The Evolution of Water Resources Management in Brazil

The road to the present

In 1997 the decision of Brazil to face the challenge of solving increasing water demands for urban, industrial and agricultural growth, potential conflicts generated by the supply versus demand situation, and the worrisome advance of environmental degradation in our rivers and lakes, was implemented through an innovative, modern instrument (Law 9,433). In this way, National Water Resources Policy was defined and the National Water Resources Management System created. In 2000, the broad institutional reform of the water resources sector was consolidated by Law 9,984, which created the National Water Agency (ANA).

Current pressure on water resources results from population and economic growth, and is expressed in the high urbanization rates seen in recent years, which, together with the occurrence of floods and droughts and the deterioration of the aquatic environment, affect growing numbers of the population. Paradoxically, at the same time the concept of sustainable development¹ was being broadened, requiring the integration of economic, social and environmental objectives, creating a fertile terrain for the evolution that was happening in the water resources management sector.

The first international discussions calling attention to the need for the reform and modernization of water resources management occurred at the United Nations Conference on Water held in Mar del Plata, in March 1977, where an Action Plan² was put forward recommending, inter alia, that:

“Each country should draw up and study a general statement of policies regarding water use organization and conservation, as a framework for the planning and implementation of concrete measures for the efficient implementation of the different sectorial plans. National development plans and policies should specify the main objectives of water use policy, to be translated into guidelines and strategies, and subdivided, as far as possible, into programs for the organized and integrated use of resources.”

The intention of reforming the Brazilian water resources management system began to take shape during the 1980s, when technical sectors of the government recognized that the time had come to modernize the sector, which had been functioning until then based on the 1934 Water Code. Although the Water Code was a major legal landmark in the country, and enabled the remarkable expansion of the Brazilian hydroelectric power system, it was never fully implemented. Actions had been exclusively sectorial, and had never been regulated, as was the case of the articles that referred to multiple use and water quality conservation³.

At the beginning of the 1980s, the technical sectors of the government in the Ministry of Mines and Energy, helped to include among the guidelines in the 3rd National Development Plan, for the period 1980-1985, that: “The Government should sponsor the establishment of a National Water Resources Policy”. In 1983, the International Seminar on Water Resources Management was held in Brasilia, promoted by the National Department of Water and Electric Energy of the Ministry of Mines and Energy (DNAEE/MME), the Special Secretariat for the Environment, of the then Ministry of the Interior (SEMA/MINTER) and the National Council for Scientific and Technological Development, of the then Planning Secretariat of the Presidency of the Republic (CNPq/SEPLAN). The seminar’s conclusions had an important effect by triggering a debate on water resources management at national level, with meetings being held in six Brazilian capitals⁴.

These actions had their origin in the good results obtained from the 1976 agreement between the Ministry of Mines and Energy and the Government of the State of São Paulo, to improve sanitatary conditions in the Upper Tietê and Cubatão catchments. As a result of the lessons learned, the Special Committee for Integrated Studies of River Basins (CEEIBH) was set up in 1978, and took on the task of establishing executive committees in several catchments under the jurisdiction of the Union, among them the Paraíba do Sul and São Francisco committees. These committees had been assigned only consultative tasks, making it difficult to implement their decisions. Even so, these were fundamental experiences in the history of water resources management in Brazil.

In 1986, the Ministry of Mines and Energy created a Working Group, made up of state and federal agencies, to study and propose the organization of a water resources management system. The final report recommended the creation of a national system, and that states, territories and the Federal District be informed of the need to institute similar systems.

The state of São Paulo, which had been involved in restructuring the sector since 1983, and sharing the same concerns, began in 1986 to discuss the need to look at water resources from multiple aspects, causing an institutional and technical debate, so that a feasible system could be created from a technical standpoint, and, at the same time, be practicable from a political standpoint. The message was that this subject had to expand beyond the technocratic spheres of government to include other interested segments of society.

The debate thus began to expand. The need to bring together social and technical sectors of the government, and take this discussion to the political arena, was recognized. The resulting participation made 1987 a landmark year in the modernization of the water resources sector. Ten years after the Mar del Plata Conference, Brazil had begun to put one of its fundamental recommendations into practice, i.e., open debate on the participatory management of water resources .

In that same year, the Brazilian Association of Water Resources (ABRH) made its statement in the Salvador Letter, drawn up during the 7th Brazilian Water Resources Symposium, regarding the pressing need for the creation of a national water resources system and improvement to pertinent legislation, to take into account the multiple uses of water resources, decentralized and participatory management, the institution of a national system of information on water resources and technological development and training in the sector.

Realizing the importance of this topic, the Brazilian Association of Water Resources created the Water Resources Management Committee chaired by Flavio Terra Barth, and began a new and extremely useful stage in which the technical community took part to expand the scope of the debates.

Also in 1987, after intense debates held within the Government of the State of São Paulo, especially by bodies such as the Department of Water and Electric Energy (DAEE) and the Foundation for the Administrative Development of the State of São Paulo (FUNDAP), led by Flávio Terra Barth, and supported by groups from the Piracicaba River Basin who were demanding action for its recovery, the State Council for Water Resources was created, with the task of drawing up the policy for water resources in the state, designing the Integrated Water Resources Management System and preparing a plan for the state’s water resources.

At the same time, the first Intermunicipal Consortium of Santa Maria/Jucu was constituted in the state of Espírito Santo, to facilitate negotiations among water resource users interested in resolving their differences.

During the same year, Ceará established the State Secretariat for Water Resources and began to prepare the state’s Water Resources Plan, which was drawn up over the 1988-1991 period.

Based on these initiatives, a broad discussion process began, with the participation of professionals through the Brazilian Association of Water Resources, together with its sister bodies, the Brazilian Association of Sanitary Engineering (ABES), (Brazilian Subterranean Water Association (ABAS), the Brazilian Irrigation and Drainage Association (ABID), and government sectors, in order to present proposals for the 1988 constitutional reform.

As a result Article 21, XIX was included in the 1988 Constitution , “The federal government is empowered to.....”set up a National Water Resources Management System, and define criteria for the granting of rights of use…” . This was later reproduced in the constitutions of 12 states and the Federal District, that were enacted after 1989, and included mention of water resources management systems. In 9 states there was the option of implementing this system by statutory law, and in 5 states the respective constitutions simply repeated the provisions of the Federal Constitution.

From that time on society and the government moved to effectively implement this principle of the Constitution.

The convergence of a number of facts allowed the rapid evolution of this sector. Local, regional and national initiatives, stand out among the public and private bodies, and technical/scientific and professional associations that came together to build the institutional framework of the water resources sector in Brazil.

Also in 1988, the Sinos and Gravataí rivers catchment committees were created. These are tributaries of the Guaiba River, in the state of Rio Grande do Sul, and the creation of these committees was considered a pioneering initiative, as the catchment communities themselves, with the support of the state government, worked for their creation. Even though those committees were established on a consultative basis only, their intense mobilization made them productive and they were later incorporated into the state’s water management system.

The Brazilian Association of Water Resources remained active and, in 1989, produced the Foz do Iguaçu Declaration, which had great repercussions among professionals. That document laid out the basic principles to be followed in determining National Water Resources Policy, such as integrated management, the catchment as a management unit, recognizing the economic value of water and decentralized, participatory management.

In 1989, in another pioneering initiative, several towns within the Piracicaba and Capivari catchments joined forces to form the Intermunicipal Consortium of the Piracicaba and Capivari Catchments, with the idea of encouraging, not only the environmental rehabilitation of the rivers, but regional integration and a development plan for the catchments. This initiative consolidated a new vision among local governments, increasing the participation of civil society in the water resources decision-making process.

Among the first effective actions to modernize the sector was the decision, by the Government of the State of São Paulo, to send to the state congress in 1990, a bill of law creating the state’s Water Resources Policy and Water Resources Management System. This bill of law, enacted in 1991, consolidated the participation of civil society in the decision-making process, determining the implementation of water charges, and that the resulting funds be managed through the Water Resources Fund (FEHIDRO), to finance measures requested by the catchment committees. FEHIDRO became one of the most important innovations in this sector, because it ensured that funds went directly to the water resources system, free from political interferences typical of the resources allocation process.
Also in 1991, the Federal Government sent for approval of the National Congress a bill of law creating the National Water Resources System and defining National Water Resources Policy. Congressman Fábio Feld-mann was the relator.

In that same year the Brazilian Association of Water Resources gave out the Rio de Janeiro Letter, relating the progress made within technical circles on water resources management and indicating the need to integrate water resources and environment systems. It also indicated the need for the country to have a sufficiently flexible water resources management system, which would provide for regional diversity.

With regard to the process of enacting the federal bill of law there were many obstacles to be overcome especially at federal level. The broadening of the debate, to include organized segments of society, professional associations and sector institutions, was essential to ensure the continuance of the initial principals proposed for water resources management.

Due to the length of time it took for the federal law to be approved, the Brazilian states began to create their own water resources management systems: São Paulo in 1991, Ceará in 1992, Santa Catarina and the Federal District in 1993, Minas Gerais and Rio Grande do Sul, in 1994, and Sergipe and Bahia in 1995, all enacted water resources laws, a process which continues at the present time, within the various state assemblies.

The Ceará law, enacted in 1992, is the second state law to come into force in Brazil, and it opened the way for that state to propose an innovation in institutional arrangements for the sector, completed when the Water Resources Management Company (COGERH) was established in 1993.The pioneering experience of COGERH, which began the process of charging for the supply of bulk water to industrial and public sectors in urban areas is worth remembering. The money collected is used to run the management system itself, and is controlled by COGERH.

On the international scene, the movement to modernize water management in Brazil found support in the Dublin Statement. Held as a preparatory event for the United Nations Conference on Environment and Development in Rio de Janeiro, the Inter-national Conference on Water and the Environment held in Dublin, in January 1992, is a landmark in the modernization of management systems5. The Dublin Statement emphasizes: “The scarcity and misuse of freshwater pose a serious and growing threat to sustainable development and environmental protection. Human health and welfare, food security, industrial development and the ecosystems on which they depend are all at risk unless water and land resources are managed more effectively in the present decade, than they have been in the past.” From this conference also emanated the so-called Dublin Principles, which guide water management throughout the world to the present.

In 1993, already under the aegis of the new institutional arrangement, the state of São Paulo established the Piracicaba, Capivari and Jundiaí River catchment committees. Between 1993 and 1997, 20 catchment committees were created in the state of São Paulo, to become water resources management units. The experience of the catchment committees in that state is considered innovative, because these are collegial committees that can also deliberate on matters. They are responsible for investing funds from FEHIDRO which, in the eight years since it was founded, has already invested over R$100 million in the catchments of the state of São Paulo.

During this same period, several international organizations supported Brazil in its work of modernizing the sector. One that deserves special mention is the World Bank, which has helped Brazil reach unimaginable results. Through its water resources policy⁶, the World Bank has supported the state of Ceará’s PROURB Urban Development and Water Resource Management Project, through which the institutional reform of the sector in that state is being implemented with the creation of water users’ associations which are the cradle for future catchment committees and improvements to water infrastructure. In subsequent years this experience was repeated in the state of Bahia and expanded to create the Semi-Arid Water Resources Management Project (PROÁGUA Semi-Arid) in 1998, and the Federal Water Resources Management Project (PROÁGUA) in the year 2000. The Bank’s ongoing incentives directed at improving the legal and institutional frameworks in the water resources sector in Brazil confer even more merit on its outstanding performance in this sector.

In 1995, amidst the approval process of the federal bill of law on water resources, President Fernando Henrique Cardoso created the Ministry of the Environment, Water Resources and the Legal Amazon and, within this ministry, the Secretariat for Water Resources.

Congressman Aroldo Cedraz replaced Congressman Fábio Feldman as relator of this bill of law and, in the same spirit as his predecessor, continued the debates with technical sectors of the government and civil society, presenting his amendment to the bill in February of 1996. This new version included a flexible river basin management model that took regional diversities into account.

While the bill went through the channels, negotiations between the states and the federal government allowed Federal Decree 1,842, of March 22, 1996 to be published, creating the Committee for the Integration of the Paraiba do Sul Catchment, a different model from previous ones. The Committee was made up of three federal representatives⁷ and 12 representatives from each of the states within the catchment, i.e., São Paulo, Rio de Janeiro and Minas Gerais. Furthermore, 50% of the committee’s members come from civil society and water resources users groups, and decisions are taken by a two-thirds majority of all members. With this framework and rules of procedure, the committee deliberates by consensus among the states, and the federal representatives have the important role of articulating and negotiating this consensus. Their performance in this role marks a significant movement towards the decentralization of the entire decision-making process.

On January 8, 1997, President Fernando Henrique Cardoso sanctioned Law 9,433, which defined National Water Resources Policy and created the National Water Resources Management System. The nation now had a legal instrument which, when fully implemented, will ensure the availability of water in adequate conditions for future generations.

The new law, which came in answer to a national aspiration, represents the modernization of this sector and places Brazil among the countries with the most modern water resources legislation in the world.

With its enactment a new era began, bringing new challenges. The time has come to end discussions about the management model, and face the challenge of implementing them.

There are many challenges. Law 9.433/97 is based on National Water Resources Policy that defines water as a good in the public domain, with its economic value, and priority uses for human and livestock consumption, and whose management is based on the catchment as a territorial unit. Its overall guideline is integrated management, and the instruments they are to use in implementing the water resources plans, classifying bodies of water according to their main uses, the concession of water rights, water charges and the water resource information system.

The National Water Resources Management System was created by Law 9,433, to achieve the following objectives:

•  coordinate the integrated management of waters
• arbitrate water use related conflicts administratively
•  implement the National Water Resources Policy
•  plan, regulate and control the use, conservation and recovery of water resources
•   encourage charging for water use

The National Water Resources Management System is made up of:

•  the National Water Resources Council
•  the water resources councils of the states and the Federal District
•  the catchment committees
•  the government agencies with attributes related to water resources management
•  the water agencies

Another major characteristic of the system is the importance assigned to public participation. The participation of users and civil society is assured at all meetings called, from the National Water Resources Council to the catchment committees, thus legitimizing decisions and also insuring their implementation. In this sense, the states also advanced rapidly towards creating catchment committees, and the state of Ceará established its first catchment committee⁸ in 1998, an exemple of how to work with user communities⁹.

The implementation of the system continued with the regulation of the National Water Resources Council (CNRH), implemented by Federal Decree No. 2,612, of June 1998. In November of the same year, under the chairmanship of the then Minister of the Environment, Gustavo Krause, the first Ordinary Meeting was held. The Water Resources Secretariat of the Ministry of the Environment performs the function of Executive Secretariat to the CNRH, and provides technical, administrative and financial support to the Council. Its first task was to organize the National Water Resources Management System, especially with regard to regulating the system and establishing general criteria on how to apply the management instruments created by Law 9,433/97.

Among the main innovations introduced by Law 9,433/97 was the clarity in defining the mechanisms that were to be used in implementing National Water Resources Policy:

I. the Water Resources Plans
II. classification of bodies of water according to main uses
III. concession of water rights
IV. charging for water resource use
V. compensation to municipalities
VI. the Water Resources Information System

Law 9,433/97 is modern and important for the territorial organization of the country, but it means major changes for public administrators and users, since it requires the acceptance of the principles of constituting partnerships.

In this sense, the main difficulty experienced in the years subsequent to the approval of Law 9,433/97 was in the institutional arrangement for the Water Resources Management System and the lack of an agency responsible for implementing National Water Resources Policy. A system, based almost exclusively on the action of catchment committees, wouldn’t have the framework necessary to fulfill essential technical activities such as the concession of water rights, or even to implement complex systems such as water charges.

Law 9,433/97 lacked the regulations to be effective. At that time Barth¹⁰ identified the fact that the National Water Resources Management System was an institutionally advanced and complex one, especially because it was integrated, decentralized and participatory, while local government administrations and agencies faced with the demands generated by new economic, social and political circumstances, were in a state of crisis. In this sense he remarked that the recent institution of federal agencies to regulate public services in the process of being privatized indicated a technically and legally feasible option for the institutional organization of the water resources sector.

Based on this possibility, the subject was discussed at different levels of the Federal Government and, in April 1999, the President of Brazil announced his intention to establish a government agency, under a special regime, to be responsible for developing the National Water Resources Management System¹¹ . This agency would have sufficient autonomy, stability and flexibility to overcome the difficulties involved in implementing the Water Resources Management System. In July of the same year, a seminar was organized at the Presidential Palace, on the subject of: “Water, the Challenge for the Next Millennium”, with the presence of the President of Brazil, the Vice-President and 10 Cabinet Ministers, for the presentation of the new institutional arrangement for the water resources sector, which included the creation of the National Water Agency- ANA. In his speech during the opening session, President Fernando Henrique Cardoso stated:

“...There can be no greater lack of understanding of the role of the modern State than to imagine that the contemporary world desires a minimalist State. No! It desires another State, because the minimalist State is just as useless as the large one. It may be less expensive, but it is as useless for the people as the large one. Possibly even more so, because the large bureaucratic State made direct investments, it built civil works that were important for the population. The lack of resources for the State to act directly impedes it from continuing in this manner – and it doesn’t need to.

If we only do this and diminish the State, we weaken the government’s capacity and, therefore the organized forms of life in society, as regards political action to work for the population as a whole.

We should transform the State so that it becomes a regulator working in the interests of the population and inducing actions in the direction one imagines to be the common good. This National Water Agency will work in that direction. We are establishing general rules so that we are able to function effectively…

Nobody will be surprised that we are here, proposing this National Water Agency, because this is the method by which we are creating a revolution in the structure of the Brazilian State.…”
The proposal for a bill of law was introduced in this manner, and a series of discussions ensued among technical and government sectors, on the subject of water resources, culminating in its submission to the National Congress.

The bill of law creating the National Water Agency (ANA) was approved by the Brazilian Congress on June 20, 2000, becoming Law No. 9,984 which was sanctioned by the Acting President of Brazil Marco Maciel, on July 17 of that year.

The National Water Agency (ANA) is subordinated to the Ministry of the Environment, but has administrative and financial autonomy. It is responsible the regulatory discipline of activities on the rivers, of sources of pollution and waste, in order to ensure that water will be available for future generations.

In carrying out this work, the National Water Agency (ANA) will follow the principles, guidelines and instruments of National Water Resources Policy, and coordinate with the public and private agencies that make up the National Water Resources Management System. Its mission is complex and the list of tasks to be carried out is long.

When Decree No. 3692 of December 19, 2000 was published, the Agency was installed, and its Board of Directors, whose names were approved by the Federal Senate, took office on December 22 of that same year.

The Agency had to expend much effort and time during the first year on its installation and staffing, not being the successor of an existing agency. Despite this, many things were achieved in this short time. Two topics were chosen to show, in practice, the benefit that can be obtained by the population from the rational management of water resources: living with the droughts in the semi-arid regions and fighting water pollution.

On the subject of living with droughts, ANA has sought alternatives to increase the availability of water in the semi-arid region, besides the traditional water pumps. Management of demand, by implementing mechanisms for the control of water allocation led to more efficient use of water, and showed that it is possible to innovate in water resources management in the semi-arid northeast. In this sense, an agreement with the state of Ceará enabled the implementation of a program to rationalize water use for irrigation in the Jaguaribe river valley. In this program, payment for water use made it possible to release water that had previously been utilized to maintain rice paddies under water, and could now be used on year-round crops with a higher added value.

With regard to fighting pollution, the Agency adopted the pact system among the government, user sectors and organized civil society to rehabilitate degraded bodies of water. In catchments where established committees have already made a pact for water use and effluent discharge, the Federal Government, through the National Water Agency, funds the construction of sewage treatment plants. The National Water Agency also proposed the creation of the catchment clean-up program (PRODES) to encourage the cleaning up of river basins in regions of Brazil with greater urban and industrial densities. PRODES was considered a benchmark project for ANA in 2001. Focusing on the result - treated sewage – its purpose is to remove pollution from rivers and support the implementation of the water resources management system, through the establishment of committees, catchment agencies and management instruments: concessions; catchment plans; and charging for the use of water resources. PRODES is innovative, it does not finance works or equipment, but it pays for treated sewage, i.e., for results that are effectively useful to society.

ANA also plays an essential role in mediating water use conflicts. In 2001, the Agency mediated the conflict that occurred on the Tietê-Paraná Waterway, involving navigation and electric power generation.

In 2001, with the energy crisis, the electric sector wanted to use all available capacity at the Ilha Solteira power plant to increase electric power output. Doing this would mean closing down the Pereira Barreto canal that connects the lake at Ilha Solteira to the one at Três Irmãos Power Plant, interrupting navigation. Negotiations were successful and navigation could continue on this the most important Brazilian waterway. The result for the country was good, with the volume of goods transported on the waterway increasing by 30% when compared to the previous year.

It was also possible to reconcile interests in the conflict between power generation and irrigation in the São Francisco catchment, caused by the low level of the Sobradinho reservoir. The solution involved the reduction of outflow from the reservoir, without significantly reducing the area of irrigated land.

In the Brazilian Semi-Arid Region, the scarcity of water for human consumption is still a social tragedy, especially during droughts. At such times, the need for water for domestic consumption obliges people to walk long, exhausting distances, every day. Probably more than two-thirds of the 3.3 million rural domiciles in the Northeast are in this situation. In this context, the Rainwater Use Development Program – Rural Cisterns was implemented, with emphasis on social mobilization and environmental education for the rural families of the Semi-Arid region.

The National Water Agency spent most of 2001, setting out its form of operation for the coming years. These long-term tasks can be broken down into four groups of actions:
1. Implementation of the Water Resources Management System – technical and regulatory instruments: concession of grants, water charges, integrated inspections, Water Resources Information Systems, Water Resources Plans and multiple use of reservoirs;
2. Implementation of the Water Resources Management System, institutional instruments; coordination of actions to implement and operate catchment committees, training of human resources and implementation of new technologies for water resources management.
3. Projects: cleaning up polluted catchments, flood control, Sustainable water supply in the Northeast and rational water conservation and use.
4. Decentralization of Integrated Water Resources Management: agreements for integration with the states and catchment agencies for the integrated management of water resources in the catchment and agreements for cooperation with the states, municipalities and other public and private institutions to strengthen the state systems institutionally.

After only one year, the National Water Agency is faced with a challenge the size of Brazil. Advances have been significant, but the strategy required for the implementation of this complex system in the face of diverse scenarios; regional differences; investment deficits in various sectors, especially in sanitation; and the lack of trained personnel, requires creative and innovative solutions, besides a constant disposition to establish partnerships and to negotiate.

1 Concept of sustainable development, introduced by the World Committee for Development and the Environment, organized by the United Nations and chaired by the then Prime Minister of Norway Gro Harlem Brundtland, in 1984: “to attend to the needs of the present generation without compromising the capacity of future generations to attend to their own needs.
2 Recomendaciones de las reuniones internacionales sobre el Água: de Mar del Plata a Paris, CEPAL, LC/r.1865, 1998
3 Barth, F.T. “Aspectos Institucionais do Gerenciamento de Recursos Hídricos”, in: Águas Doces no Brasil, Rebouças, A. C. Braga,B.P.F. and Tundisi, J.G. editors. , Cap. 17, Editora Escrituras, 1999.
4 Barth, 1999.
5 CWE, 1992. International Conference on Water and the Environment: Development Issues for the 21st. Century. United Nations, Dublin, Ireland.
6 World Bank, Water Resources Management. A World Bank policy paper. Washington, 1993.
7 Ministry of the Environment, Legal Amazon and Water Resources, Ministry of Mines and Energy and Ministry of Planning and the Budget
8 Curu River Basin Committee
9 Garjulli, Rosana. “Experiência de Gestão Participativa dos Recursos Hídricos: o Caso do Ceará”. In: Experiências de Gestão de Recursos Hídricos, Alves, R.F.F. e Carvalho, G.B.B., eds, MMA/ANA, 2001
10 Barth, F.T. “Aspectos Institucionais do Gerenciamento de Recursos Hídricos”. In: Águas Doces no Brasil, Rebouças et al., eds. Editora Escrituras, 1999.
11Pagnoccheschi, B. A Política Nacional de Recursos Hídricos no Cenário da Integração das Políticas Públicas. In: Interfaces da Gestão de Recursos Hídricos, Munoz, H.R., ed. SRH/MMA, 2000.