I. Legal Framework
A. National Legislation
Argentina’s National Constitution (Constitución Nacional, CN) establishes a federal form of government, setting the basis for the distribution of competencies between the central government and the provinces. The provincial governments have the authority to legislate in matters related to the creation of regions for social and economic development. Provinces have also been assigned specific authority to legislate on matters related to natural resources in their territories. However, the central government has the authority to regulate internal river navigation and commerce as well as the setting of minimum environmental protection standards.
According to the CN, provinces retain the right to forge agreements among themselves with regard to their economic interests and projects of mutual interest in matters of waterways affecting the territory of more than one province.
The Civil Code (Código Civil) determines that practically all water is under public domain, defines the lines of the banks, determines the legal consequences of changes in land caused by the natural action of water, forbids diversion operations, and provides for rules applicable to equitable servitudes.
In Argentina, all water is public property with very few exceptions. The Civil Code establishes that all rivers, springs, and waterways flowing in natural channels, and other water that is or may become suitable for general use, as well as navigable lakes, are in the public domain. In exceptional cases, the Civil Code assigns the landowner the exclusive use of the water in his land if the water
(a) rises naturally and does not form a channel until it flows out of the property on which it rises (acquired rights of owners of servient land prevail over those of the dominant owner),
(b) rises and ceases in the same property, or
(c) comes from rain and remains in the land on which it falls.
Water, being in the public domain, belongs to the province where it is found with the federal government having jurisdiction only in certain matters, such as navigation. There is no water law at the national level, but each province has adopted its own water code or statute. However, current national legislation includes some provisions that are directly or indirectly related to water matters. This is the case of Law 25688 on the Environmental Management of Water, which provides minimum environmental standards for the conservation of water and its equitable use. It also creates committees of interprovincial basins with the authority to decide on the sustainable use of water with environmental impact in more than one province.
Law 25688 further provides a list of actions concerning water that might alter the water volume and the environment and therefore are subject to government authorization or permits issued by the provincial authorities. The list includes
- (a) the taking and diversion of surface water;
- (b) the storage, alteration in the flow, or deepening of access to surface water;
- (c) the taking of solid substances or dissolving substances from surface water that would affect water quality;
- (d) discharges of substances into surface water, affecting its quality;
- (e) discharges of substances into coastal waters, affecting their quality;
- (f) the discharge of substances into groundwater;
- (g) the taking or diversion of groundwater;
- (h) the storage, deepening, or diversion of groundwater through works carried out for that purpose;
- (i) actions intended to permanently alter the physical, chemical, and biological properties of water;
- (j) the artificial alteration of the atmospheric hydrological cycle.
B. Provincial Legislation
In furtherance of the competence that the CN has assigned to the provinces to legislate on matters of the management, use, and conservation of water in their respective territories, the provinces have enacted a number of norms on the use of water, embodied in water codes that regulate the use of water and the issuance of permits for such uses; the establishment of priorities for water use; specific regulations on different types of water, such as surface water, groundwater, rainwater, or lake water; antipollution measures; norms related to hydraulic works; restrictions and limitations on ownership in order to protect the sources of water and the environment; and norms that organize water management.
In general, [provincial] water codes adopt the following principles:
- The state preserves ownership of water and issues permits for water use to individuals;
- They establish a priority system for the issuance of permits considering the type of water consumption;
- The permit application should include the extensions of land for irrigation, how many properties are involved or affected, the volume of water to be used, the manner in which water would be delivered, works needed to capture water;
- Permits may be issued for limited or unlimited period of time and may be revoked if works needed are not completed or if the water has not been used;
- Applicable fees are according to the volume of utilized water.
II. Types of Water Use
There are two types of water use: one that produces a loss in water volume, called consumption use, and one that does not produce such a loss, called nonconsumption use. The first type includes drinking water, industrial use, and agricultural use, including irrigation. The second type includes navigation, transportation, hydroelectric generators, and recreation activities. In Argentina, the highest water consumption is in agriculture, including irrigation and cattle farming, which accounts for 73% of the total consumption use of water; industrial use, including mining, which accounts for 18%; and drinking water use, at 9%.
III. Use of Water in Agriculture/Irrigation
Irrigation for agriculture constitutes the highest percentage of water consumption both at the national and international level. In dry zones of the country the government has records of concesiones (administrative permits) for different water uses. In non-arid zones, the use is mostly private, by extracting water directly from surface or groundwater without any permit for its use, which makes it difficult to control or to determine exactly the size of the irrigated land.
In general, irrigation efficiency is very low—only 40%—and even when it is carried out through permits, its use is not supervised, with the exception of the Mendoza and Río Negro provinces. The consequence of this situation is that in many areas there is a deterioration of the soil due to an excess of irrigation, poor maintenance of irrigation equipment, ground soil salinity, and contamination with nitrates and other toxic substances.
In zones where rainwater is scarce and water is an asset that has to be distributed and assigned by the government, the provision of water for agriculture and irrigation is subject to a fee. The price that is paid for this service is called a canon (administrative fee), paid yearly to the provincial authorities and determined according to the hectares of land covered.
The water supply in areas with irrigation infrastructure is provided by the public sector in about 74% of the territory and by the private sector in the remaining 26%. Most users of groundwater for irrigation do not pay any canon, while those with irrigation systems derived from surface water pay a subsidized tariff with very low levels of compliance.
In spite of the fact that the use of water in agriculture is very high, provincial revenues derived from water fees for agricultural use have been low, amounting to only 9 to 40% of the revenues obtained by provincial water authorities.
IV. Right to Use Water
Water use rights may be acquired by permit, by concession, and, under some province’s laws, through authorization. Revocable permits for water use are granted for a specific purpose. A concesión (grant) is granted for a period of time according to its intended use and may be granted in perpetuity. Concesiones for water use are transferred together with the land. The concesión gives its beneficiary the right to use the water. The grantor does not have any responsibility for any natural decrease in the water flow.
The general principle is that priority is given to domestic needs and then to railway and irrigation services. Industrial and hydroelectric needs are next in line, with water storage facilities and fish hatcheries having the lowest priority.
Prepared by Graciela Rodriguez-Ferrand
Senior Foreign Law Specialist
 Constitución Nacional de la República Argentina [CN], Boletín Oficial [B.O.], Dec. 15, 1994, http://infoleg.mecon.gov.ar/infolegInternet/anexos/0-4999/804/norma.htm.
 Id. arts. 1, 121.
 Id. art. 125.
 Id. art. 124.
 Id. arts. 12, 14, 20, 26, 41, 75.10, 75.13.
 Lilian del Castillo, La Gestión del Agua en Argentina 256 (Ciudad Argentina, Buenos Aires, 2007).
 Código Civil (Cod. Civ.), http://www.infoleg.gov.ar/infolegInternet/anexos/105000-109999/109481/texact.htm.
 Id. art. 2340. For public limitations on privately owned rainwater and springwater, see infra notes 15 and 16 and accompanying text.
 Id. art. 2577.
 Id. arts. 2572–2586.
 Id. arts. 2642, 2646–2653.
 Id. arts. 3002–3107.
 Id. art. 2340.
 Id. art. 2637
 Id. art. 2635.
 Id. art. 2350; CN art. 124.
 Marisa Arienza et al., Agua: Panorama General en Argentina 32 (Green Cross Argentina, Dec. 2011), http://www.gcint.org/sites/default/files/publication/document/Agua-Panorama-General-En-Argentina.pdf.
 Ley 25668 que Regula el Régimen de Gestión Ambiental de Aguas [Law 25668 Regulating the Regime of Environmental Management of Water] art. 1, B.O., Jan. 3, 2003, http://www.infoleg.gob.ar/infolegInternet/ anexos/80000-84999/81032/norma.htm.
 Id. art. 4.
 Id. art. 5 (translation by author).
 See Mario Valls, Algunas Consideraciones sobre el Estado de Situación de los recursos Hídricos de la Argentina 111–14 (Academias Nacionales de Ingeniería, Ciencias Económicas y Ciencias Exactas, Físicas y Naturales, Universitaria de La Plata, 1st ed. 2011).
 Susana Formento & Ana Ferrazzino, El Agua: Su Normativa Jurídica, Apuntes Agroeconómicos (Facultad de Agronomía de la Universidad de Buenos Aires, July 2003), http://www.agro.uba.ar/apuntes/no_2/agua.htm.
 Del Castillo, supra note 6, at 70.
 Id. at 73.
 Id. at 74.
 Id. at 75.
 Id. at 88.
 Id. at 76.
 Id. at 89.
 Valls, supra note 22, at 111.
 Food and Agriculture Organization of the United Nations (FAO), Water Legislation in South American Countries 11–12 (Rome, 1983).
Last Updated: 04/01/2014