1. Introduction: Legal Geographies in New Water Technologies
“Desalination has been identified as a secure source of water, which guarantees supply stability, avoiding the variability that natural resources present and the shortage in the basins of the northside of the country. For that reason, desalinated water is going to be used in those regions (…)”.
—Chilean National Strategy of Water Resources [1
] (p. 35)
The use of desalination is often proposed as a solution for alleviating drinking water shortages associated with climate change, demographic growth, and attendant water scarcities [2
]. These socio-environmental needs, coupled with a reduction of the economic cost (technological advances), are supporting the incremental expansion of desalination in many regions of the globe—in the early 1990s, less than 2500 plants were operating and currently there are more than 15,000 [4
]. However, despite the promises associated with desalination, critical scholars are observing important socio-environmental drawbacks, such as brine disposal in the marine environment (hypersaline concentrate) and CO2
emissions associated with the energy consumption required for processing, as well as pumping water from sea level to high elevations [5
]. Regarding social impacts, studies are showing inequities related to use and management of desalinated water e.g., often linked with price increases, and uneven water allocation, as well as changes in daily water practices [7
Subsequent work moved beyond examining the effects of desalination, focusing more broadly on hydro-politics. For instance, contributions have highlighted how the technology is proposed for solving transboundary contestations and reducing interdependencies and asymmetrical relations between neighboring countries (e.g., Israel-Jordan, Singapore-Malaysia and United States of America-Mexico in the Colorado River) [9
]. Such analyses have been critical to highlight environmental and spatial-political contestations associated with desalination promises, showing ways that water technologies play an agential role in shifting nature-society relations. Examples have highlighted such shifts in relation to the privatization of desalination (plants and ocean water), water commodification, and shifting configurations of water governance [2
]. Within this body of work, it has been argued that desalination technologies have essentially reversed water flows (traditionally gravity sends water from mountain regions down to coastal areas and urban centers—a pathway that is inverted with desalination). As such, desalination technologies are shifting the socio, environmental, political and economic relations of water [15
]. While these insights have been important, the coupling of desalination technologies and shifting water flows with legal spheres has received only cursory treatment, mainly from the perspective of property rights [11
]. This article aims to expand the understanding of these linkages—offering a legal geographic analysis to broaden and deepen insights into how desalination is shifting hydro-geographies, water uses, and mining operations in contemporary Chile.
Anticipating the argument that water governance can be shaped by technology, as well as by legal frameworks and knowledges, the concept of the waterscape offers a useful starting point (Budds and Hinojosa [16
]). These authors engage the waterscape concept to expand the boundaries of traditional spatial scales and the water’s materiality (beyond the watershed), focusing attention on how water is co-produced by social power relations, expressed through e.g., infrastructure, institutions, rights, discourses, legal arenas and technologies. Closely tied with the notion of waterscapes is the broader hydro-social perspective–which involves understanding water flows as being co-produced by socio-economic power relations and technology/ water infrastructure [17
]. This framework has become a necessary reference for commentators aiming to describe the relationship between water and society as mutually constitutive [18
]. Among other linked contributions, political ecologists have worked to research, explicate, and analyze the ways in which customary patterns, forms of resistance, local knowledge and power imbalances are shaping water cycles [18
]. Building upon this framework, legal geographers have analyzed water laws to better understand socio-environmental and socio-economic injustices produced through diverse legal discourses and the multiple overlapping legal frameworks that affect hydro-social systems (covering gaps, ambiguities and the pluralistic character of law) [19
]. Moreover, critical legal geographers have recently argued that our current legal instruments are often not well adapted to shifting and emergent nature-society dynamics, e.g., artificial water and water requirements for non-humans (animal and plants) [20
]. This work offers an analysis of power imbalances by considering the imposition of legal meanings and discourses over humans and non-humans [22
]. Indeed, access to legal knowledge is often a tool, and one that only certain entities might have access, at the service of spatial-political interventions. The advantages of analyzing legal geographies and nature-society dynamics have been illustrated through the study of natural resources, such as oil, gas and water [19
]. Such work has shed light on the multiscalar legal and political geographies, evidencing its effects on environmental governance and ecosystems.
Where does desalination fit in these debates? Despite the rapidly increasing development of desalination in recent years, this is not a new technology. March [30
] has traced this technology back in time to sailing vessels employing solar distillation for long expeditions. Later, in 1791, he discusses that Thomas Jefferson reported advances in producing fresh water, and in 1872 there is documentation of the first solar distillation plant installed in Latin America, Chile. This expanding technology, however, is emerging as ever more important in the water landscape of different regions of the globe. Important for our purposes, it is also being implemented in contexts where the legal, institutional, economic and political frameworks are ambiguous or even wholly undefined. Legal scholars, as well as critical geographers, have stressed such ambiguities, including those pertaining to water rights over the seas (if desalinated water is no longer seawater, does it cease to be public property?) and diverse water management strategies, e.g., privatization of desalination facilities and the water produced [2
Our analysis offers insights as to how these ambiguities are being exploited in ways that allow for companies (those that produce desalinated water) to continue the use of mountain water. They do so through complex articulation with water markets in Chile [33
], in ways that serve to shape new water geographies and associated socio-environmental concerns. Related to our intervention here, Rojas and Delpiano [34
] (p. 123) have argued that in the Chilean case “there is an area or legal space of desalination, that has been replaced by sectorial regulations, which is generating a patchwork, rather than a legal order”. For our purposes, it is important that legal loopholes exist notably for companies operating desalination plants, while having simultaneous and parallel water rights/uses granted for surface water and/or groundwater exploitation.
To advance discussions regarding specific political-legal formations that sustain desalination, and how these socio-legal couplings are reconfiguring hydro-geographies in Chile, we explore these concerns in two dimensions that have not yet been considered by desalination-legal studies: (1) how desalination intersects with existing water rights/uses, and (2) how desalinated water is considered to be equivalent and therefore a substitute for freshwater sources due to its particular characteristics (produced at any quantity and quality). Insights from legal documents and two legal cases are used: Sanitation Service Superintendent v. Council for Transparency 9347–2011; Aguas Antofagasta v. Council for Transparency 9368–2011 (they are companion cases and were litigated together); and, Environmental Superintendent v. Candelaria mining company 140–2016. The case study is important because Chile is likely to become the first country in which desalinated water use will be mandatory for the mining industry—in cases where the fresh water consumption exceeds a rate of 150 liters per second. At the present, the water consumption for the mining sector is composed of direct seawater/desalination; recirculated water, and; surface water and groundwater—either through water rights permits or purchases from third parties (i.e., municipalities, irrigators, water supply companies) [35
Both projects analyzed in this paper, although differing in many ways (Aguas Antofagasta is the water supply company and Candelaria is a mining company), have some key similarities. For instance, both are not only located in mining territories, but also have water contracts with the mining sector. Water claims against both companies were raised by local organizations (social and public sector), but then, for different reasons, these legal processes were continued by organizations operating at national scales (NGOs and public sector). More importantly, legal discourses in both cases have been constructed in terms of justification for ongoing consumption of mountain aquifers. The analysis is not presented as a comparative study, but is intended to explain the political characteristics of both contexts in order to explore the complex and shifting socio-legal terrain and its interactions with the hydro-geographies of mining, while highlighting water access and quality in different parts of the country.
The outline of the article is as follows: The next section discusses how critical desalination studies can be enriched by engaging with legal geography literature, in order to illuminate gaps and ambiguities of the legal systems and broader legal-political frameworks that might have important implications for nature-society relations. After presenting the methodology, we examine the mining-water nexus in Chile, with special attention to the case study of two desalination plants operating in the Atacama and Antofagasta Regions. The following section explores the gaps of the water legal framework in Chile, both in terms of the desalination permitting process and when desalination intersects with the current water legal system (surface water and groundwater). The paper then turns to discussions of the understanding of new technologies in the legal water system. In the final remarks it is argued that new water technologies are still inserted into a legal system that has failed to recognized how desalination can shape and be shaped by socio-natural dynamics. In particular, failure to distinguish desalinated water from other freshwater sources results in gaps and loopholes which are currently being exploited by the mining industry.
2. Socio-Legal Terrain in the Advance of Desalination
Desalination, as serving wider political agendas (e.g., by its coupling with economic development and socio-natural pressures) has recently been attracting research interest by critical scholars in geography and allied disciplines [2
]. Such analyses served to highlight that desalination is proposed as a ‘fix’ for solving contestations that are threatening water governance (environmental and spatial-political) over different scalar relations (regional/national and transnational) [2
]. By tracing these hydro-social relations, some scholars have also observed that political interactions over water have been reinforced by mutual collaborations through financial agreements, but also by leaving behind contestations and dependency on water transfers [9
]. However, changes in power distribution are observed as shaping water governance and the privatization of oceans [9
In these analyses, some scholars have reflected on the intersection of desalination’s characteristics with legal and economic frameworks. One of the predominant assumptions is that certain pillars sustaining desalination (legal, environmental and economic, etc.), have contentious characteristics [2
]. For example in Spain, where desalination was proposed as a ‘fix’ for urban socio-natural conflicts, it has been argued that desalination is unifying multiple and, sometimes, opposite interests, while at the same time highlighting major concerns, such as: the hegemonic role influencing developmental logics (tourism and agriculture), notions pertaining to legal rights over the seas (the free character of pumping seawater) and the multi-scalar strategies for financing desalination [2
]. Some of these characteristics were early referred by Meerganz von Medeazza [31
] as socially-induced factors, different from direct (i.e., brine and energy), but equally powerful in terms of their unplanned impacts from desalination. This means that in addition to the immediate impacts from the technology’s uses, there are other implications derived from the ways that society made use of the technology and the water produced [31
As a result of the combination of undefined ‘techno-legal’ frameworks and ‘techno-political’ characteristics (colocation with infrastructures that increase desalination profit), Williams [11
] identifies opportunities for private capital to (re)configure the sphere of water governance. The author demonstrates that legalities are intersecting with desalination in three areas: (1) industrial land zoning and land rights, in terms of suitable locations for desalination and rights to extract water, (2) permitting processes for desalination infrastructure, and (3) new Public-Private Partnership laws for public utilities management. This approach is built on the idea that social relations are flowing through technological solutions, which ambiguous conditions (legal-political) have enabled, in order to transform water into a ‘new’ cooperative commodity [11
A legal perspective pushes for consideration beyond conventional preoccupations of political ecologists (power, politics, inequities, ways of knowing and scale). These concerns are important, yet the analysis of power imbalances facilitated and created by legal-political maneuvers offers a new perspective for the understanding of socio-environmental-economic injustices. As Andrews and McCarthy [27
] (p. 9) have argued “a political ecology that seeks to examine the full range of contestation over human–environment relationships may, in some contexts, need to devote more attention to the formal political and policy arena and specifically legal geographies”. Indeed, legal geography offers to political ecology an important understanding of natural-social boundaries as defined by legal institutions and practices [20
]. While legal knowledge ruling desalination has been covered mainly from water rights over the seas, notably, what appears to be less developed are the gaps and ambiguities of this legal system in accounting for and distinguishing desalination from other water types/sources. This is particularly important in cases where uses of desalination are intersecting with other water supply sources (mountain water, sewage water and recycled water), and where there is no effort to distinguish water coming from different sources. As we explore in Chile, these legal loopholes, provide opportunities for ongoing exploitation and reconfigured hydro-geographies of the mining industry.
As such, we engage insights from Budds and Hinojosa [16
] (p. 129) particularly emphasis whereby “supply-led technical solutions, proposed and constructed for mining, can significantly modify hydrological regimes and patterns and rules of access”. We contend that changes in hydro-social cycles stem from, what we call, the legal coupling. We define this as the insertion of one legal framework into another in order to fill gaps (e.g., loopholes and unclear concepts) for the facilitation of legal-spatial outcomes. This is only one of many ways in which legal and regulatory structures can be changed, deployed and reinforced. Our work suggests that, in desalination, this is enabled by its intersection with broader water legal systems. We understand ‘water legal system’ as comprising Water Code and Sanitation Law. In doing so, the paper not only adds new dimensions to the discussions of desalination’s legal features, but also, to the longstanding debate on ‘modern water’, wherein water is reduced to its chemical composition H2
O and the social contexts are abstracted [37
Legal institutions and practices can reveal new definitions of water and, more broadly, approaches to water governance [38
]. As such, “With water management being a globally contentious issue, understanding the various interpretations of water underpinning policy could facilitate a critical examination of the assumptions held by policy makers and the likely material outcomes for diverse stakeholders within and across jurisdictions” [38
] (p. 170). Here, our emphasis is that legal interpretations of artificial water might expand the understanding of current socio-environmental outcomes. Defining desalinated water, from the perspectives of the public trust doctrine legal principle, and international legislation aiming to protect marine environmental impacts, became a key issue with legal scholars [32
]. Examples of international norms are the United Nations Convention on the Law of the Sea (UNCLOS) and soft laws (the Montreal Guidelines, Agenda 21 and the Washington Declaration). By looking beyond how law responds to technologies in international/national commons, and instead to how socio-legal discourses can make, un-make and re-make spatial forms with corresponding legal spaces and vice-versa [26
], the study aims to shed light on the complex socio-spatial order, of formal and informal legal instruments, as a product of social power arrangements [26
]. In this sense, we situate our study in legal geography, where urban political ecology has been useful as a means to understand that water policies, environmental needs and social organizations are combining, which represents a (re)politicization of urban waterscapes that creates uneven socio-ecological conditions [12
Focusing on water governance, legal geographer scholars have shown how local communities are challenging national legalities through communal norms of water management and local knowledge [21
]. This is identified as producing plural hydro-social territories [21
]. Recently, a less anthropogenic form of water governance is captured by reviewing court cases and the rights of nature ‘rivers’ to legal defense in court (rights recognized in many Constitutions e.g., Ecuador, Bolivia and Mexico City) [25
]. Water requirements for non-humans (animal and plants) have also been proposed through a revision of watershed-scale drought plans, wherein ecological impacts were disclosed as primarily acknowledging impacts to fish [24
]. Within this body of work, legal discourses have been highlighted by their particular power in the production of spaces: “The legal process demarcates the boundaries of water politics because the law determines who holds legitimate power to organize, distribute, and manage a region’s physical water resources” [19
] (p. 615). This means that legal discourses have additional power because the state has participated in their validation and, in its protection, has the force of law behind it [20
]. Interestingly though, while these studies are quick to point out that these interactions are useful in gaining a better understanding of socio-environmental injustices, desalination technologies have scarcely been mentioned in water-society relations. This paper bridges legal geography with critical geography on desalination technologies. In doing so, it is suggested that it is firstly crucial to understand the existing water legal framework; to do so we use the case of Chile. In the next section we present the methodology used and describe the case study.
4. The Mining-Water Nexus in Chile: Water and More Water ‘Desalination’ for the Mining Sector
Potable water supply companies and mining industries being under the same ownership is not a new story in the mining-water nexus in Chile. During 1878, Tomas North ‘the saltpeter king’ owned major mining sites and the potable water company in the Iquique Region [46
]. Later on (1904), the British investment was expanded to ‘The Antofagasta and Bolivia Rail Way Company’ and acquired the water supply company in Antofagasta. Back then water was already such a contested resource (between industries and human uses), that even the price of the water personally consumed by miners was deducted from their salaries [46
The first solar distillation plant for mining uses—Las Salinas mine site (1872)—was also serving as a water provider for their employees. Later, other mining companies started utilizing seawater in their operations: Compañía Minera Tocopilla in 1987 and desalination plant ‘Michilla’ from Antofagasta Minerals in 1991 [47
]. Since 2009, water used in copper mining has been increasingly obtained from ocean water [48
]. Here, the geographical characteristic (high altitudes where mining sites are located) and distance from the coast are directly influencing the cost of desalinated water, therefore, while removing salt from seawater represents 51% (average 1.9 US$
) of the total cost, the energy consumed by the pumping system represents 49% (2.6 US$
]. A different cost is associated with the desalination plant capital investment and volume of water treated (see Table 1
). By numbers, while the cost of desalinated water represents 5.1 US$
, freshwater is 1.6 US$
]. As a consequence, strategies for reducing pumping cost/energy have been explored. For example, the SWAP model (trading water sources)—which in essence means desalinated water for coastal cities and mountain water for mining—is proposed in many public documents, such as ‘Water management and mining in Chile 2007’ by the Chilean Copper Commission-COCHILCO, ‘From copper to innovation: a technology roadmap 2015–2035’ by Fundacion Chile, and even in declarations from public authorities (mining ministry) [50
]. In other words, the cost of desalination is not connected with desalinated water users, but instead with geography and distance to the coast –close to the coast would be around 1 US$
and in high terrain this increases to between 8 US$
and 10 US$
]. The total water consumption in the mining sector is distributed in 4 areas, which in 2017 represented: concentrator plant (67%), hydrometallurgy (14%), smelting and refinery (4%) and others (e.g., services and mine site) (15%) [48
The importance of mining in the Chilean economy has been raised through statements such as ‘the Chilean Miracle’ and ‘the Chilean Wage’ [51
]. In 2016, mining contributed at the national level with 11.2% to the GDP—while the average over the las 10 years has been 14.9% [52
]. At the regional level, in the same year, it represented 47% for Antofagasta and 28% for the Atacama Region. In the Regional Strategies from both, Antofagasta (ERD 2009–2020) and Atacama (ERD 2007–2017), water scarcity is recognized, next to the importance of the mining sector and the encouragement of using desalinated water in place of freshwater.
In addition to water scarcity, and the law aiming to make mandatory the use of desalination for mining purposes, local communities are currently demanding desalination projects as partial compensation or as part of corporate social responsibility efforts e.g., Salamanca community with the Pelambres mining company [53
]. The company (owned by Antofagasta plc. group) is planning to build a desalination plant to supply water for both mining and human consumption in the Salamanca community, Coquimbo Region. As we can see, this is the same configuration (mining companies adjusting their interest to potable water service) that arose years earlier when Saltpeter was extracted, and is the same that Aguas Antofagasta experienced, which in 2002 was part of the same Antofagasta plc. In 2015 the water supply company was sold to Colombian investment group EPM (Empresas Publicas de Medellin
4.1. Aguas Antofagasta: Water Supply Company in the Antofagasta Region
Aguas Antofagasta (hereafter A.A.) is the water supplier company (responsible for everything from providing potable water through sanitation services) in the Antofagasta Region. The company acquired the water concession in 2003 through a 30-year contract from ex ESSAN S.A. (state-led company) –under which management, operation and investment are in the private arena. Aside from natural water sources, the company operates desalination plants. Mountain water is captured from the intersection of the Loa and San Pedro Rivers. According to DGA [54
], the volume of water authorized for mountain water extractions for this company are: Lequena (550 L/s), Toconce (470 L/s) and Quinchamale (300 L/s). The Loa River’s waters have been recognized by the WHO (World Health Organization) for having high concentration of arsenic, and because of this desalination is presented as an alternative for human consumption [8
]. Although, since 1978 this situation has improved with water treatment plants [46
According to the Environmental Impact System Evaluation-SEIA [55
] the company has four desalination plants approved for providing potable water, although one of them, Aguas de Mar Antofagasta, is not yet functioning (Table 1
). The A.A. website provides information about which communities are receiving desalinated water (Antofagasta, Taltal and Mejillones) and which ones are receiving mountain water, mainly from the Loa River (Antofagasta, Mejillones, Calama and Tocopilla) (see Figure 1
). As was identified by Fragkou [8
] (p. 77) “(this) is creating three qualitatively different parallel metabolisms of tap water within the same region (…) one part of the city is supplied with freshwater, another with desalinated water, and a third part with a mixture of these two”.
In 2003, A.A. signed a commercial agreement with the mining company Doña Inés de Collahuasi (located in the Tarapacá Region-Northern from Antofagasta), which included water transfers from the Lequena sector -covering 500 L/s (see Figure 1
). In December 2011, the project started its Environmental Impact Assessment (EIA) in order to get approvals for water transfers. This has led to social mobilizations (combining NGOs and local government representatives) claiming that those waters rights’ uses were granted for providing potable water—ecological impacts and water as a common resource were highlighted as well [56
]. Indeed, the deputy for the region, has stated: “In the region, and province, there is water scarcity, water sources are exhausted, therefore I think that it is absolutely inadequate, inconvenient and risky to trade potable water with a mining company” [57
] (p. 1).
Despite water transfers to Collahuasi being canceled, similar freshwater contracts are benefiting several other mining companies, again, in circumstances where those waters where adjudicated to provide potable water services [56
]—mining sites involved in those contracts are depicted in Figure 1
. Two of the companies involved in the water contracts were under the same ownership as A.A.—until 2015 they belonged to the Antofagasta plc. group (El Tesoro and Esperanza) [56
]. This means that the increasing water availability through desalination is strategically coupling with the mining industry, through allowing the continuity and allocation of freshwater for mining uses. As we show through our case study, water supply companies are legally authorized to sell untreated water to private sectors, with the only requirement being to guarantee water provision for human consumption in the concession area —these contracts are endorsed by the Sanitation Service Law. Alongside this, desalinated water is allocated for human uses, while freshwater is freed for continued consumption for mining purposes.
The water market in the region was identified by A.A. as composed of different actors, “on the one hand, mining companies, which are operating both as water consumers and suppliers through desalinated water or seawater without treatment and, on the other hand, water rights’ holders, either by selling water rights or supplying freshwater to mining through water contracts. Finally, companies which operate sanitary services, such as Aguas Antofagasta, are participating either by selling freshwater from continental water sources, desalinated water or waste water” [58
] (p. 6). Thus, the role of the mining industry is pivotal in framing different water uses and access in the region. Here, the state also plays an important role in deregulating markets, or even opening new venues, e.g., through water swaps.
The demand of public access to the contracts that A.A. signed with mining companies (data of water volumes and water sources), triggered the two companion legal cases under study. Main arguments used by A.A. for the denial of sharing those contracts were: (1) the right to develop private contracts with untreated water (according to the Sanitation Services Law), (2) the poor quality of freshwater (as compared to desalinated), which allows it to have contracts for private water provisions, and (3) the non-jurisdiction of the Sanitation Service Superintendence (hereafter SISS) in private contracts. These documents offer insights into the ambiguities of desalination and the different arguments used to maintain underground water rights’ uses, highlighting the water legal framework’s failure in accounting for this new technology.
In the final resolution, the Appeal Court determined that the content of these water contracts must be made open to the public [59
]. This decision, as was mentioned by CIPER [60
] (p. 1) is a “milestone in terms of transparency…opens the door for the requirement of access to any document from private companies operating in a regulated sector by the state. In other words, it expands the public boundary and citizen oversight”. While this process is a successful story, the ambiguities of desalination remain a blurry arena in terms of its intersection with freshwater sources. The case of A.A., having simultaneous freshwater right uses and desalinated water permits, can provide insights into new techno-legal formations sustaining desalination and how this technology is shaping water governance in mining territories. Similar formations are experienced when mining companies have both water supply sources, as is the case of Candelaria.
4.2. Candelaria Mining in the Atacama Region
Candelaria is a Canadian mining company operating in the Atacama Region since 1995. The project is located about 20 km south of Copiapó city and comprises an open pit and underground mine extracting copper ore. The company also operates a desalination plant, which obtained its Environmental Qualification Resolution (RCA) in 2011 [61
] (see Figure 2
). In addition to this water source, Candelaria has been granted multiple underground water rights, both in Tierra Amarilla and Copiapó [62
]. According to the Environmental Superintendent, the limit authorized for freshwater extractions is 300 L/s [63
The Copiapó River watershed has been recognized for having, in general, a good quality—although the mining industry have influenced it with the presence of copper, iron and chromium [64
]. The Copiapó and Huasco rivers are the main sources of potable water in the region and both are experiencing water deficits, affecting four communities out of the nine in the region (Copiapó, Tierra Amarilla, Caldera and Chañaral) [65
]. In this vein, desalination represents a well-accepted alternative for the reduction of freshwater consumption.
Yet, in January 2014, the Environmental Tribunal received a complaint from the Municipality of Tierra Amarilla, against Candelaria, over environmental damage. Few days later, this complaint was retracted by the same lawyers acting on behalf of the Municipality. According to city councilors, the reason for this was the signing of a multimillion-dollar agreement, between the company and the Municipality [66
]. Despite this agreement, the Environmental Superintendent continued with a sanction process against Candelaria. One of the core arguments in this sanction was the company’s non-reduction of natural freshwater consumption [63
]. By numbers, over a span of 32 months, Candelaria was selling water to other mining companies (Minosal and CMP), while in 16 of those months water was sold at a rate of more than 50% of Candelaria’s freshwater extraction volume -this includes 2013–2014 years, when the desalination plant was operational. Additionally, during the same time frame (years 2013–2014) their freshwater consumption limit was exceeded several times, by 18 L/s to 45 L/s [63
The ruling references the different water strategies adopted by Candelaria—desalinated, recycled water and sewage water (purchase from the potable water supply company-Aguas Chañar S.A.) [67
]. However, the court emphasizes that the company, in the EIA permit approval, acquired the formal commitment of diminishing water extractions (in the Copiapó River watershed) proportional to newly incorporated water sources [67
]. The court also referred to Candelaria’s water trading: “water deliveries to third parties, without considering its source, have evidenced that, during the months that water deliveries were produced, Candelaria mining had more water available than was needed for its process” [63
] (p. 81). In other words, desalination is increasing water sources available for mining use, rather than reducing freshwater consumptions.
The court’s final decision was to fine Candelaria with approximately US$
4,254,473.613, confirming the excessive use and non-reduction of freshwater consumption—considering the alternative water sources integrated in their mining operation [67
]. However, similar to the previous case (Aguas Antofagasta), the court does not further elaborate on the gaps and ambiguities of the current water legal systems in accounting for new water technologies and how legal frameworks might be used to continue with freshwater consumptions. The next section explores the legal loopholes that are allowing the pursuit of legal-coupling (desalination with broader water legal systems) in order to sustain their freshwater consumption and uses in Chile.
5. Water Legal Framework in Chile
“Our legal framework has a lack of regulation (desalination), today we use maritime concessions, but they have a different purpose (…) Water scarcity and climate change will place Chile at a crossroads.”
—Alfonso De Urresti, Senator [68
] (p. 1) (italics add by author)
Desalination projects are not new in Chile. However, with new water policies and legal frameworks aiming to confront water scarcity, this technology is likely to increase in the country. By the year 2015, Chile had 20 desalination plants already operating (11 in the mining sector, 8 for potable water and 1 for industrial use) and there are at least other 12 plants planned [35
]. Nevertheless, to date, these projects have no clear or prescribed permitting process for desalination infrastructure [34
]. Some gaps in the new water framework are identified by the Organization for Economic Cooperation and Development (OECD) [71
] as: a) no current land-use planning strategy in relation to the coastline, and b) lack of regulation and institutions to oversee the management and use of the water produced through desalination technologies, etc. As this paper contends, additional gaps appear by paying attention to the intersection of desalination with the current water legal system. Firstly, it is not clear how desalination releases previously granted water rights/uses (surface water and groundwater), nor the final use that would be destined for those waters (e.g., ecosystem, human consumption, industries), and secondly, it is ambiguous how desalination water flows would be accounted for [72
]. A core question here is: does desalinated water become groundwater, when its uses involve, for example, filling aquifers or reservoirs? [34
] (p. 125).
Ongoing legislative changes, in countries such as Spain, are trying to cover some of these gaps by declaring desalinated water as a public property (since 2005), while in the US Supreme Court it is considered under the ‘public goods inalienability’ principle [74
]. Nevertheless, for critical geographers what remains in question is the management and use of desalination plants and the water produced. This practice has been open to contracts or licenses and, more recently, to forms of Public-Private Partnership e.g., in California and Singapore [10
In Chile, legislative ambiguities and gaps have been somewhat addressed through broad legislation. For example, the right to use seawater has been coupled with maritime concessions — The Maritime Concessions Law DLF 340/1960 and the regulation 002/2005— which were created for non-consumptives uses of seawater (e.g., aquiculture), but not for consumptive uses (either of the natural seawater or the derived desalinated water) [34
]. In other words, desalination projects are coupling their approvals with procedures stablished for seawater uses that were not framed in terms of technological uses and, more specially, for water extractions. Complementary regulation, although not strictly connected with desalination, is also used as a guideline for these projects e.g., coastline use and zoning (Inter-communal Regulatory Plan for coastline) and environmental permits (EIA) [72
In the attempt to fix these gaps multiple draft bills are being debated at the Chilean Congress. Besides the draft bill that proposes to regulate desalinated water uses for mining projects [75
] there are another two main proposals for this technology: (1) granting to the State the authorization for the construction and management of desalination plants [76
] and, (2) regulating seawater uses for desalination [72
]. From these documents, and the current legal system, key issues are inferred in desalination from the legal community (e.g., senators, deputies and lawyers). Here we identified three central contradictions.
If desalinated water is no longer seawater, does it cease to be public property? The process of producing artificial water assumed as an extension of maritime concessions, has come with gaps and ambiguities, and one of them refers to ownership [72
]. Referring to this, the senator Galilea mentions: “desalinated water through an industrial process isn’t natural water, it is the outcome of an industrial process, and therefore telling a company, which is investing, that this is a national good of public interest, is a conceptual mistake” [68
] (p. 1).
Further discussions over ownership are referring to water management. This means that even if it is agreed that seawater is in the public domain [34
], due to its management, it is becoming amenable to private ownership (e.g., public-private partnerships) [72
]. As Swyngedouw and Williams [12
] have argued, the free pumping of seawater has already opened debates in terms of legal rights over the seas, and with privatization of the oceans this discussion is likely to increase.
5.2. Desalination Uses and Water Flows
“There is no public definition in terms of guidance and priorities for sea water uses (…)” [72
] (p. 7). This declaration, made by a group of Senators, seeks to avoid the replication of current mistakes in the surface water and groundwater regimes, and instead prioritize water for human consumption and aquifer replenishment [72
]. Furthermore, this new approach is also highlighting the need for a direct correlation between the purpose that was intended in the desalinated water concession, and the actual final use of that water [72
]. This is important in cases where desalination is approved for mining or energy services but, at the same time, is delivered/diverted for communities’ uses (see for example Compania Minera del Pacifico selling water to Caserones).
In addition to desalination uses, new concerns are raised over water flows: “To date there is a lack of regulation for water flows extraction and characteristics for specific uses” [34
] (p. 120). In some cases, this is read as an economic imbalance between seawater users and surface water and groundwater users [34
]. A different reading is expressed by Senator Muñoz, “if there is seawater in excess (that’s why we emphasize establishing quantity and purpose), it may happen that free access to water results in that water being sold back to the state for human consumption (…)” [68
] (p. 1).
5.3. Desalination and Granted Water Rights’ Uses
Desalination is often bound to the idea of restricting legal water rights’ uses and releasing water for human consumption and the ecosystem [72
]. Nevertheless, the draft bill that regulates desalinated water for mining uses has ambiguities on how it would reach that goal [73
]. The legal framework does not specify how desalinated water might be separated from the current water permits granted for surface water and groundwater uses [73
]. Additional concerns refer to how desalination would release water right’s uses and the final use that would be given to those waters [73
]. In summary, there is no clear legal guidance in terms of distinguishing freshwater from desalinated water in scenarios where companies are simultaneously using both water sources. The draft bill reforming the Water Code attempts to address some of these issues by establishing that water for human consumption will have priority over other water right’ uses (see draft bill 7543–12). Beyond these existing assessments, we identified in our case studies new ambiguities emerging in terms of how desalination reaches parity with other water supply sources.
In the following section, we show that legal gaps in the intersection of desalination with freshwater sources, have been addressed by a legal-coupling with the Water Code and Sanitation Services Law—with the main purpose of enabling the maintenance of groundwater consumption in support of the mining sector. Given that there is a move to make desalination mandatory, our case studies might offer insights about the role of desalination in mining territories.
The use of desalination is dramatically increasing worldwide [4
]. Nevertheless, its legal and political dimensions have, only recently, begun to be evaluated, and concerns about ownership and management are attracting much interest [2
]. In particular, while the technology is not new, it articulates uneasily with existing social and political frameworks. This in turn leads to legal loopholes, which are exploited by the ways in which society accesses legal knowledge and makes use of both the technology and the water produced. Legal gaps have been maneuvered through, for example, in both the USA and Singapore with new Public-Private Partnership laws for public utilities management, which in turn are offering opportunities for private capital to (re)configure the sphere of water governance [10
]. As we see from the Chilean experience, legal loopholes are opening opportunities for the continuity of fresh water consumption to benefit the mining industry. As is shown in this paper, additional dimensions for the discussion of desalination’s legal gaps are characterized by: (1) how desalination alters existing and parallel water rights/uses, and (2) how desalination reaches parity with the characteristics (quantity and quality) of other water supply sources. The particular attributes of desalination, being able to produce water at any quantity and quality, must be taken into account in any critical analysis of the technology [11
]. In this way, these cases build on existing critical studies in desalination, which have demonstrated that political formations sustaining the ‘desalination factory’ [11
] (p. 35) are permeating in the logics of economic development and privatization of nature [2
The case of desalination plants operating in mining regions in Chile highlights the fact that desalination (quantity and quality) is changing perspectives on other water supply sources. Legal geography pushes for consideration of how desalination legal frameworks intersect with the extant legal and political system in ways that provide a tool for spatial interventions. In this context, the articulation of this technology with existing water laws and legal practices, what we defined as legal-coupling, enables the continued use and consumption of mountain water in support of mining development. We note that in some cases, companies might have different and parallel water sources for their operations, which are often articulated and contested within the realm of formal law and policy. Broad discussions of Chilean desalination’s legal framework show ambiguities not only in terms of the permitting process, but also in how this new water source is going to be accounted for in terms of other water sources’ uses. Without a clear legal reference, ambiguities and gaps have since been somewhat addressed through broad legislation: The Maritime Concessions Law, Water Code and Sanitation Services Law. Thus, this analysis also complicates recent efforts and calls for making the use of desalinated water by mining companies mandatory. Here, we see that desalination is not necessarily tied to reductions of freshwater exploitation; ambiguous laws and geography (pumping water to high altitude levels) are exploited for changing water flows.
The paper highlights two main gaps in cases where companies operating desalination plants have simultaneous water rights/uses for underground water exploitation. Firstly, the laws’ unique attention to water quality for potability, is being exploited to argued that freshwater doesn’t meet the requirements for human consumption, whereas desalination can reach higher quality levels. Here we can see how water has been reduced to its chemical composition H2
O and abstracted from its social context [37
]. It is, therefore, a ‘game changer’ for maintaining the use of freshwater in mining and reserving desalinated water for communities. Secondly, the laws’ ambiguity over how to count desalination flows, allows the mining company to report only annual volumes. This means that they can ‘play’ with monthly ratios of consumption between water supply sources and, therefore, they can consume more freshwater during certain periods of time—having in this sense a partial reduction. In other words, the attention is towards augmenting water supplies. As we see, additional implications of these processes are that desalination plants’ owners are able to have contracts as water suppliers for mining companies in the region.
Given that there is a movement to regulate desalination, it is important to investigate the role and issues that this technology is facing, both in terms of legal and geographical contexts. The Chilean case demonstrates the importance of both characteristics in how desalination works, or fails to work, in terms of socio-environmental implications. The paper’s findings matter for the growing debates about desalination in both academia and by policy makers. On the policy side, the paper shows how legal discourses of nature are allowing maintenance or changes of spatial configurations and how they are articulated and contested through legal-coupling. Therefore, it highlights the importance of having clear rules about how desalination matches up against the purity and quantity of other fresh water sources and the pitfalls for releasing previously granted water rights/uses, while showing how water uses (desalinated and freshwater) are being prioritized. On the academic side, the paper expands debates on the dimensions of desalination’s legal features and its implications for supporting economic development through changes in water consumption. Legal practices and legal knowledge are moving desalination critical analysis, towards the understanding of how natural-social boundaries are defined by legal institutions and practices [20
]. Indeed, access to legal knowledge is often a tool at the service of spatial-political interventions.