The Performance Assessment Framework for Economic Regulators (PAFER) was developed by the OECD to help regulators assess their own performance. The PAFER structures the drivers of performance along an input-process-output-outcome framework. This chapter applies the framework to the governance of Brazil’s National Agency for Water and Basic Sanitation (Agência Nacional de Águas e Saneamento Básico – ANA) and reviews the existing features, the opportunities and challenges faced by ANA.
Driving Performance at Brazil’s National Agency for Water and Basic Sanitation
The Governance of Regulators
3. Governance of ANA
Abstract
This chapter describes the internal and external governance arrangements of Brazil’s national water and sanitation agency (Agência Nacional de Águas e Saneamento Básico, ANA). The OECD’s performance assessment framework for economic regulators (PAFER) criteria, which describes roles and objectives, inputs, processes, and outputs and outcomes, provides the structure of the chapter. The first section therefore describes ANA’s roles and objectives, including the organisation’s mandate, functions and powers, strategic objectives, how ANA interacts with other institutions and its level of independence. Next, a section on input looks at ANA’s organisational structure, financial and human resources, and management of those resources. Processes for decision-making, regulatory quality assurance, inspections and enforcement, complaints and appeals, and stakeholder engagement are summarised. Finally, the chapter describes ANA’s outputs and outcomes from two perspectives: the performance of the regulated sector, and the performance of ANA itself.
Role and objectives
This section describes ANA’s role, covering ANA’s mandate and the agency’s functions and powers provided by legislation. The section distinguishes ANA’s mandate as it relates to water resource management (WRM), water supply and sanitation (WSS), or dam safety, and the corresponding differences between ANA’s function, powers, and objectives in these areas. In connection with ANA’s role, the section describes ANA’s strategy, the strategic planning process and the various co-ordination and co-operation mechanisms ANA has in place with public and private entities. Finally, the section summarises ANA’s role in policy and arrangements governing its independence.
Mandate
ANA has a broad mandate to support the efficient, sustainable, and equitable use of Brazil’s water resources by implementing the National Water Resources Policy (PNRH), strengthening the National Water Resource Management System (SINGREH), managing bulk water supply and public irrigation services when under concession, and regulating dam safety (Law No. 12.334, 2010[1]). ANA is also responsible for establishing reference standards for the regulation of public sanitation services by relevant subnational regulatory agencies and supervisory bodies (Law No. 9.984, 2000[2]). ANA’s reference standards relate to four sanitation service areas defined in legislation: drinking water supply; the collection and treatment of sewage;1 urban cleaning and solid waste management; and urban rainwater management and drainage (henceforth denoted as “water supply and sanitation services”) (Law No. 11.445, 2007[3]).
In exercising its mandate, ANA must both consider principles set out by legislation and act in accordance with the Regulatory Agencies Act, which establishes rules for federal agencies relating to decision making, accountability, shared competencies, and collaboration (Law No. 13.848, 2019[4]). ANA’s establishing legislation (Law No. 9.984, 2000[2]), built on by the 2010 National Dam Safety Policy (Law No. 12.334, 2010[1]) and 2020 Sanitation Law (Law No. 14.026, 2020[5]), details ANA’s full competencies. ANA’s main duties can be summarised as follows:
1. Implement the National Water Resources Policy (PRNH): ANA supervises, controls, and evaluates activities relating to water resource management. This involves the implementation, operationalisation and evaluation of instruments defined in the National Water Resources Policy, granting authorisations for, or revoking, the right to use water resources, supervising the use of water resources, including the operation of reservoirs, and collecting and distributing revenues from water use charges in the Union’s domain. Regarding reservoir operations, ANA defines and supervises the conditions of operation of multiple-use reservoirs to ensure water resources are used in accordance with established water resources plans, which ANA supports basin committees to develop. ANA also defines operating conditions for hydroelectric reservoirs together with the national electricity system operator (ONS).
2. Strengthen and support the National Water Resource Management System (SINGREH): ANA supports initiatives to create hydrographic basin committees and supports the implementation of water use charges in the Union’s domain by providing technical studies to the National Water Resource Council (CNRH) based on inputs from basin committees. ANA also provides support to states in the creation of water resource management bodies, conducts research, and delivers initiatives aiming to build the capacity of WRM bodies.
3. Regulating the provision of public irrigation services under concession and bulk water adduction: ANA directly regulates bodies of water in the Union’s domain used for irrigation, where concessions have been granted, and bulk water supply, and manages the provision of these services by setting standards, tariffs and conducting audits.
4. Plan, monitor and supervise critical hydrological events: ANA should plan and promote actions to prevent and minimise the effect of droughts and floods in co-ordination with the National Civil Defence System and in support of states and municipalities. Furthermore, ANA declares critical scarcity situations and subsequently establishes and supervises compliance with water use rules for the duration of the critical event.
5. Co-ordinate and manage the hydrological network and other information systems: ANA promotes the co-ordination of the national hydrometeorological network and develops and manages the National Water Resource Information System (SNIRH).
6. Regulate and monitor the safety of dams: ANA manages the National Dam Safety Information System (SNISB), co-ordinates dam inspections and dam safety enforcement agencies, and prepares dam safety reports for the CNRH, in accordance with the National Dam Safety Policy (Law No. 12.334, 2010[1]). This activity focuses on the maintenance of structural and operational integrity of the dams and the preservation of life, health, property, and the environment within the impacted areas.
7. Establish reference standards for water supply and sanitation services: ANA can establish reference standards for the regulation of services including drinking water supply, sewage collection and treatment, urban solid waste management, and urban rainwater drainage and treatment. Thirteen reference standard topics are defined in legislation to be developed, which shall promote the adequate provision of services, stimulate efficiency and economic sustainability, build co-operation between federative entities, and encourage the regionalisation of service provision. Legislation also details the processes through which ANA should establish reference standards, which include best practice evaluation and public consultation.
8. Support and monitor reference standard adoption: ANA will periodically verify reference standard adoption and publish a list of regulatory bodies2 complying with the national standards, thus enabling compliant bodies to access federal public resources. ANA is responsible, as necessary, and as ANA sees fit, to guide service providers and regulatory bodies, as well as prepare technical studies, guides, and manuals, and promote human resource training, all in aid of encouraging reference standard adoption. To ease the adoption process, ANA will detail minimum parameters of compliance when establishing reference standards and consider local and regional conditions when designing methods and processes. ANA may also mediate disputes between subnational regulatory agencies, supervisory bodies, and service providers when invited to do so by the conflicting parties.
Functions and powers
ANA’s functions and powers differ between the three areas – water resource management (WRM), dam safety, and water supply and sanitation (WSS) services – in which it exercises its legislated duties and mandate (Table 3.1). In water supply and sanitation, ANA’s function is that of standard-setter and capacity-builder, developing national reference standards, and overseeing and supporting their adoption by subnational regulatory agencies. In water resource management, where ANA’s role and responsibilities are more established, ANA’s regulatory functions relate primarily to the granting of water rights, but only in relation to bodies of water in the Union’s domain – meaning rivers crossing state boundaries within Brazil, or international boundaries between Brazil and neighbouring countries.
Due to the nature of Brazil’s constitution and the extent of delegated power to states and municipalities, in both the WRM and WSS context, ANA’s regulatory powers can be limited. Frequently, decision-making is devolved to groups of stakeholders who are required to collaborate and reach a consensus before acting. Additionally, ANA’s ability to gather information or enforce best practice may depend on other regulatory agencies at the subnational level.
ANA communicates decisions and directions through the publication of Resolutions (Resoluções), which cover regulatory actions such as the granting of use rights, the issuing reference standards, and the publishing ANA’s regulatory agenda. For internal policies and decisions, ANA publishes Ordinances (Portarias).
ANA does not have the power to propose secondary legislation, audit businesses, impose or ban a particular technology, impose structural remedies, veto the investment plans of operators, or to conduct market investigations without prior direction from the executive, judiciary, or by delegation from a relevant authority.
Table 3.1. Overview of ANA's independently held or shared powers
Source: Information provided by ANA, 2023.
Reference standard development
ANA was placed at the centre of reforms to the water and sanitation services sector with the introduction of the 2020 Sanitation Law (Law No. 14.026, 2020[5]). Although the decentralised, multi-level system created by the 1997 Water Law, valued for its alignment with the principles of the democratic transition, is still intact, ANA’s new responsibilities granted under the 2020 Sanitation Law are symbolic of a shift in authority within the water supply and sanitation ecosystem. Subnational regulatory agencies and supervisory bodies are envisaged to adopt ANA-issued standards, though compliance is formally voluntary, and certain standards and constraints will be applicable to local authorities that were previously not subject to federal oversight and had historically defined their own regulatory frameworks.
Since 2020, ANA has introduced three reference standards, relating to the provision of urban solid waste management services (SMRSU),3 the standardisation of amendments to concessions and contracts for the provision of drinking water supply and sanitary sewage services, and asset compensation. Five further standards on quality and efficiency indicators, regulatory governance, risk management, defining regulatory models for tariff regulation, and progressive targets for universalisation are undergoing public consultation at the time of writing.
Although legislation identifies 13 reference standard topics (Law No. 14.026, 2020[5]), ANA is working to publish up to 16 reference standards during the 2023-24 period. This work is detailed in ANA’s published “Regulatory Agenda” for the 2022-24 period (ANA, 2022[6]). Standards can focus on more technical matters, such as tariff-setting, or the construction of governance arrangements (Table 3.2).
Table 3.2. Reference standards included in ANA's regulatory agenda, 2022-24
Note: Consultation status current at time of writing – November 2023.
Source: (ANA, 2022[6]).
Besides defining the basic sanitation reference standards, ANA is working on a host of other regulatory measures, relating to hydrological monitoring, the operation of reservoirs, fiscal oversight, and other themes, which are due to be drafted and introduced as part of the 2022-24 Regulatory Agenda (ANA, 2022[6]).
Institutional co-ordination
Delivery of ANA’s duties in water resource management and water supply and sanitation requires significant collaboration and the effective co-ordination of various actors. A mix of public and private actors at the municipal and state levels hold responsibility for the governance, procurement, and provision of services. The sector matrix and ANA’s own stakeholder map are complex, even if considering interactions between only public sector entities.
To complicate the picture further, Brazil’s recent elections have created some instability and uncertainty around the assignment of ministerial duties. First, responsibility for policy in the WRM and WSS sectors are led by two different ministries, the Ministry of Integration and Regional Development (MIDR) and the Ministry of Cities, respectively. Second, during the first six months of 2023 and the new government, ministerial oversight of ANA shifted twice, from the MIDR to the Ministry of Environment and Climate Change, and then back to the MIDR. Newly formed Ministries of Planning and Budget and Management and Innovation in Public Services are responsible for scrutinising or authorising ANA’s budget and human and financial resource management. Several other ministries remain important for the WRM and WSS sectors due to cross-sectoral linkages or dependencies.
ANA enjoys a degree of discretion in how it interacts and collaborates with the other public bodies active in the sector. Many of these relationships are a function of each institution independently working to fulfil their legislated roles, with most sector legislation encouraging policy integration, regulatory coherence and collaboration (Law No. 9.984, 2000[2]) (Law No. 14.026, 2020[5]) (Law No. 9.433, 1997[7]). However, primary legislation is often not explicit as to how inter-institutional arrangements should work in practice, nor if co-ordination mechanisms should be formalised, for example by technical agreement or memoranda. ANA has the option to develop joint normative acts with other regulatory agencies, where problems arise from the actions of economic agents who are subject to multiple sectoral regimes, as well as the option to delegate some competencies to subnational regulatory agencies, though in limited circumstances and according to strict criteria (Law No. 13.848, 2019[4]).
Table 3.3. ANA’s co-ordination with public entities at the national level
Source: OECD analysis of ANA inputs, June 2023.
Co-ordination with subnational entities
A particular characteristic of the regulatory environment in Brazil’s WRM and WSS sectors is the prominent role played by subnational entities, thanks to delegated powers under the constitution and the devolved, participative decision-making processes included in subsequent sector legislation (see Chapter 2). There are a range of subnational entities involved in governance, supervision, and service provision (Table 3.4).
In relation to WRM, ANA interacts with state and basin-level entities, including state governments, who are responsible for the development of WRM policy at the state level, state water resource councils (CERHs) and executive management bodies (OGERHs), and basin-level management agencies and committees (CBHs). ANA does not tend to interact with municipalities in the context of water resources management. There are 27 CEHRS, 27 OGERHs, and 242 basin committees, of which 232 relate to state river basins and 10 to federal river basins. ANA holds direct powers to regulate water resources within the Union’s domain, however at the state level, regarding the management of state rivers and bodies of water, ANA is required to co-ordinate closely with state water management agencies and basin committees to strengthen the SINGREH system and deliver the PNRH.
In relation to its roles in WSS, ANA interacts with states and municipalities directly, with government representatives and executive management agencies, in addition to the state and municipal level regulatory agencies responsible for water supply and sanitation.
Brazil has a large number of subnational regulatory agencies involved in water supply and sanitation: a total of 89, including 47 municipal, 16 inter-municipal, and 26 state regulators.4 Importantly, whilst ANA dedicates significant resource to capacity-building at the subnational level and acts to co-ordinate and collaborate with subnational actors, ANA cannot impose its national reference standards on state and municipal agencies, adoption is voluntary.
Table 3.4. ANA’s co-ordination with subnational bodies
Other co-operative arrangements and international projects
In addition to the arrangements listed above, ANA has established several co-operative arrangements. These include technical co-operation agreements (ACTs), Terms of Decentralised Execution (TEDs), Memoranda of Understanding (MoUs), and contracts with a range of national and international entities to aid co-operation, some relating to capacity building initiatives around the new regulatory framework, others relating to more technical aspects of delivery, or to conduct research to provide inputs for regulatory activities involving ANA and subnational entities.
Table 3.5. Selected examples of ANA co-operation agreements with other entities
ANA is an active participant in many cross-border initiatives and international fora for the exchange of knowledge. ANA can negotiate and sign its own international co-operation agreements, many of which are with neighbouring countries with responsibilities for shared water resources. ANA participates in regional networks and initiatives, such as the Conference of Ibero-American Water Directors (CODIA), World Water Council (WWC) and the CPLP Directors of Water Resources (DRHs). ANA has systematic engagement with the Amazon Cooperation Treaty Organisation (ACTO) and with the Inter-governmental Co-ordinating Committee of the La Plata Basin Countries (CIC Plata).
ANA engages internationally to gain input and understand how it can improve its own performance, but also co-operates with institutions to provide support, especially in developing country contexts. ANA does not represent Brazil on the international stage from a policy perspective, in relation to WRM or WSS policy. Executive bodies, particularly the Ministry of Foreign Affairs and, for regulatory policy issues, the Ministry of Development, Industry and Foreign Trade, hold this responsibility on the international stage.
There are a number of international organisations that provide advice and services to ANA under contract or via other arrangements, these include: an International Technical Cooperation Project (PRODOC) with the United Nations Development Program (UNDP); a protocol of intent with the UK embassy in Brazil for technical co-operation; an MoU with the Australian Department of Foreign Affairs and Trade for co-operation in the field of water management; a Brazil-France technical co-operation programme (HIDROSAT) to improve satellite imaging and telemetry for hydrological monitoring; and other capacity building and training programmes with the United States Geological Survey, US Army Corps of Engineers, the Inter-American Development Bank, the IRD (Institut de Recherche pour le Développement) of France, and Spain’s Directorate General of Water.
Input to policy
At the national level, policy development and approval in the areas of water resource management and water supply and sanitation are the responsibilities of the relevant executive and legislative bodies (see Table 3.3, or Chapter 1 – Institutional and Sector Context). Committees in both the executive (inter-ministerial) and legislative branch (congressional), for example the Inter-Ministerial Committee on Basic Sanitation (CISB) or the Senate Environment and Sustainable Development Committee, are important fora discussing policy approaches.
ANA maintains regular contact with individual representatives and committees via bi-lateral meetings and formal responses to calls for evidence, or requests to attend public hearings. ANA’s parliamentary affairs unit (ASPAR) co-ordinates ANA’s representation in Congress and monitors the progress of legislation. In most cases, ANA’s Director-President, or other board members, together with relevant technical experts (Superintendents), represent the Agency in policy discussions or provide evidence.
There are areas where ANA has legal requirement to review regulation or provide support, for example, to conduct a review of the regulatory stock to test coherence within two years of the appointment of a new President of the Republic, or to support the CNRH in the review of the National Water Resources Plan every four years.
At the subnational level, in exercising its legislative duties and engaging with basin committees, subnational regulatory agencies and supervisory bodies, and other stakeholders, and through its capacity-building projects, ANA can provide meaningful input to policy development. ANA is respected for its technical expertise and may also be invited to provide guidance through more informal channels with state or municipal level actors.
Independence
The autonomy of regulatory bodies has traditionally been a political and controversial topic in Brazil. Brazil returned to democracy in 1985, with a constitution in force from 1988, and Brazil’s economy experienced hyperinflation and recession in the following years until 1994. As Brazil’s economy moved to a state of greater openness in the 1990s and market operations adjusted, there was a lack of political consensus on the organisation of the state apparatus. The notion of delegating significant regulatory powers to independent bodies, independent of direct executive supervision, was therefore not without opposition (OECD, 2021[8]).
Despite this earlier context, a framework law for national regulatory agencies was enacted in 1999, amending earlier legislation which governed existing regulators in Brazil, for example ANEEL in the electricity sector. The 1999 law reaffirms the autonomy of regulators and the absence of tutelage or hierarchical subordination. The framework law sets out a decision-making process that involves accountability to the National Congress, with assistance from the TCU (Law No. 13.848, 2019[4]). The key elements of external control outlined under the framework law are requirements for annual planning and activity reporting, and considerations or parameters to guide the decision-making process and regulatory agenda. However, these parameters remain high-level and allow regulatory agencies significant flexibility for designing their own internal processes. ANA can receive guidance from the government regarding its long-term strategy, but not its work programme, individual decisions, or appeals. Only a court can overturn decisions of ANA as part of a judicial process.
As for all independent regulatory authorities, there can be a discrepancy between de jure independence by law and de facto independence in practice. Given the context of significant public ownership and social policy intervention in the sector, there may be moments of increased political or societal scrutiny of ANA’s decision-making. There are two areas, to a greater and lesser degree, where there is executive oversight, these are in the approval of ANA’s operating budget and the approval of human resource management decisions.
To date, there have been no significant modifications by the Ministry of Planning and Budget (formerly Ministry of Finance) to ANA’s budget proposals, which were presented to the legislature and approved as proposed in each of the last five budget rounds. It is a legislative requirement, more formality, that ANA submits their budget proposal to the executive, which forwards the proposal for voting and approval to Congress. However, at the current time, ANA also engages frequently with executive bodies to design the budget proposal, understand fiscal limitations, and agree discretionary budget prior to submission, and therefore uncertainty is a constant source of risk for ANA’s long-term projects and capacity-building (see Input). Despite uncertainties around long-term funding, ANA executes its budget independently, allocating funds to its strategic projects based on its own prioritisation. The successful launch of four “payment-on-delivery” projects at the national level illustrates this autonomy: Progestão, Qualiágua, Procomitês and Produtor de Água.
Regarding human resources management, the executive has, over the past financial year, taken precautionary steps to limit the hiring of permanent civil servants by ANA and other regulatory agencies by rejecting requests to hold civil service examinations, a mandatory part of the recruitment process. This was due to general budget limitations rather than the performance of regulators or the merits of their request, but still, this constraint substantially impacted ANA’s business continuity. At the time of writing, the executive has authorised ANA to conduct examinations for 40 permanent civil service positions, which represents a lifting of the constraint, but this hiring will still not be sufficient to fill all vacancies caused by retirements. Permanent civil servants have certain capabilities under law due to their position, and so cannot be easily replaced by temporary or outsourced staff (see Input).
Strategic planning and objectives
As is the case for other federal regulatory agencies in Brazil, legislation requires ANA to define a strategic plan for a four-year period, detailing the objectives, goals and expected results for the agency, considering any relevant managerial, supervisory, or regulatory responsibilities (Law No. 13.848, 2019[4]). ANA publishes the strategic plan on its website following approval by ANA’s Board of Directors and notifies the legislature and Federal Court of Accounts.
Mission, vision, and values
Following the assignment of new roles under the 2020 Sanitation Law, ANA updated its strategic objectives, including its mission and vision statements. ANA’s vision is to “be recognised as a model for the management and regulation of water resources, and reference for basic sanitation”, whilst ANA’s mission is to “guarantee water security for the sustainable development of Brazil and contribute to the universalisation of provision of sanitation.”
ANA’s new strategic plan, which covers the period 2023-2026, uses a balanced scorecard (BSC) model which aims to ensure that components of the strategy – objectives, indicators, goals, and initiatives – remain consistent and aligned to the organisation’s mission. The implementation of the strategic plan is guided by the organisation’s values of integrity, commitment, transparency, technical excellence, and co-operation, as well as a set of public service values (ANA, 2023[9]).
Figure 3.1. ANA’s Strategic Map, 2023-26
Source: ANA (translated from original).
Strategic and operational objectives
ANA’s strategic plan sets out 20 strategic objectives, which are organised into 11 strategic “themes” and three “perspectives”, or output areas (Table 3.6). Each strategic objective has at least one quantitative strategic indicator or measure defined which can be tracked on an annual basis (Table 3.7), as well as operational targets and strategic initiatives for the period which may be assessed on a more qualitative basis. Each indicator, operational target and strategic initiative is assigned to a divisional unit (Superintendency) within the organisation. In many cases, the operational targets are informed by the National Water Plan (2022-2040), whilst the strategic objectives incorporate other legislated requirements relating to ANA’s role in WRM and WSS (ANA, 2023[9]).
In addition to the objectives, targets, and mission and vision statements, ANA’s planning identifies a series of supporting processes and enabling factors, which are presented as a “value chain”, essential for achieving the institutional mission in line with public values. These enabling factors cover high-level management processes, outcome processes and support processes, such as institutional relations and legal compliance (management), the standardisation of basic sanitation regulations (outcome), and IT and people management (support). ANA also identifies and considers six public values in parallel to its legislated objectives when designing the strategy (ANA, 2023[9]):
1. a strong, decentralised and participative National Water Resource Management System;
2. an adequate, safe and stable regulatory environment to promote the universalisation of basic sanitation;
3. multiple-use dams in adequate safety conditions;
4. integrated, reliable and accessible hydrometeorological services, data, and information for users;
5. reduced risk and impact of droughts and floods; and
6. ensuring the multiple uses of water.
Planning and review
To develop the strategic plan, objectives and targets, ANA followed a participative design process involving all ANA staff, including the board, as well as external stakeholders. The planning process for the 2023-2026 strategy lasted approximately two months, starting with an organisational diagnostic, then moving through a series of validation meetings and workshops before the final strategy was drawn-up and signed-off by Directors and Superintendents (senior managers with responsibility for technical portfolios). The organisational diagnostic involved both internal and external surveying, SWOT analysis, and the analysis of reference documents, such as the National Water Plan (2022-2040), the Federal Development Strategy (2020-2031), and previous analytical work including the OECD/ANA report on “Fostering Water Resilience in Brazil” (2022). The board was involved from the start of the development process, providing guidelines and direction following the diagnostic and taking part in workshops directly.
In addition to the four-year strategic plan, the board and senior management approve an annual management plan (Plano de Gestão Anual, PGA), a regulatory agenda (Agenda Regulatória, AR) which is approved separately but incorporated in the PGA, a risk management plan (Plano de Gestão de Riscos, PGR) and an institutional strategic plan (Plano Estratégico Institucional, PEI), in accordance with the framework legislation.
There is no legal requirement for the strategic plan to be reviewed at a certain frequency, only that the plan should remain adequate and compatible with the programme outline in the government’s Multiannual Plan (PPA) and coherent with ANA’s annual management planning. ANA’s Directors may adjust the plan at any point during the four-year period to ensure it remains fit-for-purpose. The AR and PGA provide another opportunity to revisit the strategic objectives, operational targets and overall ambition communicated in the four-year strategic plan on a more frequent basis.
Table 3.6. ANA's strategic objectives, 2023-2026
Table 3.7. ANA's strategic quantitative indicators
Input
This section of the chapter provides an overview of ANA’s organisational structure, providing information on the responsibilities of individual organisational units ahead of later sections focused on the processes and interactions involving these units. Following this overview, the section describes the financial and human resources available to ANA and the ways in which the agency manages these resources, including details on hiring processes and budget management.
Organisational structure
ANA’s organisational structure consists of three main functions or sub-structures: first, the decision-making function, which consists of the Board of Directors and decision support and advisory units; second, the technical superintendencies; and third, the personal advisory units5 attached to Directors:
Supporting the board, the decision-making support units include the general secretariat, the federal attorney’s office, the internal auditor’s office, and internal affairs. Special advisory units, separated in ANA’s bylaws into the management support unit and representation support unit, cover advisory positions related to governance, regulatory quality, international affairs, social communications, and parliamentary affairs. The board is further supported by an internal committee structure, including the governance committee and communications and information security committee (CISC), amongst others.
There are eleven superintendencies with responsibilities for the main technical and administrative portfolios, or the delivery of regulatory processes or projects, which include functions such as information technology and finance and personnel management.
The direct advisory units consist of the office of the Director-President, and the Offices of Directors.
Two independent units, the Ombudsmen and Ethics Commission, are also part of the organisational structure. These units do not formally support the board but are subject to the board’s decisions, for example regarding internal rules, structure, and, in the case of the Ethics Commission, the nomination of its serving members.
ANA also displays three management levels, closely related to the organisational structure: the Collegiate Board of Directors, the superintendents (or heads of division), and team or unit co-ordinators. Superintendents are responsible for outcomes and administrative management at the division level, while the team co-ordinators are responsible for unit-level procedures, tasks, and outputs. The decision-making support units are subordinate to the board, as are superintendents, though individual directors and the Director-President take a supervisory role in relation to a portfolio of superintendencies.
The organisational structure is illustrated in Figure 3.2, whilst Table 3.8 and Table 3.9 provide an overview of the primary functions of the organisational units.
Figure 3.2. ANA’s organisational chart
Table 3.8. Scope of functions of ANA’s support and advisory units under the collegiate board
Source: ANA Resolution No. 136/2022 Annex I and II (“Bylaws”).
Table 3.9. The functions of ANA's superintendencies
Source: ANA Resolution No. 136/2022 Annex I and II (“Bylaws”) (ANA, 2022[10]).
Financial resources
ANA’s revenues come from both fees and national budget. The first and largest source of revenue (91%) is derived from water-use charging or industry fees, which consists of two revenue sub-streams: charges levied on hydroelectric powerplant operators, and charges levied on other water users active in basins under the Union’s domain.3 The second source of revenue is the discretionary budget allocation received from the federal government (9%). These two main revenue streams have occasionally been supplemented by small donations from national or international entities for specific projects, and revenues from sanctions (fines) following enforcement action.
Certain revenues are earmarked under legislation for certain uses, making it important to distinguish revenues based on their source. In practice, one complicating factor is that the federal government is involved in allocating elements of both revenue streams – national budget and industry fees – to ANA due to the design of the collection cycle. For example, fees levied on hydroelectric power producers flow through the Ministry of Planning and Budget to ANA.
In the case of water charges levied at the basin level, ANA, or delegated management agencies, collect charges, but these funds are earmarked to enable the execution of river basin plans, and therefore flow in their entirety back to basin committees (through the delegated management agencies), via the Treasury without any contingency withheld. In 2022, these funds represented 36% of ANA’s total revenues (Table 3.10) and ANA cannot redirect these funds from basin committees to other priorities.
Charges levied on hydroelectric power producers, which represented 55% of total revenues in 2022, are earmarked for two main uses: the implementation of the National Water Resources Policy; and the development and maintenance of the National Hydrometeorological Network. ANA receives these funds from federal government and has some discretion to allocate these funds between projects within these two overarching areas as it sees fit, as part of its annual budget execution. In practice, this earmarking aligns with ANA’s water resource management duties under establishing legislation, and still allows ANA to invest in strategic projects as far as they relate to ANA’s mandate in the water resource management sector. Much of this funding flows into projects run by ANA to support and strengthen the SINGREH system, develop and maintain information systems, and to third parties involved in the maintenance and running of the meteorological stations which make up part of the national network.
Finally, ANA’s national budget allocation, which covers operating costs, including staffing costs, is fully discretionary. Upon receipt of the federal budget allocation, which represented 9% of total revenues in 2023 (Table 3.10), ANA’s Board may approve the reallocation of these funds across budget lines, or the withholding of funds for contingency purposes. Importantly, funding for the implementation of ANA’s new duties in water supply and sanitation, of which the development of reference standards and monitoring of their adoption is mandatory, must be taken from ANA’s federal budget allocation. ANA’s allocation rose by 63% in 2022 to account for ANA’s new duties, two years after the introduction of the 2020 Sanitation Law. However, the large proportional increase masks the relatively small scale of the budget allocation for these new duties relative to existing projects in water resource management, and after two years of fiscal latency, delayed workstreams within ANA are competing for discretionary resources.
Table 3.10. ANA's annual revenue and budget, 2020-23
Source: ANA (June 2023).
ANA has successfully negotiated a budget adjustment to increase the amount of its discretionary funding, amounting to 0.75% of the value of the energy generated by hydroelectric power producers multiplied by a reference tariff (TAR), to supplement the national budget allocation. This arrangement is temporary and requires approval on an annual basis, every budget cycle. It would require a change in primary legislation for ANA to be guaranteed the availability of these revenues over the longer-term, for the purpose of delivering its duties under the 2020 Sanitation Law.
There can be a mismatch between the forecast revenues (the proposed budget) and the realised monies collected or received. The cash flows relating to water charges and electricity sector charges must remain in balance and do not involve contingencies, but this is not the case for other revenue sources, which can be adjusted in the interest of fiscal consolidation and rebalancing. In 2021 the actual operating budget exceeded the initial estimation, and in 2022 the reverse.6
The proportion of ANA’s budget allocated to internal organisational units varies significantly and the value of allocations has changed over time (Table 3.11). The largest allocations, excluding staff salaries, are received by the divisional units responsible for the national hydrometeorological network (SGH) and implementing the pillars of ANA’s duties under the PNRH (SAS and STI), which aligns with earmarking rules on budget execution. For 2023, the SGH budget incorporates the cost of maintaining the RHN and the continuation of the Qualiágua programme. Whilst the allocation to SAS includes some funding for capacity-building projects relating to the adoption of reference standards in WSS and related promotion of regionalisation, the core development of reference standards is conducted by SSB, which is projected to receive 4% of allocated funds in 2023 and is facing a reduction in absolute budget relative to 2022. A large portion of SSB’s budget has already been allocated to preliminary studies on reference standard guidelines, conducted under contract with the United Nations Development Programme (UNDP).
Meanwhile, from 2022 to 2023, large increases are projected in the allocations to the social communications unit (ASCOM), to meet needs for outsourcing, and monitoring and inspections (SFI), to cover contracts for fieldwork relating to water-use monitoring, dam safety inspection, and user registration, and related tools and training. After receiving a large allocation in 2020, the budget available for the programmes, project and planning unit (SPP) dropped and has remained relatively low, this is due to difference in the demand for resource between periods of contracting (high demand) and contract execution (low demand).
Table 3.11. Internal allocation of ANA’s budget, by divisional unit
Note: Figures above do not include revenues from charges levied on water rights holders as these revenues are channelled directly to basin committees. Divisional units not included in the table derive their budget directly from SAF: ASGOV, ASPAR, ASINT, ASCOM, SGE, PFA, AUD, OUV, COR, GAB.
Source: ANA.
Research and training
A portion of ANA’s budget, which is internally allocated to SAS, is earmarked for research and external training for water resource managers across the country. In-person and remote training initiatives are also in place, either short or medium term, all free of charge. More than 260 000 people have been trained in these initiatives over the last 20 years.
Part of the budget allocated to support the SINGREH is used for a joint initiative between ANA and CAPES (Coordination for the Improvement of Higher Education Personnel) to provide incentives to students to pursue studies related to water resource management through research projects and professional master's degrees, such as the Professional Master's in Environmental Sciences – ProfCiamb and the Master's Professional in Management and Regulation of Water Resources – ProfÁgua. ANA also incentivises specialisations in specific themes, such as dam safety. ANA's permanent civil servants have access to all trainings provided by SAS.
In addition to this external training initiative, ANA directs resources to complete specific research to deliver data on river basins, for example relating to contamination, or the impacts of COVID-19. The research budget is allocated to the Hydrological and Economic Studies Unit (SHE).
Funding of external entities
Since ANA and its core staff are physically based in Brasilia, ANA has chosen to outsource certain tasks to management agencies or other third-party service providers. One example is the monitoring of water management in areas of recognised water scarcity, such as the Pianco-Prinhas-Açu, São Marcos and Grande River basins.
Additionally, ANA sponsors some civil society organisations, whose functions align with ANA’s responsibilities to promote and disseminate the national water resources policy and regulatory best practices. Some institutions with recurring partnerships are the Brazilian Association of Water Resources (ABRHidro), the Brazilian Association of Sanitary Engineering (ABES), the National Forum of River Basin Committees (FNCBH) and, more recently, the National Confederation of Industries (CNI).
Managing financial resources
Annual budget planning and management process
ANA operates within an annual budgeting cycle where revenues from all sources are foreseen to be collected and executed within the financial year. In practice, ANA’s budget availability, and hence execution, is dependent on several factors, such as water availability for hydropower generation and fiscal consolidation by federal government, meaning in-year budget transfers are rarely distributed evenly over the year.
Aside from achieving balance from a revenue and cost perspective, the annual budget should align with ANA’s objectives, and not breach any of the principles and guidelines outlined by legislation. The laws relating to the Union’s budget planning and the governance of regulatory agencies in Brazil, as well as ANA’s founding legislation the National Water Resources Policy, act together to establish a framework to govern both revenue collection and expenditure (Law No. 13.971, 2019[11]) (Law No. 14.535, 2023[12]) (Law No. 13.848, 2019[4]).
ANA has an internal budget management system – SISPLANA – in place, which SAF and ASGOV use to construct the annual budget proposal (Annual Budget Law Projection, PLOA). As part of the pre-budget proposal phase, ANA’s divisional units contribute their estimates of revenues and costs for their areas of work, identifying priority projects and submitting budget availability requests. ANA also estimates the value of charges levied on water users, from water rights or hydroelectricity production7 respectively, as well as other supplementary revenues, which are provided to the Ministry of Planning and Budget (MPO) in advance. Using these estimates, ANA constructs an annual budget and analyses the expenditure required to cover existing and foreseen contracts and projects.
Whilst the Ministry of Integration and Regional Development and Ministry of Cities are responsible for many of the key elements of the water resource management and water supply and sanitation policy portfolio which relate to ANA’s duties, it is the Ministry of Planning and Budget (MPO) that deals with ANA’s budget proposal, without involving other Ministries. Following any adjustments, the budget proposal is presented to Congress, and ANA enters into direct engagement with Congress to ensure that the funds are allocated as proposed and not restricted, either due to contingency planning, delays or other justifications for non-execution. To date, while there have been attempts to reduce ANA’s operational budget, budgets have been approved as proposed. ANA frequently engages with the MPO, with bi-monthly evaluation meetings, to first develop the budget, then track its execution. ANA may send a request for budget expansion during the budget year to the MPO using a federal system – the Integrated Planning and Budget System (SIOP).
The Annual Budget Law (Law No. 14.535, 2023[12]) does allow for “balances payable”, a budgetary tool where expenses committed in previous years which were not fully paid can be paid in the following financial year, but only if they are included and approved as part of the following budget.
Internal management and transparency
ANA’s Board, supported by the SAF and ASGOV, approve the final budget proposal and allocation of federal funds between internal divisions. The internal SISPLANA system is utilised to co-ordinate the budget planning operations and feedback of the divisional units. Units use the SISPLANA system to log requests for funds and schedule expenditure execution.
To ensure alignment between ANA’s expenditure, the strategic objectives of the organisation, and policy aims, ANA’s Special Governance Advisory (ASGOV) assess all contracts, partnerships, agreements, and other forms of budget execution, in accordance with ANA resolutions and ordinances (ANA, 2023[13])). Currently, ANA does not adhere to any international quality standards for budgetary or financial management and is not required to do so under federal legislation.
To meet ANA’s stated ambition for its activities to be transparent, accessible, and understandable to the public, with regards to their budgetary process, ANA regularly publishes information relating to its budget, revenues, contracts, and agreements on its website. The agency’s expenditure data is also made available through the federal government’s Integrated System of Financial Administration (SIAFI).
Human resources
In 2023, ANA’s workforce totals approximately 559 people, including 373 civil servants, 285 of which (76%) are permanent civil servants approved and appointed following open competitive examinations, and 186 outsourced staff. Of the total workforce, around 5% are senior managers, 33% are technical staff and 62% are support staff.
The total workforce has increased over time since 2019. The number of civil servants in 2023 is 5% higher than in 2019, whereas outsourced staff numbers have increased 11% over the same period. The total headcount of federal regulatory agencies (considering only civil servants) is capped by law, however ANA’s current headcount is currently well below this cap.
Table 3.12. ANA workforce headcount by category, 2019-2023
Source: ANA (June 2023).
Looking at the division of staff by department, the numbers of civil servants and outsourced staff are evenly shared across superintendencies. There appears to be a higher concentration of civil servants in the decision-making function and Director’s Offices, however these two departments combine multiple organisational units, including the decision support and advisory units (see Organisational structure). There is a high concentration of outsourced staff also in the decision-making function and Director’s offices, as well as in the SAF.
Table 3.13. ANA workforce headcount by department, 2023
Note: In this table, support activities, or “non-business” activities, are provided by the decision-making function and director’s offices, including SAF. Main activities, those relating to ANA’s core regulatory business and functions, are provided by the superintendencies (excluding SAF).
Source: ANA (June 2023).
Most of ANA’s civil servants, 285 of 373 (or 76%), are permanent “career” civil servants who have passed open competitive examinations to enter the civil service in Brazil. Civil servants who join ANA without completing a competitive examination are known as “commissioned” or temporary civil servants. The permanent civil servants can only be dismissed if they violate certain laws and hold specific regulatory duties that cannot be performed by other classes of employee at ANA. Permanent civil servants join “career” categories following examinations, and each public sector employer defines its own career paths for civil servants. It is possible that civil servants from other careers, defined by public bodies other than ANA, join ANA via transfer and are administratively integrated into ANA’s system, but they remain within their original career path. The only way to join one of ANA’s career paths is to pass the specific entrance examinations. Currently, ANA’s civil servants fall under four “careers”, which are differentiated based on role focus and the level of educational attainment:
1. Administrative technicians have at least a high school education. This category of civil servants conducts administrative and logistical activities on an intermediate level.
2. Administrative analysts have at least a university education. This group exercises functions related to administrative and logistical activities on a higher level than the category of administrative technician.
3. Specialists in water resources and sanitation, from a regulatory, policy or scientific perspective, have attained higher (university-level) education. This category has attributions focused on the technical regulatory and research activities of ANA.
4. Specialists in geoprocessing also have a higher level of education and meet attributions related to the technical and research activities of ANA.
Permanent civil servants are divided into classes (A, B and “special”) and grades (I-V), which denote the basic salary and allowable performance bonus defined in law. Managers (including superintendents) and senior managers (including directors) at ANA are also divided into classes (CD, CGE, CA, CAS, and CCT) and grades (I-V), though not all these classes are represented at ANA (Law No. 13.326, 2016[14]).
The civil servants that make up the bulk of ANA’s workforce tend to have attained a high level of education and experience (Table 3.14). For example, to hold a class B position, the civil servant must have more than 5 years of relevant experience and 360 hours of specialised training, or 8 years of experience and 240 hours of training. For “special” class positions, which are held by the majority, the civil servant must have at least 14 years of experience and have completed a specialisation course of at least 360 hours, hold a master’s degree and at least 12 years of relevant experience, or hold a doctorate and have at least 10 years of relevant experience.
Table 3.14. Distribution of ANA career civil servants by salary band and ANA career
Source: ANA (June 2023).
Table 3.15. Staff gender balance
Note: In this table, senior managers include superintendents, deputy superintendents, advisors, and directors.
Source: ANA (June 2023).
Women make up 47% of the total workforce, but are a majority within the technical staff category, whilst men make-up the majority for support staff (Table 3.15). Women are under-represented at a senior level, making up 37% of senior positions.
There is a broad range of professional and specialist roles within ANA (Table 3.16), but there is a clear focus on scientific and engineering experience, with only 18% of the workforce specialising in law, economics, administration, or accountancy roles.
Table 3.16. ANA workforce by professional/specialist area
Source: ANA (June 2023).
Looking ahead, given ANA’s new duties relating to the development of reference standards in sanitation, ANA has stated that it will target personnel with a technical understanding of water supply and sanitation services regulation for recruitment efforts. ANA foresees that it will need to develop and expand their regulatory and technical capabilities and will require resources from supporting professions, for example economics, law, accountancy, and engineering. ANA also anticipates the need for skilled IT professionals, data engineers, data scientists and technologists to increase over time.
The rate of turnover in civil servants has averaged 5% annually in the last 4 years, and amongst outsourced staff, the turnover is slightly higher at an average 5.5%. Given anticipated turnover and confirmed retirements in 2023/24, ANA already has plans to recruit profiles with engineering, agronomy, biology, and administration expertise, to maintain existing capabilities.
Recruitment of staff
Different rules and processes apply to the recruitment of different categories of staff at ANA: permanent civil servants, temporary “commissioned” civil servants, outsourced staff, managerial positions, and the board (see Board selection and dismissal).
For permanent civil servants, approval for new positions and the scheduling of civil service entrance exams requires prior authorisation from the Ministry of Management and Innovation in Public Services. Thus, as for other regulatory agencies in Brazil, ANA is subject to federal guidelines and rules which can limit headcount, or delay recruitment activities. Requests by ANA to conduct examinations to recruit permanent civil servants were rejected up until recently, when the Ministry approved examinations for 40 positions. However, this hiring will not be sufficient to fill all vacancies caused by retirements during the period of the hiring freeze.
The selection procedure for permanent civil servants includes a written exam testing knowledge of Portuguese and English, computer skills, sector regulation and technical knowledge, and skills of public administration. Post-graduate qualifications and relevant experience are also assessed as part of the process, but candidates are not subject to any competency-based assessments or in-person interviews. ANA, through an internal hiring commission, initially defines the desired candidate profiles and basic requirements, such as educational background and technical qualifications, but is not directly involved in the assessment of candidates, which is centrally managed by government and outsourced providers. To conclude the selection process, the results of the selection are published, including the name and scores for the selected applicants.
An individual who passes the civil service entrance examinations and is appointed is guaranteed a permanent position following a probationary period of thirty-six months. Civil servants are able to rotate within the public administration and maintain their permanent contract status.
The recruitment of “commissioned” staff is less formal. Civil service entrance examinations do not apply, although ANA must still submit a proposal outlining the recruitment need for ministerial approval, in accordance with legislation (Law No. 8.745, 1993[15]). Commissioned staff may be appointed following a selection and interview process, or may be nominated directly by the board of directors. As noted, there are some tasks and functions that commissioned staff are not permitted to do, and which only permanent career civil servants may carry out. Requirements to become a commissioned staff member are good moral character and reputation and a professional profile or education related to the position. Legislation defines other criteria for ineligibility, including illiteracy, conviction of certain crimes, and dismissal from the public service because of administrative or judicial proceedings (Complementary Law No. 64, 1990[16]).
Non-civil servant outsourced and internship positions follow internal recruitment procedures only, except in the cases of some leadership appointments (see later sections). ANA typically runs a competitive bidding process in line with federal procurement rules to find an appropriate provider for different types of profile, for example secretarial staff. The successful bidder then secures a contract to source ANA with relevant staff when required during the contracted period. Outsourced professionals are ultimately the responsibility of the contractor. ANA may also hire consultants to fill roles when suitable civil services profiles received through the standard application procedure are not available. At the current time, ANA has 16 interns and 186 outsourced staff, of which 141 are support staff working in the decision-making function, Director’s Offices, or the SAF. Outsourced staff may hold contracts of up to five years duration.
Within the public administration, ANA can request staff resource from other institutions and can loan its own civil servants to other institutions. When this happens, the civil servant can opt to remain attached administratively to his/her original institution or be integrated into ANA’s systems. Civil servants remain in their original career path, according to their initial appointment, unless they pass the specific entrance examinations for a new career. Therefore, ANA cannot use the transfer process to recruit specialists in geoprocessing, for example, for the long-term benefit of the agency. At the current time, there are 45 civil servants from other institutions working at ANA, of which 17 are ANA’s administrative responsibility. ANA has loaned out 16 civil servants and has requested a further 35 civil servants on loan from other institutions.
The managerial staff category, also known as “free provision” positions, covers superintendents, special advisors, Heads of Division, and general co-ordinators. In terms of class and grading, these positions at ANA correspond to classes CGE III, CGE IV and CCTV, and are distinguished from higher CGE I, CGE II and CD roles held by the senior leadership (primarily Directors). ANA’s establishing legislation provides an effective cap on headcount for senior managers by specifying the number of CD, CGE, CAS and CCT positions available (Law No. 9.984, 2000[2]).
Managers must meet the same standards established in law for commissioned staff. Appointments for these positions, which are open-ended, are decided by the Board of Directors. Typically, managerial posts are advertised externally immediately, though there will sometimes be a period where internal candidates can express their interest. Equally, the Board of Directors may decide at any time to dissolve a position or dismiss an appointed individual within the role. There is no set timeline for the revision of open-ended appointments and positions within ANA. Generally, positions are reviewed as part of wider organisational transformation, at which point all positions and functions are reviewed against the agency’s mandate and objectives. Any decisions made regarding appointment or dismissal are publicly communicated. It is common for civil servants from within ANA’s career paths to be appointed as managers. At the current time, 69 out of 111 managers at ANA are civil servants from one of ANA’s four careers, 28 managers were appointed from other institutions and other civil service career paths, and 13 managers are non-career civil servants.
All civil servants, commissioned and permanent, are subject to general public service requirements set in law. Civil servants must 1) possess Brazilian nationality, 2) enjoy political rights,8 3) not be limited by military and electoral obligations, 4) possess the education level required for the position, 5) be at least eighteen years old, and 6) be physically and mentally able to fulfil their functions.
All vacancies, temporary or permanent, are made public by ANA, together with relevant details such as salary, job description, career development, and recruitment process, though this is not a legal requirement for temporary positions. Vacancies are promoted via ANA’s website and the federal government’s communications channels, including the Diário Oficial da União (DOU) and SouGov – an online public sector employment portal.
Senior manager and Directors at ANA face post-employment restrictions. These restrictions are detailed in legislation and involve, most notably, a six-month cooling-off period, counted from the date of dismissal, which addresses potential conflicts of interest. Managers of a certain level9 must submit details of their new position in a petition to the federal ethics commission, who will determine the necessary cooling-off period, which is paid. After the cooling-off period, directors and senior managers may hold appointments within the regulated industry (Law No. 9.986, 2000[17]) (Law No. 12.813, 2013[18]).
Remuneration and benefits
ANA has to follow government remuneration policy with regards to its staff, and the remuneration regime for civil servants working in federal regulatory agencies is set-out in legislation (Law No. 10.871, 2004[19]) (Law No. 13.326, 2016[20]). To date, ANA asserts that the fixed salary ranges have not presented any difficulties for finding suitable and qualified staff. With the 2016 legislation, ANA’s civil servants received an effective increase in salaries. Prior to 2016, there were large differences between salaries at federal regulatory agencies and other government departments, which has now been addressed, and salaries at ANA are now viewed as competitive. Relative to the regulated industry, salaries at ANA tend to be higher for the same role and level of qualifications, except for senior management roles, where the private sector provides higher remuneration.
Renumeration tends not to be a reason for turnover amongst staff, the most common reason for leaving the organisation is retirement, with 90% of staff serving for ten years or more.
Civil servants receive additional benefits beyond salary, including job security, paid leave, paid vacation days, social security, transportation allowance, nursery assistance, and health care. The key benefit that distinguishes a civil service career from the private sector is job security. The benefits package is established by legislation and can be updated periodically but is consistent across federal public bodies (Law No. 8.112, 1990[21]). Access to benefits is not dependent on the category of civil servant, only salaries and responsibilities change in relation to class, grade, or status (commissioned or permanent). Additionally, ANA has adopted a management and performance programme that enables flexible working amongst participants, who can opt-in based on preference.
The remuneration of outsourced staff is not fixed by legislation, but, as part of the bidding process and in line with federal procurement rules, SAF conducts a market survey to benchmark the cost of the roles being procured and ensure contracts reflect value for money.
Training
Civil servants at ANA, whether in a technical or support role, have the opportunity to complete short or long-term training courses and apply to receive financial support from the agency. Short-term training describes any courses up to three months in duration. Staff approved to complete courses of this kind continue to receive their salaries. During the 2023 fiscal year, 13 civil servants at ANA have taken short-term courses with this arrangement. This opportunity is not open to all ANA staff, only civil servants. Civil servants may utilise this benefit once every 5 years (i.e., 3 months paid training every 5 years).
Long-term training refers to more substantial academic qualifications, such as postgraduate masters and professional doctorate programmes, which ANA may authorise civil servants to complete with or without leave (i.e., on a full-time or part-time basis). ANA runs a competition amongst internal civil servants interested in completing postgraduate studies to receive fully paid leave. At the current time, 6 employees are completing doctoral studies with a full ANA salary. The 2023 competition for this type of academic support was recently approved by the board and will cover four postgraduate courses, two professional doctorates and two PhDs. For part-time support, ANA can sponsor tuition up to the cost of R$20 000 (around USD 4 000) for specialised training or an MBA, and R$30 000 (around USD 6 100) for professional master’s programmes. In 2022, two civil servants completed part-time studies of this kind with support.
More generally, ANA civil servants are part of an institutional Personal Development Plan (PDP), which establishes some mandatory and voluntary short-term trainings for staff. The 2023 design of the PDP has recently been approved by the board. One central component of the PDP is the investment in language training, with 44 civil servants following English courses and 27 following Spanish courses. The SAS, as part of its role in supporting capacity-building in the WRM and WSS sectors, has developed many short programmes and platform-based trainings, which are also easily accessible to ANA staff.
Performance assessment
Federal legislation provides a framework for the evaluation and promotion of ANA’s civil servants (Decree No. 6.530, 2008[22]), but the tools and mechanisms by which ANA’s staff are evaluated are designed internally, primarily by the SAF, subject to approval of the board. This framework applies only to civil servants.
Under legislation, ANA’s civil servants should be evaluated on their performance with respect to the following minimum criteria: productivity at work, based on quality and efficiency standards previously established; capacity for the initiative; compliance with the procedural rules and conduct when performing their duties; attendance; punctuality; and discipline (Decree No. 6.530, 2008[22]).
ANA’s internal system for evaluating the performance of civil servants involves the use of digital tools and in-person meetings, between the staff members and their respective immediate superiors. The digital tools used also serve the purpose of monitoring progression and promotion, as well as storing information related to training, capacity building and career development, to be reviewed by each employee and supervisor.
As part of the evaluation processes of a staff member, feedback is given from the staff’s supervisors and managers, but is not sought from other colleagues outside of the reporting line, clients, or external partners. Staff are not invited to systematically comment on the performance of their supervisors and managers. Staff have also not formally evaluated the internal systems and processes for performance evaluation, in terms of their implementation, or where they depart from the minimum legal requirements.
To achieve a promotion to a new role, class and grade, a civil servant must show good performance against each of the criteria listed above and have completed any required trainings. Finally, promotion is allowable: annually; when suitable competence and professional qualifications is evidenced; and when a suitable vacancy exists (Decree No. 6.530, 2008[22]).
Process
This section of the chapter describes the processes ANA has put in place, due to legal requirements or voluntarily, to manage and deliver the agency’s roles and objectives and improve performance. A core focus of the section is the decision-making and internal governance processes of ANA, including supporting regulatory processes relating to risk management, regulatory quality, inspections and enforcement, and complaints and appeals management. Finally, ANA’s processes to enable stakeholder engagement increase transparency, and maintain accountability are described.
Decision-making and governance structure
At ANA, decision-making power is concentrated in the board, but internal committees and organisational units play an important role in developing and assessing regulatory or administrative proposals before deliberation. Risk management and quality control procedures are in place to support the board’s decision-making.
The Board
ANA’s Collegiate Board of Directors (“the board”) is composed of five members – four Directors and one Director-President (Table 3.17). Its composition, terms of appointment, competences, and measures to mitigate conflict of interest are established in legislation (Law No. 9.986, 2000[17]) (Law No. 13.848, 2019[4]). Board members should be appointed for non-coinciding terms of five years, where one Director is renewed each fiscal year, although this has not been the case in recent years. The immediate renewal of a Director’s mandate, following completion of a five-year term, is prohibited.
The board is responsible for examining, discussing, deciding and approving matters falling under ANA’s mandate, which are listed in full in the organisation’s bylaws (ANA, 2022[10])and derive from ANA's founding legislation (Law No. 9.984, 2000[2]). Its main functions are: setting strategic direction and developing policy; monitoring organisational performance; ensuring compliance with the law and the organisation’s internal rules and policies; administering contracts, reviewing appeals; and representing the organisation nationally and internationally.
Table 3.17. ANA’s Board of Directors
Note: Current as of October 2023. Acting-Director’s receive a mandate for 180 days, after which a new acting-Director is appointed. A new Director may be nominated by the President and appointed to relieve the acting-Director at any time.
Source: ANA Resolution No. 151/2022 (ANA, 2023[23]).
Board selection and dismissal
Directors of regulatory agencies in Brazil are nominated by the President of the Republic and their appointment is considered and approved in the federal Senate by public hearing.
There are a number of requirements and prohibitions to be considered when appointing a Director or Director-President according to legislation (Law No. 13.848, 2019[4]). Directors must be Brazilian and will have an unblemished reputation, university degree and high reputation in their field of specialty, their academic background must be compatible with the position. Article 5 of the Law 9.986/2000 specifies a minimum level of professional experience for appointees, which may be 10 years of experience in the field of activity of the regulatory agency, at least 4 years holding a management or senior management position in a company in the field of activity, or equivalent level in the public sector or academia, or 10 years of practitioner experience in the field of activity (Law No. 9.986, 2000[17]).
Furthermore, they cannot be an acting Minister of State, Secretary of State, Municipal Secretary or leader of a political party, or a holder of a mandate in the Parliament of any Brazilian state. Directors also cannot hold a position in a union or represent labour interests, have any interested in the regulated sector or regulated entities, or have worked in the last 36 months for a political party or campaign (Law No. 13.848, 2019[4]). ANA’s bylaws (ANA, 2022[10]), which aim to transpose these legislative requirements for Directors and clarify how they apply in the context of ANA’s day-to-day activities, also specify a set of “common attributions” for ANA’s Directors and the Director-President, which could, if deemed applicable, be used by the President of the Republic or Senate during the nomination and confirmation process.
During their term, board members are bound by additional employment restrictions, which can serve as the basis for termination (Law No. 12.813, 2013[18]). They cannot exercise any other professional activities apart from teaching. In addition, members of the board:
Cannot act as a director, trustee, manager, administrative board member, board of auditors member or representative, in any company or society;
Cannot exercise any union or political activity, participate in any company, issue an opinion on matters of their position or act as a consultant, or be in any other situation with a conflict of interest as defined in law (Law No. 9.986, 2000[17]);
Cannot receive any fees, share or dividends.
Directors cannot be in a situation of conflict of interest during their term, defined by law as:
Disclosing or making use of privileged information for personal or third-party benefit, obtained in as a result of activities in public sector employment;
Activities implying the provision or services or the maintenance of a business relationship with an individual or legal entity with interest in the decision of the regulator;
Exercising, directly or indirectly, activities that are incompatible with the duties of the position, even in related areas or matters;
Acting, even informally, as a proxy, consultant, advisor or intermediary of private interests in the public administration;
Acting in the interest of a legal entity that may benefit the public employee, spouse, partner or relatives (by blood or other), participate, up to the third degree;
Receiving gifts from anyone interested in decisions by the public employee or the regulator outside of the limits and conditions established in regulations;
Providing services (even occasionally) to companies whose activities are supervised, controlled, or regulated by the regulator.
Directors lose their mandate in the case of resignation, in the event of a final judicial conviction or conviction by administrative disciplinary proceedings, and for infringements related to the conflicts of interest and forbidden activities noted above.
Decision-making by the board
The board meets once a week in two modes, in a deliberative and administrative capacity. Administrative meetings cover internal management issues, such as procurement decisions and human resource management, and can be held in person or virtually. Deliberative meetings focus on regulatory decision-making, for example decisions on grants for water rights and the review of reference standards, or actions that may have an external or public component, or otherwise have a potential impact on the regulated WRM and WSS sectors, SINGREH, or the interests of “economic agents”.
Deliberative meetings are broadcast live, recorded, and published, and the agenda is shared at least three days in advance for interested parties via the ANA website. Recordings of the session are published via ANA’s social media channels within five working days, with meeting minutes published within 15 working days on ANA’s website. Subject to confidentiality and classification rules, the documents discussed at the board, such as consultation responses and impact assessments, are also made available to the public.
Decisions must be formed by an absolute majority of the votes of its members. Meetings of the board must take place with at least three Directors present, including the Director-President, and the Attorney General must also be present. The regulatory decision-making process is itself the subject of regulation in Brazil, with legislation targeting regulatory agencies (Law No. 13.848, 2019[4]), general public authority decisions with economic impacts (Law 13.874, 2019[24]), and the use of regulatory impact analysis (Decree No. 10.411, 2020[25]). ANA has developed more than 14 Ordinances and Resolutions relating to the functioning of the deliberative meetings, approval procedures, and other internal procedures and processes relating to the Agency’s decision-making.
Directors are assigned to oversee portfolios of two to three technical superintendencies, which are rotated every year, except in the case of SAF which remains supervised by the Director-President (Table 3.17). However, the Directors remain detached to some extent from the superintendencies, and do not, for example, present reports for vote on proposals made by their respective portfolios. Instead, there is a lottery to determine which board member will bring a matter or report to the board for consideration.
Quality control
The Secretary-General (SGE), together with the Offices of Directors and the Director-President, which consist of three advisors per Director, two of which are career civil servants, accompany the board and keep them informed of future issues for deliberation as they develop. Decisions are informed by various available data sources, for example the National Water Resource Management System (SNIRH) or National Information System on Dam Safety (SNISB)10. It is the SGE’s role to assure the quality of the board’s regulatory decision-making process and, supported by the Attorney-General, the procedural correctness and legality of the board’s deliberations.
The board may request superintendencies to revisit and revise proposals in cases where they are not satisfied with quality, for example in relation to the regulatory impact assessment, or require further information and analysis to be conducted.
Internal committees and organisational unit co-operation
Recent legislation has required ANA to develop an internal Governance Committee, in addition to other commissions or committees (Decree No. 9.203, 2017[26]). The Governance Committee is currently composed of the board members, supported by ASGOV as secretariat. The Governance Committee is not a deliberative forum but allows for an open discussion on governance issues raised by internal teams. Issues may relate to risks associated with the PEI, PGA and PGR, the results of internal auditing, and other proposals for improving ANA's processes, instruments, systems, and projects. A communication and information security committee (CISC) is also required by law and was set-up in 2023, comprising members of the Information and Communication Security Management team (GSIC) within STI, and members of SGE, ASGOV, PFA and SAF. The CSIC advises on the implementation of information and communications security actions, sets up working groups, and propose changes to internal policies and norms relating to information and communications security.
ANA is proposing (via the Governance Committee) to develop further sub-committees on data governance (to be combined with the information security commission), digital governance, and regulatory quality. Driving the creation of sub-committees is an understanding a new governance structure could provide a new forum for discussing transversal issues and mitigating the issue of similar problems being solved in different ways in silos across the organisation.
Some competencies and functions are shared by all organisational units, aligned with the overall organisational mandate and strategy. These common competencies are listed and formalised in ANA’s bylaws (ANA, 2022[10]). The bylaws encourage organisational alignment and co-ordination, all units should: support inspections actions; participate in the preparation and monitoring of ANA’s annual planning; establish goals compatible with the PEI and PGA as well as monitor them; co-ordinate human resources and the use of technical and material resources; express opinions about regulatory impact assessments; adopt risk management, internal control and integrity practices; propose topics for the Regulatory Agenda; and support the participation processes that inform the decision-making of the board (ANA, 2022[10]). Furthermore, the bylaws clarify the interaction that should occur between units for certain internal and external processes – where given, these clarifications are summarised in Table 3.8 and Table 3.9 under the unit’s primary functions.
Organisational risk management
ANA has an organisational risk management policy which promotes the identification, analysis, and assessment of risks, and the adoption of risk control measures (ANA, 2019[27]). The methodology, which is set out by ordinance (ANA, 2019[28]) is a 3-level, 3-step process, requiring each organisational unit, as the first level, to classify and evaluate risks, develop a risk management plan, and monitor. The second level of co-ordination and monitoring is ASGOV, and the third level the AUD (Internal Audit), which evaluated the controls implemented by the organisational units. Internal audit carries out its work based on risk assessment, considering evaluations in its annual planning and when determining the scope of its auditing. ANA has established a risk management plan to guide implementation, and an internal IT solution, the SIGEST application, to allow units to conduct follow-up and monitoring more easily.
Risk management processes at the superintendency level are most developed within the SOE and SGH, where risk assessment is a traditional focus for the specialisation. In addition, risk assessment has been incorporated in ex ante regulatory impact assessments for new reference standards in basic sanitation but, still, implementation of risk assessment is inconsistent across superintendencies.
Regulatory management tools
ANA has a number of decision-making and management support units, who work to ensure the quality of decision-making across the organisation, particularly in deliberative board meetings. A key unit in this regard is the Special Advisory for Regulatory Quality (ASREG), which supports the delivery of RIA by superintendents by conducting workshops and has established a regulatory quality programme and manual for the preparation, implementation, and review of the Agency’s regulatory agenda. This unit also proposes strategies to strengthen regulatory practices, guidelines for impact assessment, and administrative simplifications, and will advise the board and superintendencies on suitable methodologies to employ to address different regulatory problems.
The Office of the Director-President and Offices of the Directors also play an important role in providing quality checks and ensuring the formal internal processes are adhered to, whilst the internal audit function (AUD) assesses the suitability of the governance, risk management and internal control processes.
Internal procedures are informed by federal legislation on regulatory policy, assessment, and evaluation, which are undergoing a period of review and development in Brazil. Most recently, decrees supporting international regulatory co-operation (Decree No. 11.092, 2022[29]) and greater regulatory oversight of independent agencies by the executive (Decree No. 11.243, 2022[30]) have been enacted. The latter Decree expands the Secretariat of Competitiveness and Regulatory Policy’s role to co-ordinating Brazil’s regulatory system, promoting collaboration in the interests of simplification, reducing burden, enhancing competitiveness, and establishing common approaches and expectations for stakeholder engagement and ex ante and ex post analysis.
The key institutions acting to organise and implement Brazil’s regulatory policy include the Secretariat of Competitiveness and Regulatory Policy (Ministry of Development, Industry and Foreign Trade), the Civil House (Interior Ministry), the Secretariat of Digital Government, the Inter-Ministerial Council of Governance (CIG), the Council for Monitoring and Evaluation of Public Policies (CMAP), the National School of Public Administration (ENAP) in a consulting and educational capacity, and the Office of the Comptroller General (CGU). In addition to the CGU, which acts as the government’s internal control unit, the Federal Court of Accounts (TCU) provides external control, scrutinising and making recommendations on regulatory quality and regulatory effectiveness.
Assessing and evaluating regulation
ANA is required by legislation to conduct both ex ante assessment and ex post reviews when certain criteria are met, however, the application of ex ante assessments is more systematic and is supported by more established and sophisticated internal procedures.
Ex ante assessment
ANA systematically applies ex ante regulatory impact assessment (RIA) in accordance with the relevant federal legislation, which requires assessment as part of the development of any normative act which may impact the general interest of regulated entities and users of the services provided. The law allows for certain normative acts, primarily those of an administrative and clarificatory nature not enacting substantive changes, to proceed without prior RIA. Additionally, the need for assessment can be waived by the Agency in the event of urgency, when regulatory alternatives are not allowable (for other legal or technical reasons), or when the regulation is aiming to maintain international standards, amongst other reasons (Decree No. 10.411, 2020[25]).
Together with guidance issued by the Interior Ministry,11 legislation sets out requirements for the contents of the RIA technical note, the methodologies to be used, and the communication of the analysis. Following this guidance, ANA considers and assesses the proposal to regulate against the option not to regulate, or other non-regulatory solutions that may be available when conducting assessments. At the time of writing, ANA has not selected any non-regulatory solutions following the board’s consideration of the RIA.
Assessments are initially developed by the relevant superintendency unit(s) before being considered by the board. For regulatory acts included in ANA’s Regulatory Agenda, RIA is part of the decision-making process from the point when the board confirms the regulatory agenda item, if this is required, to the final point of decision. The regulatory decision process is illustrated in Figure 3.3, which shows a compliance assessment before the board considers the act and accompanying impact assessment. There is scope to revisit and adjust the assessment or act, following an obligatory stakeholder consultation process and before the final deliberation by the board. In any case, assessments are required for substantive regulatory actions and must be considered by the board before they can make a final decision.
Figure 3.3. RIA and ANA's process for regulatory decisions
ANA’s ex ante assessments tend to consider costs and benefits in a qualitative fashion, whereas formal quantitative techniques are less commonly used and under development. ANA has signed a co-operation agreement with USACE12 to provide ANA staff with training on the application of cost-benefit analysis.
However, there are examples where ANA’s technical teams have employed multi-criteria analysis during assessments, with estimations of the costs of regulatory burden included as one set of criteria. Though there is little variation in the style and complexity of assessments being carried out by ANA. In other words, once an assessment has been deemed necessary and is due to be carried out, the methodological design of the assessment is not subject to proportionality requirements under law or tailored to the level of potential impact of the regulation being assessed. Furthermore, no distinction is made in methodological terms between the assessment of cost or benefits, primarily due to the prevalence of qualitative assessment.
A recent development at ANA is the establishment of the ASREG and SHE units, which, since the end of 2022, provides clear responsibility, and focus, within the Agency for regulatory quality advisory and the conduct of hydrological and socio-economic studies respectively.13 The special advisory unit for regulatory quality (ASREG) leads RIA workshops with superintendencies, or otherwise provides advice, upon request. Workshops cover all stages of RIA, from defining the problem to designing the implementation and monitoring strategy of the selected alternative. The workshops follow a "learning by doing" approach, combining explanatory lectures with case study examples. The RIA report is prepared based on the results obtained from these workshops.
ASREG also supports the development of RIA by developing and communicating guidelines, methodologies, and tools for conducting RIA (and the evaluation of regulatory results). The recommendations made by ASREG to technical teams before and during assessment development are not binding, but the principles of best practice adoption, standardisation and quality improvement are now embedded in ANA’s bylaws and communicated internally. Furthermore, ANA’s strategic plan foresees and supports the development of guides and frameworks related to regulatory quality for ANA’s purposes. The ASREG unit has already begun to train technical teams on methodologies and modelling and is active in the assessment development process at the points of scoping, calculation, and presentation to the board, but only when requested by the responsible technical teams.
Once the regulatory assessment has been completed, ASREG submits its assessment of the quality of the RIA, the Federal Prosecutor's Office assesses the legal compliance of the draft of the regulatory proposal, and both documents are submitted to the Board.
Ex post evaluation and reviews of the stock of regulation
Ex post evaluation of regulations (referred to as Regulatory Result Assessment, ARR, in Brazil) can be required by legislation under certain circumstances or may be conducted at a regulatory agency’s discretion. In some cases, requirements for ex post evaluation may be set out in sector regulation by the responsible regulatory agency, for example ANA’s Resolution No. 70/2021 requires a five-year assessment of the regulations surrounding operations in the Tocantins Water System (ANA, 2021[31]).
In Brazil, the use and application of ex post evaluation is still under development. However, recent legislation requires federal regulatory agencies to create and publish a schedule of reviews, and to conduct an ARR within three years in those cases when an ex ante assessment was waived for reasons of urgency.
The law defines ex post review as “the verification of the effects arising from the setting in motion of a normative act, considering the original intended objectives and the impacts on the market and society, resulting from its implementation”. Whilst the legislation focuses on outcome evaluation, there are no restrictions on agencies conducting other types of evaluation, for example ex post cost-benefit analysis. Legislation does not go so far as to define the quantitative or qualitative criteria to be included in a review, but some guidance documents have been produced by government for regulatory agencies to refer to14 (Decree No. 10.411, 2020[25]).
For ANA, the first Regulatory Result Assessment following the new legislative requirement was completed and published in 2022, which covered ANA’s normative acts (resolutions) relating to QualiÁgua – ANA’s programme to stimulate the dissemination of water quality data. The review of QualiÁgua took the form of an implementation and outcome evaluation (ANA, 2022[32]). A larger set of 14 normative acts will be subject to ex post reviews under ANA’s ARR Agenda for the period 2023 to 2026.15
ANA manages the regulatory stock under its mandate in accordance with the earlier (Decree No. 10.139, 2019[33]) which defines the frequency of the review and consolidation of regulation and has been supplemented, in (Decree No. 10.411, 2020[25]), by a set of criteria to be considered when choosing the normative acts to include in the agenda for ex post reviews.
ANA’s strategic plan identifies the need to integrate requirements to monitor impact and conduct ARRs into new regulation at the time of its development, to promote the use of ARRs overall. Preparation, led by ASREG, to develop bespoke guidance for ANA teams on the execution of ARRs is underway. Whilst internal guidance is being developed, ANA uses external guides published by Ministries and federal agencies as reference tools.16
ANA’s internal processes for the governance and delivery of ARRs are not defined and enabled by resolution in the same way as ex ante processes, nor has any budget allocated for the purpose. As with ex ante assessment, ANA’s ASREG unit organises ARRs workshops in collaboration with superintendencies, aiming to enhance the quality and compliance of any ARRs. However, it will be the responsibility of the superintendency or technical team that waived the RIA requirement or proposed the inclusion of an ARR requirement in regulation, to complete the ARR. Superintendencies also play a role in suggesting regulation or aspects of regulation to be included in the ARR agenda for scheduled review.
There is no requirement for ex post analysis to be subject to public comment. The technical areas and the board will define in each case whether the ARR report will be submitted to a stakeholder engagement process.
Public consultation
Legislation requires draft regulatory acts with an expected impact on the regulated market or general consumers to be subject to public consultation prior to the board’s decision, and for any consultation responses received to be published. ANA provides transparency in this regard by making available on a dedicated section of its website17 all draft regulatory acts for consultation, in addition to subsequent consultation responses and the final response of the agency.
Where proposed regulatory decisions or consultation documents include a regulatory impact assessment, ANA also makes available the full assessment and any research, technical guides or data used to construct the baseline for proposed intervention and its alternatives. All these resources are made available on ANA’s website, and the RIA templates require plain language and an executive summary, though a “simple language” review is not systematically conducted before publication.18
Beyond the minimum legal requirements, ANA’s bylaws and “guide for drafting regulatory acts” encourage the use of supplementary stakeholder engagement earlier in the regulatory process, for example at the stages of problem definition, solution identification, data gathering and analysis.19 Typically, a “tomada de subsidio”, or early-stage participation process, invites stakeholders to participate in formulating key questions and share perceptions and expectations.20
In some cases, consultations have been arranged during ex post reviews, for example in ANA’s ARR evaluation of the QualiÁgua programme.21 Here, a perception survey was run in October 2020 to gather more information to help evaluate the programme’s impact, based on the perspective of participants. ANA has also developed some outreach mechanisms to engage the most impacted users and explain the rationale behind decisions. For example, ANA ran webinars on the topics of solid waste management and mediation, conciliation, and arbitration procedures22 in 2022, following topics listed in the Regulatory Agenda.
In addition to traditional public consultation documents, in summary, ANA seeks stakeholder feedback through public hearings, townhalls, expert panels, surveys, webinars, crisis rooms (specific to the management of multiple stakeholders during crisis events), and other stakeholder participation channels.23 ANA’s stated aim during participation is to collect supporting information and data, and to provide stakeholders with the option to provide opinions and suggestions, taking as broad an interpretation as possible to the possible relevant aspects of the subject matter.
A participatory approach is mandatory for WRM processes under the PNRH, where stakeholder engagement and decision-making processes are clearly defined – ANA must co-ordinate decisions within the SINGREH system with Basin Committees, which comprise representatives from the federal, state and basin committee levels, and, if their respective areas of activity are impacted, the relevant water users, and civil entities (see Role and objectives). Regarding the development of reference standards in WSS, ANA directly notifies various entities of upcoming consultations and invites them to respond. Those stakeholders to be directly notified include subnational regulatory bodies (including any known delegated supervisory bodies), municipalities, concessionaires, public institutions and private companies, sector associations and unions, state and municipal environmental agencies, and academia.
Given the legislated requirement to consult, and ANA’s internal guidance encouraging supplementary engagement, a key driver of the frequency of stakeholder engagement undertaken by the Agency is, fundamentally, the content of its own Regulatory Agenda.
Inspections and enforcement
ANA’s role in relation to inspection and enforcement differs across regulated sectors, between arrangements for water resource management and for water supply and sanitation services.
Water resource management and dam safety
Regarding water resources, inspection and enforcement actions are co-ordinated between federal (ANA) and state level authorities. ANA independently inspects and enforces compliance with regulations governing water-use for river basins falling within the Union’s domain3 and is responsible for carrying out inspections of multi-use dams, excluding dams used solely for hydropower production, and concessions for public irrigation services and bulk water supply in federal domain rivers.
The National Water Resources Policy (PNRH) sets a framework of co-ordination for the various SINGREH system actors involved in monitoring and compliance, and general guidelines for penalties. However, federal and state authorities may propose their own regulations and approaches to inspection and enforcement in their own domain.
The same is true for dam safety: the National Policy for Dam Safety (PNSB) establishes objectives and guidelines which are interpreted and applied by several institutions and inspection bodies. Each body sets its own policies and guidelines and there is no legislated hierarchy within the federal-state- framework, or even between agencies at the same level, for example, between ANA and the National Mining Agency’s action on, respectively, river dams and tailing dams. However, agencies may co-ordinate actions through Technical Cooperation Agreements to reduce inefficiency and harmonise approaches.
ANA has developed its own regulations regarding enforcement procedures for water use and dam safety at the federal level (ANA, 2020[34]). Furthermore, ANA’s strategic plan sets out new initiatives for inspection and enforcement which aim to ensure efficient management and the maintenance of safety standards. There is a dedicated unit within ANA, the superintendency for monitoring and inspection (SFI), responsible for inspections relating to water resource management, dam safety, the operation of reservoirs and efficiency standards in the provision of public irrigation services under concession, and bulk water supply.
Inspections
Inspections relating to water resource use and dam safety are planned according to an annual timetable based on basin prioritisation and a risk assessment focusing on potential conflicts over water-use. The SFI may add additional inspections to the programme based on intelligence received, for example from whistleblowing, public procedures, or lodged complaints. However, ANA does not typically amend the annual timetable once it is published, and so complaints received within an inspection year will be assessed first by remote means and analysis of evidence already available to ANA. If the complaint is not able to be satisfactorily assessed, the relevant basin or dam can be included in the following annual timetable. It is rare that fieldwork occurs outside of the annual schedule, though this can occur, for example if required by judicial order.
In 2022, ANA conducted 158 notified inspections. Due to the COVID-19 pandemic, field activities such as inspections were reduced, with 236 conducted in 2021, only 103 inspections in 2020, but 614 in 2019 pre-pandemic. Prompted by the impact of COVID-19, ANA’s SFI division has invested in new inspection technologies and data-driven procedures to enable self-monitoring of water resources, remote monitoring using satellites and drones, applications for surveying, navigation and to facilitate the delivery and management of relevant information, which enables greater efforts in document-based compliance analysis.
Due to the command-and-control regulatory model governing water resource use, inspection and enforcement activity is primarily focused on promoting compliance within a framework of set rules and procedures, though the framework criteria to be tested may vary by basin, based on the outcome of prior negotiation between authorities and users at different levels. ANA publishes a “conjuntura” report and strategic assessment which provide aggregate results and data on inspections.
Inspection performance, and enforcement performance in general, is typically judged and communicated using simple indicators which monitor the number of inspections completed and penalties applied. There is no assessment of efficiency or connection made to public welfare outcomes, nor is there any distinction made in the data between different types of regulated entities, for example new business, or historical performance record. ANA have identified the need to develop indicators in this area and incorporate the use of impact assessment techniques to review the resolutions governing procedures for inspection and enforcement activities.
Inspections, especially in emergency situations, may be conducted jointly with subnational regulatory agencies and supervisory bodies. Technical co-operation agreements support this approach and provide a basis for information sharing and joint training on how to run inspections between inspection events. However, information sharing is not systematic, there is no integrated database shared and managed by inspection institutions, as there is for teams co-ordinating within ANA. In cases where ANA has delegated inspection duties, for example to the local water agency ADASA in the Federal District, reporting and data sharing is more developed. Within ANA, superintendencies share information from a system on water rights (REGLA), from the open national register of water users (CNARH) and through internal IT systems.
Sanctions
The various infractions, fine amounts, and criteria for determining the final sanction are clarified and published by ANA (ANA, 2020[34]). Sanctions range from low-level enforcement actions, such as warnings and one-off fines (applicable to dam operators and water users), to recurring daily fines, and more punitive short-term or long-term embargoes (i.e., water-use rights, if applicable). The different levels of financial penalty correspond to the levels of seriousness of infraction. No process of adjustment or proportionality is provided for based on the characteristics of the end-user or operator, except in the sense that action may be proposed to be taken over a shorter or longer timeframe, in accordance with ANA’s resolutions (ANA, 2020[35]).
In the last 5 years, approximately 75% of the sanctions applied by ANA were warnings, 20% were fines (one-off or daily recurring), and approximately 5% were embargoes. Around 70% of the value of applied fines were paid by the non-compliant parties and collected by ANA. About 60% of the fines issued were to users located in Brazil’s semi-arid regions (Piranhas Açu and São Francisco) and in basins experiencing water criticality (such as the Rio Pardo and Rio Verde Grande). The scope of ANA’s planned inspection and monitoring activity, and other analytical work, is not sufficient to know at this time if the sanctions applied, and more generally the fee levels and sanction design, are sufficient and effective.
As detailed in its Regulatory Agenda for 2022 to 2024, ANA is hoping to design and test a different enforcement approach which is closer to the principle of “responsive regulation”, that is, signalling to users the regulator’s commitment to escalate their enforcement response whenever lower levels of intervention fail, but beginning with an assumption of virtue (Braithwaite and Ayres, 1992[36]). Under this approach, ANA will seek to interact more closely with regulated entities in water resource management, instructing and guiding more than punishing. However, before this approach can be operationalised, ANA has identified the need to better understand users, and to build up profiles and indicators that allow remote monitoring in real-time, as well as ramp-up engagement activities. ANA intends to secure agreements with the University of Brasília and Fundação Getulio Vargas (FGV) to complete further studies in this area to better understand the strategic opportunities and any potential legal barriers to implementing a responsive regulation approach.
Water supply and sanitation
ANA’s tasks under the 2020 Sanitation Law to develop and promote the adoption of reference standards in water supply and sanitation is accompanied by responsibilities for monitoring the compliance of subnational regulatory agencies. The legislation requires ANA to publish and maintain a list of regulatory and supervisory bodies that adopt the national reference standards and periodically verify their adoption, at the same time evaluating the regulatory impact and compliance of those bodies. This verification is mandatory when financing is contracted with federal resources (Law No. 14.026, 2020[37]). Water supply and sanitation service providers are out of the scope of this monitoring exercise, which is focused only on the regulatory and supervisory bodies positioned to transpose and implemented reference standards at the subnational level.
However, ANA’s new function is not accompanied by corresponding enforcement powers, which is at odds with OECD best practice recommendations that “all key regulatory functions are discharged by responsible authorities with enforcement powers” (OECD, 2014[38]). Instead of enforcement mechanisms, the 2020 Sanitation Law creates indirect incentives for subnational regulatory agencies to adopt ANA’s national reference standards – notably that the federal government will provide municipalities with access to federal funding contingent on the adoption of standards by their subnational regulatory agencies. The incentive structure’s effectiveness relies on one further element of state-municipal regulatory environment, that is the ability of municipalities to choose their regulatory agency. However, the incentive structure still only functions when federal funding is an attractive reward, which may depend on external economic factors, and it is certainly not the case that municipalities are on a level playing field in terms of financial resources.
ANA’s strategic plan sets targets in water supply and sanitation that shape the institution’s interactions with subnational regulatory agencies, including during inspection and enforcement activity. ANA’s strategic documentation talks about the desire to “be recognised as a model of management and regulation of water resources and a reference for sanitation, and the delivery of an “adequate, safe and stable regulatory environment to promote the universalisation of basic sanitation” (ANA, 2023[9]). Indicators under ANA’s strategic objective OE-04 are directly linked to the adoption of reference standard guidelines (see Outputs & Outcomes). On this basis, ANA has communicated the need to assess, via inspection, the quality of regulation, but also strengthen engagement with subnational regulatory agencies and provide training to encourage adoption and improve regulatory governance.
The process to verify the adoption of reference standards in water supply and sanitation commenced in May 2023. Data is not yet available for assessment in this review; however, the verification process has been developed and published to ensure subnational regulatory agencies are prepared. The adoption criteria, which are the main criteria being assessed during verification, will be detailed within each reference standard, together with the format and timeline of the verification process. Subnational regulatory agencies will be required to first register on ANA’s website to be subsequently scheduled for verification. ANA’s evaluation results will be published, and agencies have the right to request a review in case of disagreement (ANA, 2022[39]). Since monitoring work is only just commencing, there is no enforcement related actions to report relating to ANA’s duties under the 2020 Sanitation Law.
ANA may also draft sunshine regulation, aiming to increase transparency and information provision to support the sector, and which could form the basis of a new ranking or tracking index that compares compliance and celebrates adoption. However, at the current time, this approach is a proposal that remains untested.
Complaints and appeals
Any citizen can file a request before a federal institution in Brazil, whether it is to request public information, to report irregularities, to make a complaint or comment about provision of a public service, or to appeal a decision. Access to public information and consumer protection are considered fundamental rights and public institutions must act to guarantee and facilitate, in accordance with the Federal Constitution and other legislation, including the “Access to Information Law” (Law No. 12.527, 2011[40]) (Law No. 13.460, 2017[41]).
The complaints process
Like other Brazilian regulatory authorities, an embedded Ouvidor, or internal ombudsman, is created to hold the authority accountable to the public. The framework law for regulatory agencies in Brazil harmonised the appointment and responsibilities of the ombudsman across regulatory agencies (Law No. 13.848, 2019[4]). The ombudsman is appointed by the President of the Republic for a three-year, non-renewable term. The ombudsman must have knowledge in public administration or in the regulation of the relevant sectors.
Regarding complaints, ANA’s ombudsman unit (OUV) is responsible for collecting, processing, and responding to complaints from the public regarding the services provided by ANA in accordance with the legislation. The OUV also monitors the quality and timeliness of services provided by ANA and reports internally, via board meetings and an annual Ombudsman report. The OUV’s independent assessment focuses on how the agency manages complaints and appeals, providing recommendations to the board. The OUV’s recommendations focus on ways ANA can improve in its handling of complaints and appeals but may also tackle topics such as ANA’s stakeholder engagement or communications practices, particularly when the OUV’s assessment of complaints content leads to solutions in these areas.24
The following mechanisms are available to citizens to file a complaint or submission to ANA:
Via the central government web platform, Fala.BR, which links citizens to the Brazilian federal public administration.25 Users can register a complaint which will then be forwarded to the relevant institution for processing; or
Via the direct communications channels offered by ANA’s OUV, which include a website, an institutional email, a hotline, a contact point at ANA's headquarters in Brasilia and a correspondence address for postal mail.
Upon receiving a submission by any of these means, the Ombudsman verifies the nature of the complaint and, depending on its characteristics, responds to it or redirects it to the corresponding technical unit. Of the total number of complaints received by the OUV during 2022 (2 225 complaints), only 29% corresponded to issues falling under ANA’s legal competencies.26 Most of the complaints or other requests for information relate to access to information, denunciations (whistleblowing), demonstrations of dissatisfaction/satisfaction, and proposals for improvement or simplification. Of the complaints received not corresponding to ANA’s legal competencies, most related to water supply and sanitation issues.
The appeals process
Regarding appeals, a two-tier process normally applies. First, appeals are made to ANA for an administrative decision (Law No. 9.784, 1999[42]) (ANA, 2020[35]). As noted, appeals may be lodged by any person or organisation whose interests or rights are impacted by one of ANA’s decisions. Appeals must be lodged within 10 days of the publication or notification of the decision being challenged and, from that point, ANA has 30 days (extendable for up to 60 days) to address the complaint and publish the response. ANA does not receive guidance from the government during the appeal review process and no entity, only the judiciary, can overturn ANA’s determinations. For the initial administrative appeal, the board makes a final determination, which may overturn the prior decision of a superintendent or director.
If the board’s determination does not satisfy the appellant, the second-tier judicial process may be launched. In this case, Brazil’s Constitution and federal law outline the separate classes of litigation action27 and the judicial bodies involved in evaluating the claim. It is most common that appeals lodged for judicial review after the administrative process are registered and determined by the relevant state, federal district or regional courts within the federal justice system. To note, appeals relating to information requests follow a separate procedure (see Transparency and accountability).
Based on information provided by ANA as of May 2023, 50 judicial review processes are pending decision. Approximately half, 27 of 50 reviews, are due to public civil actions (a mechanism designed to protect collective and diffuse rights), 10 reviews have arisen after ordinary civil actions (a lawsuit filed by individuals or private entities seeking compensation or a specific action), and 1 process is the cause of popular action (a citizen-led action in the collective interest challenging public authority decision deemed harmful).
In the case of water rights, ANA implements a sunset clause which results in the automatic revocation of usage rights in the event of three years of non-use, or six years of partial use (ANA, 2023[43]). In this scenario, the former rights holders may appeal the automatic revocation, and this is one example of an area where ANA more frequently acts to repeal its determination and reinstate user rights, noting still some exceptions where there are known water shortages and decisions are typically upheld following investigation.
Transparency and accountability
Transparency
As of 2009, regulatory agencies such as ANA have been required to publish and maintain a Charter of Citizens’ Services to improve transparency. The contents of ANA’s charter, which include a list of ANA’s services, access channels, communications channels, procedures, and maximum time for the delivery of services, are governed by legislation (Decree No. 6.932, 2009[44]). ANA published a plain language version of its Charter in 2022 and has also incorporated components of the charter, for example its list of services, as a section on its website.28
In accordance with the government’s Open Data Policy and legislation on access to information (Law No. 12.527, 2011[45]), ANA feeds information on contracts, human and financial resources and strategic planning into a federal government Transparency Portal (https://www.portaldatransparencia.gov.br/). The data is updated in real time and is easily accessible. Most of the data feeding into the portal, particularly on financial and human resources, is collected and organised by the SAF.
Another centralised portal on access to information is maintained by the CGU,29 which shows, from May 2012 to June 2023, ANA received nearly 4 000 information requests (54th highest of 323 public institutions), of which 99.9% have been responded to within an average time of 7.9 days (21st fastest of 323).
Appeals on denied information requests have a separate escalation process, and longer timelines, compared to the process for challenges on regulatory decisions. Appeals on information requests are escalated from the responsible superintendent to the Director-President, the Comptroller-General of the Union (Controladoria Geral da União), or the Joint Commission for Information Revaluation (Comissão Mista de Reavaliação de Informações), who may make the final determination.
In line with accountability rules issued by the Federal Court of Accounts (TCU), information relating to ANA’s management and control is updated throughout the year on the agency’s website.
Accountability
External control over ANA’s activities is provided by the National Congress, supported by the Federal Court of Accounts (Tribunal de Contas da União, TCU) (Supremo Tribunal Federal, 2022[46]).
Separate from ANA’s engagement with Congress for the purposes of policy development (see Input to policy), ANA is required to submit certain information to Congress as part of accountability procedures established in law, including the Constitution and framework law for regulatory agencies (Law No. 13.848, 2019[4]).
ANA must submit its annual activity report, which includes an assessment of compliance with the current strategic plan and management plan, to the Federal Senate and Chamber of Deputies separately, as well as the responsible Minister(s) of State30 and the TCU. Once ANA’s four-year strategic plan and annual management plans are approved by the board, the content of these plans must also be communicated to Congress. Based on the information received, Congress may request that the TCU carries out inspections. However, ANA’s plans are not typically subject to formal congressional debate, instead, the content is more likely discussed by relevant congressional committees in the context of discussions on policy progress and development.
ANA may receive information requests directly from senators and representatives, in some cases this information is to aid policymaking, and at other times a basis for political challenges relating to competency and autonomy, which ANA addresses by also appearing at public hearings to clarify matters relating to the Agency’s mandate and functions. ANA’s ASPAR unit co-ordinates ANA’s representation in Congress and monitors the progress of legislation, though it is usually ANA’s Director-President, or multiple Directors who attend Congress to represent the agency in public hearings of congressional committee meetings.
Information sharing in these fora can lead to the media covering ANA’s activities. A recent example of media pick-up was during the 2021 hydropower crisis, and decision taken around the recovery of reservoirs in the Cantareira System (SP) and Serra da Mesa hydroelectric plant (GO). In the case of Serra da Mesa, the result of the operating rule issued by the Agency (ANA Resolution No. 70/2021) was highlighted in Jornal Nacional on national TV in March 2023.31
The TCU is the supreme audit institution responsible for examining Brazil’s public accounts. The TCU provides external control of ANA and other public entities. It scrutinises ANA’s use of resources and can review and challenge decisions by ANA, based on their merits in terms of efficiency, effectiveness and ANA’s legal competences. TCU analysis can extend to look at ANA’s broader performance as a regulator. The TCU is involved in several ANA processes relating to accountability and transparency – reviewing annual accounts, scrutinizing annual activity reports and other management reporting, liaising with ANA’s AUD unit. The TCU’s investigation and report writing process is iterative and participatory, involving working-level meetings with relevant ANA technical teams, in addition to external stakeholders and civil society representatives.
In exercising its control function and conducting audits of ANA’s activity, the TCU may make determinations, which create mandatory actions for ANA to implement, or recommendations, which ANA may voluntarily choose to implement. The TCU recently provided a set of recommendations for ANA and connected entities (see Output and outcome).
Integrity management
ANA created an integrity programme in 2018 in line with legislative requirements and guidelines from the CGU and has since published annual integrity plans. This government-wide programme is now managed by the integrity management unit (UGI/ANA), a sectoral unit of the System of Integrity, Transparency and Access to Information of the Federal Public Administration (SITAI), established in 2023. The focus of the programme is on the prevention, detection and remediation of corruption and fraud practices, irregularities, illicit acts and other ethical and behavioural deviations, violations or disrespect for rights, values and principles that impact trust, credibility, and institutional reputation. ANA’s internal affairs unit (COR) is responsible for co-ordinating the formulation, implementation and monitoring of the integrity programme at ANA and for disseminating information aiming to promote a culture of public integrity. In line with its duties, the COR unit has produced podcasts, blogs, poster campaigns, workshops, and quizzes,32 with content primarily focused on explaining what constitutes public integrity, building awareness around the value of integrity, and steps public servants may take to develop the organisation’s integrity culture. Annual planning and reporting relating to the integrity programme may include data from surveys, conducted by the CGU and UGI, tracking the awareness and perceptions of ANA’s staff.
Code of conduct and conflict of interest
ANA’s staff, and to a greater extent directors, are subject to several arrangements before, during and after employment, to mitigate conflicts of interest and promote ethical behaviour.
Pre-employment restrictions
Pre-employment restrictions are designed to limit conflicts of interest and the “revolving door” at the level of the board. An individual is not eligible if they or their relatives hold a position as Minister, Secretary of State, Municipal Secretary, or leader of a political party. In addition, candidates (and their relatives) must not hold a position in a trade union or in an association representing labour or employer interests in the regulated industry. Finally, a candidate may not have held a position in the decision-making structure of a political party or electoral campaign for the previous 36 months.
New directors must submit to the Public Ethics Commission a declaration of assets and income that may cause conflict with the public interest (a Confidential Information Statement) (Presidencia da Republica, 2022[47]).
Conduct during employment
Several requirements relating to the conduct of directors, specified by law, have been noted (see Board selection and dismissal). Additionally, directors must notify the Public Ethics Commission with a new Confidential Information Statement during service, whenever there are relevant changes in assets (Presidencia da Republica, 2022[47]).
In general, staff of ANA are not allowed to hold shares or other financial instruments in the regulated sector, and staff need to provide a statement on potential conflicts of interest whenever a conflict arises.
All ANA civil servants are expected to conduct themselves in accordance with Brazil’s Civil Service Code of Conduct. ANA’s Ethics Commission is working to elaborate a version of this code to apply to all ANA staff, but this is currently not in place.
ANA’s Ethics Commission, which is staffed by volunteer members nominated by the Director-President, provides staff with a confidential channel through which to raise complaints regarding the conduct of other staff at ANA, or register other complaints, for example relating to harassment or working conditions. The volume of complaints received by the Ethics Commission rose in 2023, putting a strain on commission members to process complaints – members of the Commission perform their role alongside their full-time ANA career, and have not received special training to deliver on the Commission’s duties.
Another channel to raise complaints may be the Ombudsmen service, and some staff members have used this route, though conduct issues are transmitted by the OUV to the Ethics Commission and to COR (Internal Affairs). Complaints are investigated by the Ethics Commission internally, except in the case of complaints against senior managers, which are escalated to the federal Public Ethics Commission for further investigation.
Post-employment restrictions
Senior manager and Directors at ANA face post-employment restrictions. These restrictions are detailed in legislation and involve, most notably, a six-month cooling-off period, counted from the date of dismissal, which addresses potential conflicts of interest. Managers of a certain level33 must submit details of their new position in a petition to the federal ethics commission, who will determine the necessary cooling-off period, which is paid. After the cooling-off period, directors and senior managers may hold appointments within the regulated industry (Law No. 9.986, 2000[17]) (Law No. 12.813, 2013[18]).
Output and outcome
This section describes the arrangements in place to assess the performance of relevant regulated entities and the wider regulated sector, to assess the impact of ANA’s decisions and activities, and how any assessments, measurement or indicators are used by ANA. Related processes and policies on data management and data privacy are also described.
Data collection and use
ANA’s powers to collect information on the regulated sector and enforce compliance in terms of information provision vary between the WRM and WSS sectors. The division of responsibilities relating to data ownership, collection, analysis and use is summarised in Table 3.18.
Table 3.18. ANA's involvement in sector data flows
Regarding water resource management, ANA has the power to request information and enforce provision of information from users holding water-use rights granted by ANA. These powers may be used in the course of ANA’s planned inspections or enforcement activity, but there is no legal requirement for ANA to regularly collect information from users for these purposes. There may be times when ANA’s annual activity reporting of strategic planning processes require information from regulated entities to make informed decisions or assessments.
ANA’s roles in maintaining the SNIRH and SNISB systems requires more regular, often live, data capture and transmission. For these tasks, ANA may rely on its powers to request information, but in practice, due to the scale of the monitoring exercise, the regulator often manages data collection through contractual arrangements.
For example, ANA collects hydrological data in three ways:
meteorological and hydrological variables are measured in real-time34 via the National Hydrometeorological Network (RHN);
fluviometric and pluviometry data, as well as other hydroelectric operational data, gathered by electric sector operators and transmitted in real-time to ANA under a Joint Resolution ANA/ANEEL (Resolution No. 127/2022);
additional monitoring and water quality information is gathered through the QualiÁgua Programme from state-level institutions. Once data is collected, verified, and analysed by ANA’s staff, it is made available in the SNIRH through various dedicated online portals.35
The RHN is a national monitoring system co-ordinated by ANA in collaboration with other public and private institutions at national and state-level. The data collected by this network is essential for weather forecasting, but more importantly for ANA’s duties because it enhances water management strategies and enables planning and decision-making, for example on the feasibility for granting usage rights, risk management, inspections planning, and the adoption of contingency protocols to guarantee the safety of dams.
Currently, ANA reports that there is risk of contingency in the budget allocated for the acquisitions and maintenance of contracts and partnerships that enable the operation of the RHN, and the logistical challenges associated with operating and developing the network in remote regions such as the Amazon add to this pressure. ANA’s RHN co-ordination team (within the SGH) consists of 25 civil servants and 20 outsourced personnel responsible for managing the hydrological database, controlling the quantity and quality of hydrological data, co-ordinating collection, analysis and development of the data flowing into the SNIRH, and overseeing ANA’s contracts with monitoring stations. Team members have received specialist training in partnership with the US Geological Survey Service, boosting capabilities.
Regarding water supply and sanitation, ANA has the capability to define the evidence required of subnational regulatory agencies that will prove compliance with a given reference standard and is tasked with monitoring compliance. However, ANA does not have the power to enforce information provision from subnational regulatory agencies for compliance verification purposes. Data collection, or the processing of submissions, is only just beginning and new processes established under legislation are being tested for the first time.
Almost all superintendencies have staff with data analysis capabilities, but they are not dedicated fully to this task. Data analytical competencies are a typical attribution of staff within the technical policy units and, with certain ANA civil service careers focusing more on specific policy or scientific analytical capabilities (e.g., geoprocessing) (see Human resources).
Data governance
ANA does not currently have an operational data governance policy, but the ASGOV unit is developing a strategy and Data Governance Committee to help co-ordinate data use and sharing. ANA has identified the need to define data integration requirements, documentation, and other data management tools to increase the efficiency and effectiveness of the organisation as a whole. ANA has recently established the Data Management Coordination team, which will act as executive secretariat for the Data Governance Committee, to facilitate this work across the organisation.
As part of improving the monitoring strategy, ASGOV has two staff members dedicated to analysing data and developing dashboards in PowerBI. At an institutional level, there is currently no systematic review of data requirements and data collection activities, nor any assessment of the usefulness of the data collected and published. However, this is being done in certain areas. For example, regarding the evaluation of the use of hydrological data, ANA is conducting, together with the Institute of Hydraulic Research of the Federal University of Rio Grande do Sul, a study called “Inventory and Evaluation of Costs and Benefits of the National Hydrometeorological Network and the National Water Quality Network”. In addition to better understand the inventory of existing hydrological network and aspects related to network costs and cost-benefit assessment, the study also aims to present a proposal for optimising the hydrological network.
Monitoring and reporting on the performance of the sector
There are a number of outputs or reports relating to the performance of the regulated sector which ANA is required to produce by law, these include:
Water availability and water quality reports, assessing the quantity and quality of water resources in different regions and compliance with quality standards and guidelines (see QualiÁgua programme);
Hydrological and meteorological information systems, providing reports and data for operational purposes;
Water rights reports, assessing the impact of water-use on resources and compliance with rights;
Dam inspection reports and risk assessments, summarising findings on dam structural integrity, operational performance and safety conditions quality reports;
Dam safety reports to the CNRH, summarising the results of all dam inspections and other safety data gathered through document or remote analysis; and
A public list of subnational regulatory agencies complying with ANA’s reference standards for WSS.
On a more technical and operational level, the performance of hydrometeorological monitoring stations (often attached to hydroelectric power plants) is monitored using data collected by the operators of the electric sector and shared with ANA.
Additional, voluntary reporting is drafted by ANA on certain topics, such as ANA’s vision report on achieving Sustainable Development Goal 6.36 ANA’s analysis of indicators relating to SDG6 are periodically published and made available on the SNIRH.37
As part of its reporting, ANA has developed three high-level indicators to help assess the performance of the WRM and WSS sectors (Table 3.19).
Table 3.19. Indicators of regulated sector performance
Source: ANA (June 2023).
As noted, for the monitoring of subnational regulatory agency adoption of reference standards, ANA does not have the power to enforce information provision to verify compliance. Instead, once the relevant submission deadline has passed, ANA would deem the body non-compliant if no submission has been made or the information provided is inadequate. At the time of writing, this type of monitoring is only just commencing, with new processes defined under legislation being tested, and no data available yet to compile the proposed indicators.
QualiÁgua programme
The QualiÁgua programme, created in 2014, aims to incentivise the development of a National Water Quality Network (RNQA) to monitor and assess the quality of surface and groundwater resources across Brazil. The programme helps to fulfil the agency’s legal requirement to disseminate data and information on the qualitative and quantitative situation of water resources in Brazil.38
State-level institutions can voluntarily join the programme and are then contractually obliged to monitor various water quality indicators at strategically located hydrographic basins in Brazil and forward the data to ANA for verification within 6 months. ANA currently has 5-year contracts signed with 24 states. Regarding the implementation of this programme, ANA report difficulties at the state-level, with some institutions and laboratories lacking technical staff or the equipment needed to deliver the parameters.
The ex post assessment (ARR) of QualiÁgua evaluated the performance of the programme through a set of indicators defined by the technical team. The ARR concluded in 2022 and was published on ANA’s website.39
Monitoring and reporting on the performance of ANA
Institutional (strategic and operational) performance indicators have been developed during the strategic planning process and are reported in ANA’s annual management reports,40 which it publishes on its website (see Strategic planning and objectives). The board and managers can monitor progress on indicators using a dashboard available on the agency’s intranet. The data flowing into this monitoring dashboard is collected via an application developed internally by the ASGOV, and the internal budgeting system, SISPLANA, is currently being migrated to Power BI to allow full integration.
There are a large set of strategic and operational indicators, both qualitative and quantitative, derived from ANA’s 20 strategic objectives (Table 3.7) and in the case of ANA’s Regulatory Agenda, overarching indicators of timeliness and execution are used to assess progress, i.e., the volume of resolutions implemented, within the stated deadline.
Annual reports, which includes progress reporting relative to strategic objectives, are sent to the TCU and Congress (see Accountability). The CGU also reviews the annual reports. The CGU is the federal body responsible for safeguarding public assets and promoting integrity in management, through internal control actions and public auditing, amongst other initiatives. The CGU is currently composed of six Secretariats, of which one, the Federal Secretariat for Internal Control is responsible for auditing and overseeing how federal funds are being spent. It is up to the CGU to evaluate the execution of government programs; verify the legality and evaluate the results, concerning the effectiveness and efficiency of the management of federal public administrators, including regulatory agencies.
Since 2014, as a consequence of its technical supervision of ANA’s internal audit function, the CGU has made 14 recommendations relating to ANA’s processes, through the annual internal audit planning (PAINT) and results (RAINT) reporting.
ANA has fully implemented 12 of these recommendations and partially implemented the remaining two.41 The two outstanding recommendations are: first, ANA evaluates the possibility of implementing a continuous program to support states in expanding the national water quality monitoring network and improving the current network, considering, amongst other items, the greater standardisation of analyses, and second, that improvements be implemented in the Hidroweb Portal, to allow the common user more direct ways of obtaining data, including the option of viewing the system without having to use another program, thus providing more clarity and transparency.
In 2021, the TCU undertook a review of the performance of federal agencies involved in the implementation of the new sanitation framework, focusing on ANA and the then Ministry of Regional Development (now MIDR). The summary report released following the TCU’s investigation provides a detailed audit of the actions taken by ANA, and the challenges the agency faces, regarding the delivery of its new duties in WSS and makes several conclusions. First, the TCU recognises ANA’s efforts to adapt to meet its new duties restructure the organisation but highlights how external factors outside of ANA’s control have led to the “non-effective allocation of personnel considered necessary for the timely elaboration of the norms”. The report focuses on ANA’s lack of suitable resources to deliver its roles and, in this context, the overly ambitious and optimistic regulatory agenda (referring to the agenda prior to the current 2022-24 schedule). However, the TCU also highlights ANA’s good practice in relation to stakeholder engagement and the strong participation of stakeholders across Brazil in the public consultation and impact assessment process (TCU, 2021[48]).
Three recommendations were made by the TCU following their review: one recommendation each for ANA, the Executive Secretariat of the CISB, and the Ministry of Regional Development. The recommendation made to ANA was for the agency to adopt measures to provide greater transparency and predictability regarding the elaboration of reference standards, providing subsidies to social control to evaluate the level of implementation and compliance with the regulatory agenda for basic sanitation, as recommended by Law No. 12.527/2011 Art. 8. The TCU also recommended that the MRD, as presiding member of the CISB, act to realise a great number of meeting to increase the effectiveness of the committee, and the Executive Secretariat of the CISB promote efforts to provide institutional and technical administrative support to ANA to support ANA’s impact and effectiveness (TCU, 2021[48]). Despite being conducted in 2021, many of the observations and conclusions of the TCUs review remain relevant and valid at the current time of writing (see Assessment and Recommendations).
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[46] Supremo Tribunal Federal (2022), “Constituição (1988)”, Constitution of the Federative Republic of Brazil., https://www.stf.jus.br/arquivo/cms/legislacaoConstituicao/anexo/brazil_federal_constitution.pdf (accessed on June 2023).
[48] TCU (2021), Summary Report: First stage of monitoring of the satisfactory performance of the federal agencies involved in the implemtnation of the new legal framework of basic sanitation, https://autenticidade-documento.apps.tcu.gov.br/documento?numeroDocumento=72047537.
Notes
← 1. Also described as wastewater collection and treatment, or basic sanitation provision.
← 2. Refers to regulatory bodies at the state, infra-municipal, or municipal levels involved in public sanitation services.
← 3. Approved by ANA Resolution No. 79/2021.
← 4. Please refer to: Infranational Agencies — National Water and Basic Sanitation Agency (ANA) (www.gov.br).
← 5. Under ANA’s bylaws Director’s offices are described as a separate organisational unit with different competencies and attributes in comparison to other organisational units.
← 6. ANA state this discrepancy is due to the delayed payment of water charges, which upon payment were directly reallocated by the Treasury to the management agency for the relevant basin, without flowing through ANA. Therefore, ANA’s initial estimation was higher than the realised operating budget in 2022.
← 7. ANEEL is also involved in the process of estimating revenues from hydropower production, providing input on electricity demand, which correlates with demand for water resource withdrawals.
← 8. Citizens with “political rights” (direitos políticos) are able to vote and participate in the political process (Tribunal Superior Eleitoral, n.d.[145]).
← 9. All civil servants that have commissioned positions of DAS 5 or 6 (in ANA´s case CCT V, CGE I, CGE II, CGE III, CA II).
← 10. The main information systems and platforms used by ANA in its processes include the National Water Resources Information System (https://www.snirh.gov.br/); the Conjuntura dos Recursos Hídricos (https://relatorio-conjuntura-ana-2021.webflow.io) ; the Hydrological Monitoring of the Electric Sector (https://www.gov.br/ana/pt-br/assuntos/monitoramento-e-eventos-criticos/monitoramento-hidrologico/monitoramento-hidrologico-do-setor-eletrico); Telemetry - Hydrological real time data (https://www.snirh.gov.br/hidrotelemetria/Mapa.aspx); Hidrosat – Satellite Hydrological and Water Quality Monitoring; the Reservoir Monitoring System – SAR (https://www.ana.gov.br/sar/); the ANA Bigdata Portal (https://metadados.snirh.gov.br/geonetwork/srv/por/catalog.search#/home); Hidroweb; the Federal System for Regulation of Uses – REGLA (https://www.snirh.gov.br/cnarh/index.jsf); the National Registry of Water Resources Users (https://www.snirh.gov.br/sso/login.jsf?response_type=code&client_id=rq2a439qzx5hq5i&scope=PROFILE%20PERMISSOES%20RESTRICOES&state=IbY4m6Ow344rUcOY2roc834lTBBYdP9Tw-n_Iu_I&ip=10.135.4.2&redirect_uri=http://www.snirh.gov.br/cnarh40/restrito/home.jsf); the National Information System on Dam Safety (https://www.snisb.gov.br/portal-snisb/inicio); the Registry of Dam Safety Regular Inspections – Online (https://www.snirh.gov.br/barragem_inspecao/login.jsf); and the Water right Decision Support System - SSDO ANA.
← 11. Available at: General guidelines and guidance for the preparation of regulatory impact analysis - AIR (PDF) — Civil House (www.gov.br).
← 12. United States Army Corps of Engineers.
← 13. Studies conducted by SHE, and the qualitative and quantitative data collected due to this process, and through other surveys run by SHE, may be used by teams when applying the RIA methodologies as advised by ASREG.
← 14. Guia Orientativo para Elaboração de Avaliação de Resultado Regulatório – ARR, from the Ministry of Economy; Avaliação de Políticas Públicas: Guia prático de análise ex post, from Interior Ministry; Monitoramento e Avaliação de Resultado Regulatório (M&ARR): Diretrizes para implementação de M&ARR na Anvisa, from Brazilian Health Regulatory Agency.
← 15. ANA’s ARR agenda 2023-26 is available at: Regulatory Outcome Assessment - ARR — National Water and Basic Sanitation Agency (ANA) (www.gov.br).
← 16. External guidance on the conduct of ARRs includes: Guide for the Preparation of Regulatory Result Assessment – ARR, from the Ministry of Economy; Evaluation of Public Policies: Practical guide for ex post analysis, from the Ministry of the Interior; and Monitoring and Evaluation of Regulatory Outcomes (M&ARR): Guidelines for the implementation of M&ARR from Anvisa, the Brazilian National Health Surveillance Agency.
← 17. Available at Sistema de Participação Social nas Decisões da ANA.
← 18. In 2020, ANA´s civil servants joined the simple language movement, in partnership with GNOVA, the Government´s Laboratory for Innovation. After identifying the potential challenges relating to the interpretation of ANA’s regulatory communications, particularly those involving hydrological procedures and analysis, ANA began to consider the use of plain language in all communications. Two Action Plans were implemented with a set of initiatives to encourage the use of plain language. More details on ANA’s plain language initiatives is available at: https://www.gov.br/ana/pt-br/acesso-a-informacao/acoes-e-programas/linguagemsimples/linguagemsimples.
← 19. Please refer to ANA Resolutions Nos. 136/2022 and 102/2021.
← 20. This early stage participation process is advertised on ANA’s website (https://participacao-social.ana.gov.br/). Some examples include consultations on the standardisation of self-monitoring of water use by users of water resources granted in bodies of water controlled by the Union (https://participacao-social.ana.gov.br/Consulta/135) and planning the reference standard on progressive goals for the universalisation of public water supply and sanitary sewage services (https://participacao-social.ana.gov.br/Consulta/131).
← 21. Please refer to ANA Resolutions Nos. 643/2016 and 644/2016.
← 22. Webinar Internacional de Resíduos Sólidos, 24/08/2022 available at: https://www.youtube.com/watch?v=u6kbXdxKBfQ&t=4s. Webinário “Guide for Internal Mediation, Conciliation and Arbitration Procedures”, 14/09/2022, available at: https://www.youtube.com/watch?v=3p_1hbhWeDY.
← 23. Other means of stakeholder participation, such as taking contributions, crisis, monitoring and follow-up rooms, public water allocation meetings, public meetings with stakeholders, observatories and technical follow-up groups in addition to consultation and participation processes established within the scope of SINGREH.
← 24. The ombudsmen’s recommendations form its 2022 report can be found at: relatorio-gestao-ouvidoria-ana-2022.pdf (www.gov.br).
← 25. Available at: https://falabr.cgu.gov.br/.
← 26. Annual OUV report available at: relatorio-gestao-ouvidoria-ana-2022.pdf (www.gov.br).
← 27. Legal action in Brazil can generally be classified as: ordinary civil action and/or compensation action; "Mandado de segurança" (Art. 5, LXIX of the Constitution, Federal Law 12,016 of 2009); “Ação popular” (Class action) (Art. 5, LXXIII of the Constitution); “Ação civil pública” (Public civil action) (Art. 129, III of the Constitution); “Ação direta de inconstitucionalidade” (Direct action of unconstitutionality) (Art. 102 of the Constitution).
← 28. The 2022 plain language edition (amending the 2020 version) of ANA’s Charter of Citizen Services is available at carta_relatorio_ana_2020_v6.pdf (www.gov.br), and the website version is available at Serviços — Agência Nacional de Águas e Saneamento Básico (ANA) (www.gov.br).
← 29. Available at: Central de Painéis (cgu.gov.br).
← 30. At the current time of writing this would include the Minster of State for Cities and the Minister of State for Integration and Regional Development.
← 31. Available at: https://g1.globo.com/jornal-nacional/playlist/jornal-nacional-ultimos-videos.ghtml#video-11488525-id.
← 32. Further information is available on ANA’s integrity portal: Integrity — National Agency for Water and Basic Sanitation (ANA) (www.gov.br).
← 33. All civil servants holding commissioned positions of DAS 5 or 6 (in ANA´s case CCT V, CGE I, CGE II, CGE III, CA II).
← 34. Whilst all stations collect data in real-time, approximately 23% of the network is capable of transmitting data in real-time for processing. The remaining stations log data and transmit periodically.
← 35. The Hidroweb Portal, available at https://www.snirh.gov.br/hidroweb/serieshistoricas ; the Hidrotelemetria Portal, available at https://www.snirh.gov.br/hidrotelemetria/Mapa.aspx ; data referring to the top bathymetric surveys necessary to update the elevation – area – volume curves of the electric sector's reservoirs, carried out in the context of Joint Resolution ANA and ANEEL nº 127/2022, are available on the ANA Metadata https://metadados.snirh.gov.br/geonetwork/srv/api/records/b8f0487a-df73-4f8d-8b22-bb49cf9f3683. It should be noted that ANA Bigdata Portal (https://metadados.snirh.gov.br/geonetwork/srv/por/catalog.search#/home ) also provides data in different formats, on different topics related to water resources.
← 36. Relatório de Conjuntura dos Recursos Hídricos do Brasil https://www.snirh.gov.br/portal/centrais-de-conteudos/conjuntura-dos-recursos-hidricos; Relatório Anual de Segurança de Barragens https://www.snisb.gov.br/relatorio-anual-de-seguranca-de-barragem; Relatório Visão da ANA sobre Indicadores ODS6 https://www.gov.br/ana/pt-br/centrais-de-conteudos/publicacoes/ods6/ods6.pdf.
← 37. Available at: https://metadados.snirh.gov.br/geonetwork/srv/api/records/c93c5670-f4a7-4de6-85cf-c295c3a15204/attachments/ODS6_Brasil_ANA_2ed_digital_dupla.pdf.
← 38. See Law No. 9.984/2000, article 4; and Law No. 9.433/1997, article 27.
← 39. The Qualiágua Programme's performance indicators can be found in its ex-post Assessment (ARR) Report published by ANA in 2022, available at https://www.gov.br/ana/pt-br/assuntos/governanca-regulatoria/avaliacao-de-resultado-regulatorio/ARR_QualiAgua_Final.pdf/view.
← 40. Available at: https://www.gov.br/ana/pt-br/todos-os-documentos-do-portal/documentos-aud/relatorio-de-gestao.
← 41. The CGU’s recommendations for ANA can be found in the following reports: https://eaud.cgu.gov.br/relatorios/download/862135; https://eaud.cgu.gov.br/relatorios/download/860421; https://eaud.cgu.gov.br/relatorios/download/857391; https://eaud.cgu.gov.br/relatorios/download/857811; https://eaud.cgu.gov.br/relatorios/download/979630.