Here on the IDP Law Blog, we've already discussed the new basic sanitation framework and the challenges facing the sector. Therefore, today we'll talk about the National Water and Sanitation Agency in order to better understand how the agency functions.

Water is the most important resource on our planet. The right to water was recognized by the United Nations General Assembly in July 2010 as a Fundamental Human Right through resolution 64/292. Therefore, it is understood that access to this resource must be guaranteed to the population.

Within the framework of human rights, basic sanitation continues to be a major challenge. The recent law on the Sanitation Framework has brought about transformations in the sector, such as competition, universal access, and regulation by the National Water and Basic Sanitation Agency.

What is ANA?

Created by Law No. 9.984/2000, the National Water and Basic Sanitation Agency (ANA) is a regulatory agency dedicated to enforcing the objectives and guidelines of Brazil's Water Law, Law No. 9.433/1997, and the new legal framework for basic sanitation, Law No. 14.026/2020.

Article 1 of Law No. 9.984/2000: This Law creates the National Water and Basic Sanitation Agency (ANA), a federal entity for the implementation of the National Water Resources Policy, part of the National Water Resources Management System (Singreh) and responsible for establishing reference standards for the regulation of public basic sanitation services, and establishes rules for its operation, its administrative structure and its sources of funding.

The agency is an autonomous entity under a special regime, with administrative and financial autonomy, linked to the Ministry of Regional Development, and led by a Collegiate Board composed of five members: a president and four directors, all appointed by the President of the Republic, with non-coinciding four-year terms.

The former National Water Agency is now the new federal regulator of basic sanitation. If the provider of basic sanitation services is interested in obtaining federal funds, it must necessarily submit to ANA's regulation.

ANA's role is to promote the sustainable use of water for the benefit of current and future generations, implementing a national dam safety policy and a national basic sanitation policy, in addition to regulating it.

Motivated by the lack of well-defined national regulations, which consequently resulted in a low degree of effectiveness of the rules, and a certain legal uncertainty due to increased transaction costs.

The National Agency is responsible for regulating the implementation, operation, control, and evaluation of the management instruments created by the national water resources policy, the national dam safety policy, and the national basic sanitation policy.

What is ANA's main function and what are its areas of activity?

The Agency's main function is to regulate water use. This regulatory function also includes oversight to ensure that federal laws are being effectively enforced, a service that also covers dam safety.

Regardless of which states contain water resources, ANA (National Water Agency) is responsible for regulating how much raw water can be withdrawn from that location. A sanitation company, for example, can only withdraw water from a river for treatment and distribution purposes through a concession.

In this sense, ANA is also responsible for issuing and overseeing regulations and monitoring information such as river levels, flow rates, sediments, and rainfall amounts. In this way, it assesses water quality with the help of this monitoring.

Thus, they are responsible for producing Water Resources Plans. This planning is very important because it can contain priority projects, works, and investments. The plans define the classification of water bodies and establish the quality levels that must be maintained or achieved by their users.

Furthermore, they coordinate the implementation of the National Water Resources Policy, carrying out and supporting programs and projects, state management bodies, and the establishment of basin committees and agencies. Thus, ANA encourages the participation of representatives from governments, users, and communities in a participatory and democratic management process.

The inclusion of ANA (National Water Agency) as the national regulator of sanitation means that the reference rules to be issued will be mandatory. Considering the difficulties in advancing investments in sanitation issues, the Federal Government has developed studies to improve the regulation of the sector.

The objective would be to guarantee greater legal certainty for investments in the basic sanitation sector and, in this way, improve the legislation governing water resources management and basic sanitation, as well as the interaction between public policies in these two areas.

With the new Law 14.026/2020, which added Article 4-A to Law No. 9.984/2000, the National Water and Sanitation Agency (ANA) gained the authority to establish reference standards on various topics related to sanitation: tariff regulation, standardization of negotiation instruments, universalization goals, regulatory accounting, loss control, compensation for unamortized investments, governance, effluent reuse, and minimum content for economic and financial sustainability.

Thus, with this new attribution, ANA (National Water Agency) gains very broad regulatory competence, having the capacity to issue regulations on all the main topics of basic sanitation.

What advantages does a lawyer have in understanding Ana's skills?

The advantages for a lawyer in understanding the competencies and functioning of the national water and sanitation agency are numerous, but the greatest is mastery of the field. Few professionals work in specific niches, opting more for the "full-service" model.

A lawyer working in this sector is capable of working on company privatization projects, advising on acquisition processes, and outsourcing services for water collection, treatment, and final disposal of industrial waste.

In this way, the lawyer can act in an advisory capacity on regulatory, corporate, environmental, contractual, and tax issues specific to the sector, including the analysis of control transfer operations and corporate reorganizations.

Alternatively, a lawyer may also act solely in advising and representing clients before regulatory agencies and other competent authorities.

Another possible area of ​​work, and a very important one, is representation in bidding processes and the granting of concessions, permits, and authorizations for the use of public assets and the provision of public services. At this stage, negotiations for concession contracts for public assets take place, resulting in significant legal security.

Finally, a well-trained lawyer, who possesses expertise and knowledge of the competencies and actions of the aforementioned Agency, can contribute with detailed advice regarding the main legislative developments in the sector, and the definition of its new regulatory framework.

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References

Resolution No. 64/292: United Nations General Assembly (UNGA). Human Right to Water and Sanitation. Geneva: UNGA; 2010. UN Document A/RES/64/292.

Aragon, Alexandre Santos de. Regulatory agencies: and the evolution of economic administrative law. Rio de Janeiro, 2022.

Gomes, Fabio Luiz. Basic Sanitation: Legal Aspects. São Paulo, Almedina, 2021.