LAW NO. 9,984, OF JULY 17, 2000

    Rules on the establishment of the Brazilian Water Agency - ANA, a federal agency for implementing the National Water Resources Policy and coordinating the National Water Resources Management System, and lays down other related provisions.

THE VICE-PRESIDENT OF THE REPUBLIC, in my capacity as ACTING PRESIDENT OF THE REPUBLIC, I make known that the National Congress decrees and I hereby sanction the following Law:

CHAPTER I - PURPOSE
Article 1 - This Law creates the Brazilian Water Agency - ANA, a federal agency for implementing the National Water Resources Policy, as part of the National Water Resources Management System, laying down rules for its operation, its administrative structure and its sources of funding.

CHAPTER II - CREATION, LEGAL STATUS AND FUNCTIONS OF THE BRAZILIAN WATER AGENCY - ANA
Article 2 It is a function of the National Water Resources Council to coordinate the planning activities at a national, regional, state and municipal level of the user sectors undertaken by the bodies making up the National Water Resources Management System and to formulate the National Water Resources Policy, under the terms of Law No. 9,433, of January 8, 1997.

Article 3 The Brazilian Water Agency - ANA, a quasi-autonomous government agency, with administrative and financial autonomy, attached to the Ministry of the Environment is hereby created, for the purpose of implementing within its sphere of activity the National Water Resources Policy, forming part of the National Water Resources Management System.

Sole Paragraph. The ANA will have its head office and forum in the Federal District, and it may set up regional administrative offices.

Article 4 The ANA's operations will adhere to the objectives, guidelines, and instruments of National Water Resources Policy and will be undertaken in harmony with the public bodies and private organizations making up the National Water Resources Management System. It will be responsible for:

I - supervising, controlling, and assessing actions and activities deriving from compliance with federal legislation pertaining to water resources;
II - disciplining, normatively, the implementation, the operation, the control, and the assessment of the instruments of the National Water Resources Policy;
III - (RULED OUT)
IV - granting, by means of authorizations, the right to use water resources of bodies of water controlled by the Federal Government, pursuant to the provisions under Documents, Researches and Interviews. 5, 6, 7 and 8;
V - inspecting the use of water resources of bodies of water controlled by the Federal Government;
VI - preparing technical studies for supporting the determination by the National Water Resources Council, of the amounts to be charged for the use of water resources controlled by the Federal Government, based on mechanisms and quantities suggested by the Hydrographic Basin Committees, pursuant to clause VI of Article 38 of Law No. 9,433, of 1997;
VII - encouraging and supporting initiatives intended to create Hydrographic Basin Committees;
VIII - implementing, in conjunction with the Hydrographic Basin Committees, the charge for the use of water resources controlled by the Federal Government;
IX - collecting, distributing, and investing revenues earned by charging for the use of water resources controlled by the Federal Government, as provided for in Article 22 of Law No. 9,433, of 1997.
X - planning and implementing action intended to prevent or minimize the effects of droughts and flooding, within the scope of the National Water Resources Management System, in cooperation with the central body of the National Civil Defense System, in support of the States and Municipalities;
XI -arranging for the preparation of studies in support of investing Federal funds in works and services to regulate watercourses, the allocation and distribution of water, and the control of water pollution, pursuant to the provisions governing water resources plans;
XII - defining and inspecting the operating conditions of reservoirs by public and private agents, for the purpose of guaranteeing the multiple use of water resources, as set out in the water resources plans of the respective hydrographic basins;
XIII - arranging for the coordination of activities undertaken within the national hydro-meteorological network, in cooperation with the public or private bodies or organizations that comprise it, or that are users of it;
XIV - organizing, introducing, and managing the National Water Resources Information System;
XV - encouraging research into and training of human resources in the management of water resources;
XVI - providing support to the States in creating water resources management organizations;
XVII - proposing to the National Water Resources Council the establishment of incentives, including financial incentives, for the conservation of the quality and quantity of water resources.
§ 1 In fulfilling the functions referred to in clause II of this Article, in the case of hydrographic basins shared with other countries, the relevant agreements and treaties will be taken into account.
§ 2 The action to which clause X of this Article refers, involving the enforcement of preventive rationing, may only be undertaken in compliance with the criteria to be established in a decree by the President of the Republic.
§ 3 For the purposes of the provisions under clause XII of this Article, the operating conditions for reservoirs making use of hydroelectric resources will be set in cooperation with the National Systems Operator - ONS.
§ 4 The ANA may delegate or assign to water or hydrographic basin agencies the responsibility for carrying out activities within its field of competency, under the terms contained in Article 44 of Law No. 9.433, of 1997, and other applicable legal provisions.
§ 5 (RULED OUT)
§ 6 The investment of the revenues referred to in clause IX will be done in a decentralized manner, through the agencies referred to in Chapter IV of Section II of Law No. 9,433, of 1997, and, in the absence or preclusion of these, by other bodies belonging to the National Water Resources Management System.
§ 7 In the administrative acts granting the right to use the resources of watercourses bordering the semiarid regions of the Northeast, issued under the terms of clause IV of this Article, the restrictions deriving from clauses III and V of Article 15 of Law No. 9,433, of 1997, must appear explicitly.

Article 5 In the grants of the right to the use of water resources controlled by the Federal Government, the following time limits will be adhered to, counting from the date of the publication of the respective authorizing administrative acts:

I - up to two years, for the start of actual implementation of the undertaking that is the purpose of the grant;
II - up to six years, for completing the implementation of the planned undertaking;
III - up to thirty-five years for the term of validity of the grant for the right of use.
§ 1 The terms of validity of the grants for the right of use of water resources will be set in accordance with the nature and the size of the undertaking, taking account of, where applicable, the period required for a return on the investment.
§ 2 The periods to which clauses I and II refer may be extended where the size, and the social and economic importance of the undertaking justify it, after hearing the opinion of the National Water Resources Council.
§ 3 The period referred to in clause III may be renewed by the ANA, in accordance with the priorities of the Water Resources Plans.
§ 4 The grant for the use of water resources to concessionaires and authorizees of public services and hydroelectric power generation will remain in effect for lengths of time coinciding with the corresponding concession contracts or authorizing administrative acts.

Article 6 The ANA may issue preventive grants for the use of water resources for the purpose of declaring that the water is available for the required uses, pursuant to the provisions established in Article 13 of Law No. 9,433, of 1997.

§ 1 A preventive grant does not give the right to the use of the water resources and is intended to reserve the flow of water able to be granted, allowing investors, to plan undertaking requiring these resources.
§ 2 The term of validity of a preventive grant will be set taking into account the complexity of the planning of the undertaking, and will be for no more than three years, after which the provisions set forth in clause I and II of Article 5 will apply.

Article 7 In order to tender out the concession or authorize the use of hydroelectric power potential of a body of water controlled by the Federal Government, the Brazilian Electricity Regulatory Agency - ANEEL must arrange with the ANA for an advance declaration of a reserve of water availability.

§ 1 When the hydraulic potential is located in a body of water controlled by the States, or the Federal District, the declaration of a reserve of water availability will be obtained in cooperation with the relevant management body of the water resources.
§ 2 The declaration of a reserve of water availability will automatically be turned into a grant of the right for the use of water resources, by the relevant granting authority, to any institution or company that receives from ANEEL a concession or authorization for the use of hydroelectric power potential.
§ 3 The declaration of a reserve of water availability will abide by the provisions contained in Article 13 of Law No. 9,433, of 1997, and will be issued within time periods to be regulated by a decree by the President of the Republic.

Article 8 The ANA will publicize the requests for a grant for the use of water resources controlled by the Federal Government and the administrative acts resulting from it by means of publication in the official press and in at least one major circulation newspaper in the relevant region.

CHAPTER III - THE FUNDAMENTAL STRUCTURE OF THE NATIONAL WATER AGENCY - ANA
Article 9 The ANA will be managed by a Board of Directors made up of five members, appointed by the President of the Republic with non-coinciding terms of office of four years, which may be renewed consecutively once only, and it will have an Attorney General's office.

§ 1 The President of the ANA will be chosen by the President of the Republic from among the members of the Board of Directors and invested in the function for a term of four years, or for whatever period may remain of hospital or her term of office.
§ 2 In the event of a vacancy arising during the course of a term of office, this will be completed by a successor invested in the manner prescribed in the caption of this Article, who will serve for the remainder of the term.

Article 10. Dismissal of directors of the ANA without just cause may only take place after the first four months of their respective terms of office.

§ 1 After the period referred to in the caption of this Article, directors of the ANA may only lose the right their mandate by resignation, by conviction in rem judicatam, or by final decision of administrative disciplinary proceedings.
§ 2 Without prejudice to the provisions of criminal legislation regarding the punishment of any acts of administrative improbity in the civil service, failure to comply, by any of the directors of ANA, with the duties and proscriptions inherent to the position he or she holds will constitute reason for removal from office.
§ 3 For the purposes of the provisions of § 2, it is the responsibility of the Minster of State for the Environment to institute administrative disciplinary proceedings, which will be conducted by a special commission, and it is the prerogative of the President of the Republic to determine preventive removal from office, where appropriate, and to issue judgment.

Article 11. The directors of the ANA may not exercise any other professional, business, or labor union activity or engage in the management of a political party.

§ 1 The directors of the ANA may not, pursuant to its internal regulations, have a direct or indirect interest in any company related to the National Water Resources Management System.
§ 2 The prohibition referred to in the caption of this Article does not apply to cases where the professional activities derive from contractual obligations to public or private teaching or research bodies.

Article 12. The functions of the Board of Directors are:

I - to manage the ANA;
II - to publish rules on matters within its field of competence;
III - to approve the ANA's internal regulations, organization, structure, and the power of decision of each directorate;
IV - to comply with and to cause to be complied with the rules regarding the National Water Resources Management System;
V - to examine and decide on requests for the grant of the use of water resources controlled by the Federal Government;
VI - to prepare and publish reports on the activities of the ANA;
VII - to send the ANA's financial statements to the competent authorities;
VII - to decide on the sales, assignment, or rental of assets belonging to the ANA; and
IX - to examine and judge requests for reconsideration of decisions by members of the ANA Board of Directors.
§ 1 The Board of Directors will pass motions by means of a simple majority of votes, and will meet with the presence of at least three directors, among whom must be the President or his legal substitute.
§ 2 Decisions pertaining to the institutional functions of the ANA, provided for in Article 3, will be taken in the form of joint board decisions.

Article 13. The functions of the President are:
I - to represent the ANA legally;
II - to preside over meetings of the Board of Directors;
III - to comply with and to cause to be complied with the decisions of the Board of Directors;
IV - to decide ad referendum of the Board of Directors on urgent matters;
V - to exercise the casting vote, in the event of a tied vote, in decisions of the Board of Directors;
VI - to appoint and dismiss public employees, filling transitory government positions and positions of trust;
VII - to hire, requisition, and dismiss public employees, filling public positions;
VIII - to send to the reports prepared by the Board of Directors and other matters for which it is responsible to the National Water Resources Council;
IX - to sign contracts and agreements and incur expenses; and
X - exercise disciplinary power under the terms of current applicable legislation.

Article 14. The functions of the ANA's Attorney General's Office, which is associated with the Federal Government's Attorney General's Office for the purposes of normative guidance and technical supervision, are:

I - to represent the ANA legally, with the procedural prerogatives of the public treasury;
II - to represent legally the holders of positions and functions of directors, including after the completion of their respective terms of office, in respect of acts carried out in the course of their legal or institutional functions, taking whatever legal measures may be necessary, on behalf of and in the defense of those represented;
III - to calculate the net and accurate debt of any nature, inherent to the activities of the ANA, recording as active debt for the purpose of collection in or out of court; and
IV - undertaking the activities of legal consultancy and advice.

Article 15. (RULED OUT)

CHAPTER IV - ANA'S EMPLOYEES
Article 16. The ANA will constitute, within thirty-six months counting from the date of the publication of this Law, its own personnel establishment by holding a competitive civil service examination, or examination and qualifications, or redistribution of employees of bodies and organizations of the direct federal administration, quasi-autonomous agencies, or foundations.

§ 1 Under the terms of clause IX of Article 37 of the Constitution, the ANA is hereby authorized to hire temporarily, for a period of no more than thirty-six months, the technical staff essential to meeting its institutional functions.
§ 2 For the purposes of the provisions set forth in § 1, the activities pertaining to the implementation, monitoring and assessment of definitive projects and programs in the water resources field, essential to the establishment and workings of the ANA, are considered temporary needs.

Article 17. The ANA may requisition, against payment, employees of bodies and organizations forming part of the direct federal public administration, quasi-autonomous agencies, and foundations, whatever the functions to be fulfilled.

§ 1 Requisitions for employees in the ANA, without being transitory government positions and positions of trust, are authorized for a period of no more than twenty-four months, counting from the establishment of the agency.
§ 2 When the length of time referred to in § 1 has elapsed, only employees in transitory government positions will be transferred to the ANA when requisitioned by it.
§ 3 During the first thirty-six months following the establishment of the ANA, the requisitions referred to in the caption of this Article, with the prior approval of the Ministers of State for the Environment and for Planning, Budget, and Management, will not be refused and will be attended to promptly.
§ 4 When the transfer results a reduction in remuneration of the employee requisitioned, the ANA is hereby authorized to supplement it so as to reach the level the employee received in the Body or Organization of origin.

Article 18. For the purpose of establishing the structure of the ANA, the following positions are created:

I - Forty-nine transitory government positions, of which five are positions of a Special Nature having a unit value of R$6,400.00 (six thousand, four hundred Brazilian reals) and forty-four positions of the Senior Management and Advisory Group - DAS, distributed as follows: nine DAS 101.5; five DAS 102.5; seventeen DAS 101.4; one DAS 102.4; eight DAS 101.3; DAS 101.2; and two DAS 102.1;
II - one hundred and fifty positions of trust known as Commissioned Water Resources Positions - CCRH (acronym in Portuguese), of which: thirty CCRH - V, having a unit value of R$1,170.00 (one thousand, one hundred and seventy Brazilian reals); thirty CCRH-III, having a unit value of R$515.00 (five hundred and fifteen Brazilian); twenty CCRH-II, having a unit value of R$454.00 (four hundred and fifty-four Brazilian); and thirty CCRH-I, having a unit value of R$402.00 (four hundred and two Brazilian reals).
§ 1 Employees vested in CCRHs will undertake functions of technical advice and coordination and will receive remuneration corresponding to the effective position or permanent employment, plus the value of the function for which he or she has been designated.
§ 2 The designation for the function of advice referred to in this Article may not be accumulated with any designation or appointment to any other form of commissioning, and its payment will cease for the periods of absence of the employee, including those considered to be of effective working, except the periods referred to in clauses I, IV, VI and VIII and lines a and e of clause X of Article 102 of Law No. 8.112, of December 11, 1990, and the provisions set under Article 471 of the Consolidated Labor Laws, approved by Decree-law No. 5,452, of May 1, 1943.
§ 3 The Board of Directors of the ANA may change the quantities and distribution of the CCRH within the Agency´s organizational structure, in compliance with the hierarchical levels, the corresponding levels of remuneration and the respective overall costs.
§ 4 During the first thirty-six months following the establishment of the ANA, CCRHs may be held by employees requisitioned under the terms established in Article 3.

CHAPTER V - ASSETS AND REVENUES
Article 19. Assets and rights owned by it, those granted to it, or those that it may acquire or incorporate, constitute the property of the ANA.

Article 20. The revenues of the ANA are:

I - the funds transferred to it in respect of allocations from the Federal Government's General Budget, special credits, additional credits and transfers granted to it;
II - the funds deriving from charges for the use of the water of bodies of water under the control of the Federal Government, in compliance with the manner and limits of application provided for in Article 22 of Law No. 9.433, of 1997;
III - the funds deriving from agreements, accords, or contracts entered into with Brazilian or international bodies, organizations, or companies;
IV - donations, legacies, grants and other funds extended to it;
V - the proceeds of the sale of publications, technical material, data and information, including for the purposes of public tenders, of administrative fees and fees for registration in civil service examinations;
VI - remuneration for services of any nature provided to third parties;
VII - the proceeds of the collection of fines applied as a result of the inspections referred to in Documents, Researches and Interviews 49 and 50 of Law No. 9,433, of 1997;
VIII - the proceeds of the sale or rental of chattels or real estate owned by it;
IX - the proceeds of the sale of goods, articles and instruments used in committing violations, as well as the assets of offenders, seized in the course of police investigations and incorporated into the Agency´s assets, as provided for under the terms of a legal ruling; and
X - funds deriving from charging administrative fees.

Article 21. Revenues stemming from the charges for the use of water resources controlled by the Federal Government will be held available for the ANA, in the National Treasury Single Account, for as long as they are not spent on the respective programs.

§ 1 The ANA will maintain records allowing revenues to be associated with the hydrographic basins giving rise to them, in order to meet the provisions of Article 22 of Law No. 9,433, of 1997.
§ 2 The cash holdings referred to in the caption of this Article may be held in financial investments, in the manner regulated by the Finance Ministry.
§ 3 (RULED OUT)
§ 4 The priorities in investing funds referred to in the caption of Article 22 of Law No. 9,433, of 1997, will be established by the National Water Resources Council, in cooperation with the respective committees of the hydrographic basin.

CHAPTER VI - FINAL AND TEMPORARY PROVISIONS
Article 22. International first period of management of the ANA, one director will have a term of office of three years, two directors will have terms of office of four years, and two directors will have five-year long terms of office, in order to introduce the system of staggering terms of office.

Article 23. The Executive Branch is authorized to:

I - transfer to the ANA the technical and other assets, rights and revenues of the Ministry of the Environment, and its bodies, that are necessary to the functioning of the agency;
II - rearrange, transfer, or use budget balances from the Ministry of the Environment in order to meet the cost of structuring and maintaining the ANA, using as funds the budget allocations intended for such activities, in compliance with the same subprojects, subactivities and groups of expenses provided for in the Budget Law in force.

Article 24. The Legal Consultancy of the Ministry of the Environment and the Federal Government's Attorney General's office will provide the ANA, within the scope of its functions, such legal support as may be necessary, until such time as the position of Attorney General of the agency is filled.

Article 25. The Executive Branch will implement the decentralization of the activities of operating and maintaining reservoirs, canals, and pipelines controlled by the Federal Government, undertaking infrastructure projects forming part of the Brazilian Interconnected System, operated by the National System Operator - ONS.

Sole Paragraph. The ANA will be responsible for coordinating and supervising the decentralizing process referred to in this Article.

Article 26. The Executive Branch, within ninety days counting from the publication of this Law, will establish, by means of a decree by the President of the Republic, the internal regulations of the ANA, requiring them to be instituted.

Sole Paragraph. The decree referred to in the caption of this Article will establish the transitional rules, to remain in effect during the implementation stage of the ANA's activities, for a period of not less than twelve and no more than twenty-four months, regulating the temporary issue by ANEEL, of the declarations of availability of water resources referred to in Article 7.

Article 27. The ANA will arrange for the holding of a competitive civil service examination to fill vacancies available for new staff members.

Article 28. Article 17 of Law No. 9,648, of May 27, 1998, now comes into force with the following wording:

"Article 17. The financial compensation for the use of the water resources referred to in Law No. 7,990 of December 28, 1989, will be six point seven five percent of the value of the electric power produced to be paid by the holders of the concessions or authorizations for exploiting the hydroelectric potential to the States, the Federal District, and to the Municipalities in whose areas the facilities for producing the electric power are located, or which have their areas inundated by water from the respective reservoirs, and to bodies of the direct administration of the Federal Government." (NR)

"§ 1 The financial compensation referred to in the caption of this Article" (AC)
"I - six percent of the value of the electric power produced will be distributed among the States, Municipalities, and bodies that make up the Federal Government direct administration, under the terms contained in Article 1 of Law No. 8,001, dated March 13, 1990, with the wording given by that Law;" (AC)
"II - zero point seven five percent of the value of the electric power produced will be granted to the Ministry of the Environment, for investment implementing the National Water Resources Policy and the National Water Resources Management System, under the terms of Article 22 of Law No. 9,433, of January 8, 1997, and the provisions contained in this Law." (AC)
"§ 2 The portion referred to in clause II of § 1 constitutes payment for the use of water resources and will be applied under the terms of Article 22 of Law No. 9,433, of 1997." (AC)

Article 29. Article 1 of Law No. 8,001, of March 18, 1990, with the wording given by Law No. 9,433, of 1997, now comes into force with the following wording:

"Article 1 The monthly distribution of the financial compensation referred to in clause I of § 1, Article 17 of Law No. 9,648, of May 27, 1998, with the wording as amended by this Law, will be done as follows:" (NR)

"I - forty-five percent to the States;"
"II - forty-five percent to the Municipalities;"
"III - four point four percent to the Ministry of the Environment;" (NR)
"IV - three point six percent to the Ministry of Mines and Energy;" (NR)
"V - two percent to the Ministry of Science and Technology."
§ 1 In the distribution of the financial compensation, the Federal District will receive the amount corresponding to the portion payable to the State and Municipalities."
"§ 2 In hydroelectric plants benefited by upstream reservoirs, the additional electricity provided by them will be considered as power generation associated with these regulatory reservoirs and ANEEL will make the corresponding appraisal to determine the proportion of the financial compensation payable to the States, the Federal District and the Municipalities affected by these reservoirs." (NR)
"§ 3 The Itaipu plant will distribute monthly, in accordance with the percentages set out in the caption of this Article, without prejudice to the portions due to the bodies of the direct Federal Government administration, the States, and the Municipalities directly affected by it, eighty-five percent of the royalties payable by Itaipu Binacional to Brazil, provided for in Attachment C, paragraph III of the Itaipu Treaty, signed on March 26, 1973, between the Federative Republic of Brazil and the Republic of Paraguay, together with the subsequent interpretative documents, and fifteen percent to the States and Municipalities affected by reservoirs upstream of the Itaipu Plant, that contribute to the increase in electricity produced in it." (NR)
"§ 4 The portion intended for the Ministry of the Environment will be used in implementing the National Water Resources Policy and the National Water Resources Management System and in managing the national hydro-meteorological network." (NR)
"§ 5 Revoked."

Article 30. Article 33 of Law No. 9,433, of January 8, 1997, now comes into force with the following wording:"

"Article 33. The following form part of the National Water Resources Management System:

"I - the National Water Resources Council;"
"I - the Brazilian Water Agency;"(AC)
"II - the Water Resources Councils of the States and the Federal District;"
"III - the Hydrographic Basin Committees;"
"IV - the bodies of the federal, state, Federal District and municipal public authorities, whose functions relate to the management of water resources;" (NR)
"V - Water Agencies."

Article 31. Clause IX of Article 35 of Law No. 9,433, of 1997, now comes into force with the following wording:

"Article 35 ................................................................................ ..................................................
................................................................................ ........................................................................"
" IX - to monitor the implementation of and to approve the National Water Resources Plan and determine the measures required to fully perform its functions;" (NR)
"................................................................................ ............................................................."
Article 32. Article 46 of Law No. 9,433, of 1997, now comes into force with the following wording:

"Article 46. It is the responsibility of the Executive Secretariat of the National Water Resources Council:"
"I - to provide administrative, technical, and financial support to the National Water Resources Council:"
"II - revoked;"
"III - to advise on the workings of the State Water Resources Councils and the Hydrographic Basin
Committees;"
"IV - revoked;"
"V - to prepare its work program and corresponding annual budget proposal and submit them for approval by the National Water Resources Councils."

Article 33. This Law shall come into effect on the date of publication thereof.

Brasilia, July 17, 2000; 179th year of Independence and 112th year of the Republic.
MARCO ANTONIO DE OLIVEIRA MACIEL
Edward Joaquim Amadeo Swaelen
Marcus Vinicius Pratini de Moraes
Rodolpho Tourinho Neto
Matus Tavares
José Sarney Filho