Argentina Water Resources Management Policy Issues and Notes THEMATIC ANNEXES ...

190 Pages·2001·0.57 MB·English

Argentina
Water Resources Management
Policy Issues and Notes
THEMATIC ANNEXES
VOLUME III

February 25, 2000

Argentina Country Management Unit and
Environmentally and Socially Sustainable Development Network, and
Finance, Private Sector and Infrastructure
Latin America and the Caribbean Regional Office
INDEX

VOLUME III

(THEMATIC ANNEXES)

ANNEX A: CONSTITUTIONAL, LEGAL AND INSTITUTIONAL
FRAMEWORK OF WATER RESOURCES IN ARGENTINA

ANNEX B: ASPECTOS ECONÓMICOS Y FINANCIEROS

ANNEX C: GROUNDWATER

ANNEX D: IRRIGACIÓN EN ARGENTINA

ANNEX E-1: WATER QUALITY PROBLEMS IN THE PROVINCE OF
CÓRDOBA

ANNEX E-2: WATER QUALITY PROBLEMS IN THE PROVINCE OF
CATAMARCA

ANNEX E-3: WATER QUALITY PROBLEMS IN THE PROVINCE OF
TUCUMÁN

ANNEX E-4: WATER QUALITY PROBLEMS IN THE PROVINCE OF
MENDOZA

ANNEX F: WATER AND SANITATION SECTOR IN ARGENTINA. REVIEW
AND STRATEGY

ANNEX G. LECCIONES DE LAS EXPERIENCIAS INTERNACIONALES

ANNEX H. CONCEPT PAPER

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ANNEX A:

CONSTITUTIONAL, LEGAL AND INSTITUTIONAL
FRAMEWORK OF WATER RESOURCES IN
ARGENTINA

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I N D E X

I. PRESENTATION

II. EXECUTIVE SUMMARY

III. WATER SCHEME AT NATIONAL LEVEL
III.A. National Constitution
III.B. Ownership of Waters According to Civil Code
III.C. Complementary Legislation
III.D. Draft Laws Being Processed and Under Discussion

IV. INTERNATIONAL WATERS AND WATERSHEDS

V. PROVINCIAL WATER SCHEME
V.A. Provincial Constitutions
V.B. Provincial Water Legislation
V.C. Main Features
V.D. Groundwater

VI. INSTITUTIONAL ORGANIZATION FOR WATER RESOURCE
MANAGEMENT
VI.A. National Level
VI.A.1. Decentralized Agencies of the Secretariat of Natural Resources
VI.A.2. Other Agencies Dealing with Resource Management
VI.A.3. Federal Council on the Environment –COFEMA
VI.A.4. Federal Environmental Pact
VI.A.5. Institutional Structure for Collection and Consolidation of Water
Information
VI.B. Inter-jurisdictional Agencies
VI.B.1. Watershed Agencies
VI.B.2. Watershed Agencies in Process of Being Formed or Reactivated
VI.B.3. Regional Groundwater Center –CRAS
VI.C. Institutional Agencies at Provincial Level
VI.C.1. Institutional Structures for Watershed Management within
Provinces

VII. WATER RESOURCE AND LAND USE PLANNING.
VII.A. Resource Allocation
VII.B. Water Registry and Cadaster
VII.C. Use of Water Resources. Competition for Use
VII.D. Reuse of Wastewater

VIII. WATER ECONOMY
VIII.A. Tax Regulations and/or Tariffs for Use
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VIII.B. Enforcement of Legal Provisions
VIII.C. Recovery of Public Investment

IX. PRIVATE SECTOR PARTICIPATION IN RESOURCE MANAGEMENT.
IX.A. Drinking Water and Sewer Services
IX.B. Irrigation Infrastructure
IX.C. Concession for Construction of Public Works

X. POLLUTION AND WATER QUALITY REGULATIONS.
XA. Regulatory Gap
X.B. Pollution and Water Quality Provisions in the Province of Mendoza

XI. INSTITUTIONAL AND LEGAL STRUCTURE FOR CONFLICT
RESOLUTION.
XI.A. Inter-jurisdictional Conflicts
XI:B. Conflicts among Users

XII. PRINCIPAL INTERNATIONAL EXPERIENCE.

XIII. SYNTHESIS OF DIAGNOSTIC AND MAIN PROBLEMS DETECTED.
XIII.A. Absence of Regulatory Framework at National Level
XIII.B. Provincial Legislation lacking efficiency and effectiveness
XIII.C. Principle of Inherent Importance, Its Implication on Water
Economy
XIII.D. Weak Power by National Authority to Convene Provinces
XIII.E. Institutional Fragmentation and Manifest Weakness of Water
Authority at Provincial Level
XIII.F. Interprovincial Conflicts over Water Regulation
XIII.G. Water Management Separated from Land Use Planning and
from the Watershed as a Management Unit
XIII.H. Limited Participation by Users in Resource Management

XIV. CHALLENGES AND OPPORTUNITIES FOR REFORM.
XIV.A. Search for Consensus to Regulate Article 41 of the National
Constitution
XIV.B. Opportunity to Formulate Coherent, Homogenous Provincial
Legislation
XIV.C. Political Momentum, Opportunity to Favor Institutional
Rearrangement

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REFERENCES
APPENDIX #1. Organizational Structure of INA and Programs It Promotes
through its Specialized Centers
APPENDIX #2. Overview of Institutional Organization at Provincial Level
APPENDIX #3. Synthesis of Principal International Experiences
APPENDIX #4. Decrees Modifying the Structure of Water Resources
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CONSTITUTIONAL, LEGAL AND LEGAL FRAMEWORK OF
WATER RESOURCES IN ARGENTINA

I. PRESENTATION

II. EXECUTIVE SUMMARY

III. WATER SCHEME AT NATIONAL LEVEL

III.A NATIONAL CONSTITUTION

1. Argentina’s federal structure is based on the duties assigned in art. 121 of the
National Constitution, according to which “..provinces hold all power not
delegated to the Federal Government by this Constitution, and that which is
expressly reserved by special agreements at the time of its incorporation”. The
1994 constitutional reform added article 124 of the charter and expressly stated
that “provinces have original ownership of natural resources existing in their
territory.”

2. In other cases the nation’s authority is held in an inter-jurisdictional manner, as in
the case of navigable rivers, national routes, air that passes from one jurisdiction
to another and carries pollution, etc. Recent statements by the Supreme Court of
Justice, in decisions on controversies such as those arising between the Provinces
of Mendoza and La Pampa over the Atuel River, have established the principle
that the regulation of interprovincial rivers is promoted by means of treaties
between provinces, based on the powers conferred by article 125 of the
Constitution. By extension, the same principle should be applied to groundwater
when aquifers cross provincial borders.

3. The constitutional reform of 1994 in turn establishes in article 41 the right of all
inhabitants to enjoy a healthy environment suitable for human development and
productive activities, the safeguarding of environmental assets for present and
future generations, and the priority obligation of repairing environmental damage
according to legal regulations. In turn, it grants the nation the authority to “enact
rules that contain minimum prerequisites for protection, and [grants] provinces
[the authority] needed to complement them without altering local jurisdictions.”

4. According to the wording of article 41 of the Constitution it is clear that the
National Congress is authorized to enact a regulation the sets the minimum
prerequisites for protecion to be observed throughout the territory.

III.B Ownership of waters according to Civil Code
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5. From the distribution of powers stems the national Congress’s authority to
establish, through the Civil Code, essential principles regarding the legal
condition of waters: i) public ownership of surface and ground water (Article
2340); and ii) the principle of special concession for water use (articles 2341,
2342 and 2642).

III.C Complementary legislation
6. In addition to the Civil Code, Argentine Water Law includes the Commercial,
Mining and Penal Codes, federal laws on energy, navigation, transportation, Ports
System, Jurisdiction over Argentine Waters, Interprovincial Commerce,
Prevention of Ocean Pollution by hydrocarbons, and the Toxic Waste Scheme
(law 24.051).1 All of these regulations directly or indirectly contain provisions
regarding water resources.

7. Law 24.354 created the National System of Public Investments. Annex I to this
law incorporates the list of projects that should complement feasibility or
environmental impact studies.

8. In terms of fiscal incentives, the Tax Deferral law # 22.021 has had great
importance. It was modified under laws #22.702 and 22.973. Its scope of
enforcement includes the Provinces of San Juan, La Rioja, Catamarca and San
Luis. The tax to be deferred is the IVA and in turn it authorizes deducting taxes
on earnings, investments made in cattle farming (including wells and elements for
irrigation; drilling, pumps and motors to extract water).

9. The fiscal incentives mentioned above have attracted to the region a significant
number of companies established in non-irrigation areas and whose main source
of water supply is from aquifers.

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Most Provinces have ratified this law.
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III.D Draft Laws Being Processed and under Consultation
10. Article 41 of the National Constitution and its future regulation has been the
subject of debate, during which a number of projects on “Minimum prerequisites
for Environment Protection” have been generated, such as:

11. Soil Conservation, Prevention of and Fight against Desertification, filed in the
Chamber of Deputies on December 15, 1998. Among its guiding principles, this
project considers soil use according to suitability, an essential principle in the
management of watersheds which are proposed as the basic unit for natural
resource planning. Among other instruments to achieve compliance with
objectives is Environmental Planning, which includes Land Use Planning.

12. In turn, the project contemplates the establishment of a national information,
monitoring and early warning system that concentrates physical, biological,
economic, social and legal data concerning environmental resources affected by
or vulnerable to the processes of desertification.

13. Minimum Environmental Budget Scheme for Water Protection, in
consultation with the Secretariat of Natural Resources. The project establishes
generic categories for streams and bodies of water, and their allocation to certain
uses according to their natural conditions and aptitudes. For each category, the
regulation of the law shall establish environmental quality standards.

14. The project makes the national authority responsible for the creation of a National
Network for Registries of Sources of flows to bodies and streams of water, to
which provincial and local authorities are obliged to provide information.

15. National System for Reduction of Water Pollution. The project’s objective is
to reduce pollution levels in water resources throughout the country. For this
purpose, it establishes Pollution Reduction Titles (TRC) which are translated into
temporary authorizations to dump waste into bodies of water.

16. TRCs should be issued by the provincial authority in the case of provincial
watersheds and by interprovincial agencies in the case of watersheds shared by
two or more provinces. These same authorities must determine the polluting
substances, classify them and establish the equivalency unit.

17. TRCs are proposed for eight (8) years, with annual reduction percentage levels
from the first year of issuance, when a 7% reduction must be shown, to 15% by
the end of the eighth year. TRCs are transferable, and those that reach
decontamination levels higher than those established may transfer the
proportionate part to watersheds that issue levels higher than those agreed.

18. The project contemplates the creation of the National Program for
Environmental Technology Promotion comprised of national and provincial
authorities and others from the city of Buenos Aires. Its objective is to research
and develop new technologies on decontamination. At the provincial level,
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Special Commissions are created in each watershed, comprised of authorities,
civil society, and NGOs whose objective is to study and protect the environment.

19. 95% of economic resources generated by TRCs will be allocated to the National
Program for Environmental Technology Promotion and 5% to relevant authorities
at the provincial or inter-jurisdictional level.

20. Scheme for Preventing and Fighting Pollution of Maritime, River, Lake and
Port Waters. Filed with the Senate’s Water Resources Commission in April
1999. The project regulates and prevents prevention from ships or naval artifacts,
oil exploration and drilling platforms.

IV. INTERNATIONAL WATERS AND WATERSHEDS

21. On this matter the national government has authority, through the Ministry of
Foreign Relations, Secretariat of Latin American Relations and Affairs, which is
in charge of coordinating watershed issues in the Plate, Uruguay, Paraná,
Bermejo, Pilcomayo Rivers and other watersheds considered to be international.

22. For the enforcement of international treaties on this subject various agencies have
been created to deal with the coordination of one watershed’s efforts (Inter-
Governmental Coordinating Committee for the River Plate Watershed); with the
administration of international sections of rivers (River Plate Administration
Commission, Uruguay River Administration); with the design, construction,
operation and maintenance of large bi-national water operations (Yacyretá
Binational Agency, Salto Grande Joint Technical Commission, Joint Argentine-
Paraguayan Commission on the Paraná River); or with inventory and planning
tasks (Argentine-Chilean Integration Commission).

V. PROVINCIAL WATER SCHEME
8.4.1 V.A Provincial Constitutions
23. The right to a healthy environment has constitutional priority in various provincial
constitutions, most of which contain generic references to the issue of the
environment and/or natural resources and some of them (Provinces of Jujuy, La
Rioja, Mendoza, Salta and San Juan) especially incorporate the water scheme and
grant constitutional rank to the principle of water’s inherent importance to land.
This principle of legal tradition in Argentina is incorporated by all provinces
(except San Luís) in their water laws. This implies:

a) Water rights are linked to land, and property rights are inseparable from
them.
b) They may not be seized or expropriated unless with the land for which
they were granted.
c) They may not be the subject of contracts but rather as an integral part of
land for which they were granted; and
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