Water legislation

In social history, the respect to human rights was and is being achieved through struggles and social organization. Environmental rights were established just e few years ago by the United Nations, particularly through Agenda 21, chartered by ECO-92, the World Conference on Environment which took place in Rio de Janeiro in 1992. It is a group of rules which aim to preserve life on Earth through the protection, preservation and recovery of environmental conditions and by the sustainable use of natural resources (soil, air, water and biodiversity). Brazil has committed itself to implement Agenda 21, despite it not having the force of law.

Among the environmental rights, we want to highlight the right to access to water. There is nothing more just than the people organizing themselves in defence of that right. For that, it is necessary to know the legislation on water resources. Below there are some examples:

The Universal Declaration of Water Rights proclaimed in 1992 by the UN, although not having force of law, represents a letter of intent of the United Nations on the right to access to water. That Declaration is actually convocation to the citizens and the countries of the globe to make an effort to develop culture, rights and duties regarding water.

Articles 1 and 2 of the Declaration affirm that:

Art. 1 - “Water is part of the planet’s patrimony”.

Art. 2 - “Water is the vital fluid of our Planet. It is the essential element of every plant, animal or human life. Without it, the atmosphere, climate, vegetation, culture or agriculture would not be as we know them. The right to access to water is one of the humanity’s most fundamental rights [...]”.

The Declaration considers water as patrimony of the humanity, essential condition for life, human right and public property. As we all are responsible for it, we should use it with conscience and rationality, in other words, with precaution, care and preservation spirit. The economic, sanitary and social management of water should be controlled by the Public Authorities with the participation of the whole society.

Art. 6 of the same Declaration notes: “Water is free present from nature; it has an economic value: we need to know that sometimes it is rare and expensive and that it could easily become scarce in any area of the world”.

This article considers water as an “economic value”, which makes it contradictory to Art. 1 and 2 mentioned before. If water is considered essential “condition of life” and “patrimony of the planet”, it cannot be considered to have value paid for as a good. The only payment should be for the service of making it available.

a) The Brazilian Constitution chartered in 04/10/1988, called “Citizen Constitution” draws the national water policy in three articles:

Art. 20. “They are goods of the Union:

III. the lakes, rivers and any watercourses in its territory, or the ones going through the territory of more than one State, or serving as boundaries with other countries, extending to foreign territory or come from it, as well as the marginal lands of these watercourses and fluvial beaches.

Art. 26 - “They are considered goods of the States:

I - waters that are superficial or underground, running, springing and in reservoirs, excluded in this case by the law, the resulting from works of the Union”.

Art. 21 - “It is the responsibility of the Union:

XIX - to institute national system of water resources management and define the criteria of granting rights of their use”.

b) Law N. 9.433, 08/01/1997, institutes the National Policy of Water Resources and creates the National System of Water Resources Management.

Art. 1 of Law N. 9.433, establishes the lines of the National Policy of Water Resources: “I - water is a public good; II - water is a limited natural resource, endowed with economic value; III - in shortage situations, the priority use of water resources is human consumption and the maintenance of animals; IV - the management of water resources should always consider the multiple use of them; V - the hydrographical basin is the territorial unit for the implementation of the National Policy of Water Resources Management; VI - the management of water resources should be decentralized and foresee the participation of the Public Authority, the users and the communities”.

With this set of principles, the National Policy of Water Resources seeks to preserve the right to access to water with high quality patterns for the current and future generations; to use water resources rationally, integrating them into the sustainable development project of the Country; to prevent and protect water resources from inadequate use.

When the legislation defines the cost of use of water resources, it intends to recognize the water supply as an economic good, giving to the user the indication of its real value and motivating the rationalization of its use. The collected fees should be applied in the hydrographical basin where they were generated in order to secure the right to access to water for the future generations.

Who defines the cost of the use of water resources? They are the Water Resources Agencies, autonomous services linked to the Ministry of Environment, which exercise the function of executive secretary of the Hydrographical Basin Committees. Law N. 9.984, 17/07/2000 foresees the creation of the National Agency of Water Resources - ANA (by its abbreviation in Portuguese). Therefore, ANA controls the mechanism of water management, which includes licensing, determination of the cost of water and the collection and application of the respective fees.

The management of water resources should be carried out by an integrated and decentralized system, involving: the National Council of Water Resources, the State Councils of Water Resources, the Committees of the Hydrographical Basins, the organs of the federal, state and municipal public authority whose competences are related to the management of water resources and Water Agencies.

In fact, it is each citizen’s right to look for information and seek his participation in the Committees of the Hydrographical Basins.

The Committee of Hydrographical Basin is a group of representatives of the Public Authorities, the users of the basin and the civil society, that are brought together in order to plan the management of water resources of a Hydrographical Basin. The Basin itself is defined as the group of confluents located in the same area, which end up in a major river. A Committee manages, therefore, the geographical area of a Hydrographical Basin.

The Committee’s main powers are: to discuss and articulate the relevant issues to water resources; to resolve conflicts related to water resources; to approve and accompany the execution of the Hydrographical Basin Water Resources Management Plan; to establish fee collection mechanisms for the use of water resources and suggest the size of the fees; to define criteria and divide the cost of works for collective use; to propose mapping and demarcation of small springs and streams to the National and State Councils of Water Resources.

Resolution No. 5, of the National Council of Water Resources, of 10/04/2000, by regulating the creation of the committees, established that those should be composed by a triple representation: 40% by the public authorities; 40% by the users; and 20% by the organised civil society.

Everybody one way or another can participate in the Committee of the Hydrographical Basin and contribute to the decision making process on the directions of the community (local, municipal, state and federal), thus guaranteeing the quality, preservation, public management and access to water.

a) The Constitution of the State of Rio Grande do Sul, 1989, in Art. 171 institutes: “The State System of Water Resources, integrated into the national system of management of these resources, adopting the Hydrographical Basins as planning and management units, observed the aspects of use and occupation of the land, with a view to promote:

I - quality improvement of the State’s water resources;

II - regular water supply to the urban and rural populations, to industries and agricultural establishments”.

b) Law N. 10.350, 30/12/1994, regulates Art. 171 of the State Constitution, by instituting the State System of Water Resources. The objective of the State System is defined in Art. 2 of the Law which intends to “promote harmonization between the multiple and competitive uses of water resources and their limited and random availability considering time and space, in a way to: I - secure the priority supply of water to the human population and allow the continuity and development of economic activities; II - combat the adverse effects of floods and droughts and land erosion; III - impede the degradation and promote quality improvement and increase of the supply capacity of surface and underground water volumes, so that the human activities continue in a socioeconomic development context which secures the availability of water resources to their current users and to future generations, in appropriate quantitative and qualitative patterns”.

In accordance with federal legislation, the State aims to secure water resources in adequate quality and quantity for human and economic activities, by decentralizing its actions regarding the administration of the water resources through division in areas and Hydrographical Basins, as well as through community participation, through Management Committees of the Hydrographical Basin and the creation of Hydrographical Region Agencies.

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