During Spanish colonial times, the waters of Venezuela belonged to the Crown, but their common use was permitted for Spaniards and Indians. The first Civil Code of Venezuela of 1862 established the public character of lakes and rivers, but allowed for the private use of waters. The Civil Code of 1867 went a step further by permitting private ownership of waters by the owners of the soil where the water is located, including surface and ground waters. The Civil Code of 1916 ratified the then existing private property regime over waters, as did the Law of Mountains and Waters of 1921, which also extended it to fountainheads, wells, and ponds. With several nonsubstantive amendments over the years, this private-oriented legal system subsisted until the Constitution of 1999, which abrogated the private regime for waters and substituted a statist system.
II. Current Legal Framework
A. Constitutional Regime for Waters in Venezuela
When the Venezuelan Constitution of 1999 replaced the traditional property regime over waters that had governed that country since colonial times, it provided that
all waters are public property of the Nation, [and are] irreplaceable for life and development. The law shall establish the necessary provisions to guarantee their protection, use, and recovery, respecting the phases of the hydrological cycle, and the criteria for the organization of the territory.
The Water Law of 2007, which implements the aforementioned constitutional provision, establishes that waters are public goods and may not be appropriated by any individual or entity. Also, according to the Water Law, access to water is a fundamental human right, and it is a fundamental duty of the state, aided by the community, to guarantee the conservation of water sources, both surface and ground water. In addition, also in accordance with the Water Law, the integral management of water by governmental entities must encompass activities of a technical, scientific, economic, financial, institutional, managerial, legal, and operative nature aimed at the conservation and use of water for the benefit of the community.
The general declaration of waters as public property made by the Constitution and the Water Law substantially changed the previous juridical regime, which had classified waters as public waters and as waters subject to private appropriation. Under the new regime, waters are no longer subject to private appropriation in Venezuela. Another important change is the holistic approach to regulating water use at the basin level; in effect, the legislation recognizes and promotes the regulation of the aquifer pursuant to the principle of the “unity of the hydrological cycle.” The elimination of the classification of waters into categories (surface, ground, salt, navigable, etc.), is yet another feature of the new legal framework governing waters in Venezuela, and it is a direct consequence of the “unity of the hydrological cycle” principle.
B. Laws Governing the Use of Water in Agriculture
Multiple legislative instruments directly or indirectly cover the use of water in agriculture in Venezuela. Among them, the Organic Law for Land Planning and Territory Management of 2006 indicates that land-planning activities involve, among other matters, a determination of spaces subject to risks associated with natural and hydrological phenomena, and with the contamination of air, water and soil. Furthermore, the National Land Ordering Plan sets forth the guidelines for the localization of grand works of infrastructure, related to, among other activities, the use of waters. Sectoral plans, and in particular rural and agricultural development plans, must take into consideration the integral management of waters. National water reserves are considered as “special use and natural protected areas,” and are defined as territories where natural or artificial bodies of water justify their regulation under a special administrative regime because of their nature, situation, or importance. Consequently, the Venezuelan legislative framework governing land-planning activities that affect agricultural lands must, necessarily, take into consideration the integral management of waters in the concerned territories.
The Organic Law of the Environment, in turn, reinforces the aforementioned approach, establishing that the integral management of waters by the authorities must be oriented toward securing their conservation, and guaranteeing the conditions of their quality, availability, and quantity in relation to the sustainability of the hydrological cycle. Specifically, the following aspects must be considered for the adoption of water conservation measures, which include those applied for agricultural purposes:
(a) the classification of waters according to the characteristics required to determine their different uses; (b) the activities likely to degrade natural water sources, their courses, and their embankments; (c) the reuse of previously treated residual water; (d) water treatment; (e) integral protection of hydrographic basins; (f) continuous and long-term monitoring of water bodies; (g) continuous and long-term monitoring of land uses and their impacts on the main hydrographic basins that provide water to human populations and irrigation systems for agricultural areas.
The Organic Law of the Environment also states that the National Environmental Authority must establish and maintain an Environmental Information Registry. This Registry must contain biophysical, economic, and social data, as well as legal information related to the environment. Data in the Registry must be freely accessible for consultation free of charge and must be disseminated periodically when the data contained therein is of public interest. The Registry must also contain an inventory of water resources. Finally, the Organic Law of the Environment defines the activities likely to degrade the environment as those that directly or indirectly pollute or deteriorate the atmosphere, water, marine soil, soil and subsoil, or those that unfavorably affect biological, vegetable, or animal communities. Consequently, the Organic Law of the Environment forces the adoption of a series of measures concerning waters that directly affect their use for agricultural purposes.
The Law of Forests and Forestry Management defines “protected areas” as those lands, whether public or private, established by the law or by an executive order, that are necessary to protect and preserve the forestry patrimony, hydrographic basins, and other natural spaces and resources, and which, owing to their geographical, natural, environmental, and socioeconomic characteristics, are particularly vulnerable to human activity. The declaration of a private land—including agricultural lands and the waters existing in them—as a protected area by law or executive order is not subject to the payment of an indemnification by the government.
Among the relevant regulations concerning the use of water in agriculture are the following:
The Norms for the Classification and Quality Control of Water Bodies and Discharge of Liquids of 1995 charges the Ministry of the Environment and Natural Resources with the design of material plans for the control and management of specific water quality standards per hydrographical basin throughout the national territory. Agricultural activities are included in the list of regulated activities, which concern the composition of the discharge, authorized volumes, locations of the water courses, and nature of the materials poured into waters, among other aspects.
The Norms on the Regulation and Control of the Use of Hydro Resources and Hydrographic Basins of 1996, in turn, reiterate that the Ministry of the Environment and Natural Resources is in charge of the administration and management of water resources and hydrographic basins throughout the country. In addition, the Norms require that landowners petition the Ministry for a concession or permit to use waters for any purposes (including agriculture). Concessions or permits may never be issued against the public interest.
Finally, the Norms on Environmental Evaluation of Activities Likely to Degrade the Environment of 1996 require the submission of an Environmental Impact Study for the implementation of several industrial and commercial activities, including sugar processing and production at cellulose, pulp, and paper plants.
C. Legal Status of Waters
The general declaration of waters as public property made by the Constitution of 1999 had enormous legal consequences in the Venezuelan juridical order. Significantly, all previous legislation establishing vested rights over waters was repealed on January 1, 2000, upon the entry into effect of the new Constitution of 1999. Therefore, private property over waters, whatever their nature or characteristics, became outlawed under the new constitutional regime. However, the natural beneficiaries of waters that originate or pass onto a property are still allowed to use the waters for communal purposes without obtaining a concession or permit. Otherwise, the use of water, both surface and ground water, for private purposes now requires a government concession or permit.
D. Assignment of Water Rights
The government grants water concessions and assignments for different purposes, including hydroelectric generation and industrial, commercial, and agricultural activities. Concessions and assignments to private parties—which may not exceed twenty years in duration—are contracts between the government and the concessionaire. Governmental entities are entitled to request the National Water Authority (Autoridad Nacional de las Aguas, ANA) to grant concessions over the volumes of water necessary to comply with their institutional purposes. The ANA may also grant licenses for the use of surface and ground waters in order to supply human populations, and for not-for-profit agricultural and recreational purposes.
Concessionaires and permit holders are entitled to obtain the necessary easements to occupy the lands necessary for executing the works related to the use of their water. Easements over lands under public domain are granted without the need of a payment, without prejudice to the rights of third parties. Easements affecting indigenous lands are subject to a special law.
E. Rights of Riparian Owners
Under the legal regime established in the Civil Code of 1916—now repealed by the Water Law of 2007—waters belonging to the public domain could be privately used for agricultural purposes. In fact, a landowner had the right to extract from rivers the water necessary for his agricultural and industrial activities. This regime was traditionally associated with riparian ownership, in conjunction with other legal authorities. For example, the Civil Code regulated the right of landowners to transport their waters through the property of other landowners, and the Mining Law allowed mining owners to use waters of public domain reasonably and included the right to obtain easements for that purpose. Prior to the Water Law of 2007 and under the now repealed Forestry Law of Soils and Waters, landowners enjoyed the right to use the waters of rivers born in their lands, so long as this did not affect the rights of third parties or endanger public health.
The current legal framework that is based on the Water Law of 2007 can be summarized as granting only to mining owners the right to use waters pursuant to their mining concessions. All others, including riparian users, require a government concession to divert waters from a natural riverbed.
F. Requirements for Licenses to Use Water for Agricultural Purposes
The use of water in agriculture is subject to administrative control mechanisms established in the law, and depends on the characteristics of the aquifer. In effect, surface and ground water may be categorized according to (a) uses not subject to special formalities, such as for domestic, livestock, and navigation purposes; and (b) uses subject to concessions, assignments, and licenses for supplying human populations and for agricultural, industrial, hydroenergy, and commercial purposes.
G. Water Quality and Water Conservation Requirements Associated with the Use of Water in Agriculture
The National Fund for the Integral Management of Waters is a non-concentrated and autonomous governmental entity in charge of the administrative and financial management of waters throughout the country. The Water Law establishes the criteria that must be used to secure the protection, use, and recovery of waters, including water extractions in volumes that adjust to availability and demand at the respective source, the efficient use of water, the reuse of residual waters, the conservation of hydrographic basins, and the holistic management of surface and ground water sources. As a result, the quality and conservation requirements related to the use of water for agricultural purposes is subject to administrative regulations issued according to the aforementioned criteria, by multiple government agencies, as described below.
III. Institutional Framework for the Administration of Water in Agriculture
Multiple government agencies administer waters in Venezuela for different purposes, including agricultural activities. The following are the most important of these agencies:
A. National Water Authority
The ANA enjoys broad powers concerning the definition of policies and strategies aimed at obtaining the integral management of waters around the country. For example, it maintains the National Registry of Users of Water Sources, which is an automated system with national coverage of data related to the different uses of ground continental waters, as well as underground, marine, and insular waters. The ANA also prepares and implements water infrastructure projects, elaborates the technical norms for the conservation and sustainable use of waters, administers the National Integral Management Fund, and grants concessions and licenses for water use.
B. National Council Authority
C. Regional Hydrographic Councils
There are sixteen Regional Hydrographic Councils (Consejos de Región Hidrográfica, CRHs) in the country, which serve as advisory and decision-making bodies to obtain better water management. Particularly, they coordinate joint activities related to water conservation and sustainable use between national, state, and municipal entities, on the one side, and local communities on the other.
D. Hydrographic Basin Councils
E. Other Governmental Agencies
Other governmental agencies with responsibilities in the management of waters include:
- Institutional Users (Usuarios o las Usuarias Institucionales)
- Communal Councils, Technical Boards, and Irrigation Committees (Consejos comunales, las Mesas Técnicas y Comités de Riego)
- National Institute of Indigenous Peoples (Instituto Nacional de Pueblos Indígenas)
- Ministry of Defense (Ministerio de Defensa)
- State Councils for Planning and the Coordination of Public Policies (Consejos Estadales de Planificación y Coordinación de Políticas Públicas)
- Local Councils for Public Planning (Consejos Locales de Planificación Pública)
IV. Intercountry Disputes Concerning the Use of Water
No information on current water-use disputes between Venezuela and its neighboring countries was found.
Under the new statist constitutional and legal regime established in Venezuela in 1999, the property and use of all waters is reserved to the state. Both the property and use of waters for whatever purposes, including agriculture, may be granted to private citizens only pursuant to government-granted concessions or permits. The only exception is water used for limited domestic, livestock, and navigation purposes. In addition, numerous government entities at the national, state, and municipal level are in charge of controlling and monitoring all activities related to water, including its distribution among users, discharge to watercourses, and conservation.
Prepared by Dante Figueroa
Senior Legal Information Analyst
 Allan Brewer-Carías, Ley de Aguas 23 (2007).
 Id. at 24.
 Id. at 25.
 Constitución de la República Bolivariana de Venezuela [Const.] [Constitution of the Bolivarian Republic of Venezuela] art. 304, http://pdba.georgetown.edu/constitutions/venezuela/ven1999.html (translated by the author).
 Ley de Aguas [Water Law], Gaceta Oficial [G.O.] No. 38.595, Jan. 2, 2007, http://www.tsj.gov.ve/gaceta/enero /020107/020107-38595-01.html.
 Id. art. 5(10).
 Id. art. 5(1).
 Id. art. 5(8).
 Id. arts. 3, 5(11).
 Brewer-Carías, supra note 1, at 14–15.
 Id. at 16.
 Id. at 17.
 Ley Orgánica para la Planificación y Gestión de la Ordenación del Territorio [Organic Law for Land Planning and Territory Management], G.O. No. 38.513, Sept. 1, 2006, http://www.tsj.gov.ve/gaceta/septiembre/010906/010906-38513-01.html.
 Id. art. 7(9).
 Id. art. 17(6).
 Id. art. 32.
 Id. art. 43(2)(a).
 Id. art. 38(1).
 Ley Orgánica del Ambiente [Organic Law of the Environment], G.O. No. 38.590, Dec. 22, 2006, http://www.tsj .gov.ve/gaceta/diciembre/221206/221206-38590-01.html.
 Id. art. 55.
 Id. art. 57 (translated by the author).
 Id. art. 66.
 Id. art. 67(2).
 Id. art. 80(1).
 Decree 6.070 of May 14, 2008, Ley de Bosques y Gestión Forestal [Law of Forests and Forestry Management] art. 39, G.O. No. 38.946, June 5, 2008, http://www.tsj.gov.ve/gaceta/junio/050608/050608-38946-2.html.
 Decreto 883, Normas para la Clasificación y el Control de la Calidad de los Cuerpos de Agua y Vertidos o Efluentes Líquidos [Norms for the Classification and Quality Control of Water Bodies and Discharge of Liquids], G.O. No. 5.021, Extraordinaria, Dec. 18, 1995, http://www.bvsde.ops-oms.org/bvsacg/e/cd-cagua /ref/text/43.pdf.
 Id. art. 6.
 Id. art. 7.
 Id. arts. 8–18.
 Decreto 1.400, Normas sobre la Regulación y el Control del Aprovechamiento de los Recursos Hídricos y de las Cuencas Hidrográficas [Norms on the Regulation and Control of the Use of Hydro Resources and Hydrographic Basins], G.O. No. 36.013, Aug. 2, 1996, http://www.vitalis.net/Normas%20sobre%20la%20regulación%20y%20 el%20control%20del%20aprovechamiento%20de%20los%20recursos%20hídricos.pdf.
 Id. art. 24.
 Id. art. 40, para. 2.
 Decreto 1.257, Normas sobre Evaluación Ambiental de Actividades Susceptibles de Degradar el Ambiente [Norms on Environmental Evaluation of Activities Susceptible of Degrading the Environment], G.O. No. 35.946, Apr. 26, 1996, http://www.vitalis.net/Normas%20sobre%20evaluación%20ambiental%20de%20actividades%20 susceptibles%20de%20degradrar%20el%20ambiente.pdf.
 Id. art. 6(4).
 Water Law art. 73 (mentioning water “for bathing and other domestic uses, as well as to feed livestock and for navigation”).
 Brewer-Carías, supra note 1, at 43.
 Water Law art. 75.
 Id. art. 77 (providing that the concession term must be at least equivalent to the time necessary to recover investments in the respective works).
 Id. art. 76.
 Id. art. 78.
 Id. art. 80.
 Id. art. 66.
 Id. art. 67.
 Ley Orgánica de Pueblos y Comunidades Indígenas [Organic Law on Indigenous Peoples and Communities], G.O. No. 38.344, Dec. 27, 2005, http://www.defensoria.gob.ve/dp/index.php/leyes-pueblos-indigenas/1329).
 Código Civil [Cód. Civil] [Civil Code] of 1916, art. 653, G.O. No. 2.990, Jul. 26, 1982, http://www.cicpc.gob. ve/files/u1/Codigo_Civil_de_Venezuela.pdf.
 Brewer-Carías, supra note 1, at 28.
 Cód. Civil art. 666.
 Ley de Minas [Mining Law] of 1999, art. 14, G.O. No. 5.382, Sept. 28, 1999, Extraordinaria, available at http://www.conapri.org/articledetails.asp?articleid=341644.
 Ley Forestal de Suelos y Aguas [Forestry Law of Soils and Waters] art. 90, G.O. No. 1.004, Extraordinaria, Jan. 26, 1966, available at http://www.agropatria.com.ve/wp-content/uploads/2011/01/ley_forestaldesuelos.pdf.
 Brewer-Carías, supra note 1, at 29.
 Water Law art. 61.
 Id. art. 96.
 Id. art. 97.
 Id. art. 11.
 Id. art. 21(1).
 Id. art. 24(1).
 Id. art. 84.
 Id. arts. 24(2), (3), (5), (10) & (12).
 Id. art. 21(2).
 Id. art. 26.
 Id. art. 21(3).
 Id. art. 27.
 Id. art. 21(4).
 Id. art. 34.
 Id. art. 21(5).
 Id. art. 21(6).
 Id. art. 21(7).
 Id. art. 21(8).
 Id. art. 21(9).
 Id. art. 21(10).
Last Updated: 09/16/2014