Regime for Environmental Management of Waters

On January 3, 2003 Law No 25,688 regarding the “Regime for Environmental Management of Waters” was published on the Official Gazette. The objective of this regime is to set the basic environmental rules for the preservation, exploitation and rational use of waters.

One of the major environmental problems of the Republic of Argentina is the contamination of waters. A World Bank report about contamination in Argentina considers the underground contamination of waters as the major problem which the country has to deal with (1).

In addition, climate changes have caused rivers to break their banks and flood large areas of land. This has created problems between provinces and municipalities because of the waterworks which are made to channel waters from one province to another or from one municipality to another.

Nevertheless, the Regime for Environmental Management of Waters covers both quantitative and qualitative contamination and also management of this source and the uses it is put to.

Law No 25,688 defines “water” as all that is part of the courses of natural or artificial, ground and underground waters, as well as that contained in aquifers, and rivers above and below the ground. The Regime for Environmental Management of Waters is applicable to waters of both public and private domain. This distinction affects which competent authority will legislate over the uses of the water.

Both the Federal Government and the provinces have their own exclusive legislation with respect to waters of public and private domain.

To this extent, the Federal Government has exclusive competence with respect to any matter referring to federal issues (Argentine Constitution, article 75 paragraph 12) . With respect to private waters, the Federal Government is competent to set the basic principles and with respect to public waters, it establishes which shall be the ones of public domain.

On the one hand, the provinces have exclusive competence to legislate on the use of public waters and they are entitled to set the manners and ways in which the rights of use shall be acquired. As to the private waters, provincial competence is limited to the implementation of measures of police enforcement necessary to maintain reasonable limits of the exercise of property rights (2).

The Regime for Environmental Management of Waters understands by “use of waters” the following:

(a)  the use and channeling of ground waters;

(b)  the damming, alteration of the flow or deepening of ground waters;

(c)  the extraction of solid or dissolved substances from ground waters as long as such action affects the status or quality of the water or its draining;

(d)  the placing, introduction or addition of substances to ground waters, as long as such action affects the status or quality of the water or its draining;

(e)  the placing and introduction of substances to coastal waters, as long as such substance is placed or introduced from the ground or has been transported to coastal waters to be deposited in them, or facilities which have been constructed or permanently tied up in coastal waters;

(f)  the placing and introduction of substances to underground waters;

(g)  the intake, elevation and piping of underground water over the ground as well as channeling it;

(h)  damming, deepening or diverting underground waters by means of facilities placed for such purposes or which might be used for the same;

(i)  actions that may cause permanent or significant alterations to the physical chemical or biological characteristics of water; and

(j)  artificial alterations of the atmospheric phase of the water cycle.

The Regime for Environmental Management of Waters pretends to be law of basic environmental protection thresholds. This means that the use of waters established therein should be the minimum uses to which water should be subject to in all provincial legislation.

Most of the provinces have their own laws which regulate the uses that may be given to provincial public water.

The Federal Government has established this Regime for Environmental Management of Waters based on the constitutional rule which entitles the same to set the basic environmental protection thresholds, nevertheless the content of this regime has advanced over the exclusive competence which the provinces have in order to regulate the uses that can be given to the provincial public domain waters.

In addition, the Regime for Environmental Management of Waters sets forth that the use of water shall need a permit that shall be granted by the competent authority. Therefore, those who intend to use water shall have to request an authorization when the provincial authority does not require the same This is an issue which is bound to create problems between the Federal Government and the provinces.

The Regime for Environmental Management of Waters sets forth that the national enforcement agency shall determine:

(i)  maximum limits for contamination and protection of aquifers;

(ii)  the definition of instructions for the refill and protection of aquifers; and

(iii)  the fixing of parameters and environmental standards for the quality of waters.

The above mentioned fulfills a legal vacuum by establishing permitted contamination standards for any activity within the Republic of Argentina.

Moreover, the environmental parameters and standards for the quality of the waters allow qualities for the different types of use of waters to be fixed. Therefore, aquifers for human consumption shall have a different contamination standard than for example, where water is used only for sports activities.

Finally, the Regime for Environmental Management of Waters has created committees of water drainage areas for interjusrisdictional drainage areas. The purpose of these committees is to provide counsel to the competent authority in matters related to water resources and to collaborate with the environmental management of the water drainage areas.