Federal Law 14,285, published on December 30, 2021, promoted changes in the Forest Code (Federal Law 12,651/12), the Land Use and Parcelling Act (Federal Law 6,766/79) and the law dealing with land regularization of occupations on Federal land in the Legal Amazon (Federal Law 11,952/09). The changes specifically affect the Permanent Preservation Areas (APPs) located around watercourses in consolidated urban areas. Among the main changes, municipalities are now entitled to enact local laws to establish extensions of marginal bands of APP differently from those provided for in the Forest Code, taking into account local characteristics.

The newly sanctioned federal standard modified Article 3, item XXVI, of the Forest Code and defines a new concept for consolidated urban area.[1] In addition to being included in the area or in the urban perimeter of the municipality (defined in the master plan or in specific municipal law), the area must meet the following criteria:

  • have a road system in place;
  • be organized in predominantly built blocks and lots; and
  • have predominantly urban use, characterized by the existence of residential, commercial, industrial, institutional, mixed or directed buildings to the provision of services.

In addition to meeting these requirements, consolidated urban areas will be defined by the existence of at least two of the following urban infrastructure equipment/systems deployed: rainwater drainage; sanitary sewage; drinking water supply; electricity distribution and street lighting; and urban cleaning, collection and management of solid waste.

An even more significant modification was made in Article 4 of the Forest Code, with the inclusion of § 10:

"§ 10. In consolidated urban areas, after hearing the state, municipal or district environmental councils, municipal or district law may define marginal bands distinct from those established in item I of the caput of this article, with rules that establish:

I – the non-occupation of disaster-risk areas;

II – compliance with the guidelines of the water resources plan, the basin plan, the drainage plan or the basic sanitation plan, if any; and

III – the provision that the activities or enterprises to be installed in the areas of permanent urban preservation should observe the cases of public utility, social interest or low environmental impact set out in this Law."

Law 14.285/21 included § 5 in article 22 of Law 11.952/09, to establish that the master plans and municipal laws of land use and parceling must determine the limits of the riparian APPs of natural watercourses located in urban areas, with the condition that the state and municipal environmental councils be heard.

Art. 4 of Law 6,766/79 was also amended. With the new wording, the extension of non-buildable areas resulting from natural water bodies in consolidated urban areas (considering the new definition set in the XXVI section of Article 3 of the Forest Code, highlighted above) will be established from its own environmental diagnostic studies, prepared by the municipality, and should also keep in line with the municipal or district laws responsible for the territorial planning of the municipality.

Before Law 14.285/21, there was a controversy involving the treatment of urban APPs. The question is whether it would be appropriate to apply to these cases the Forest Code, with minimum distance fixation ranging from 30 to 500 meters from the edge of the gutter of the regular bed of the water bodies – according to the width of the body of water – or the Land Parceling Law, which seals buildings at distances of less than 15 meters from each of the banks of the watercourse. The controversy was pacified by the thesis signed by the Superior Court of Justice (STJ) in Repetitive Theme 1.010, in which the understanding of the prevalence of the Forest Code was established to set the non-building extension in the APPs of any perennial or intermittent watercourse, in stretches characterized as a consolidated urban area.

From now on, with the edition of Law 14.285/21, each municipality must elaborate a socio-environmental diagnosis, with defined technical criteria, to determine which land extension from the banks of the watercourses in the urban perimeter must be considered app range.

It is worth following the discussions and developments of the theme in the higher courts, even to verify if there will be questions about the constitutionality of Law 14.285/21.

 

[1] Before the issue of Federal Law 14.285/21, the Forest Code used the definition of consolidated urban area established in Federal Law 11.977/09, which deals with the My House, My Life Program (PMCMV) and land regularization of settlements located in urban areas, among other measures.