THE REGIMEN LEGAL OF THE WATER IN COLOMBIA
By: Álvaro Hernando Cardona González(*)
Introduction
Curiously, while all the sociologists and environmentalists foretell that the shortage of water becomes the main nightmare for the humanity and that surely the wars will continue being motivated by water (because already they began as in Somalia, Ethiopia, Israel – Syrian, Israel – Palestinian, among others) to few has occurred to investigate and to revalue on the Colombian regulatory nature regarding the access to the water resources.
Colombia is today the richest quarter nation in water resource in the Land after Canada, Russia and Brazil. Nevertheless ours does not it escape to the anguishes of its population by guaranteeing more and greater sources of water consumible. Because of it the need to know, to apply with greater severity and seriousness and to revise the in force applicable regulatory nature set against the needs to agree to the water. And today it is more urgent to do it, therefore besides the traditional causes of deterioration of the water resource, such as the tala indiscriminate of forests especially in areas of nacederos, the disorderly colonization many times favored by the desire to expand the agricultural border or for illicit cultivations, the urbanization caused by phenomena of displacement by violence or cultural phenomena, the increase of vertimientos without control or processing, the increase ofsolid, among others, now a new one approaches was of demographic explosion that some predict to will put an end to the world civilized little after the year 2100(1).
The water has been along all the history of the humanity the element that has conditioned the development of the communities. It is not difficult to see that the most important human settlements of the antiquity flourished around some current or water deposit, and neither to see that these always were associates with the development of said companies. In the modern times, not to stops being significant the fact that the development of the nations and, particularly, the growth of the cities, in great measure depends not only of their access to the water resource, but of the availability of the same one.
The geographical location, the various topography and the climatic state that characterize the Colombian territory have determined that this possess one of the greater water offerings of the planet as already we mention him behind. Nevertheless, this offering is not distributed homogeneous among the different regions of the
Country and additionally is submitted to temporary variations and alterations in its quality that determine the availability of the water resource.
Though the so much, national water wealth in the spatial as temporary distribution is recognized, this enormous potential is restricted in its aprovechamiento by the confluence of multiple factors antrópicos that have generated effects in the components of the hydrologic cycle and, especially, on the quality of the water by the incorporation of residues to the supplying sources. Also they affect it in good measure the bosses of aprovechamiento, characterized by mechanisms of efficient little use of the resource.
In Colombia the environmental legislation has had an important development in them you finalize three decades, especially, from the Convention of Stockholm of 1972, whose principles are received since the National Code of Renewable Natural Resources and of Protection to the contained Environment in the Legislative Decree, today Decree Law, 2811 of 1974 (that was constituted in one of the first efforts in latin America to send off a regulatory natureOn the environment). Principles that today have been expanded thanks to the Law 99 of 1993 (that incorporates express or tacitly the principles of the Statements of Stockholm of 1972 and of River of Janeiro of 1992 according to it arranges the Numeral 1 of the Article 1); to the Decree 048 of 2001 and even to the jurisprudence of the Constitutional Cut(2).
Then, in 1991, as fruit of the new Colombian Political Constitution, itself redimensionó the environmental medium protection leaving behind conceptions antropocéntricas and substituting them for a biocéntrica, elevating it to the category of collective right and endowing it of mechanisms of protection on the part of the citizens, particularly, through the popular actions or of group and, exceptionally, of the use of the actions of protects and of fulfillment(3). This has carried to many, even foreign, to recognize ours as “…a totally green”Constitution(4)
In development of the new constitutional precepts, and according to the Conference of the United Nations on Environment and Development, carried out in the Brazilian city of River of Janeiro in June of 1992, the Law was sent off 99 of 1993, that conformed the Environmental National System (S.I.N.A) and created the Department of the Environment as its principal entity (today Department of Environment, Dwelling and Territorial Development). With this law gives to the environmental management in Colombia a systematic dimension, decentralized, participativa, multiétnica and pluricultural.
Exactly it was the Law 99 from 1993 the one that, upon defining the elements of the Environmental National System – SINA, incorporated the previous legislation but in force on the
Renewable natural resources. It referred to all that that, in development and regulation of the National Code of Renewable Natural Resources and of Protection to the Environment regulated each type of element biótico and abiótico that had utility for the man and was found in its natural middle. There it is when they were accepted all the dictated dispositions on marine and not marine or continental water before the Constitution and of the susodicha Law 99.
We will try then to bring to light the present regulatory nature on the water in Colombia, so much marine as not marine, to explain set apart them dark or of difficult application today in practice and to suggest some modifications and even its updating. In all our presentation, as well as we have intended it in this introduction, we will accompany by us general data and on the properties of the water.
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(1) SARTORI, GIOVANNI. The land exploits. Madrid 2003
(2) CONSTITUTIONAL CUT. Full room; sentence ITS-067 of February 24 of 1993, M. P. Fabio Morón Díaz and Ciro Angarita Male.
(3) CONSTITUTIONAL CUT. Room Quarter; sentence T-411 of June 17 of 1992, M. P. Alejandro Martínez young Man.
(4) LIFSCHITZ, NORA BEATRIZ. Intervention in the Seminar Ecology, public estate and tax right: international aspects and supranacionales of the public estate, organized by the University of the Rosary. It quotes published in Legal Environment Year I SAW – Not. 127 May 2003.
I. PROPERTIES AND NATURAL STATE OF THE WATER
The pure water is a liquid toilet and insipid. It has a blue shade, that only can be detected in layers of great depth. The point of normal congealment of the water is to the zero centigrade degrees and its point of boiling is originated to the a hundred centigrade degrees. The water reaches its maximum density to a temperature of four centigrade degrees and is expanded upon being frozen.
As many other liquids, the water can exist in state on-chilled, that is to say, that can remain in liquid state although its temperature be down of its point of congealment; can be chilled easily to some less twenty-five centigrade degrees (-25 °C) without freeze. Its physical properties are utilized like bosses to define, for example, scales of temperature.
The water is one of the agents ionizantes best-known. Since all the substances are of some way solubles in water, knows it itself frequently as the universal solvent. The water combines with certain you leave to form hydrates, reacts with the oxides of the metals forming acids and acts like catalizador in many important chemical reactions.
The water is the only substance that exists to ordinary temperatures in the three states of the matter, that is to say, solid, liquid and gas. As solid or ice is found in the glaciers and the casquetes polar, as well as in the surfaces of water in winter; also in form of snow, hail and frost, and in the clouds formed by crystals of ice. It exists in liquid state in the clouds of rain formed by drops of water, and in form of dew in the vegetation. Besides, it covers the three quarters parts of the terrestrial surface in form of swamps, lakes, rivers, seas and oceans. As gas, or vapor of water, exists in form of fog, vapor and clouds. The atmospheric vapor is measured in terms of relative humidity, that is the relation of the water vapor quantity in the air to a temperature given with respect to the maximum one that can contain to that temperature.
The water been present also in the upper portion of the floor, where adheres, by action capilar, to the particles of the same one. In this state, it is called joined water and has some different characteristics from the free water. By influence of the gravity, the water accumulates in the intersticios of the rocks under the terrestrial surface forming deposits of subterranean water that supply to wells and spring, and maintain the flow of some streams during the periods of drought.
The water is the main component of the matter I live. It constitutes from the 50 to the 90% of the mass of the alive agencies. The protoplasma, that is the basic matter of the cells I you live, consists of a dissolution of greases, carbohidratos, proteins, leave and other composed similar chemists in water. The water acts like solvent transporting, combining and breaking down chemically those substances. The blood of the animals and the savia of the plants contain a large quantity of water, that serves to transport the food and to reject the material of waste. The water performs also an important role in the disorder metabólica of molecules as essential as the proteins and the carbohidratos. This process, call hydrolysis, is produced continuously in the cells I you live.
The hidrología is the science that studies the distribution of the water in the Land, its chemical and physical reactions with other existing substances in the nature, and its relation with the life in the planet. The continuous movement of water among the Land and the atmosphere knows himself like hydrologic cycle. Vapor of water by evaporation in the terrestrial surface and in the masses of water is produced, and by
Transpiración of the alive beings. This vapor circulates for the atmosphere and precipitates in form of rain or snow. Upon arriving at the terrestrial surface, the water continues two paths. In specific quantities by the intensity of the rain, as well as by the porosidad, permeabilidad, thickness and prior humidity of the floor, a part of the water pours directly in the streams and streams, of where passes to the oceans and to the masses of continental water; the remainder infiltrates in the floor. A part of the water infiltrated constitutes the humidity of the floor, and can be evaporated directly or to penetrate in the roots of the plants for to be perspired by the leaves. The portion of water that surpasses the forces of cohesion and adhesion of the floor, is filtered downward and accumulates in the saturation zone call to form a deposit of subterranean water, whose surface knows himself like phreatic level. In normal conditions, the phreatic level grows of intermittent form according to goes filling or recargando, and then declines like consequence of the continuous drainage in drain natural as are the springs.
II. PRECEDING AND FORCE OF THE Colombian REGULATORY NATURE ON THE WATER
Our Political Constitution collects the universal criteria regarding the legal state of the marine water, water of the seas or consecrated maritime water in the international public right.
As we will have opportunity to comment it more extensively, the territorial sea and the natural resources that be found inside it called exclusive economic zone do part of the Colombian territory. Thus it is, the Article 101 of the Political Constitution of Colombia that replaced the Article 3 of the Constitution of 1886, also incorporates them holding them to the International Right.
It is very important to leave seated that the Article 102 of our Political Constitution, that is reproduction textual of the Article 4 of the Constitution of 1886, defines that “the territory, with the public goods that of him form part, belong to the Nation” and as already our Constitutional Cut expressed it “The goods that should be understood in the public domain are determined not alone by the laws that qualify a thinga well as of public domain; besides is necessary that the element of the destiny concur or of the affectation of good to a public purpose; that is to say, to an use or to a public utility or to the promotion of the national wealth, varieties of the affectation that, at the same time, determine the affectation of the goods of public domain”(1)
On this last aspect is necessary to do then precisions. While the public domain on the marine or maritime water is removed of the Political Constitution, of the International Right and of the international treaties,
Such character is preached of the not maritime or continental water mainly of the Articles 674, 677 and 678 of the Civil Code (all native of the Code of Andrés Beautiful for Chile) and of the Article 80 of the National Code of Renewable Natural Resources and of Protection to the Environment.
Sure does not it exceed to recall that “the Constitution upon being referred to the territory and to the public goods that of him form part , to indicate that belong to the Nation , it consecrates the call eminent control: the State is not holder of the territory in the sense to be owner of him, but in the sense to exercise the sovereignty on him (…)”(2)