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International Conference “Transboundary Aquifers: Challenges and New Directions”(ISARM2010)

MOVING TOWARD MANAGING THE GUARANI AQUIFER:


THE BRAZILIAN CASE.

P. C. Villar1

(1) PhD student from São Paulo University Environmental Sciences Post-Graduation Program. Instituto de
Eletrotecnica e Energia. Prédio da Divisão de Ensino e Pesquisa, 2º Andar. Av. Prof. Luciano Gualberto, 1289.
Cidade Universitaria, 05508-010, São Paulo, Brazil, email: pcvillar@usp.br

ABSTRACT

Brazil shares eleven transboundary aquifers, among which the important Guarani Aquifer that has been the
aim of international projects that broadened the debate on groundwater to beyond natural sciences and
engineering. Of the four countries that share this Aquifer, Brazil is the one that has the most structured water-
body management system. Nevertheless, groundwater public policy is still in an embryonic stage. The present
study intends to contextualize the Brazilian regulatory landmarks and the ongoing strategies for the
management of the Guarani Aquifer. The methodology employed was documental analysis. The international
treaty among the countries that share the Guarani Aquifer and the way the Brazilian legal system regulates
groundwater imposes barriers upon the construction of a shared and integrated groundwater-management
system. Brazilian legislation determines that the ownership of the groundwater belongs to the federative
states, regardless if such waters extend beyond their borders. The National water-body Policy brought
important management instruments, but their implementation in the case of groundwater faces difficulties.
Another problem is the artificial separation of groundwater and mineral water, which has been excluded from
the water-body management system and is submitted to a completely different legal regime. The absence of a
federal law that traces specific strategies for the theme and the freedom granted to the states to regulate the
protection policies created a highly heterogeneous management system, with different implementation levels
and the intermediation of the National Water Agency inferior to that applied to superficial waters. Initiatives
gradually appear to insert groundwater in the water-body management system, but the Federal Government
and the National Water Agency must have a more active role in the coordination of this process. A greater
participation of these players could also contribute to stimulate an exchange of experiences between the South
Cone countries and an attempt to harmonize their legal landmarks, especially in what pertains to the recharge
areas.

Key words: environmental law, water management, groundwater, Guarani aquifer.

1. INTRODUTION

Groundwater management faces the challenge of protecting a hidden asset, which involves the two
main resources of a political nature: water and soil. Such resources consolidate power relations by
excellence. Water is a vital substance for life, ecosystems and production, whilst the soil is the
territorial basis of production, being marked by the right to ownership and the right to sovereignty.
The complexity of the theme increases as groundwater depends on science to reveal its characteristics
and the risks it runs. Such characteristic hinders its political and social appeal, since its importance and
the emergency of the impacts are not perceivable to laymen. If on one hand the lack of technical
information hinders the creation of a policy for this resource, on the other, the lack of social
understanding of the theme makes the practical legitimation of a possible aquifer legislation more
difficult.

In the last few decades, a greater international concern with groundwater has been perceived. The
increase in its use in several parts of the world calls attention to transboundary issues and the lack of
experience in the management of aquifers. Within this context, several international centers appear
dedicated to improve the knowledge on and management of groundwater. The inclusion of
groundwater in the United Nations Convention on the Law of the Non-Navigational Uses of

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International Conference “Transboundary Aquifers: Challenges and New Directions”(ISARM2010)

International Watercourses (1997) and the efforts to consolidate the UN-ILC Draft Articles on
Transboundary Aquifers (UN General Assembly resolution 63/124/2008) also stand out.

Latin America is a region wealthy in water, besides the superficial potential, 29 transboundary
aquifers have been identified in the region (Stephan, 2009). Nonetheless, there is a lack of
international agreement on the theme in the region. In the internal sphere, national groundwater
policies are in an embryonic stage, due to the lack of technical knowledge or institutional and legal
capacity.

Among the Latin-American aquifers, the Guarani Aquifer stands out, having been the target of
several international projects that allowed for better knowledge of its geological dynamics and
characteristics. This aquifer is located in the South American mid-west between 12º and 35º south
latitude and 47º and 65º west longitude, in the Paraná Sedimentary Geological Basin. This is a
transboundary aquifer occupying a 1.100.000-km2 area spanning four countries: Paraguay, Uruguay,
Argentina and Brazil. Its average thickness is of 250 m and the estimated water volume is of
approximately 30,000 km3 (Foster et al., 2009).

Despite the signature of an international agreement between the countries, it does not intend to
formulate a common landmark, since each country is free to manage the aquifer in accordance with
their regulations. The biggest part of the aquifer is located in Brazilian soil, where it extends across
eight states: Rio Grande do Sul, Santa Catarina, Paraná, São Paulo, Mato Grosso do Sul, Minas
Gerais, Mato Grosso and Goiás. As the main “Guarani owner”, Brazil has great responsibility in its
management; therefore, the present study intends to analyze Brazilian groundwater policy indicating
its weaknesses and the main ongoing strategies for the management of the Guarani Aquifer.

1.1 Background of the Guarani Aquifer transboundary management

The most important international initiative developed in the region was the Project Guarani
Aquifer–Sustainable Development & Environmental Protection Program of the Mercosur Nations of
Argentina, Brazil, Paraguay & Uruguay and supported by GEF, generating a significant increase in the
knowledge of this aquifer's characteristics, as well as removing the groundwater from anonymity. The
main objective of this project was “to support Argentina, Brazil, Paraguay and Uruguay to elaborate
and implement a shared institutional, legal and technical framework to preserve and manage the GAS
for the current and future generations”(OAS, 2005). Nevertheless, the final conclusions of the project
underestimated the transboundary management and impacts stating that the “most pressing and
potential groundwater resource management and protection needs of the SAG fundamentally do not
have an ‘international transboundary’ character” and that the “current transboundary groundwater
issues are strictly limited in distribution and essentially local in character, and do not have major
upstream-downstream implications”. The project does acknowledge that transboundary management
contributes to the exchange of experiences and knowledge, but attributes the responsibility for
managing the aquifers to a local scale (Foster et al., 2009).Analyzing groundwater age, the project also
concluded that the central part of Guarani aquifer is not hydraulic connect with the watershed or the
recharge areas (Foster et al., 2009).

During the project, Mercosur also acknowledged the need to manifest its position on shared
management. The first attempt was made when it instituted the Ad Hoc Guarani Aquifer High Level
Group aiming at the formulation of an Agreement project among the Member States in regards to the
Guarani Aquifer (Ruling GMC nº 25/04 e n° 48/04). One year later, the activities of the group were
terminated without divulging any results.

The subject gained new strength at the Mercosur Parliament, which has pointed out the importance
of instituting a common policy in the use of the Guarani Aquifer. For such, it proposed to the

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International Conference “Transboundary Aquifers: Challenges and New Directions”(ISARM2010)

Common Market Council the formation of a commission to study, analyze and compare each country's
water-resource legislation aiming at recommending to the national governments modifications in their
internal systems (October/2007) and a landmark Agreement on the cooperation for the sustainable
management of the Guarani Aquifer system (2008). Moreover, it suggested the creation of a regional
Research and Development Institute from groundwater and aquifer protection (INRA Mercosur
-Mercosul/PM/SO/REC. 25/2009), besides the implementation of a transition project with the
extinction of the Guarani Aquifer Project.

On August, 2010, Mercosur signed an agreement to the Guarani management. Unfortunately it


does not follow the recommendations of UN-ILC Draft Articles on Transboundary Aquifers and
reaffirmed the countries sovereign over Guarani Aquifer.

1.2 Methodology

This work is a juridical study of the Brazilian legislation related to groundwater protection and its
qualitative analysis. The choice for this type of analysis is motivated by the importance of the law as
an instrument capable of influencing water management. The research uses Mercosur documents, the
Brazilian legislation, public administration documents, watershed plans, and the bibliography on water
management. The main laws examined were: National Water Resources Policy (Federal law nº
9.433/97), National Water Resources Council resolutions (Resolutions nº 9/2000; 15/2001; 22/2002;
48/2005; 76/2007; 91/2008; 92/2008; 107/2010), and National Environment Council resolutions
(resolutions n° 357/2005 and n° 396/2008).

2. GROUNDWATER MANAGEMENT IN BRAZIL AND ITS DILEMMAS

The National Water Policy (Federal Law 9.433/97) represented a great move in water management.
This law introduced a new water management concept based on a decentralized, participative and
integrated model that elected the watershed as its territorial base. In order to build a joint action of the
Union, state members and municipalities, this law created the National Water Management System,
known by the acronym SINGREH. This system counts on collegiate structures that minimize the
centralized-government character of water management and allows for the participation of social and
private players.

The SINGREH is composed in the Federal level by the Ministry of the Environment, represented
by the Water Resource and Urban Environment Secretary (SRHU), the National Water Agency (ANA)
and the National Water Resource Council (CNRH). At a State level, the SINGREH is formed by the
state secretaries responsible for water management, the state water resource council and technical
bodies. Moreover, the Union, state and municipality bodies related to water issues are part of the
system. The base of the system is the watershed committee and water agencies. This water policy also
foresaw a series of instruments to promote a better water administration, namely the watershed plans,
the water quality monitoring framework, the water-resource information system, water pricing and
water permits. All these innovations have a positive impact on groundwater management, but they
face difficulties to address groundwater management peculiarities.

The absence of a specific federal law on groundwater, the state domain of the aquifers regardless of
their geographic limits, and the municipal competency to manage the use and occupation of the soil
generated a great lack of articulation and freedom between the three levels of power: the Union, States
and Municipalities. Presently, the legal groundwater guardianship is performed almost exclusively by
the states and with extremely different implementation levels, even when the same aquifer is shared.

The adoption of the watershed as a territorial basis to apply the National Water Resource Policy
instruments is an important innovation, nevertheless it is based on the presumption that groundwater is
hydraulically connected with superficial waters. Nevertheless, the main problem for the management

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International Conference “Transboundary Aquifers: Challenges and New Directions”(ISARM2010)

of the waters is that this management unit created new territorialities that are not tied in with the
classic administrative divisions: municipality, State and Union. This new way of managing water
resources is interesting to supply an in-depth view of the water resources and yield a scale analysis to
back up public water policies, but presents difficulties in transporting its decisions to the
administrative divisions, which hold the power to implement the public policies, especially in the case
of land management.

This difficulty can be seen in the application of the instruments foreseen by the water policy,
especially in the case of water policy plans. Among other attributions, it is up to this instrument to
propose usage and protection measures (Ruling CNRH 22/2002) and guide municipalities in the
management of water resources. These plans establish a sort of territory zoning; nevertheless, this does
not have binding legal effects for the municipalities or the other entities in the federation (Villar,
2008).

Watershed Plans seek a management format negotiated between the water users and acknowledge
the competence of the municipalities in the soil usage management. The content of the watershed
plans have a technical and political nature, but do not form a command and control instrument capable
of imposing binding obligations upon municipalities or the other Federation entities in the use of the
soil. Thus, the bodies from SINGREH have the duty of stimulating municipalities to adopt the
measures established in the watershed plans, but acknowledge that the soil use management is a
municipal attribution. SINGREH cannot impose or punish municipalities that do not comply with the
content in the watershed plans in their territorial ordainment.

The water quality monitoring framework also aims at integrating territorial and water management.
It determines the maximum polluting loads that can be launched according to the classification of the
aquifers foreseen in CONAMA's Ruling nº 396/2008. In face of the technical difficulties, the lack of
detailed information on the aquifers and the economic and social impacts generated by the regulation,
no watershed committee was capable of applying this instrument, also because the committees
concentrate their efforts on implementing superficial-water resource regulations.

To control the exploitation of groundwater, the permit and the charging for the use of water
resources were foreseen. The permit is the instrument through which the Government attributes to the
public or private interested party the right to exclusively use the water resource. This is not the transfer
of water ownership, but the concession of usage rights, which may be paid or for free. The charge fits
in the category of payment in consideration of the use of the water. Although the law allows charging
for the extraction of groundwater, it is up to the committees to determine such amounts, which still has
not been done to groundwater.

The number of permits has increased, but it is still far from supplying reliable groundwater
exploitation standards in Brazil. One of the most severe problems concerning this procedure is the lack
of a specific consolidated-analysis methodology for all state permits authorities. Moreover, it is
necessary to determine the recharge volume, as well as define criteria that consider the relation of
these waters with superficial waters. The interaction and articulation between the water use permit
authorities and the National Mineral Production Department - DNPM must also be built to conciliate
groundwater and mineral extraction.

Mineral waters and bottled waters are classified as mineral resources, being completely excluded
from the water-resource management system. They are treated differently from groundwater, since
they belong to the Union, are ruled by mineral-resource regulations and are under the wing of the
National Mineral Production Department (DNPM). The SINGREH bodies do not have information on
the number of wells or the amount of water exploited by the mineral-water sector that reports to the
DNPM. To overcome the problem, the CNRH edited Ruling nº 76/2007 determining the integration of
mineral- and bottled-water management, but how such integration will be done is ambiguous.

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International Conference “Transboundary Aquifers: Challenges and New Directions”(ISARM2010)

Another instrument facing problems to be put into effect is the National Water Resource
Information System1 (SNIRH). ANA is responsible for operating this system; nevertheless, most of the
information on groundwater is in the Groundwater Information System (SIAGAS) coordinated by the
Brazilian Geological Service (CPRM). Both systems operate in an autonomous and independent
fashion, without proper communication. To minimize this problem it was edited the CNRH resolution
nº 107/2010 which states that the groundwater monitoring network will be planned and coordinated by
ANA, meanwhile the implantation and operation of the system will be made by CPRM. It must be
pointed out that the information produced by the Guarani Aquifer Project is not available to the public
yet. The low compliance of water users with the permits and the distinction between mineral waters
and groundwater hinders the formation of the system.

2.1 Groundwater perspectives and Guarani Aquifer management

One of the main expectations with regards to groundwater is the change in ownership of the
aquifers that extend beyond state or national boundaries. If the constitutional amendment project nº
43/2000 is approved, such aquifers would belong to the Union and no longer to the states. Despite
counting on the support of federal institutions, this project faces strong resistance from the States and
watershed committees. The States understand that such alteration would centralize the management of
the aquifers in the Union and that they cannot have the same legal treatment as superficial waters.

In the present landscape, the Guarani Aquifer belongs to the eight states it spans. During the life of
the Guarani Project, such states tried including groundwater in their legislation, although in most cases
in a superficial manner. Nevertheless, some strategic actions to manage this aquifer can be
highlighted, especially in the state of São Paulo, which is the main user of the aquifer and already
counted on specific groundwater legislation.

The bodies from the São Paulo State Water Resource System performed a few corrective actions in
over-exploited areas or those with water contamination through the creation of intervention areas. In
the case of the Guarani Aquifer, the municipalities of Ribeirão Preto and São José do Rio Preto were
characterized as intervention areas with restrictions to the use of groundwater. Moreover, the São
Paulo state government launched the Aquifer Project2, which aims at (1) identifying the critical areas,
(2) creating prevention and control mechanisms and (3) defining water-use guidelines. Within this
project, the Guarani Aquifer recharge area was the target of several studies that shaped the
Environmental Development and Protection Plan. Such area, which extends through seven watersheds
in the state of São Paulo, would be transformed into a spring-protection area. The bill is being drafted,
but depends on the approval of the committee and the legislative power.

The payment for environmental services was not foreseen in the waters law, nevertheless, this
instrument proves to be highly efficient for the protection of the resource. ANA created the Water
Producer Program3, which compensates farmers that preserve and recover the springs located in their
properties. The tendency is for this instrument to be increasingly adopted in both the government
initiatives and the negotiation of the public-service concession agreements. The state of São Paulo has
already approved a resolution authorizing the payment for environmental services to the farmers.
Moreover, the municipality of Botucatu (SP), located in the Guarani recharge area, obliged the
company that won the concession bid for basic sanitation services to destine 1% of its net revenue to
the payment of environmental services. The focus of the initiative was the superficial waters, but
nothing keeps the instrument from being extended to aquifer recharge waters.

1
This is an information collection, treatment, storage and recovery system on water resources and factors that
intervene in their management.
2
http://homologa.ambiente.sp.gov.br/aquiferos/15052009_cap_dos_agentes_publicos.asp
3
http://www.ana.gov.br/produagua/

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International Conference “Transboundary Aquifers: Challenges and New Directions”(ISARM2010)

3. CONCLUSIONS

The absence of a federal law that traces specific strategies for the theme and the freedom granted to
the states to regulate the protection policies created a highly heterogeneous management system, with
different implementation levels and the intermediation of the National Water Agency inferior to that
applied to superficial waters. The Guarani aquifer and its recharge areas are submitted to different
protection standards within the country and there was a lack of initiatives to make this structure
uniform. The present legal structure contains general presuppositions and legal loopholes.
Groundwater management is also compromised by the different treatment to groundwater and mineral
waters. Groundwater regulations start to become more complex and some initiatives gradually appear
to insert groundwater in the water management system; however, they face limitations and are
restricted to specific cases. The local scale plays an important role in water management, but there are
organizational and power asymmetries between the municipalities and the watershed bodies. Also
these actors often have different interests and do not necessarily share a common position in relation to
groundwater problems. In fact, at the local scale there are significant problems that prevent the
inclusion of groundwater in water management plans and activities, which suggests that the
decentralization of water management should avoid leaving the local scale isolated. Considering this
scenario, the Federal Government and the National Water Agency must have a more active role in the
coordination of this process, even though groundwater belongs to the States. Besides the national
benefits, a greater participation of these players could also contribute to stimulate an exchange of
experiences between South Cone countries and an attempt to harmonize their legal landmarks,
especially in what pertains to the recharge areas.

4. REFERENCES

Foster, S.; Hirata, R.; Vidal, A.; Schmidt, G.; Garduño, H (2009). The Guarani Aquifer Initiative –
Towards Realistic Groundwater Management in a Transboundary Context. Case Profile number
9. In. Sustainable Groundwater Management: Lessons from Practice. GW-MATE, The World
Bank, Water Partnership Program.

Organization of American States (2005). Office for Sustainable Development & Environment. Water
Project Series, number 7. October 2005. Available online:
http://www.oas.org/dsd/Events/english/Documents/OSDE_7Guarani.pdf. Accessed on:
02/10/2010.

Stephan, M. R. (2009).Transboundary aquifers: managing a vital resource. The UNILC draft articles
on the law of transbounday aquifers. UNESCO.

Villar, P. C. (2008) Management of the Guarani Aquifer Recharge Areas: the case of the municipality
of Ribeirão Preto, São Paulo. Masters Dissertation University of São Paulo, Environmental
Sciences Post-Graduation Program. 284 pp.

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