A central challenge in Peruvian water management is clearly resolving the existing friction between planning tools and water use rights previously granted to users. The core of this controversy revolves around the Water Availability Utilization Plan (PADH), regulated by the Water Resources Law (Law No. 29338 or “LRH”) and the Operators Regulations (RJ 0155-2022-ANA). While these regulations define the PADH as a technical tool for annually planning the multisectoral use of water, their own rules categorically require that it be formulated “considering the water use rights granted.” This means that it is not an optional guideline for the public administration, but rather a mandatory legal boundary that restricts its planning powers.
The problem arises when the Water Rights Management Plan (PADH) is used not as a mechanism for coordinating multisectoral water use, but as a vehicle for imposing operational restrictions that substantially modify the conditions under which water use licenses were granted. When a PADH establishes prohibitions that deprive holders of essential attributes of their rights—such as reservoir capacity, regulation, or utilization under specific hydrological conditions—the instrument is distorted, and what legal doctrine refers to as indirect regulatory expropriation is established.
The Constitutional Court has prohibited this type of action. In its ruling on Case No. 00239-2010-PA/TC, it stated that the deprivation of essential attributes of property rights through overregulation is incompatible with constitutional protection. Accordingly, Article 46 of the Water Resources Law expressly prohibits “altering, modifying, disturbing, or preventing the legitimate use of water,” establishing the State’s duty to guarantee compliance with granted water rights.
The principle of legal certainty, enshrined in paragraph 4 of Article III of the Preliminary Title of the Water Resources Law (LRH), imposes a dual obligation on the State: to guarantee a stable legal framework and to safeguard the conditions that provide security for investments related to water use. Water use licenses are not authorizations that can be revoked at will; they constitute enabling titles granted through regulated procedures, which generate subjective rights protected by the constitutional order.
Consequently, the legal nature of the Water Resources Management Plan (PADH) must be understood as that of a planning instrument subordinate to pre-existing rights. Its legitimate function is to coordinate and program the joint use of water resources, adapting to the hydrological conditions of the period, but it cannot become a mechanism to modify legally granted rights. The PADH must respect the stability, predictability, and legitimate expectations that the State is obligated to guarantee.
For all the reasons stated above, it is essential that the National Water Authority establish clear guidelines that explicitly define the scope of the Water Rights Management Plan (PADH), ensuring that its regulatory role does not infringe upon the previously established rights of water users. Only under this approach will it be possible to safeguard the harmony between the sustainable management of water resources and the framework of legal predictability that the State is committed to protecting.
By: Alberto Ventura and Sandra Lock, partner and associate of the Natural Resources and Infrastructure Projects Area of the Pérez-Llorca, Miranda & Amado law firm
