CONAMA RESOLUTION 369, from March 28, 2006
Published in Official Gazette 61 on March 29, 2006, Section 1, pages, 150 – 151
Correlations:
· In consideration of Law 4.771 from September 15, 1965, changed by MP 2.166/2001
Establishes provisions for exceptional cases of public and social interest or with low environmental impact which allow for interventions or suppressions of the vegetation in Permanent Preservation Areas (APPs).
THE NATIONAL ENVIRONMENT COUNCIL – CONAMA, in accordance with the power bestowed upon the Council by Law 6.938 from August 31, 1981, regulated through Decree 99.274 from June 6, 1990 and considering the provisions of Laws 4.771 from September 15, 1965 , 9.433 from January 8, 1997 , and its Internal Regulations, and
Considering the duty of the Public Powers and society in general to protect the environment for current and future generations according to the provisions of art. 225, heading, Federal Constitution;
Considering that Brazil is committed to responsibilities related to the Convention on Biodiversity held in 1992, the Ramsar Convention held in 1971 and the Washington Convention held in 1940 as well as the commitments assumed during the Rio de Janeiro Declaration in 1992;
Considering that Permanent Preservation Areas located in any possession or propriety represent a social interest patrimony in specially protected territorial areas, covered by or free of vegetation, and function as agents for the environmental preservation of water resources, landscapes, geological stability, biodiversity, the flow of fauna and flora, soil protection and safeguard the wellbeing of human populations;
Considering the singularity and the strategic value of permanent preservation areas which, as shown by their denomination, are generally characterized by the ban to use them for direct economic purposes;
Considering that permanent preservation areas and other protected areas, as tools of relevant environmental interest, are integral parts of sustainable development, an objective of the current and future generations;
Considering the socio-environmental function of property foreseen by articles 5, item XXIII, 170, item VI, 182, § 2 , 186, item II and 225 of the Constitution and the principles for the prevention, care and pollution compensation;
Considering that the exercise of the right to property is limited by legislation and that the proprietor or possessor is required to respect administrative standards and regulations;
Considering that it is the legal duty of the proprietor or possessor to recuperate Permanent Preservation Areas (APPs) that have been irregularly suppressed or occupied;
Considering that the provisions of art. 8 of Law 6.938 from 1981, grant the National Environment Council the capacity to establish standards, criteria and standards related to the control and maintenance of environmental quality aimed at the rational use of environmental resources, and in particular water resources; and
Considering that the provisions of art. 1, § 2 , item IV, line “c”, and V, line “c”, of Law 4.771, from September 15, 1965, changed by MP 2.166-67 from August 24, 2001 grant CONAMA the competent to foresee, through resolutions, the construction, activities or projects of public and social interest; decides:
Section I
General Provisions
Art. 1 This Resolution defines exceptional cases and the competence of environmental organs to grant authorizations for interventions or the suppression of the vegetation of Permanent Preservation Areas (APPs) in order to undertake construction, plans, activities or projects of public or social interest, or for the undertaking of temporary actions of low environmental impact.
§ 1 The suppression or intervention of vegetation of springs, wetlands, mangroves and dunes original covered with vegetation in Permanent Preservation Areas, foreseen in items II, IV, X and XI of art. 3 of CONAMA Resolution 303 from March 20, 2002 is banned except in cases related to public convenience according to item I of art. 2 of this resolution and in order to allow access to water by people and animals, according to the provisions of § 7, of art. 4 , of Law 4.771 from September 15, 1965.
§ 2 The provisions of line “c” of item I of art. 2 of this Resolution do not apply for the intervention or suppression of vegetation of Permanent Preservation Areas (APPs) in wetlands, beaches, mangroves or dunes foreseen in items IV, X and XI of art. 3 of CONAMA Resolution 303 from March 20, 2002.
§ 3 The authorization for the intervention or suppression of vegetation in springs located within Permanent Preservation Areas, defined in item II of CONAMA Resolution 303 from 2002, is conditioned to the authorization that grants the right to the use of water resources, according to the provisions of art. 12 of Law 9.433 from January 8, 1997.
§ 4 The authorization for the intervention or suppression of vegetation of Permanent Preservation Areas is conditioned to the presentation by the entrepreneur that he/she will comply with all obligations related to these areas.
Art. 2 The competent environmental organ can only grant an authorization for the intervention or suppression of vegetation in a Permanent reservation Area when duly filled and motivated and solely through a preceding autonomous administrative process that follows the requirements foreseen by this Resolution and other applicable federal, state and municipal standards as well as the Master Plan for Ecological-Economic Zoning and the Management Plan for Conservation Units, if existent, in the following cases:
I – public convenience:
a) national security and sanitary protection activities;
b) essential infrastructure construction of transportation, sanitation and energy services;
c) research activities and the extraction of mineral resources, signed by the competent authorities and with the exception of sand, clay, gross sand and gravel;
d) the creation of green areas in public urban spaces;
e) archeological research;
f) public construction for the creation of installations needed for the collection and conduct of water and treated effluents; and
g) the construction of installations necessary for the collection and conduct of water and treated effluents for private agricultural projects, conditioned to the compliance with criteria and requirements foreseen in §§ 1 and 2 of art. 11 of this Resolution.
II – social interest:
a) activities that are vital for the protection of the integrity of native vegetation such as the prevention, combat and control of fires, erosion, eradication of invaders and the protection of native species plantations, in accordance with the provisions established by the competent environmental organ;
b) agroforestry management, environmentally sustainable, practiced by small rural family properties or possessions that do not damage the native vegetation cover or hinders its recuperation and as long as it does not presents an hazard to the ecology of the area;
c) sustainable urban area land regularization;
d) research activities related to the extraction of sand, clay, gross sand and gravel, authorized by the competent authority;
III – eventual intervention or suppressions of vegetation with a low environmental impact, conditioned to compliance with the parameters of this Resolution.
Art. 3 The intervention or suppression of the vegetation with a Permanent Preservation Area can only be granted when the requesting party can , among other demands, provide proof:
I – of the non-existence of technical or locational alternative to the planned construction, activity or proposed project;
II – compliance with the conditions and standards that apply to water bodies;
III – protocol of the Legal Reserve Area; and
IV – the non-existence of aggravation risks such as flooding, erosion of accidental movements of rocks.
Art. 4 o All construction, plan, activity or project of public convenience, social interest or of low environmental impact is conditioned to an authorization issued by the competent environmental organ for the intervention or suppression of vegetation within a Permanent Preservation Area (APP), issued through a proper administrative process according to the terms of this Resolution and according to the standards for the granting of environmental licenses, professionally motivated and conditioned to the observation of applicable environmental standards.
§ 1 The intervention or suppression of the vegetation in a Permanent Preservation Area that is the subject of the heading of this article is conditioned to an authorization issued by the competent state environmental organ and its preceding approval, when applicable, by the federal or municipal environmental organ, except in cases related to § 2 of this article.
§ 2 The intervention or suppression of the vegetation in a Permanent Preservation Area located within an urban area is conditioned to the authorization issued by the municipal environmental organ, if the municipality possesses an Environment Council, of deliberative character and Master Plan or Legal Urban Directives in the case of municipalities with less than twenty thousand inhabitants, through previous approval by competent state environmental organ, based on a professional assessment.
§ 3 The following activities do not require the authorization of the competent environmental organ:
I – emergency related public safety and civil defense activities;
II – activities foreseen by Complementing Law 97 from June 9, 1999 related to the preparation and deployment of the Armed Forces in compliance with their constitutional duties, carried out in a military area.
Art. 5 The competent environmental organ will, before granting a license for the intervention or suppression of the vegetation with a Permanent Preservation Area, establish the ecological measures, of mitigating or compensatory nature, foreseen in § 4 , of art. 4 , of Law 4.771, from 1965, which must be adopted by the requesting party.
§ 1 The ecologic mitigation and compensation measures foreseen in this article for enterprises and activities subjected to environmental licenses will be defined through the licensing process, without prejudice and, when applicable, to compliance with the provisions of art. 36 of Law 9.985 from July 18, 2000.
§ 2 The compensation measures that are the subject of this article must consist in the effective recuperation or re-composition of the Permanent Preservation Area and implemented in the same hydrographic sub-basin, and prioritize:
I – the area affected by the enterprise, or
II – river headwaters.
Art. 6 The implantation of native species aimed at the recuperation of Permanent Preservation Areas is not conditioned to previous authorization when in accordance to previously agreed obligations, if applicable, and in accordance with applicable standards and professional requirements
Section II
Research Activities and the Extraction of Mineral Substances
Art. 7 The intervention or suppression of the vegetation within a Permanent Preservation Area (APP) for the extraction of mineral substances, according to the provisions of Section I of this Resolution, is conditioned to the presentation of an Environmental Impact Study (EIA) and the respective Environmental Impact Report (RIMA) for the environmental licensing process, as well as other possible demands, such as:
I – presentation of the title deed for the mineral rights, foreseen by any current title deed legislation, signed by the competent organ of the Ministry of Mines and Energy;
II –justification of the need to extract the minerals from a Permanent Preservation Area and the non-existence of technical or location alternatives for the exploitation of the mine;
III – assessment of the aggregate environmental impact caused by the mineral exploitation and the cumulative effects on the Permanent Preservation Areas, effects on the sub-basin caused by the group of activities for the exploitation of current and foreseeable activities available through the competent organs;
IV – execution assessment undertaken by professionals legally licensed to conduct mineral extraction and control the impact on the physical and biotic environment through the presentation of a Professional Responsibility Note (ART) or a Technical Function Note (AFT) which must remain active until the closing of the mineral exploitation activity and of the respective environmental recuperation process;
V – compatibility with the directives of the water resource plan, when available;
VI – activities cannot be located in a remaining area of primary Atlantic forest;
§ 1 In cases related to intervention or suppression of the vegetation of a Permanent Preservation Area caused by an activity related to the extraction of mineral substances which does not potentially cause significant environmental impacts, the competent organ may, through a well-motivated decision, substitute the demand for the presentation of the EIA/RIMA by the presentation of other environmental studies foreseen by current legislation.
§ 2 Interventions or suppressions of the vegetation in Permanent Preservation Areas for mineral research activities, according to the provisions of Section I of this Resolution, are conditioned to the presentation of EIA/RIMA documentation for the licensing process if they pose any potential threat of significant environmental impact, as well as other demands such as:
I – presentation of the title deed for the mineral rights, foreseen by any current title deed legislation, signed by the competent organ of the Ministry of Mines and Energy;
II – execution assessment undertaken by professionals legally licensed to conduct mineral extraction and control the impact on the physical and biotic environment through the presentation of a Professional Responsibility Note (ART) or a Technical Function Note (AFT) which must remain active until the closing of the mineral research process and of the respective environmental recuperation process.
§ 3 The studies foreseen in this article must be presented during the initial stages of the licensing process independent of any other professional studies that may be requested by the environmental organ.
§ 4 The extraction of rocks to be directly used for building construction is conditioned to the provisions set by the territorial ordinance documentation on a scale defined by the competent environmental organ.
§ 5 If the documentation foreseen in § 4 does not exist or if existing ones do not include the extraction of rocks for direct building construction, the authorization for the intervention or suppression of the vegetation of a growing Permanent Preservation Area, the authorization cannot be granted for a period of 36 months after the publication of this Resolution.
§ 6 the deposition of sterile or rejected materials, effluent treatment systems that benefit mineral activity infrastructures, can only intervene in Permanent Preservation Areas in exceptional cases acknowledged by the licensing process undertaken by the competent environmental organ and according to the provisions of item I of art. 3 of this Resolution.
§ 7 In cases related to research activities and extraction of mineral substances, proof of the registration of the Legal Reserve, the subject of art. 3, will only be required for the following cases:
I – the entrepreneur is the proprietor or possessor of the area;
II – the existence of a legal financial contract between the entrepreneur and the proprietor or possessor, for the duration of the mineral activities.
§ 8 Apart from the ecological measures of mitigation or compensation character as foreseen by art. 5 of this Resolution, the title holders for the research and extraction activities in a Permanent Preservation Area are also required to undertake the recuperation of the degraded environment according to the provisions set by § 2 of art. 225 of the Constitution and current legislation which considers compliance with the Plan for the Recuperation of Degraded Areas (PRAD) as an obligation of relevant environmental interest.
Section III
The creation of Public Domain Green Areas within Urban Areas
Art. 8 The intervention or suppression of vegetation of a Permanent Preservation Area for the creation of public domain green areas within urban areas, according to the provisions of the single paragraph of art. 2 of 4.771 from 1965,can be granted by the competent environmental organ conditioned to the provisions set forward in Section I of this Resolution and in compliance with the Master Plan if it meets the following requirements and conditions:
I – can only be located in a Permanent Preservation Area as foreseen by items I, III of line “a”, V, VI and IX line “a” of art. 3 of CONAMA Resolution 303 from 2002, and art. 3 of CONAMA Resolution 302 from 2002;
II – approval by the competent environmental organ for a professional project that prioritizes the restoration and/or maintenance of the characteristics of the local ecosystem and the contemplation of the necessary measures for:
a) recuperation of degraded areas of Permanent Preservation Areas through their inclusion in public domain green areas;
b) re-composition of the vegetation with native species;
c) minimum waterproofing of the surface area;
d) hillside contention and erosion control;
e) adequate flow of rain water;
f) aquifer recharge area protection; and
g) protection of the margins of water bodies.
III – waterproofing and alteration percentages for gardening are limited to 5% and 15% respectively of the total area of the Permanent Preservation Area inserted into the green public domain area.
§ 1 For the purpose of this Resolution, it is considered a green public domain area the public space for ecological, landscaping and leisure purposes which improves the esthetic, functional and environmental quality of cities and containing vegetation and free waterproofing spaces.
§ 2 The technical project must be approved by the competent environmental organ and can include the implantation of public services such as:
a) eco-tourism tracks;
b) b i c y c le la ne s;
c) small leisure parks excluding theme parks and the like;
d) access to and crossing of water bodies;
e) o b se r v a to r i e s;
f) safety, leisure, culture and sport appliances;
g) benches, water closets, showers and public drink water fountains; and
h) ramps for the launching of boats and small boat piers.
§ 3 The provision contained in the heading of this article do not apply to areas with primary or secondary native vegetation at medium and advanced regeneration stages.
§ 4 The population is guaranteed free and no-cost entrance to all green public domain areas.
Section IV
Sustainable Regularization of Urban Land Areas
Art. 9 The intervention or suppression of vegetation in Permanent Preservation Areas for sustainable land regularization within urban areas can be granted by the competent environmental organ, according to the provisions set forward in this section of this Resolution , and the following requirements and conditions:
I – land occupations of residential areas by low income individuals;
II – occupations located in urban areas that have been declared as Special Social Interest Zones (ZEIS) by the Master Plan or through other municipal legislative organ;
III – occupation of urban areas that meet the following criteria:
a) possess a minimum of the three following infrastructural systems: road network, collection of rain water, sanitation sewers, collection of solid wastes, water supply system, electrical energy distribution;
b) demographic density of over fifty inhabitants per hectare;
IV – located , exclusively, within the following area of the Permanent Preservation Area:
a) along the margins of water courses, and around lakes, lagoons and artificial reservoirs according to the provisions of items I and III, line “a” of art. 3 of CONAMA Resolution 303 from 2002, and in item I of art. 3 of CONAMA Resolution 302 from 2002, conditioned to the minimum strips of 15 meters for water courses of up to 50 meters wide and fifty meters in other cases;
b) On the top of hills or mountains according to item V of art. 3 of CONAMA Resolution 303 from 2002 while respecting aquifer recharging areas, identified as such by an act issued by a public power;
c) On beaches, according to line “a” of item IX of art. 3 of CONAMA Resolution 303 from 2002, while respecting a strip of 150 meters counting from the maximum high tide line;
V – consolidated occupations, up to July 10, 2001, as defined by Law 10.257, July 10, 20o01 and Provisional Measure 2.220 from September 4, 2001;
VI – presentation of the Sustainable Land Regularization Plan by the municipal public power that includes, among other provisions:
a) survey of the sub-basin area where the Permanent Preservation Area is located, pointing the passive elements and environmental weak spots; restrictions and potentials, conservation units and fountainhead protection areas for both surface and subterranean waters;
b) physical-environmental, social, cultural and economic profile and an assessment of environmental resources and risks as well as a profile of existing consolidated land occupation;
c) specifications on existing urban infrastructure systems, basic sanitation, collection and destination of solid wastes, public services, green areas with open spaces and vegetation spaces containing native species that facilitate rain water infiltration and contribute to the recharge of aquifers;
d) specification of strips or areas that, due to environmental physical aspects can be regarded as holding the typical characteristics of the Permanent Preservation Area, while respecting the minimum strips defined by line “a” and “c” , item IV of this article;
e) identification of areas considered to be in the risk zone for floods and movements of the rock mass, such as landslides, fall and rolling of blocks, mudslides and other possible risks;
f) measures that are necessary for the preservation, conservation and recuperation of the Permanent Preservation Area, not susceptible to regulations according to the terms of this Resolution;
g) proof of improvements to residential habitat and urban-environmental sustainability;
h) guarantee that the population will have free access to beaches and water bodies; and
i) undertake public hearings.
§ 1 In certain exceptional cases the competent organ may, through a well-motivated decision, reduce the restrictions provisioned by line “a” of item IV of this article in light of the particular characteristics of the occupation and in accordance with standards defined by the competent environmental council which will set specific criteria while respecting the objective of environmental improvement that is the basis of the Sustainable Land Regularization Plan.
§ 2 The regularization of occupations banned in areas identified by the Sustainable Land Regularization Plan as locations that run the risk of being flooded, subjected to mudslides , movements of the rock mass and other possible defined risks.
§ 3 The areas that are the subject of the Sustainable Land Regularization Plan must be foreseen by municipal legislation that addresses the use and occupation of land as Special Social Interest Zones, specifically identifies as areas for popular habitation, according to the provisions of Law 10.257 from 2001.
§ 4 The Sustainable Land Regularization Plan must safeguard the implementation of democratic management tools and other tools for environmental control and monitoring.
§ 5 The Sustainable Land Regularization Plan must safeguard the non-occupation of original untouched Permanent Preservation Areas.
Section V
Temporary Intervention or Suppression with Low Environmental Impact on the Vegetation of Permanent Preservation Areas
Art. 10. Competent environmental organs can authorize interventions or suppressions of the vegetation of any ecosystem within a Permanent Preservation Area.
Art. 11. The following are considered low environmental impact temporary interventions or vegetation suppressions of a Permanent Preservation Area:
I – opening of narrow internal access paths and bridges and small bridges where needed for river crossings or for the extraction of sustainable agro-forestry management products from small properties or rural family possessions;
II –installations needed for the collection and conduction of water and treated effluents, conditioned to legal right to the use of the water, when applicable;
III – creation of a corridor in order to allow access to water for people and animals;
IV – creation of tracks for the development of eco-tourism;
V – construction of ramps for the launching of boats and small piers;
VI – construction of housing for family farmers, quilombola descendant communities and other traditional farming populations living in rural areas of the Amazon or Pantanal, where water supply is carried out by the efforts of the residents;
VII – construction and maintenance of fences for the separation of properties;
VIII – scientific research, as long as it does not interfere with the ecosystems of the area and is not directed at economic exploitation and conditioned to other provisions foreseen in current legislation;
IX – collection of products, except lumber, for subsistence purposes and shifting production methods,
such as seeds, chestnuts and fruits, as long as it is eventual and in accordance with specific legislation that
addresses genetic resource access;
X – plantation of native species for the production of fruits, seeds, chestnuts and other vegetable produce in
altered areas, planted together or in mixed form;
XI – other similar actions or activities, of event character and defines as having a low environmental impact by the state environmental council.
§ 1 All cases, including those acknowledged by the state environmental council, related to interventions or suppressions of the vegetation of a Permanent Preservation area cannot pose any risks to the environmental integrity of these areas, in particular:
I – the stability of hillsides and of the margins of water bodies;
II – fauna corridors;
III – drainage and intermittent water bodies;
IV – maintenance of the biota;
V – regeneration and maintenance of native vegetation; and
VI – water quality.
§ 2 Temporary and low environmental impact interventions or suppression of the vegetation of a Permanent Preservation Area may not, in any case, exceed 5% (five percent) of the property or possession located within a Permanent Preservation Area
§ 3 The competent environmental organ may demand proof from the requesting party , if deemed necessary, that professional studies show that there is no technical or locational alternative to the proposed intervention or suppression.
Section VI
Final Provisions
Art. 12. In cases conditioned to the presentation of EIA/RIMA the entrepreneur must present, until March 31 of each year, a detailed annual report that includes the geographic reference delimitations of Permanent Preservation areas signed by the head administrator and prove compliance with the obligations established for each issued license or authorization.
Art. 13. Unused authorizations for interventions or suppressions of the vegetation of a Permanent Preservation Area must be regularized by the competent environmental organ, according to the terms of this Resolution.
Art. 14. Breaches related to the provisions of this Resolution will import, among other, penalties and sanctions, respectively, foreseen by Law 9.605 from Feb. 12, 1998 and Decree 3.179 from September 21, 1999.
Art. 15. Organs that issue licenses must register these in the National Environment Information System (SINIMA) including licenses issued for construction, plans and activities of public convenience or social interest.
§ 1 o CONAMA will create, within the first year of enforcement of this Resolution, a Working Group within the Technical Chamber for Territorial and Biome Management in order to monitor and analyze the effects of this Resolution.
§ 2 The report by the Working Group that is the subject or the previous paragraph will include the Environmental Quality Report that is the subject of items VII, X and XI of Law 6.938 from 1981.
Art. 16. The demands and obligations foreseen by this Resolution represent obligations of relevant environmental interest.
Art. 17. CONAMA must create a Working Group that will, within one year, present a proposal for the regulation of the methodology for the recuperation of Permanent Preservation Areas.
Art. 18. This resolution shall enter into effect on the date of its publication.
MARINA SILVA – Council President
This text does not substitute the text published in the Official Gazette on March 29, 2006.
