GEO Brasil - UNEP

the state of water resources
the state of environment in Brazil
The demographic transformation which has happened in
Brazil during the last decades brought about an unusual
growth of water demands in cities and degradation of its
quality in rivers, in levels never before imagined So,
underground water rises in general as the cheapest supply
for human consumption, mainly as it presents good natural
quality and it may be drawn where the referred demands
are, among other factors
29 Legal and Institutional Framework
Historical data indicates that, at least, from the origins of
Colonial Period (1500 - 1822), ground water was used in
Brazil in an empiric and improvised way mainly, for human
consumption During the First Reign (1822-1831), in the
Triple Regency (1831-1840) and the Second Reign (1840-
1889), its use depended on a Central Authorization
(Rebouças, 1976)
During the First Republic (1889-1930), the use of
underground water was done without control, either on a
Federal or a State level Only under the Getúlio Vargas
administration (1930-1945) the Water Rights Law was
promulgated in Brazil, the Code of Waters, on July 10, 1934,
composed of three books Despite its almost 70 years of
age, it is still considered by Legal Doctrine as one of the
models of Brazilian Positive Rights , only book III-regarding
the water powers and hydro-electric industries, received
the necessary regulation Due to lack of legislation regarding
waters domains, books I and II of the 1934 Code, contain
little doctrinal development in the sector
The 1988 Federal Constitution modified in several aspects
the wording of Code of Waters, dated from 1934 One of the
most important changes accomplished was the extinction
of private control of water, provided for in some cases in
that legal document, in title IV IN PARTICULAR -
UNDERGROUND WATERS –SINGLE CHAPTER , ART 96
Some aspects of the use and current conservation of
underground waters, such as the license and granting of
the well, the user and pollutant, were already foreseen in the
1934 Code of Waters (Art 97 up to 101); however, they were
never regulated
Therefore, from the Constitution of 1988, all Brazilian waters
became public domain Another modification which was
introduced by the 1988 Federal Constitution was the
establishment of only two domains for water bodies in Brazil:
(i) the Federal Government domain, for rivers or lakes
which bathe more than one federated unit, or which
serves as border for those units, or between the
Brazilian territory and neighbouring country or which
they come from or for mutual understanding
(ii) the states domain for surface or underground, fluent,
emerging and in deposit water, except for the waters
resulting from Government’s works That definition
doesn’t exempt the process as a whole, in such a way
that it does not consider the real separation of waters
in the hydrological cycle
Excessive drawing of underground water from a water basin
may cause the disappearance of water springs and sources,
pond drying, swamplands, river basin discharge reduction,
displacement of sea overlapping and the emergence of
different land problems Another impact of disordered
underground water drawing from a water basin concerns
the reduction of soil humidity, which supports the
development of naturally grown or covered vegetation
“The owner of any land may appropriate himself of waters
which exist under the surface of his building, through wells,
galleries, etc, as long as it doesn’t harm existing uses nor
flows or deviate of its natural course, public domain waters,
public of common or private use Single paragraph If the
use of underground waters which is mentioned in this
article, harms or reduces public water or public of common
use, or private, competent administration may suspend the
referred work and benefits”
98