (e.g., conservation purposes, sacred landscapes), but also acts to the detriment of the public interest, [End Page 155] such as when the state spends tax revenue to buy back water from private water rights owners.
Examining hydrosocial relations also entails recognizing that the Water Code has not only changed the social relations of control over water, as reflected in decisions about water use being confined to private water rights owners, but also the identities of water and water users. Instituting water as private property identifies water as a commodity, and has incentivized the accumulation of water rights as economic assets, as well as the over-exploitation of water sources for economic gain. Groundwater for irrigation, which is commonly preferred due to its reliability and autonomy, has been especially over-exploited. Individualizing the ownership and use of water as a result of granting individual (as opposed to collective) rights to water sources, the increasing use of individual groundwater wells rather than shared surface water canals for irrigation, and the conversion of (relative) shares of a water source to (absolute) litres per second10 have undermined water user cooperation and water sharing, which are important coping strategies for scarcity and drought (Budds, 2020). It is thus unsurprising that people's relationships with commoditized water under the Water Code have shaped their identities as water "users" practicing resource extraction in a utilitarian manner (Jepson et al., 2019).
The kinds of reforms to the Water Code that have been proposed so far would not necessarily reverse the ways in which commodification and individualization have shaped material and cultural water-society relations in Chile. We contend that recognizing how these social practices, meanings of water, and identities of individuals as users have become engrained should form a point of departure to imagine alternative, more diverse, and more inclusive arrangements that encompass collaborative and non-commercial relationships with water. In Chile, all citizens engage with water in their lives, such as through access to drinking water and bearing the effects of drought, and so water is thus everyone's concern in several ways, and not only in terms of consumption (Jepson et al., 2019). This calls for cooperative forms of decision-making that not only open space for citizens—beyond water users—but also take into account what kinds of identities and relations citizens may wish to reconstruct vis-à-vis water stewardship.
One potential pathway is the promotion of collective forms of water management and governance, based on relations of water sharing rather than enclosure. In other contexts, water sharing has been practiced to contest exclusionary water policies, in particular privatization, by reclaiming access to enclosed resources (Wutich et al., 2018). As Wutich et al. (2018) suggest, it is necessary to contemplate both how the commodification of water has altered the social relations of water sharing, as well as how water sharing can rework the social relations of commodification. Within a governance framework of water sharing, the primary aim of governance is not decision-making about water (allocation or use) per se, but rather (re) configuring hydrosocial relations, acknowledging that this relationship is both material and cultural, and diverse. Water sharing includes: the potential for local people to make decisions about water in line with their [End Page 156] own norms and customs; the potential for plural voices and roles in decision-making for water among groups that are not water users, yet are or feel connected to water; and the potential for non-economic water practices and meanings that are excluded by the Water Code to be rendered more visible.
In this essay, we have considered how a market-led governance framework such as Chile's Water Code has shaped water practices and identities in ways that are hard to disembed through normative policy and institutional reforms. An approach based on hydrosocial relations enables us to both elucidate the power relations that configured those dynamics, and to shed light on possibilities for their transformation to promote different material and symbolic relationships. We argue that water governance needs to focus on political change rather than policy change, to open the way for alternative, more diverse, and more inclusive arrangements that encompass collaborative and non-commercial relationships with water.
Paradoxically, in the case of Chile, the market-led framework was intended to foster enclosure, yet its role in the production of scarcity calls for a common pool resource approach that re-enables water sharing as an adaptation strategy in the face of political-economic and climate change. [End Page 157]
Department of Geography, University of Bonn, Meckenheimer Allee 166, 53115 Bonn, Germany. Email: email@example.com
1. The Water Code regulates most sources of surface and underground freshwater in Chile, with the following exceptions: (1) water sources that emerge and drain entirely within the same landholding (mainly springs); and (2) surface or groundwater that is extracted to supply what is legally defined as rural drinking water. Water defined as industrial products (bottled water, desalinated water) also falls outside its scope.
3. For example, farmers who did not plan to cultivate crops in an upcoming dry year could (temporarily) lease their water right to others, or farmers ceasing agriculture could (permanently) sell their water rights to other farmers or other sectors (e.g., urban developers, mining companies), if they considered it a favourable economic exchange.
4. The modification of the Water Code in 2005 introduced fees for non-use of water rights under some conditions, which depended on length of time of non-use and degree of aridity of the region in which rights were held.
5. This is because the Water Code states that to claim new groundwater rights, users need to supply proof of groundwater flow from a test borehole. Some stakeholders argued that an assessment of the wider aquifer to determine its capacity exceeded the DGA's authority.
7. The latter placed emphasis on social equity and environmental quality, for instance declaring water a human right, and strengthened the provisions from 2005 around fees for non-use.
8. For example, Movimiento por la Defensa del Agua, la Tierra y el Medioambiente (Modatima).
9. For example, Fundación Newenko.
10. This change under the Water Code was designed to define water rights for the purposes of trading.