Bruno Calfat Advogados represented an association of private sanitation concessionaires, in an Repetitive Demand Resolution Incident (a procedural mechanism used in Brazil to standardize the resolution of multiple cases involving the same legal issue within a tribunal – “IRDR”), that examined the legality of prohibiting the use of alternative water supply sources (artesian wells) in areas served by a public water network within the State of Rio de Janeiro.
The IRDR was initiated with the purpose of resolving the legal controversy regarding the legality of prohibiting the use of artesian wells, as provided for in State Executive Decree No. 40,156/2006 and SERLA Ordinance No. 555/2007 as well as whether the Public Administration exceeded its regulatory authority.
In its ruling, the Public Law Panel of the Rio de Janeiro Court of Justice emphasized that Article 45, §§ 1 and 2, of Federal Law No. 11,445/2007, provides that the use of alternative water supply solutions by private parties is permitted only in the absence of public networks, and that is also prohibited to mix water from an alternative system with water from the public network.
According to the Reporting Judge, “this prohibition aims to ensure the quality of the water supplied and to minimize contamination risks. In addition, such separation is essential to safeguard the integrity of public sanitation systems and ensure the operational efficiency of the public network.”
Based on this and other arguments presented by the association, the TJ/RJ established a binding precedent, effective throughout the State of Rio de Janeiro, holding that “the prohibition of the use of artesian wells as an alternative water source, as set forth in State Executive Decree No. 40,156/2006 and SERLA Administrative Ordinance No. 555/2007, is lawful, since these regulations do not exceed the regulatory authority granted under para. 1 of Article 45 of Federal Law No. 11,445/2007, in cases where water supply is available through the public network.”