LAW Nº 9,433 DATED JANUARY 8, 1997

    Introduces the National Water Resources Policy, establishes the National Water Resources Management System, regulates Item XIX of Article 21 of the Federal Constitution and alters Article 1 of Law Nº 8,001 dated March 13, 1990, which modified Law Nº 7,990 dated December 28, 1989.

THE PRESIDENT OF BRAZIL

    I hereby announce that the National Congress decrees and I sanction the following Law

TITLE 1 - NATIONAL WATER RESOURCES POLICY

CHAPTER I - BASES

Article 1 The National Water Resources Policy is based on the following grounds:

I - water is an asset falling within the public domain;
II - water is a limited natural resource endowed with economic value;
III - in shortage situations, the top-priority use of water resources is for human consumption and watering animals;
IV - the management of water resources should always foster multiple water uses;
V - the river basin is the territorial unit for the implementation of the National Water Resources Policy and the activities of the National Water Resources Management System;
VI - the management of water resources should be decentralized, and include the participation of the Government Authorities, users and communities

CHAPTER II - PURPOSES

    Article 2 The purposes of the National Water Resources Policy are:

I - to ensure necessary amounts of water available to current and future generations, at quality standards adequate to the respective uses thereof;
II - the rational, integrated use of water resources, including water-borne transportation, fostering sustainable development;
III - prevention and defense against critical hydrological events, whether natural in origin or deriving from improper use of natural resources.

CHAPTER III - GENERAL ACTION GUIDELINES

    Article 3 The general action guidelines for implementation of the National Water Resources Policy are:

I - systematic management of water resources, linked to quantity and quality aspects;
II - adaptation of water resources management to the physical, biotic, demographic, economic, social and cultural characteristics of the various parts of Brazil;
III - integration of water resources management with environmental management;
IV - interlinking water resources planning with that of user sectors and regional, state and national planning;
V - interconnecting water resources management with land use;
VI - integration of river basin management with that of estuarine systems and coastal zones.

    Article 4 The Federal Government will work closely with the States for the management of water resources of common interest.

CHAPTER IV - INSTRUMENTS

    Article 5 The instruments of the National Water Resources Policy are:

I - Water Resources Plans;
II - classification of water-bodies into classes, according to prevailing water uses;
III - awarding usage rights for water resources;
IV - charging fees for the use of water resources;
V - compensation paid to municipal districts;
VI - Water Resources Information System.

SECTION I - WATER RESOURCES PLANS

    Article 6 The Water Resources Plans are master plans designed to provide the bases and guide the implementation of the National Water Resources Policy and the management of water resources.

    Article 7 The Water Resources Plans are long-term plans with a planning horizon compatible with the implementation period of the programs and projects, with the following minimum content:

I - diagnosis of the current situation of water resources;
II - analysis of alternatives for demographic growth, development of production activities, and modifications to land settlement standards;
III - balance between future demands and availability of water resources in terms of both quantity and quality, identifying potential conflicts;
IV - targets for rational use, increasing the quantity and upgrading the quality of the water resources available;
V - measures to be taken, programs to be developed and projects to be implemented in order to meet the planned targets;
VI - (vetoed)
VII - (vetoed)
VIII - priorities for awarding water resources usage rights;
IX - guidelines and criteria for charging fees for the use of water resources;
X - proposal for establishing areas subject to constraints on use in order to protect water resources.

    Article 8 The Water Resources Plans will be drawn up by river basin, by State and on a nationwide basis.

SECTION II - CLASSIFICATION OF WATER-BODIES INTO CLASSES ACCORDING TO PREVAILING WATER USES

    Article 9 The classification of water-bodies into classes according to the prevailing water uses is designed to:

I - ensure water quality compatible with the most demanding uses for which they are intended;
II - reduce the costs of combating water pollution through permanent preventive actions.

    Article 10 The classes of water-bodies will be established by environmental legislation.

SECTION III - AWARDING WATER RESOURCES USAGE RIGHTS

    Article 11 The system for awarding water resources usage rights is intended to ensure quantitative and qualitative control over water uses, with the effective exercise of access rights to water.

    Article 12 The rights for the following use of the water resources are subject to award by the Government Authorities:

I - uptake or siphoning-off a portion of the water in a water-body for final consumption, including public water supplies, or as an input material for a production process;
II - removal of water from an underground aquifer for final consumption or as an input material in the production process;
III - discharge of sewage and other liquid or gaseous wastes into a water-body, whether treated or not, for the purposes of the dilution, transportation or final disposal thereof;
IV - hydro-power projects;
V -other uses that may alter the system, quantity or quality of the water found in a water-body.
§ 1 The following need not be awarded by the Government Authorities, as defined in the regulations:
I - the use of water resources in order to meet the needs of small communities in rural areas;
II - uptake, siphoning-off and discharges considered as insignificant;
III - accumulations of water volumes considered as insignificant.
§ 2 The award and use of water resources for power generation purposes are subject to the National Water Resources Plan, approved according to the provisions of Item VIII of Article 35 of this Law, complying with the rules in the specific sectoral legislation.

    Article 13 All awards are conditional on the usage priorities established in the Water Resources Plans, and should respect the class to which the water-body is assigned, maintaining adequate water-borne transportation conditions, when applicable.

Sole Paragraph. Awarding water resources usage rights should preserve the multiple use thereof.

    Article 14 The award should take place through an act of the competent authority of the Federal Executive Authority under the States or the Federal District.

§ 1 The Federal Executive Authority may delegate to the States and the Federal District the competence to award water resources usage rights falling within the domain of the Federal Government.

§ 2 (vetoed)

    Article 15 Awarding water resources usage rights may be suspended either partially or totally, either definitively or for a specific period, under the following circumstances:

I - non-compliance by the awardee with the terms of the award;
II - lack of use for three consecutive years;
III - pressing needs for water in order to deal with calamity situations, including those caused by adverse climatic conditions;
IV - need to prevent or revert severe environmental degradation;
V - need to service top-priority uses in the community interest, for which no alternative sources are available;
VI - need to maintain the navigability characteristics of the water body.

    Article 16 All water resources usage rights shall be awarded for a period not exceeding thirty five years, renewable.

    Article 17 (vetoed).

    Article 18 The award does not imply any partial divestments of water, which is non-transferable, but merely the right of use thereof.

SECTION IV - CHARGING FEES FOR THE USE OF WATER RESOURCES

    Article 19 Charging fees for the use of water resources is intended to:

I - acknowledge water as an economic asset and offer users an indication of its real value;
II - encourage rational water use;
III - bring in funding to finance the programs and interventions covered under the Water Resources Plans.

    Article 20 Fees will be charged for the use of water resources subject to award, as provided for under Article 12 of this Law.

Sole Paragraph (vetoed).

    Article 21 When establishing the amounts to be charged for the use of water resources, the following should be complied with, among others:

I - for uptake, siphoning-off and removing water, the amounts removed and variations therein;
II - for discharging sewage and other liquid or gaseous wastes, the volumes discharged and the variations therein, as well as the physical, chemical and biological characteristics of such liquid wastes, in addition to their toxic loads.

    Article 22 The funds brought in through charging fees for the use of water resources will be invested on a priority basis in the river basin where they were generated, and will be used for:

I - financing studies, programs, projects and works included in the Water Resources Plans;
II - underwriting the costs of implementing and defraying the administrative expenditures of the agencies and entities in the National Water Resources Management System.
§ 1 The allocation of funds to cover the expenditures stipulated in Item II of this Article is limited to seven point five percent of the total amount brought in.
§ 2 The amounts mentioned in the Head Paragraph of this Article may be assigned as grants to projects and works that alter the quality and quantity of water in a water-body, as well as its flow system, considered as beneficial to the community.

§ 3 (vetoed).

    Article 23 (vetoed).

SECTION V - COMPENSATION FOR MUNICIPAL DISTRICTS

    Article 24 (vetoed).

SECTION VI - WATER RESOURCES INFORMATION SYSTEM

    Article 25 The Water Resources Information System is a system for the collection, processing, storage and retrieval of information on water resources and factors affecting the management thereof.

Sole Paragraph The data generated by the entities forming part of the National Water Resources Management System will be included under the National Water Resources Information System.

    Article 26 The basic principles for the functioning of the Water Resources Information System are:

I - decentralization of obtaining and producing data and information;
II - unified coordination of the system;
III - access to data and information assured to society as a whole.

    Article 27 The purposes of the National Water Resources Information System are:

I - gathering ensuring the consistency of, and disseminating data and information on the qualitative and quantitative status of water resources in Brazil;
II -permanently updating information on the availability and demands for water resources throughout Brazil;
III - providing input for preparing the Water Resources Plans.

CHAPTER V - DEFRAYING THE COSTS OF WORKS FOR MULTIPLE WATER USE IN THE COMMUNITY INTEREST

    Article 28 (vetoed).

CHAPTER VI - GOVERNMENT ACTIONS

    Article 29 When implementing the National Water Resources Policy, the Federal Executive Authority is empowered to:

I - take the steps needed to implement and ensure the functioning of the National Water Resources Management System;
II - award water resources usage rights and regulate and oversee the usage thereof, within its sphere of competence;
III - implement and manage the Water Resources Information System at the national level;
IV - foster the integration of water resources management with environmental management.

Sole Paragraph The Federal Executive Authority will indicate through decree the authority responsible for awarding water resources usage rights falling within the domain of the Federal Government.

    Article 30 When implementing the National Water Resources Policy, the State Executive Authorities and those of the Federal District will be responsible for the following, within their spheres of competence:

I - awarding water resources usage rights and regulating and overseeing the uses thereof;
II - maintaining technical controls over water supply works;
III - implementing and managing the Water Resources Information System at the State level, as well as in the Federal District;
IV - Fostering the integration of water resources management with environmental management.

    Article 31 When implementing the National Water Resources Policy, the Executive Authorities in the Federal District and the Municipal Districts will foster the integration of local basic sanitation policies, with those covering the use, settlement and conservation of the land and the environment, with the federal and state water resources policies.

TITLE II - NATIONAL WATER RESOURCES MANAGEMENT SYSTEM

CHAPTER I - PURPOSES AND COMPOSITION

    Article 32 The National Water Resources Management System was established with the following objectives:

I - to coordinate integrated water management;
II - to arbitrate conflicts at the administrative level related to water resources;
III - tot implement the National Water Resources Policy;
IV - to plan, regulate and control the use, preservation and recovery of water resources;
V - to encourage the charging of fees for the use of water resources.

    Article 33 The following form an integral part of the National Water Resources Management System:

I - National Water Resources Council (Conselho Nacional de Recursos Hídricos);
II - Water Resources Councils - States and Federal District (Conselhos de Recursos Hídricos dos Estados e do Distrito Federal);
III - River Basin Committees (Comitês de Bacia Hidrográfica);
IV - federal, state and municipal government agencies whose spheres of competence are related to water resources management;
V - Water Agencies.

CHAPTER II - NATIONAL WATER RESOURCES COUNCIL

    Article 34 The National Water Resources Council consists of:

I - representatives of the Ministries and Secretariats of the Presidency of Brazil, working with water resources management or usage;
II - representatives appointed by the State Water Resources Councils;
III - representatives of water resources users;
IV - representatives of civil water resources organizations.

Sole Paragraph The number of representatives of the Federal Executive Authority may not exceed one half plus one of the total number of members of the National Water Resources Council.

    Article 35 The National Water Resources Council is responsible for the following:

I - fostering close links for between water resources planning and the national, regional, state and user sector planning schemes;
II - arbitrate as the final administrative level, conflicts among State Water Resources Councils;
III - deliberate on hydro-power projects whose repercussions extend beyond the States where they will be implemented;
IV - deliberate on issues submitted thereto by the State Water Resources Councils or the River Basin Committees;
V - analyze draft alterations to the legislation pertinent to water resources and the National Water Resources Policy;
VI - establish supplementary guidelines for the implementation of the National Water Resources Policy, the application of its instruments and the activities of the National Water Resources Management System;
VII - approve proposals for the establishment of the River Basin Committees and establish general criteria for preparing their regulations;
VIII - (vetoed)
IX - monitor the implementation of the National Water Resources Plan and determine the steps needed to meet its targets;
X - establish general criteria for awarding water resources usage rights and charging for the use thereof.

    Article 36 The National Water Resources Council will be managed by:

I - a Chairman, who will be the Minister of the Environment, Water Resources and Legal Amazonia;
II - an Executive Secretary who will be the head of the agency forming part of the structure of the Ministry of the Environment, Water Resources and Legal Amazonia, responsible for water resources management.

CHAPTER III - RIVER BASIN COMMITTEES

    Article 37 The River Basin Committees will act in the following area:

I - an entire river basin;
II - a river sub-basin of a tributary of the main water-course of the basin, or a tributary of this tributary; or
III - groups of contiguous river basins or sub-basins.

Sole Paragraph The introduction of the River Basin Committees for rivers falling within the domain of the Federal Government will be undertaken through an Act of the President of Brazil.

    Article 38 Within their areas of action, the River Basin Committees are responsible for:

I - encouraging discussion of issues related to water resources and networking the activities of the intervening entities;
II - arbitrating conflicts as the first administrative level, related to water resources;
III - approving the Water Resources Plan for the Basin;
IV - monitoring the implementation of the Water Resources Plan for the basin and suggest the steps needed to meet its targets;
V - proposing to the National and State Water Resources Councils the water-bodies, uptake, siphoning-off and discharges that are insignificant for the purposes of issuing exemption from mandatory awards of water resource usage rights, according to the domains thereof;
VI - establishing the fee-charging mechanisms for the use of water resources and suggest the amounts to be charged;
VII - (vetoed).
VIII - (vetoed).
IX - establishing criteria and undertaking the share-out of costs of works for multiple use, in the community interest.

Sole Paragraph The decisions of the River Basin Committees are subject to appeal to the National or State Water Resources Councils, according to the spheres of competence thereof.

    Article 39 The River Basin Committees consist of representatives of:

I - the Federal Government;
II - the States and the Federal District whose territories are located even partially within their respective areas of operation;
III - the Municipal districts located either fully or partially within their areas of operation;
IV -water users within their areas of operation;
V - civil water resources entities with proven activities within the basin.
§ 1 The number of representatives in each sector mentioned in this Article, as well as the criteria for the appointment thereof, will be established under the Committee Regulations, with the representation of the executive authorities of the Federal Government, States, Federal District and Municipal Districts being limited to one half of the total number of members.
§ 2 For River Basin Committees in basins constituting national borders and transborder rivers with shared management, the representation of the Federal Government should include a representative of the Ministry of Foreign Affairs.
§ 3 For River Basin Committees covering basins whose territories include indigenous lands, representatives of the following should be included:
I - National Indian Foundation (FUNAI), as part of the Federal Government representation;
II - indigenous communities residing therein or with interests in the basin.
§ 4 Participation in the Federal Government River Basin Committees whose area of operation is restricted to river basins falling within the State domain, will take place in accordance with the manner established in the respective regulations.

    Article 40 The River Basin Committees will be headed by a Chairman and a Secretary, elected from their members.

CHAPTER IV - WATER AGENCIES

Article 41 The Water Agencies will act as Executive Secretariats for the respective River Basin Committee(s).

Article 42 The Water Agencies will have the same area of operation as one or more River Basin Committees.

Sole Paragraph The introduction of the Water Agencies will be authorized by the National Water Resources Council or by the State Water Resources Councils, when requested by one or more River Basin Committees.

    Article 43 The introduction of a Water Agency is conditional on compliance with the following requirements:

I - prior existence of the respective River Basin Committee(s);
II - financial feasibility ensured by charging fees for the use of water resources within its area of operation.

    Article 44 Within their operating area, the Water Agencies are responsible for:

I - maintaining an updated-balance of the availability of water resources in their area of operations;
II - listing water resource users;
III - as authorized by the grantor authority, charging fees for the use of water resources;
IV - analyzing and issuing expert opinions on projects and works to be financed by the resources generated by charging fees for the use of water resources, and forwarding them to the financial institution responsible for the management of these resources;
V - monitoring the financial management of the funds brought in through charging fees for the use of water resources within their areas of operation;
VI - managing the Water Resources Information System within their areas of operation;
VII - signing agreements, taking out financing and contracting services for the implementation of tasks falling within their spheres of competence;
VIII - preparing a draft budget and submitting it for consideration to the respective River Basin Committee(s);
IX - undertaking studies needed for water resources management within their areas of operation;
X - preparing the Water Resources Plan for consideration by the respective River Basin Committee;
XI - proposing the following to the respective River Basin Committee(s):
a) classification of water-bodies by types of use, for submission to the respective National or State Water Resources Council, according to the domain thereof;
b) the amounts to be charged for the use of water resources;
c) the plan for allocating the funds brought in through charging fees for the use of water resources;
d) the share-out of the cost of works for multiple water use, in the community interest.

CHAPTER V - EXECUTIVE SECRETARIAT OF THE NATIONAL WATER RESOURCES COUNCIL

    Article 45 The Executive Secretariat of the National Water Resources Council will be run by the entity forming an integral part of the structure of the Ministry of the Environment, Water Resources and Legal Amazonia that is responsible for water resources management.

    Article 46 The Executive Secretariat of the National Water Resources Council is responsible for the following:

I - providing administrative, technical and financial support for the National Water Resources Council;
II - coordinating to prepare the National Water Resources Plan and forward it for approval to the National Water Resources Council;
III - providing support for the official documents issued by the State Water Resources Council and the River Basin Committees;
IV - coordinating the Water Resources Information System;
V - preparing its work program and respective draft annual budget, and submission for approval to the National Water Resources Council.

CHAPTER VI - CIVIL WATER RESOURCES ORGANIZATIONS

    Article 47 For the purposes of this Law, civil water resources organizations are considered as being the following:

I - intermunicipal associations and consortia covering river basins;
II - regional, local or sectoral associations of water resources users;
III - technical, teaching and research organizations with interests in the water resources area;
IV - non-governmental organizations whose purposes include the defense of the diffuse and collective interests of society;
V - other organizations acknowledged by the National or State Water Resources Councils.

    Article 48 In order to form part of the National Water Resources System, the civil water resources organizations should be legally established.

TITLE III - OFFENSES AND PENALTIES

    Article 49 The following constitute violations of the rules for the use of surface or underground water resources:

I - diverting or using water resources for any purpose whatsoever, without the award of the respective usage right;
II - starting the implementation or implementing any venture related to the diversion or use of water resources, whether surface or underground, that implies alterations in the system, quantity or quality thereof, without authorization from the competent agencies or entities;
III - (vetoed)
IV - making use of water resources or undertaking works or services related thereto not in compliance with the conditions established in the award;
V - boring wells to extract underground water or operating them without proper authorization;
VI - fraudulently altering the metering of water volumes used or declaring amounts different from those metered;
VII - violating the rules established in the regulations of this Law and in the administrative regulations, including the instructions and procedures established by the competent entities or agencies;
VIII - obstructing or hampering supervisory activities of the competent authorities in the exercise of their functions.

    Article 50 For breach of any legal provision or regulation related to the implementation of hydraulic works and services, diversion or use of water resources falling within the domain or under the administration of the Federal Government, or for non-compliance with requests made, the offender will, at the discretion of the competent authority, be subject to the following penalties, regardless of the order in which they are listed:

I - written warning establishing deadlines for rectifying irregularities;
II - fine, whether lump-sum or daily, proportional to the severity of the offence, ranging from R$ 100.00 (one hundred Reais) to R$ 10,000.00 (ten thousand Reais);
III - provisional embargo for a specific period on any works or services needed for effective compliance with the conditions of the award or for compliance with the rules covering the usage, control, conservation and protection of water resources;
IV - definitive embargo, revoking the award, if applicable, in order to restore incontinenti water resources, banks and edges to their former status, pursuant to Documents, Researches and Interviews 58 and 59 of the Waters Code, or filling in bore-holes drawing off underground water.
§ 1 Whenever the violation committed results in losses or damages to the public water supplies, health-hazards or risks to life, damage to assets or injury or death of livestock, or losses and damages of any type whatsoever to third parties, the fine to be imposed will never be less than one half of the maximum amount calculated on an abstract basis.
§ 2 In the cases covered by Items III and IV, regardless of the fine imposed, any expenses incurred by the Civil Service will be charged to the offender, when necessary to implement the measures stipulated in the above-mentioned Items, and pursuant to Documents, Researches and Interviews 36, 53, 56 and 58 of the Waters Code, without adversely affecting liability for compensation for losses and damages caused thereby.
§ 3 The sanctions covered in this Title are open to appeal to the competent administrative authority, pursuant to the regulations.
§ 4 In case of repeat offenses, the fine will be doubled.

TITLE IV - GENERAL AND TEMPORARY PROVISIONS

    Article 51 The intermunicipal associations and consortia for river basins mentioned in Article 47 may be delegated powers by the National or State Water Resources Councils for specific periods, exercising the functions falling within the spheres of competence of the Water Agencies, prior to the establishment of these entities.

    Article 52 Prior to the approval of the regulations of the National Water Resources Plan, the use of water resources for power generation purposes will remain subordinate to the discipline in the specific sectoral legislation.

    Article 53 Within a period of one hundred and twenty days as from the publication of this Law, the executive authority will forward a Draft Bill to the National Congress ruling on the introduction of the Water Agencies.

    Article 54 Article 1 of Law Nº 8,001 dated March 13, 1990 comes into effect with the following wording:

"Article 1 ..............................................................................................
III - four point four percent to the Water Resources Bureau under the Ministry of the Environment, Water Resources and Legal Amazonia;
IV - three point six percent to the National Waters and Electricity Department (DNAEE) under the Ministry of Mines and Energy;
V - two percent to the Ministry of Science and Technology.
...........................................................................................................
§ 4 The amount allocated to the Water Resources Bureau under the Ministry of the Environment, Water Resources and Legal Amazonia will be used to implement the National Water Resources Policy and the National Water Resources Management System, as well as for management of the National Hydro-Meteorological Network.
§ 5 The amount allocated to the DNAEE will be used for the operation and expansion of its hydro-meteorological network, as well as for the study of water resources and services related to hydro-power projects."

Sole Paragraph The new percentages defined in the Head Paragraph of this Article will enter into effect within a period of one hundred and eighty days as from the date of publication of this Law.

    Article 55 The Federal Executive Authority will regulate this Law within a period of one hundred and eighty days as from the date of publication thereof.

    Article 56 This Law enters into effect on the date of publication thereof.

    Article 57 Provisions to the contrary are hereby revoked.

Brasília, January 8, 1997; 176th Year of Independence and 109th Year of the Republic.

FERNANDO HENRIQUE CARDOSO
Gustavo Krause

Published in the Federal Government Gazette (Diário Oficial da União) on January 9, 1997.