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

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 2 ANNEX A: CONSTITUTIONAL, LEGAL AND INSTITUTIONAL FRAMEWORK OF WATER RESOURCES IN ARGENTINA 3 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 4 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 5 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 6 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 7 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. 1 Most Provinces have ratified this law. 8 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

Load more