1 Introduction
1.1 Brazilian Aquaculture
In 2014, the national aquaculture production was 562,500 tonnes (FAO, 2016). Following the pattern observed in previous years, the bulk of aquaculture production comes mainly from the fresh water fish culture (especially Tilapia—Oreochromis niloticus and Tambaqui—Colosoma macropomum and its hybrids) with 474,300 tonnes. The marine culture was
Table 1. Aquiculture production in Brazil in 2011.
Source: FAO (2016).
represented by shrimp culture (Litopenaeus vanammei), with 65,100 tonnes; molluscs (mainly Perna perna and Crassostrea gigas), with 22,100 tonnes. And Brazil also has aquatic plants (700 tonnes) and other animals (300 tonnes) in its aquaculture production.
1.2 Aquaculture in Waters Owned by the Federal Union
According to the ANA (2007), Brazil’s geographic position is a privileged one when it comes to water resources, considering that the average discharge of the rivers in the Brazilian territory add up to 180 thousand m3/s. Over the course of a year, this figure corresponds roughly to 12 percent of the world’s available water resources. In addition to that, Brazil has an 8,500 km long coastline, a 200 nmi2 Exclusive Economic Zone and, according to Ostrensky, Boeger e Chammas (2008), over 5.5 million hectares of waters impounded in lakes and reservoirs. According to these authors, Brazil’s climate is predominantly tropical, it is self-sufficient in grain production, and it benefits from the fact that qualified structures for staff training and Research and Development are abundant, as well as existing industries that provide services, equipment and all sorts of other input to aquiculture.
Thus, Brazilian aquaculture’s growth potential is one of the largest in the world. Nevertheless, such increase of the output of aquaculture must be accompanied by a corresponding shift of the public sector’s role in the area. Ostrensky, Boeger e Chammas (2008) conclude by recommending the implementation of the following policies: focusing funds on aquacultural extension services, building efficient mechanisms to guarantee health and sanitary compliance, promoting the creation of new markets, and adjusting credit lines and instruments that ensure simple legalization procedures for businesses.
The expansion of aquaculture in water bodies under federal control must be subject to regulatory mechanisms—not only due to the fact that these waters are a common good, but also because it would affect other users of these water resources—and an instrument created to order and regulate the assignment policy of the Union domain waters for aquaculture purposes was established by a new agrarian structure, the Aquaculture Parks. These parks must transform aquaculture in a great alternative development for communities located in the vicinity of dammed water reservoirs and in coastal areas of Brazil; with the possibility of promoting development based on the dimensions of technical, economic, social and environmental sustainability.
Types of Concession
Free Concession
The NI3 01/2007 rules that “concession of usage rights over physical spaces in water bodies under Federal control for aquaculture purposes may be free, when intended for members of traditional communities contemplated by social programs, as long as their selection processes have been carried out by the Ministry of Fishing and Aquaculture. MFA can only concede usage rights freely through the publication of Notices of Selection that clearly describe the participation criteria. There are two types of criteria:
• The elimination criteria (individuals whose family income is below five minimum salaries and that have proof of residence in municipalities surrounding the reservoir in which parks and/or aquaculture sites are being tendered);
• And the classification criteria, that take into account social and economic aspects of the submitted proposals through the evaluation of objective parameters that measure the capability to effectively fulfil the aquaculture project and its level of compliance with the MFA’s Development Programme’s social goals.
Paid Concession
The concession of usage rights will be paid for in the case in which more than one interested party compete for a particular space and its cost must be determined through a public selection process. The public selection process criteria should consider objective parameters that lead to the achievement of intended goals described in sections I to IV of Article 1 of the Decree in 4895, of 2003. The Winner of the public selection will be the application that offers the best indicators in the following social criteria: the proposal’s enduring viability and sustainability over the years; its
2 Nautical Miles.
3 Normative Instruction.
contribution to the increase in the production of fish; the creation of new jobs; and social actions aimed at expanding the supply of food.
The appreciation of the “Financial Proposals” will take into consideration the type of bidding set out in paragraph 1 of section IV of Article 45 of Law No. 8.666/93, that is, the “Greater bid or offer.” The Winner will be the bidder whose bid complies with tender specifications and who offers the highest bid.
In the case of absolute equality of conditions between two (02) or more Financial Proposals as tie-breaker will be held the drawing for the winner’s choice, subject to prior notice, as provided by paragraph 2 of Article 45 of Law No. 8.666/93.
Legal Framework
Some instruments that are part of the legal framework that solved the procedure for concession of waters under Federal control for aquaculture purposes are the Presidential Decree No. 4895 of 2003 and the Interministerial Normative Instructions (INI’s) No. 06 of 2004, No. 07 of 2005 and No. 01 of 2007.
Presidential Decree No. 4895 2003 (BRAZIL, 2003), in its Article 1 states that “the physical spaces in water bodies under Federal control may have their usage authorized for purposes of aquaculture development, given their compliance with order, location and preference criteria, that take into consideration: sustainable development; the increase in the Brazilian production of fish; social inclusion; and food security.” The Decree further states that “such authorization will be granted to individuals or companies that fall into the category of fish farmer, as specified in the legislation.”
The INI No. 06 of 2004 (BRAZIL, 2004) established additional rules for the concession of usage rights of physical spaces in water bodies federally owned for aquaculture purposes. The INI No. 07 of 2005 (BRAZIL, 2005b) establishes the guidelines for the implementation of parks and aquaculture sites. INI No. 01 of 2007 (BRAZIL, 2007) establishes operating procedures for effective usage authorization of physical spaces in water bodies under Federal Control for aquaculture purposes.
With the creation of the Ministry of Fishing and Aquaculture (MFA) by the Law No. 11,958/2009 (BRAZIL, 2009b), the attributions of the former SEAP/PR4 were transferred to the Ministry. According to the existing protocol, the Ministry of Fishing and Aquaculture (MFA) receives requests from aquaculture sites (spontaneous demands) or performs the demarcation of aquaculture parks (induced demand). In either case, a technical and GIS assessment is conducted by the Aquaculture Planning Secretariat (SEPOA) of the MFA. If the analysis is negative in either of the two cases (technical or GIS), the candidates proposal will have to be reformulated. In case of a positive opinion, it will then be analysed by the Brazilian Navy, the National Water Agency (NWA)—if in continental waters (in coastal waters the ANA assessment is not needed)—and IBAMA.5
If there is any negative opinion, the responsible institution returns the case to the MFA, which in its turn will forward it to the interested party for correction purposes.
If the three opinions are positive, the proposal proceeds to the Federal Union Patrimony Secretariat (SPU),6 so that the area in question can be transferred to the MFA (INI No. 01 of 2007). That is done through a public selection process (bidding), according to Law 8,666/93 (BRAZIL, 1993), the concession of physical spaces in waters under Federal control in question, for fish farming. Before the transfer is carried out, it is still necessary that the environmental licenses by the State Agencies for the Environment (OEMA’s) are issued. Figure 1 illustrates the flowchart of the process of concession of usage rights of water bodies under Federal control for aquaculture purposes.
It is the MFA’s responsibility, according to Presidential Decree No. 4895 of 2003, to inform all governmental institutions involved in the process of granting
4 Aquiculture and Fishing Special Secretariat for the President of the Republic—Secretaria Especial de Aquicultura e Pesca in its Portuguese original denomination.
5 Brazilian Institute of Environment and Renewable Natural Resources—Instituto Brasileiro de Meio-Ambiente e Recursos Naturais Renováveis in its original portuguese denomination.
6 Secretaria de Patrimônio da União in its original Portuguese denomination.
Figure 1. Flowchart of the processing of transfer processes use physical spaces in the Union domain waters for aquaculture purposes
permission of use of aquacultural areas of either the authorization or the non-authorization, so that each institution (ANA, IBAMA, the Navy) can take the measures within their authority, which are as follows:
National Water Agency7 (ANA)
It will be up to the ANA, when requested by the MFA, to issue a preventive grant that ensures the availability of water reservoirs in order to allow the investors to elaborate plans. The preventive grant will be automatically converted by the ANA into the grant of usage rights on water resources after the project’s approval by the MFA.
7 Agência Nacional de Águas in the original Portuguese form.
IBAMA
IBAMA—or any other body delegated by it—shall analyse the project within its competence and forward its recommendation to the environmental agency of the State to which the area belongs to, either to issue the necessary environmental permits or not.
NAVY
The Port Authority shall send the MFA its conclusive opinion on safety in maritime traffic, as ruled by the Maritime Authority Norm that sets the procedure for the execution of building works under, on, and on the banks of waters under Brazilian jurisdiction.
SPU
The Federal Union Patrimony Secretariat (SPU), being responsible for the management of Federal Union assets, shall issue an official record on having transferred Federal Union Ownership Waters to the MFA, so that the latter can carry out the Concession of Usage Rights to the interested parties, according to Law 8666/1993.
SEAs8
According to the CONAMA9 Resolution No. 413, 2009 (BRAZIL, 2009b), it is the State Environmental Agency’s responsibility to issue the necessary environmental permits that will allow the implementation and the operation of activities related to aquaculture in the conceded area. CONAMA Resolution No. 357, 2005 (BRAZIL, 2005a), rules on the classification of water bodies and more precisely on environmental guidelines to classification. It also establishes conditions and standards for effluent discharges and other measures.
The two referred CONAMA resolutions are those that influence environmental permitting of aquaculture.
8 State Environmental Agency: Órgão Estadual de Meio-Ambiente (OEMA) in the original Portuguese form.
9 National Environment Council—Conselho Nacional de Meio- Ambiente in its original Portuguese denomination.