New Legal Framework for Basic Sanitation – ANA

In Brazil, the Saneamentoiii Panel informs, supported by data from 2018, that in Brazil 83.6% of the population has access to water, while 46.9% do not have sewage collection.

Access to drinking water and basic sanitation is the Sustainable Development Object 6 of Agenda 2030i, an action plan organized by the United Nations, expressing the commitment to guarantee universal access by 2030. This goal is reached, according to the UNiiii, “ when it is constantly and regularly guaranteed for everyone, regardless of their social, economic or cultural status, gender or ethnicity ”.

In Brazil, the Saneamentoiii Panel informs, supported by data from 2018, that in Brazil 83.6% of the population has access to water, while 46.9% do not have sewage collection. In a public hearing in the Federal Senate, in September 2019iv, Instituto Trat Brasil reported an indicator regarding the efficiency of water delivery, according to which in 2017 Brazil had a loss of R $ 11 billion in this area.

This is the context in which the Sanitation Legal Framework (Law No. 14.026 / 2020) is inserted and its intention to make universal services possible by 12/31/2033, ensuring that 99% of the population is served with drinking water and 90% of the population with sewage collection and treatment (articles 10-B and 11-B, Law No. 11,445 / 2007).

The purpose of universal access to these services, together with others expressed in the Legal Framework for Sanitation, have a viability closely related to regulatory activity, exercised by the National Water and Basic Sanitation Agency (ANA). The agency with a new nomenclature is responsible for the establishment of reference standards for the regulation of public basic sanitation services (Article 1, Law No. 9.984 / 2000). Therefore, it must observe the principles of regularity, continuity, efficiency, security, timeliness, generality, reasonable tariffs, rational use of water resources and universal services (article 4-A, § 3, I, Law 9.984 / 2000).

Explain that regulation is subject to the principles of transparency, technicality, speed and objectivity of decisions. Indeed, it intends to set standards; ensure compliance with the goals and conditions provided for in contracts, municipal plans or regionalized provision; prevent and repress the abuse of economic power, safeguarding the competence of the SBDC; and to define tariffs aiming at contractual balance and reasonable tariffs (articles 21 and 22, Law nº 11.445 / 2007).

ANA’s regulatory competence was added from the new Sanitation Legal Framework by the edition of reference standards for the regulation of the provision of public basic sanitation services (art. 25-A, Law 11,445 / 2007), a procedure in which the guarantee of the concomitant provision of water supply and sewage services is indispensable (article 4-A, § 3, VIII). These reference standards (art. 4º-A, § 1, Law nº 9.984 / 2000) will deal, among other topics, with:

(1) Establishment of standards regarding basic sanitation systems (quality and efficiency), business instruments signed between the holder of the public service and the delegate (goals of quality, efficiency, expansion of service coverage, risk matrix and mechanisms of maintenance of balance), the minimum content for the universalization and economic-financial sustainability of these services and the governance of regulatory entities;

(2) Setting targets for universal access (level of existing coverage, feasibility of expansion and number of municipalities served) and replacement in effluent treatment systems, together with the system organization to assess compliance with these goals;

(3) Tariff regulation: subsidies for low-income populations (tariff, tax or internal, as detailed in Article 31, Law No. 11,445 / 2007) to allow universal services; sharing, when applicable, productivity gains with users; among other mechanisms designed to promote adequate provision, the rational use of natural resources and economic-financial balance.

ANA, when editing these reference standards, is guided by law to prioritize economic freedoms (encouraging free competition, competitiveness, efficiency and economic sustainability) and to pay attention to local and regional peculiarities in the adoption of methods, techniques and processes, encouraging the regionalization of the provision of services (Article 4-A, § 3, Law No. 9.984 / 2000).

In the exercise of regulatory competence, the new Legal Framework for Basic Sanitation stimulated the participation of society, so that ANA, when instituting reference standards, should conduct public consultations and hearings, listen to the entities in charge of regulation and inspection and those representing the municipalities. , evaluating the regulatory impact of the proposed rules and always valuing legal security and regulatory uniformity.

By: Wilson Sales Belchior