“It wasn’t the drought, it was the looting”, repeat the small farmers of the town of Paihuano, in the Elqui valley, in the Coquimbo region. In the midst of the country’s worst water crisis in decades, a farm controlled by Andrónico Luksic, the progenitor of Chile’s richest family, was fined around 60 million pesos for illegal water abstraction.
The company has diverted water to irrigate their vineyards for 15 consecutive years. To do this, he not only illegally installed a water pump, but also built a dam to store it. Those affected calculate that they were left with millions of cubic meters of the vital resource, while not even having enough to water their flower pots.
It all happened in a foothill area that is fundamental not only for local agriculture, but also for the supply of drinking water to the inhabitants of Paihuano, Vicuña, Andacollo, Coquimbo and La Serena. There have been 15 years of illegal appropriation of water by a company controlled by the richest family in Chile.
“The area in which the illegal extraction takes place, according to information from the Directorate General of Waters (DGA), a body dependent on the Ministry of Public Works (MOP), corresponds to that of an over-concession basin, affected by extraction points, which has opened a latent conflict in the area, which has been exacerbated due to the persistent low rainfall in that area of the country, which has meant that this municipality is continuously affected by scarcity, catastrophe or water emergency decrees”, warned Greenpeace in a legal complaint for the events of 2021.
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Last year, entrepreneur Andrónico Luksic cited the serious situation on his social networks: “If Agrícola El Cerrito has committed a serious crime, it must be sanctioned by the authority with the full force of the law,” he condemned. However, your company, far from admitting its responsibilities, has dedicated itself to denying wrongdoing. Had to remove the dam and pump. And the water is flowing again: the affected settlers have gone from having water only on Sundays to having it every day.
“Imagine a 50 HP pump that extracts water, eight, ten hours a day, water that this company needed to irrigate its grapes. They irrigated for years with water that did not belong to them. It is very serious”, comments Sergio Alemparte, the ‘farmer who reported the facts in October 2020. The person concerned has tried for years, without success, to speak to the managers or lawyers of the entrepreneur’s company, but – he says – they never wanted to speak to him.
The fine of only 60 million pesos, initially imposed by the regional authorities of the Directorate General of Waters (DGA), was just confirmed in November by the heads of the Santiago entity, although Luksic could appeal to the Court of Appeal of Santiago.
Furthermore, in 2021, Greenpeace and the lawyer Luis Mariano Rendón denounced the serious events, in their opinion constituting the crime of usurpation of water, before a court in Vicuña. If convicted, Luksic could face a sentence ranging from 61 days to 3 years and one day.
However, after the criminal investigation, the Vicuña court, presided over by judge Felipe Ravanal, decided to accept the request for dismissal of the entrepreneur and his manager, Rodrigo Santander. Worse still, the prosecutor of Vicuña, Juan Rubén González Tobar, did not even take into consideration a clear report from the PDI in this regard, which indicated the existence of the crime of usurpation.
“It is something that harms the administration of justice, especially in the case of a multi-million dollar company,” criticizes the lawyer Rendón.
On November 9, the guarantee court of Vicuña, presided over by judge Felipe Ravanal, decided to dismiss the company’s representatives, at the request of their defence.
Despite the fact that the prosecutor Juan Rubén González Tobar formally opposed the dismissal, he did not appeal the sentence, which therefore could not be reviewed by the Court of Appeal of La Serena, which was sharply criticized by the plaintiff’s lawyer, who explained – in addition – that he had not been able to appeal, on his own, not being a civil party. In order to be able to appeal, he would have had to be appointed a lawyer by the party affected by the crime (the victims of the usurpation of the water), which – paradoxically – never appointed a lawyer in the case.
“We haven’t done anything at that judicial level yet, because we are waiting (for confirmation) of the technical ruling,” explains Aemparte.
“Luksic was fired first, probably because he was not directly in the operational management of the property, and then Santander, the operational manager of the property,” complains Rendón. «What doesn’t suit me is that if the Public Prosecutor opposed the request for dismissal, why didn’t he present the relative appeal. It’s extremely strange, incoherent,” he says.
The prosecutor’s version
The Public Prosecutor informed by means that the Vicuña Prosecutor’s Office carried out investigative procedures on the case, collected various statements from different parties, ordered the presence of the Investigative Police at the place of the event and collected various documents on the facts.
“The Public Prosecutor’s Office and the Legal Advisory Unit of the Regional Prosecutor’s Office went to the place and sector where the water would have been withdrawn and to the presumably affected places, to carry out other proceedings in canals and sluice gates”, reported the Public Prosecutor.
“Despite the completed procedures and other actions derived from the case and given the conditions under which said water distribution process was carried out, no impact on the total supply of the surrounding farms was demonstrated. Therefore, it was not possible to prove the commission of some crime, at least in the penalty area, not the crime sanctioned by the DGA,” he said.
Specifically, the case involves the El Cerrito company, owned by the family office of Luksic, which – according to the DGA – illegally appropriated the water for fifteen years.
For the same reason he was fined 1,050 UTM (about 60 million pesos) “for illegal water extraction” in a November 21 resolution.
The case was denounced last year by Sergio Alemparte, a shareholder of Canal Asiento in the area, according to whom the company of entrepreneur Andrónico Luksic illegally maintained a dam and a water pump.
“Lately I had water once a week, now I have it every day,” says Alemparte, explaining the difference in flow after the illegal water diversion device was removed in January 2021.
In this case, the DGA of the Ministry of Public Works (MOP) initiated an administrative proceeding against El Cerrito in 2021. A resolution dated November 21, 2022, determined the confirmation – by the Santiago DGA – of the sanction imposed by the Regional DGA “for illegal extraction” of water, a resolution that can be challenged until December 27 before the Santiago Court of Appeal.
With the same resolution, the DGA mandated the regional section of the institution to open a new inspection file against the company, for “alleged illegal work in the channel of the Destra torrent”.
The initial resolution applied a fine of 1,100 UTM to the farm for the illegal extraction of surface water, from an illegal intake located on the left bank of the Estero Derecho, in the section that crosses the Fundo El Cerrito, in the Pisco Elqui sector, from the municipality of Paihuano. In addition, the company was ordered to completely disable the unauthorized surface water collection system and to remove all installations corresponding to the pump room, switchboard and piping, the DGA said.
In parallel, the Greenpeace organization, through its national director, Matías Asún, and the lawyer Luis Mariano Rendón, filed a complaint with the Vicuña Prosecutor’s Office in 2021.
The director of Greenpeace in Chile, Matías Asún, stressed at the time that “obviously, the extraction of water in the channels that are located in areas where there is less and less rainfall, and where the availability of water is less, has an impact on productive activities and towards the people and the environment of the basin”.
The Luksic company, however, has denied any wrongdoing.
“The allegations that have been made since the beginning of this investigation have proved groundless in all related proceedings, both judicial and administrative,” El Cerrito told this channel.
“The DGA, while having chosen to reduce the penalty originally applied, reiterated its view that an administrative infringement would have been committed. The company is studying all the documentation and justification of the DGA’s decision in detail and, based on it, will determine the actions to be followed,” the company said.
The damage to the canalists
Aemparte, a farmer from the area affected by the water shortage and who was advised by the lawyers, regrets the situation, and also points out that, although he has tried to contact the El Cerrito company, he has not succeeded. He also indicates that, if the fine is confirmed, a complaint could be filed. It was Aemparte who discovered the illegal 50hp pump in October 2020, which according to local information dates back to 1996. The area has also suffered from a 12-year drought.
“We are 22 shareholders of the Asiento channel, who are the ones affected by this fact,” he explains. “We tried to approach them, me personally, to see the possibility of talking, but they don’t open the door. They don’t want to talk about anything, absolutely nothing, neither with me nor with the lawyers. Their defense is that with the number of water shares they have, they have to irrigate their crops,” he adds.
“The damage is serious. Also, they were occupying third party water rights,” he says. “In a place like Elqui, water is the lifeline for everything to work,” she points out.
On the other hand, the farmer points out that after the pump is removed, “the water flow is different”.
“Imagine a 50 HP pump that extracts water, eight, ten hours a day, water that this company needed to irrigate their grapes. They irrigated for years with water that didn’t belong to them. It’s very serious. As an sprinkler, after retiring from the pump, today I have water every day. Before I had water only on Sundays. Now you can see the water, before you couldn’t see it, especially in the summer season”, he says.
“These people also built a dam which cut off the course of the estuary. By making the dam, a lagoon with a geomembrane, they began to accumulate water and pump it out,” he adds. However, they had to decommission this facility as well.
For his part, the mayor of Paihuano, Hernán Ahumada, stresses that “any type of irregular extraction must be sanctioned with existing regulations and laws”.
“We do not share this situation at all. Anything that is irregular abstraction of water, especially in a municipality that has suffered a fairly large drought for many years, must be sanctioned with the corresponding regulations,” he says, especially taking into account He says l he water that feeds not only Paihuano, but also Vicuña, Coquimbo, La Serena and Andacollo originates at the foot of the area.
And although the municipality has received support from the Fundación Educacional Oportunidad, linked to the Luksic family, the head of the community indicates that the aid has been used to pay the salaries of English teachers in the community, a situation that dates back to previous administrations.
“There is practically no relationship with Luksic directly,” he says, as well as specifying that he does not know if there have been any visits from the businessman to the area.